OTHYMIA INVESTMENTS BV v. THE NETHERLANDS

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

NORP The applicant company , ORG , is a limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the law of the GPE and having its statutory seat in GPE . The applicant company was represented by Mr PERSON , a tax consultant practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr R.A.A. PERSON , of ORG .

NORP summarised as follows .

On DATE the Deputy Minister of Finance ( Staatssecretaris van Financiën ) gave notice ( kennisgeving ) to the applicant company of the fact that he had been requested by the NORP tax authorities to provide them with information on the relations , the links and transactions between the applicant company and a certain company in GPE as well as information on the bank accounts and the activities of the applicant company with a certain bank .

In the notice sent to the applicant company , the Deputy Minister stated that he had complied with this request on CARDINAL DATE and CARDINAL DATE respectively , pursuant to section DATE ) of ORG ( Wet op de internationale bijstandsverlening bij de heffing van belastingen ) ; as appropriate , LAW DATE concerning mutual assistance by the competent authorities of GPE in the field of direct taxation ; and , as appropriate , LAW on the prevention of double taxation between GPE and the GPE .

The notice , which had been sent pursuant to section CARDINAL(CARDINAL ) of ORG , listed the information and the enclosures sent to the NORP tax authorities . They included the ORG register ( register van aandeelhouders ) of the applicant company ; the DATE accounts ( jaarrekeningen ) of the applicant company for DATE and DATE ; bank statements ; CARDINAL e - mails ; correspondence and other documents concerning the establishment of a certain company ; a statement concerning the owners of shares in a certain company ; and documents that concerned the sale of shares . Part of the information sent had been gathered in the course of an investigation into the applicant company carried out by ORG ) in DATE which had been announced to the applicant company beforehand .

On DATE the applicant company lodged an objection ( bezwaar ) against the Deputy Minister of ORG ’s decision to provide the NORP tax authorities with the requested information . It argued that the provisions stated by the Deputy Minister in his notice could not be relied on as a legal ground for his decision .

After a hearing had been held in the objection proceedings , the applicant company argued additionally that its privacy of correspondence had been violated by the provision of the documents in issue to the NORP tax authorities .

On DATE the Deputy Minister dismissed the applicant company ’s objection . Its argument in relation to the violation of the right to respect for correspondence was rejected because , firstly , the inquiry had been carried out to provide information under ORG ) Act and not under LAW ( Algemene wet inzake rijksbelastingen ) ; secondly , the applicant company had not invoked its right to privacy of correspondence during the inquiry in DATE ; and lastly , the correspondence did not concern the applicant company .

On DATE the applicant company appealed against the decision claiming , inter alia , that its right under LAW had been violated because there had been no legal basis for the provision of the information to the NORP tax authorities . It further argued that it might suffer damage as a result of the Deputy Minister ’s decision , that it would need a judicial decision in order to submit a claim for compensation , and that it had incurred legal costs in relation to the proceedings .

On DATE ORG ( rechtbank ) declared the appeal inadmissible . It held that the applicant company had no standing because it had not substantiated that it had suffered any loss as a result of the Deputy Minister ’s decision to supply the information to the NORP tax authorities .

On DATE the applicant company lodged a further appeal with ORG ( GPE bestuursrechtspraak ) of ORG ( PERSON ) arguing , among other things , that it had an interest in the examination of the lawfulness of the inquiry because the forwarding of its correspondence to the NORP tax authorities constituted an interference of LAW for which there had been no legal basis and the necessity of which in a NORP society was open to serious doubt . The applicant company suggested that this claim warranted an examination on the merits by a judicial authority .

Additionally , the applicant company argued that not only had prior judicial examination of the Deputy Minister ’s decision been impossible , owing to the fact that for “ urgent reasons ” the notice had been given to the applicant company after the implementation of the NORP request , but ORG judgment had also made retrospective judicial examination impossible . This lack of an effective remedy appropriate to its complaint under LAW , so it argued , constituted a violation of LAW .

On DATE ORG of ORG dismissed the applicant company ’s arguments and upheld the judgment of ORG . In relation to the alleged violation of LAW it held that the mere fact that the applicant company wanted a judgment of principle on the issue did not constitute a sufficient interest . It further held that the applicant company had neither substantiated any pecuniary damage nor specified any non - pecuniary damage allegedly suffered as a result of the Deputy ’s Minister ’s decision . The requirement of actual harm did not impinge on the applicant company ’s rights to the point of violating LAW .

At the relevant time , ORG , as applicable to the case before the ORG , read as follows :

“ CARDINAL . The provisions of this Act serve the interest of complying with obligations flowing from Directives of ORG and other international and interregional legal arrangements for the provision of mutual assistance in the levying of taxes , as well as interest thereon and administrative sanctions and fines connected therewith . ... ”

“ CARDINAL . At the request of a competent authority , Our Minister [ of ORG ] may decide to provide them with information which they request and which may serve for the levying of taxes within the meaning of LAW , as well as the interest or the administrative sanctions and fines connected therewith .

NORP Our Minister shall notify the person from whom the information originated and who is resident or located in the GPE of his decision to comply with the request for information . In so doing , Our Minister shall identify the competent authorities who have made the request and specify the information that will be provided .

Unless urgent reasons have given rise to it , the implementation of the request for information shall not take place within DATE after the date that notice ... is given .

When urgent reasons have given rise to it , Our Minister may ... implement the request for information before the person from whom the information originated has been notified . In this case , notice shall be given as soon as possible but not DATE after the implementation of the request . ”

“ CARDINAL . Our Minister shall , if necessary , give instructions for an official of ORG to make investigations for the purpose of providing information as referred to in [ section CARDINAL ] ... ”

“ CARDINAL . Our Minister shall provide no information if :

a. the provision thereof does not flow from obligations under [ ORG Directive CARDINAL/CARDINAL/EEC ] or other obligations under international and interregional law ;

b. ordre public of ORG opposes it ; ... ”

In its relevant parts , the ORG on mutual international assistance in the levying of taxes ( GPE internationale wederzijdse bijstand bij de heffing van belastingen ) promulgated on behalf of the Deputy Minister of Finance by ORG ( directeur - generaal ORG ) ( Official Gazette ( Staatscourant ) of CARDINAL DATE , no . CARDINAL , page CARDINAL ) reads as follows :

“ CARDINAL . Introduction

The relevant international agreements are : the bilateral tax treaties , ... , Council Directive CARDINAL/CARDINAL/EEC ( also referred to hereafter as ‘ the Mutual Assistance Directive’ ) , ... and the bilateral Memoranda of Understanding between the GPE and the various treaty partners . ...

Definition

Mutual assistance in the levying of taxes is the aggregate of possibilities of administrative cooperation between treaty partners . The exchange of fiscal information is a part of that . Carrying out investigations for each other ’s taxation , permitting officials onto each other ’s territory and the setting up of joint controls for internationally operating enterprises are other forms .

The provision of ‘ assistance in levying taxes’ ( heffingsbijstand ) is regulated in the GPE by ORG .

Directive CARDINAL/CARDINAL/EEC

[ ORG Directive of DATE concerning mutual assistance by the competent authorities of GPE in the fields of direct taxation and indirect taxation ( CARDINAL/CARDINAL/EEC , as amended by the Directives of DATE ( CARDINAL/CARDINAL/EEC ) for value - added tax and of DATE ( CARDINAL/CARDINAL/EEC ) for excise duties ) , is part of ORG , or ORG , legislation ( ... ) . The aim of ORG is to strengthen cooperation between the tax authorities of ORG in order better to counter international tax evasion and tax fraud . In the GPE , ORG is implemented in FAC . ...

The provision of data on the basis of ORG

The possibility of obtaining information goes hand in hand with the duty to provide information , whether on request , automatically or spontaneously .

The agreements which create those duties as regards direct taxes and income tax ( inkomstenbelasting ) are ...

- the bilateral treaties ;

- the Mutual Assistance Directive CARDINAL/CARDINAL/EEC ;

ORG provides for the provision of information on request , the automatic provision of information , the spontaneous provision of information and the presence of officials in another country within the framework of a ( simultaneous ) bookkeeping investigation .

ORG sets out in what cases , on what conditions and in what way ORG provides these forms of assistance . The point of departure in each case is the scope of the treaty obligations existing in a given treaty relationship . Without an international obligation the GPE can not provide [ such ] assistance ( ... ) .

DATE . Speediness and time - limits

In view of the time - limits for tax adjustments , which exist also in other states , it is important to deal with a foreign request for information as speedily as possible . Speedy handling of the request by the GPE will also increase the willingness of the foreign competent authority to deal with GPE requests rapidly . The same applies to the back - reporting of results . It is therefore important that a request for information from abroad is answered within DATE after it is received at ORG unit ( PERSON ) . In urgent cases , the aim is to reply within DATE . ...

Notification

If the information can be given , ORG ( LOC Inlichtingen- en ORG , ‘ FIOD’ ) will prepare a notification for the interested party on the basis of section CARDINAL(CARDINAL ) of ORG . If there is no fraud or urgency , the interested party will be informed of the information to be provided before this is done . Provision of the information will be suspended for DATE from the date of the notification . In this context , ‘ interested party’ means only the person from whom the information derives and who is resident or based in the GPE .

By means of this notification , the interested party is informed of the decision to provide information concerning them to a foreign competent authority and a description of the information to be provided is given . An objection and an appeal are possible against this notification .

An objection and/or an appeal can result in the information to be provided , or actually provided , to be corrected . A request for a provisional measure can suspend the provision of the information to the foreign authority ( ... ) .

Mandate to the Director General of ORG

The Deputy Minister of ORG has appointed the Director General of ORG to act in his name as the competent authority ... and to decide in his name on the basis of section CARDINAL of ORG ( the provision of information on a request from abroad ) , ... ”

As relevant to the case before the ORG , and as in force at the time of the events complained of , Council Directive CARDINAL/CARDINAL/EEC of DATE provided as follows :

“ CARDINAL . In accordance with the provisions of this Directive the competent authorities of the Member GPE shall exchange any information that may enable them to effect a correct assessment of taxes on income and on capital .

There shall be regarded as taxes on income and on capital , irrespective of the manner in which they are levied , all taxes imposed on total income , on total capital , or on elements of income or of capital , including taxes on gains from the disposal of movable or immovable property , taxes on the amounts of wages or salaries paid by enterprises , as well as taxes on capital appreciation . ”

“ CARDINAL . The competent authority of a Member ORG may request the competent authority of another Member ORG to forward the information referred to in LAW ) in a particular case . The competent authority of the requested ORG need not comply with the request if it appears that the competent authority of the ORG making the request has not exhausted its own usual sources of information , which it could have utilized , according to the circumstances , to obtain the information requested without running the risk of endangering the attainment of the sought after result .

For the purpose of forwarding the information referred to in paragraph CARDINAL , the competent authority of the requested Member State shall arrange for the conduct of any enquiries necessary to obtain such information . ”

“ CARDINAL . The competent authority of a Member State shall without prior request forward the information referred to in DATE ) , of which it has knowledge , to the competent authority of any other Member ORG concerned , in the following circumstances :

( a ) the competent authority of the one Member ORG has grounds for supposing that there may be a loss of tax in the other Member ORG ;

( b ) a person liable to tax obtains a reduction in or an exemption from tax in the CARDINAL Member ORG which would give rise to an increase in tax or to liability to tax in the other Member ORG ;

( c ) NORP business dealings between a person liable to tax in a Member State and a person liable to tax in another Member State are conducted through CARDINAL or more countries in such a way that a saving in tax may result in CARDINAL or the other Member ORG or in both ;

( d ) the competent authority of a Member ORG has grounds for supposing that a saving of tax may result from artificial transfers of profits within groups of enterprises ;

( e ) information forwarded to the one Member ORG by the competent authority of the other Member ORG has enabled information to be obtained which may be relevant in assessing liability to tax in the latter Member ORG .

NORP The competent authorities of GPE may , under the consultation procedure laid down in DATE , extend the exchange of information provided for in paragraph CARDINAL to cases other than those specified therein .

The competent authorities of the Member GPE may forward to each other in any other case , without prior request , the information referred to in LAW of which they have knowledge . ”

“ The competent authority of a Member ORG which , under the preceding ORG , is called upon to furnish information , shall forward it as swiftly as possible . If it encounters obstacles in furnishing the information or if it refuses to furnish the information , it shall forthwith inform the requesting authority to this effect , indicating the nature of the obstacles or the reasons for its refusal . ”

“ For the purpose of applying the preceding provisions , the competent authority of the Member ORG providing the information and the competent authority of the Member ORG for which the information is intended may agree , under the consultation procedure laid down in DATE , to authorize the presence in the first Member ORG of officials of the tax administration of the other Member ORG . The details for applying this provision shall be determined under the same procedure . ”

In its judgment of CARDINAL DATE ( ORG ředitelství pro hlavní město Prahu ( Case No . C-CARDINAL/CARDINAL ) , “ the PERSON judgment ” ) , ORG of ORG of ORG held as follows :

“ CARDINAL . The ORG has previously ruled that observance of the rights of the defence is a general principle of ORG law which applies where the authorities are minded to adopt a measure which will adversely affect an individual ( see [ Case CCARDINAL/CARDINAL PERSON [ DATE ] ECR ICARDINAL ] , paragraph CARDINAL ) . In accordance with that principle , the addressees of decisions which significantly affect their interests must therefore be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision ( see , inter alia , ORG and Others [ DATE ] ECR I‑CARDINAL , paragraph CARDINAL , and PERSON , paragraph CARDINAL ) . The authorities of the Member GPE are subject to that obligation when they take decisions which come within the scope of ORG law , even though ORG legislation applicable does not expressly provide for such a procedural requirement ( see PERSON , paragraph CARDINAL , and Case C‑CARDINAL/CARDINAL ORG and R [ DATE ] ECR , paragraph CARDINAL ) .

The question arises as to whether the decision of a competent authority of a Member ORG to request assistance from a competent authority of another Member ORG and the latter ’s decision to examine witnesses for the purposes of responding to that request constitute acts which , because of their consequences for the taxpayer , make it necessary for him to be heard .

All the Member GPE which submitted observations to the ORG argued that a request for information by CARDINAL Member ORG sent to the tax authorities of another Member ORG does not constitute an act giving rise to such an obligation . They rightly consider that , in tax inspection procedures , the investigation stage , during which information is collected and which includes the request for information by CARDINAL tax authority to another , must be distinguished from the contentious stage , between the tax authorities and the taxpayer , which begins when the taxpayer is sent the proposed adjustment .

Where the authorities gather information , they are not required to notify the taxpayer of this or to obtain his point of view .

A request for assistance made by the tax authorities under Directive CARDINAL/CARDINAL is part of the process of collecting information .

The same applies to the reply made by the requested tax authorities and the inquiries carried out to that end by those authorities , including the examination of witnesses .

It follows that respect for the rights of the defence of the taxpayer does not require that the taxpayer should take part in the request for information sent by the requesting Member ORG to the requested Member ORG . Nor does it require that the taxpayer should be heard at the point when inquiries , which may include the examination of witnesses , are carried out in the requested Member ORG or before that Member ORG sends the information to the requesting Member ORG .

None the less , there is nothing to prevent a Member ORG from extending the right to be heard to other parts of the investigation stage , by involving the taxpayer in various stages of the gathering of information , in particular the examination of witnesses .

Accordingly , the answer to the first and second questions is that ORG law , as it results in particular from Directive CARDINAL/CARDINAL and the fundamental right to be heard , must be interpreted as not conferring on a taxpayer of a Member ORG either the right to be informed of a request for assistance from that Member ORG addressed to another Member ORG , in particular in order to verify the information provided by that taxpayer in his income tax return , or the right to take part in formulating the request addressed to the requested Member ORG , or the right to take part in examinations of witnesses organised by the requested Member ORG . ”

and ruled as follows :

“ CARDINAL . European Union law , as it results in particular from ORG CARDINAL/CARDINAL/EEC of DATE concerning mutual assistance by the competent authorities of GPE in the field of direct taxation and taxation of insurance premiums , as amended by ORG CARDINAL of DATE , and the fundamental right to be heard , must be interpreted as not conferring on a taxpayer of a Member ORG either the right to be informed of a request for assistance from that Member ORG addressed to another Member ORG , in particular in order to verify the information provided by that taxpayer in his income tax return , or the right to take part in formulating the request addressed to the requested Member ORG , or the right to take part in examinations of witnesses organised by the requested Member ORG .

Directive CARDINAL/CARDINAL , as amended by Directive ORG , does not govern the question of the circumstances in which the taxpayer may challenge the accuracy of the information conveyed by the requested Member ORG , and it does not impose any particular obligation with regard to the content of the information conveyed . ”

GPE joined ORG on DATE in accordance with the provisions of an LAW signed on DATE . The parties to LAW , in addition to GPE ( by this time the successor to ORG ) were the existing Member GPE ( including GPE ) and GPE .

Appended to LAW was an LAW concerning the conditions of accession of GPE and GPE and the adjustments to the Treaties , which , in its relevant part , provides as follows :

“ From the date of accession , the provisions of the original Treaties and the acts adopted by the institutions of the ORG before accession shall be binding on the new Member GPE and shall apply in those GPE under the conditions laid down in those Treaties and in this LAW . ”

At the time of the events complained of , and in its relevant part , the Convention between the Government of GPE and ORG for the avoidance of double taxation with respect to taxes on income and on capital ( GPE LAW ) DATE , no . CARDINAL ) , provided as follows ( official and authoritative LANGUAGE text ) :

“ CARDINAL . The competent authorities of the GPE shall exchange such information ( being information which such authorities have in proper order at their disposal ) as is necessary for the carrying out of this LAW . Any information so exchanged shall be treated as secret and shall not be disclosed to any persons or authorities other than those concerned with the assessment or collection of the taxes which are the subject of this Convention .

NORP In no case shall the provisions of paragraph CARDINAL be construed so as to impose on CARDINAL of the GPE the obligation :

a. to carry out administrative measures at variance with the laws or the administrative practice of that or of the other ORG ;

b. to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other ORG ;

c. to supply information which would disclose any trade , business , industrial , commercial or professional secret or trade process , or information , the disclosure of which would be contrary to public policy . ”


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Ms J. Serrarens , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr R.A.A. Böcker , and their Deputy Agent , PERSON , both of ORG .

The Government of GPE were informed of their right to take part in the proceedings ( LAW ) but did not express the desire to do so .

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

NORP In DATE the applicant , a convict prisoner who had been in detention since DATE , was transferred to ORG ” in GPE .

NORP By letter of DATE ORG of ORG ( PERSON het GPE van Justitie ) informed the Governor of “ Dordtse Poorten ” about a project for the taking of ORG biometric data ( photographic likenesses and fingerprints ) , referred to by the name of “ Biometrics ” , which was prompted by the finding that a number of prisoners in a different institution had assumed a false identity . The project , referred to as a “ catch - up exercise ” ( inhaalslag ) , was intended to constitute the initial phase of a complete overhaul of the prisoner identification system . As part of this project , the Governor of “ Dordtse ORG ” was asked to take biometric data of certain prisoners in his institution .

As CARDINAL of the prisoners chosen , the applicant was informed by letter of the intention of the Governor to take his fingerprints and digital photograph . The letter did not provide information on the storage or use of the data taken . The applicant states that the penal institution ’s staff members , when asked , told him that the data would be stored for “ DATE ” in a national database that would be accessible to the police and the judicial authorities .

On DATE the applicant was asked to submit to the taking of his fingerprints and a digital photograph . He refused to do so , firstly , because he had already given these data when he was admitted to the penal institution and , secondly , because he opposed the fact that his data would be stored in a national database for an unknown length of time and that they would be accessible to the police and the judicial authorities .

Because of the applicant ’s refusal to cooperate , the Unit Director of the penal institution imposed on the applicant CARDINAL days’ solitary confinement in his own cell which included the removal of his television , starting on DATE . DATE , the applicant submitted a complaint against this punishment to ORG ( beklagcommissie ) of the penal institution ’s ORG ( GPE PERSON ) , stating that he had complied with his obligations under LAW ( CARDINAL ) of LAW ) when he had submitted to the taking of his fingerprints and digital photograph during his admittance to the penal institution . He further argued that he was not obliged to submit his data again because they would not be used internally , within the penal institution , but for a national database for which there was no legal basis in LAW or any other act .

On DATE the Unit Director sanctioned the applicant a second time and the institution ’s staff members threatened to report the applicant to ORG for refusal to comply with an official order if he continued to refuse to provide his fingerprints and digital photograph . Following this threat , the applicant cooperated and submitted his data . He was , neither then , nor after his release , given any information on the way his data would be stored or used .

On DATE ORG of the penal institution ’s ORG rejected the applicant ’s complaint . It held that the sanction had not been unreasonable because the Governor had been obliged to comply with the instructions of ORG ; because the refusal of a prisoner to comply with an order of the Governor was a disciplinary offence ; and because the applicant had refused to submit his data when ordered to do so by the Governor .

In his appeal to ORG ( beroepscommissie ) of ORG ( PERSON GPE ) the applicant largely restated his arguments . He further submitted that the existence of a Determination of ORG , ORG and Witnesses PERSON ( Wetsvoorstel Wet identiteitsvaststelling verdachten , veroordeelden en getuigen ) , which provided a legal basis for the taking and processing of ORG biometric data in a national database , proved that LAW ( CARDINAL ) of LAW did not yet confer any such power .

On DATE ORG noted that in practice the identity of prisoners was checked at the time of admission to the institution . It further noted that on entering the institution the applicant had complied with this obligation to submit identifying data as provided for in section CARDINAL ( CARDINAL ) of LAW . It held that , even though the collection of the data itself had not been unlawful , it had been up to the Governor to explain to the applicant why his data needed to be taken a second time and to provide him afterwards with another opportunity to submit his data . As the Governor had failed to do so , ORG held that the sanction had been unreasonable . ORG awarded the applicant financial compensation in an amount of MONEY ( ORG ) .

The applicant was released on DATE .

In their further observations submitted in response to the applicant ’s observations , the ORG submitted a written statement on paper bearing the letterhead of ORG ( ORG ) and dated DATE . It reads as follows :

“ Destruction

The undersigned , PERSON , General Director of ORG , makes the following declaration :

It is described in the official record ( proces - verbaal ) of destruction dated DATE ( annexed ) that the personal information as used during the so - called ‘ catch - up exercise’ has been destroyed ;

Supplementing this official record , the undersigned also declares that :

during the period of processing the data were stored in a safe ;

the data were not used for any other purpose than for checking , once only ;

the data were compared , during this once - only check , against the ORG data [ ORG , acronym for PERSON ORG , ORG ] ;

as far as ORG are able to observe , these data have not been entered in the ORG database .

I declare this to be a statement of the truth , made on DATE [ sic ] .


No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Síofra O’Leary

The applicant was born in DATE and is currently serving his prison sentence .

At TIME on DATE O. , the president of ORG , was shot at his office with a rifle which the applicant had brought . The applicant was present at ORG ’s office at the time of the event . He asked for the police and an ambulance to be called and , once the police arrived , stated that an accident had happened . He explained that he and O. were interested in hunting and he had brought the shotgun to O. as a present . While he had been demonstrating the gun to NORP , the latter had wanted to see it closer and had pulled it towards himself ; the gun had accidentally gone off . According to the applicant , once he had replied to the questions of the police , handcuffs were put on him ; he was searched and samples were taken from him for forensic examination . His request for a lawyer was allegedly ignored .

On DATE the applicant ’s arrest report was drawn up which stated that the applicant had been arrested for the murder of O. at TIME at the police station . He was subsequently questioned in the presence of PERSON , his lawyer . He pleaded not guilty and repeated his statements made earlier . According to the applicant , his lawyer immediately indicated to the investigator that , under LAW , the applicant had to be provided with the possibility to talk with him in private before the questioning , with a view to defining the legal defence strategy . Having heard that , the applicant insisted on such a meeting . The investigator , however , rejected that request on the ground that the applicant would be able to talk to his lawyer later .

On DATE a reconstruction of the crime was carried out in the presence of the applicant ’s lawyer .

On DATE the applicant ’s pre - trial detention was ordered by a court .

On DATE PERSON was admitted to the proceedings as the applicant ’s second lawyer .

On DATE the applicant was charged with murder and questioned in the presence of his lawyers . He pleaded not guilty and repeated his previous statement that ORG had been shot by accident .

On DATE the applicant was questioned in the presence of PERSON The applicant repeated his previous statements .

On DATE the applicant and the lawyer PERSON became aware of the results of a number of forensic examinations in the case . They made no observations in this connection .

On DATE criminal proceedings were instituted against the applicant for illegal production , possession and storage of firearms . On DATE the applicant was charged with the above offence and questioned in the presence of PERSON Those proceedings were subsequently joined to the murder case against the applicant .

On DATE the case was referred to ORG ( “ the ORG ” ) for trial . Throughout the trial the applicant denied the murder charge and consistently claimed that ORG had been shot by accident .

On DATE ORG , acting as a first - instance court , found the applicant guilty as charged and sentenced him to DATE imprisonment . The court found that on DATE the coordinating council of ORG had held its meeting in GPE and the applicant had run for the position of acting executive director of the ORG . The victim , ORG , had proposed another candidate for the same position and that candidate had been elected . The applicant had therefore decided to take revenge and had come to the office of ORG with a shotgun and fired twice at O. ’s head . The applicant had also been found guilty of modifying the shotgun in question prior to the incident .

ORG noted that although the applicant had never pleaded guilty and had claimed that the incident had been an accident , his guilt was proved by the testimonies of witnesses and the results of forensic examinations . In particular , O. ’s wife had testified that she had been in the neighbouring office when the incident had taken place and when she had entered her husband ’s office she had seen the applicant smiling with satisfaction . She had also maintained that her husband had not liked hunting and therefore would not have accepted a shotgun as a present . The negative attitude of O. to hunting had also been confirmed by his brother . PERSON ’s secretary and CARDINAL of his colleagues had also confirmed that the applicant had been smiling when they had entered the office after the incident .

Several witnesses had also confirmed that the applicant had shown dissatisfaction with the fact that he had not been elected to the position of the executive director of ORG .

The forensic expert , questioned in the court hearings , had confirmed the conclusions of the examination that the shots had been fired from some distance and not from close range , as the applicant had suggested , given that traces of metals and gunpowder , typically found following close - range shots , had not been found on the victim . The court also noted that the outcome of the ballistic examination as to the distance , trajectory and angle of the entry wounds had not matched the applicant ’s version of events .

The applicant appealed . He submitted , inter alia , that his defence rights had been violated as he had not been given an opportunity to talk to his lawyer in private before his questioning at the police station on DATE , with no further details given .

On DATE ORG , in the presence of the applicant and his CARDINAL lawyers , upheld the decision of ORG , noting the aggregate of evidence against the applicant .

From DATE to CARDINAL DATE the applicant was detained at GPE pre - trial detention centre no . CARDINAL ( “ the GPE ” ) .

According to the applicant , the facility was often overcrowded with the number of detainees exceeding the number of beds . It was infested with insects , cockroaches and mice . The quality and quantity of food was unsatisfactory . There was CARDINAL pair of scissors and CARDINAL hair clippers for the whole GPE and they were not disinfected prior to or after use . As a result , the applicant contracted Hepatitis B.

From DATE until DATE he was detained in cells CARDINAL . CARDINAL and CARDINAL in conditions which were detrimental to his health and incompatible with human dignity . In particular , those cells had no access to natural light as the windows were obscured by metal slats . The walls were permanently wet and covered with mould . The applicant had to share cell no . CARDINAL , which measured QUANTITY , with CARDINAL other detainees who were heavy smokers . The artificial lighting was not sufficiently powerful with the result that the cells were dim . Their clothes and linen were always wet and cold .

On DATE , CARDINAL and DATE the applicant requested that the investigator allow visits from his family but to no avail ; the investigator attempted to extort money from him for granting permission to see the relatives .

On DATE and DATE the applicant asked ORG to allow him to correspond with his relatives but received no answer . He unsuccessfully complained of these matters to the prosecutor ’s office on a number of occasions .

The applicant was not allowed to visit the GPE church . His requests to the GPE governor of DATE and CARDINAL DATE to meet with a priest also remained unanswered . On DATE the applicant further complained to the PERSON administration that his religious literature and some items of a religious nature had been seized by the GPE staff . On DATE a “ talk ” was held with the applicant by CARDINAL of the prison staff on account of his complaints during which it was explained to him that nothing untoward had happened . On DATE the applicant complained to ORG about the violation of his right to practise his religion but received no reply .

During his stay at the GPE the applicant was held in CARDINAL different cells ( including cells QUANTITY . CARDINAL and CARDINAL ) and was moved CARDINAL times .

The Government could not provide any information about the number of inmates in the cells at the relevant time or regarding the conditions of the floor , walls and linen because the compulsory period for keeping the relevant documents had expired and the records had been destroyed .

They stated that the general detention conditions in the ORG had been satisfactory and in compliance with the domestic standards : all the cells had had windows and had been equipped with sufficient artificial lighting ; the applicant had been provided with adequate nutrition in accordance with the applicable standards . Scissors and other hairdressing implements had been disinfected after each use in accordance with the relevant regulations . That fact had been confirmed by the results of an investigation conducted by ORG and the prosecutor ’s office following the applicant ’s complaints .

The Government submitted , having provided the relevant documents , that the applicant had requested family visits before the relevant authorities only on DATE and DATE and DATE and on CARDINAL DATE and DATE and had asked for permission to send correspondence to his relatives on CARDINAL and DATE and DATE and DATE . All his requests were rejected for security reasons .

The applicant had been free to ask the investigator in his case or a court to allow him to meet with a priest but had failed to do so . He had also been entitled by law to possess religious literature and other items of a religious nature and never raised any complaint in this connection either before the GPE governor or with the prosecutor responsible for observing compliance with the law in the detention facilities .

No medical aid was provided to the applicant in respect of his heart and teeth problems . On DATE the applicant asked the ORG governor to conduct a medical examination as he believed he had contracted hepatitis B because of the failure of the GPE staff to respect hygiene rules . This request was rejected ; so was another request for a special diet in view of his possible hepatitis infection . On DATE the applicant asked the Minister of Health to order a medical examination in view of his possible hepatitis infection , to no avail . No copies of the mentioned requests have been provided by the applicant .

According to the ORG , during his stay in the GPE the applicant never went to the medical unit on account of his suffering from hepatitis B , heart pain or problems with his teeth and never lodged any complaints regarding a lack of medical assistance . His state of health did not necessitate a special diet .

Following a liver - related complaint that the applicant was suffering from , he was diagnosed with bile - duct dyskinesia ( дискінезія сечовивідних шляхів ) and from DATE to DATE he underwent inpatient treatment in the GPE medical unit . A number of laboratory tests were carried out on the applicant , including a specialised blood test for hepatitis indicators . The latter revealed hBs antigens , which meant that the applicant had hepatitis B antibodies in his blood but not that he had been definitely suffering from the active form of the disease . The applicant was prescribed the relevant treatment ( GPE , PERSON , PERSON , PERSON , GPE ) , which he received in full , and at the end of his treatment he was deemed to be in good health .

On DATE the applicant was transferred to prison no . DATE to serve his sentence . On DATE he was diagnosed with hepatitis B. Thereafter he lodged a number of complaints with different State bodies alleging that he had contracted hepatitis in the GPE owing to the failure to disinfect hairdressing implements , and demanding investigation of this matter . Following his allegations , investigations were conducted by ORG and the prosecutor ’s office , which found no evidence to support the applicant ’s allegations . The applicant was informed of the results of the investigation by a prosecutor ’s letter of DATE .


Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Robert Spano;Stéphanie Mourou-Vikström

NORP The applicant , PERSON , is an NORP national who was born in DATE and lives in X. The President granted the applicant ’s request for her identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . She was represented before the ORG by PERSON , a lawyer practising in GPE .

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

The applicant was born in DATE and lives in X.

The case concerns the suicide of the applicant ’s son , PERSON , who was born in DATE . He had a history of mental illness ( paranoid schizophrenia ) and had been placed in a psychiatric hospital CARDINAL times from DATE . From DATE he was also classed as a disability pensioner .

On DATE L. attempted to commit suicide by taking a large number of pills that had been prescribed for him and the applicant . The applicant called an ambulance . L. was diagnosed with intoxication and taken to Hospital Y. An extract from L. ’s medical file ( haiguslugu ) contains a reference that after admission to hospital he had intermittently expressed suicidal thoughts . Owing to a lack of space L. was initially placed in the intensive care unit of the renal department . On DATE he was transferred from the renal department to the intensive care unit of the department of internal medicine , located on the twelfth floor of the hospital . L. committed suicide on DATE by jumping out of the window .

Hospital staff immediately notified the police and the officer who responded to the call wrote up a report . According to the report , documents were drawn up on site , the deceased was photographed and the body was sent for an autopsy , and the doctor on duty gave a statement . The report stated that the doctor had noted that the windows on the twelfth floor did not have locks , and that CARDINAL nurses on duty had been dealing with another patient in a neighbouring room at the time of the incident . The report also noted that patients were not restrained and kept in their beds in the intensive care unit , as that was considered too extreme a measure .

On DATE the applicant requested an explanation from the hospital as to why , in particular , the safety of CARDINAL , who had been a suicidal patient , had not been ensured and why he had not been sent to a psychiatric clinic . According to the reply of DATE , victims of poisoning were usually taken to that particular hospital as they needed special supervision and care . That had been the case with PERSON , who had been under regular supervision . However , hospital staff had not been with the patient at all times . The reply referred to the fact that symptoms of poisoning usually took DATE to go away . Patients then had a psychiatric consultation and were transferred for inpatient treatment at a psychiatric clinic or were referred for outpatient care .

An autopsy was performed on L. on DATE . The death certificate ( arstlik surmateatis ) stated that he had died from injuries to his internal organs and that he had fractures of the skull and skeletal bones and trauma to the head , torso and limbs . The death was initially noted as “ accidental ” ( the relevant box on the form having been ticked ) . A new death certificate was issued on DATE , where the cause of death was updated to “ suicide ” by jumping out of a window .

On DATE the applicant turned to ORG on ORG ( ORG kvaliteedi ekspertkomisjon ; hereinafter the “ Expert Committee ” ) . ORG heard the applicant and examined the medical documentation concerning L. It also had an expert opinion of CARDINAL of its members at its disposal . ORG gave its opinion on DATE . It found that the psychiatric treatment PERSON had received had been in compliance with standard medical practice , and that there had been no link between his previous psychiatric treatment and the attempted suicide on DATE . PERSON in the renal and internal medicine departments had been justified as he had been in need of medical supervision . His suicidal tendencies had been properly assessed upon his admission to hospital on DATE . However , the supervision he had been under had been insufficient and the technical characteristics of the building – the fact that the windows could not be closed to prevent people jumping out DATE had also served as factors contributing to his suicide . ORG recommended that Hospital Y implement a procedure for the supervision of suicidal patients and train its staff accordingly . It recommended the use of technical solutions to minimise the risk of suicide , such as monitoring equipment in the rooms and windows with shatterproof glass that could not be opened . ORG noted that its assessment created no legal rights or obligations but that it could be used as evidence in civil proceedings .

On DATE the applicant lodged an offence report with the local prosecutor ’s office . The prosecutor analysed CARDINAL potential offences – manslaughter , manslaughter by negligence and placing a person in danger . However , by a letter of CARDINAL DATE he refused to institute criminal proceedings on the grounds that the elements of a criminal offence were lacking . According to the prosecutor , there was no reference to the fact that someone might have assisted L. in jumping out of the window . The prosecutor also noted that hospital personnel were responsible for protecting the life and health of their patients ( a so - called duty of care , garandikohustus ) , but he considered that hospital personnel could not objectively be expected to constantly monitor patients or that patients should be tied to their beds or placed in windowless rooms with the door locked . With regard to the offence of placing a person in danger , the prosecutor considered that the height of the hospital and the existence of a window in the hospital room had not , as such , been dangerous , but they had become a threat in the light of PERSON ’s own self - harming activity . Hence , it had not been the medical personnel who had placed L. in danger , rather he had created the danger himself .

NORP On DATE the applicant appealed to ORG ) , referring to the liability of the health - care provider and the obligation to effectively investigate incidences of death in hospitals . She also noted that it was not clear whether someone else might have been involved in PERSON ’s jumping out of the window . Her appeal was dismissed on DATE . ORG considered that it had been correct to take PERSON to the regional hospital , Y , where it had been possible to treat him for poisoning , which would not have been possible in a psychiatric clinic . ORG also noted that although there had been deficiencies in the training of medical personnel and that the risk of suicide had not been kept at a minimum by applying all the possible technical means , those shortcomings had not reached the level required for criminal liability .

On DATE the applicant lodged an appeal with ORG ( Tallinna GPE ) , requesting that the court oblige the prosecutor to institute criminal proceedings . She acknowledged that such an appeal had to be filed by a lawyer ( advokaat ) but noted that she had been assisted by a legal adviser ( jurist ) from ORG ( a non - governmental organisation promoting patient rights ) and asked the court of appeal to make an exception in the question of legal representation in her case . If an exception could not be made , the applicant requested that she be granted legal aid and given more time to draw up a request to that effect .

By a decision of CARDINAL DATE ORG declined to examine the appeal since it had not been lodged by a lawyer and there were no grounds for making an exception to that requirement . The court of appeal also rejected the application for more time for lodging a request for legal aid , noting that no reasons had been advanced for the applicant ’s failure to submit supporting documents in time to prove her lack of means . In addition , the court of appeal noted that the applicant ’s prospects of success in the appeal were negligible . The refusal to institute criminal proceedings and the decision of ORG had contained detailed reasons as to why there were no grounds to initiate criminal proceedings . The conclusion that the hospital staff had not committed any criminal offence had been well - founded .

The applicant then asked ORG ( NORP ) to grant her legal aid to lodge an appeal against the court of appeal ’s decision . An appeal to ORG also had to be lodged by a lawyer . By a decision of DATE ORG refused to grant legal aid . It considered that the decisions of ORG and the court of appeal had been well reasoned , showing why no criminal proceedings had been commenced and that an appeal against the court of appeal ’s decision would have had no prospect of success .

The relevant domestic law , namely references to LAW , LAW and LAW is set out in the case of GPE v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .

In addition , further references to domestic law are relevant in the instant case .

Under LAW seadustik ) , a victim can lodge an appeal with ORG against a refusal to institute criminal proceedings .

Under LAW , if the appeal mentioned in LAW is dismissed by order of ORG , the victim of an alleged offence may lodge a complaint with the court of appeal . Such a complaint must be lodged through a lawyer ( advokaat ) .

The Health - Care Services Organisation Act ( Tervishoiuteenuste korraldamise seadus ) sets out how the provision of health services should be organised and the requirements for such services . It regulates , inter alia , the registration of health - care professionals and the recognition of their professional qualifications as well as the licensing of activities in certain fields of health - care services . All such activities are carried out by ORG ( Terviseamet ) ( LAW ) .

In addition , ORG regulates the role and competences of ORG :

“ ( CARDINAL ) ORG on ORG ... is an advisory committee whose purpose is to assess the quality of health - care services provided to patients and to make proposals arising from that assessment to ORG , ORG and health - care providers .

( CARDINAL ) ORG competencies are to :

assess the quality of health - care services provided to patients ;

NORP make proposals to ORG for the initiation of supervisory proceedings over the activity of health - care providers ;

make proposals to health - care providers for assessing the competence of healthcare professionals and sending them to in - service training ; CARDINAL . make proposals to health - care providers for changing the way they organise their work ; ... ”

Under section CARDINAL of ORG and section CARDINAL of the Statute of the Health Board ( Terviseameti põhimäärus ) , ORG is a governmental authority operating within the purview of ORG . It has supervisory powers over compliance with the requirements established for health - care providers . Individuals have the right to submit complaints to ORG regarding such compliance .

Section CARDINAL of the Regulation on the requirements for ensuring the quality of health - care services ( LOC kvaliteedi tagamise nõuded ) , as in force at the material time , stated that a patient ’s health - care provider was responsible for the health - care service provided to that person . In order to ensure and develop the quality of health - care services and reduce the risks entailed in the provision of such services , health - care providers had to develop and implement quality management systems in line with good medical and service practice . That quality management system had to , inter alia , address the question of ensuring a professional quality and quality in the organisation ’s management of its work ( section CARDINAL ) .

Section CARDINAL of the regulation concerned the annual training of health - care professionals in order to ensure their professional development and raise their competence . The provision obliged each health - care provider to draw up a training plan for health - care professionals for DATE . In line with such training plans , health - care providers had to ensure TIME of specialised training for health - care professionals .

The Regulation on requirements for types of hospital ( NORP liikide nõuded ) establishes a list of mandatory and permissible inpatient and outpatient services to be provided by general hospitals , central hospitals , regional hospitals , specialist hospitals , rehabilitation hospitals and local hospitals , as well as minimum requirements for staff , equipment and furnishings for the provision of inpatient and outpatient health - care services and for the main facilities used for treatment and diagnostics .

As relevant in the instant case , the regulation provides that regional hospitals must provide inpatient and outpatient services in all fields , including emergency and psychiatric care ( section CARDINAL(CARDINAL ) ) . It requires certain medical professionals to be present at the hospital at all times , including doctors for emergency treatment , internal medicine and a psychiatrist ( section ORG ) ) . Section CARDINAL provides that in order to offer psychiatric health - care services , certain types of equipment ( including stomach pumps in case of poisoning ) and rooms that meet certain specifications as to size need to be available . Among other things , the regulation requires that it be possible to securely isolate and constantly monitor patients . It states that a security alarm should also be provided .

The relevant case - law regarding criminal and civil remedies is set out in the case of PERSON ( mentioned above , § § CARDINAL–CARDINAL ) .


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s daughter was killed in a traffic accident . Several other people were killed or injured as well . The accident was the fault of ORG , a lorry driver .

Criminal proceedings were opened against ORG and in DATE he was indicted and brought to court . At the first court hearing the relatives of the other victims brought civil claims against ORG and his employer . The applicant did not bring such a claim .

In a judgment of DATE ORG ( hereinafter “ the ORG ” ) convicted PERSON of negligently causing the deaths of several people , including the applicant ’s daughter , and injuring others , and sentenced him to a term of imprisonment . It allowed the civil claims , finding ORG and his employer jointly liable to pay damages to the civil parties .

Upon appeal , ORG judgment was quashed on DATE by ORG ( hereinafter “ the Court of Appeal ” ) . Finding serious breaches of the procedural rules , it remitted the case to the prosecuting authorities , so that it could be restarted from the stage of the preliminary investigation .

On an unspecified date in DATE or DATE the prosecution prepared a new indictment against ORG and he was once again brought to court .

The first court hearing was held on DATE . ORG accepted for examination a civil claim against ORG and his employer brought by the applicant , and recognised her as civil party to the proceedings .

NORP In a judgment of DATE ORG convicted PERSON of causing the deaths of several people and injuring others , and sentenced him to a term of imprisonment . In addition , it awarded damages to the remaining civil claimants – damages due jointly from ORG and his employer – but it did not make any decision in respect of the applicant ’s claim .

On DATE ORG upheld ORG ’s conviction , reducing his sentence . That part of the judgment became final on DATE when it was upheld by ORG . However , as concerns the civil claims , ORG quashed the lower court ’s judgment and remitted the case for fresh examination . It reasoned that ORG had committed serious procedural breaches by , among other things , not taking a decision on the applicant ’s claim .

ORG examined the case for a third time , only in relation to the part concerning the civil claims , and on DATE gave a judgment . It ordered ORG and his employer to pay damages to the civil parties , including MONEY ( ORG – the equivalent of MONEY ( ORG ) ) , plus default interest , to the applicant .

Upon an appeal by ORG and his employer , on DATE ORG quashed the lower court ’s judgment in so far as it concerned the award made to the applicant , and discontinued the examination of her claim . It found that that claim was inadmissible , on the grounds that it had been submitted outside the time - limit provided for in LAW ( see paragraph CARDINAL below ) . It pointed out that the requirement under that provision that a claim should be brought before the commencement of the examination of a case by a court had to be interpreted as referring to the initial examination by a court of first instance . The applicant had brought her claim during the subsequent examination of the case , after its remittal .

Upon an appeal by the applicant , that conclusion was upheld by ORG DATE .

On CARDINAL DATE the applicant brought a tort action against ORG and his employer before the civil courts . She claimed BGN CARDINAL in respect of non - pecuniary damage , plus default interest as of DATE .

In a judgment of DATE the ORG dismissed the claim . It held that the applicant ’s inadmissible civil claim brought in the context of the criminal proceedings could not have interrupted the running of the relevant limitation period , which was DATE . Only a claim brought in accordance with the relevant procedural requirements and subsequently found to be well - founded could have had such an effect . In addition , even if the running of the limitation period could be considered to have been interrupted by the applicant ’s bringing her claim in the context of the criminal proceedings , that interruption had been retroactively invalidated by ORG decision of DATE finding that the claim was inadmissible and discontinuing the proceedings . Accordingly , the running of the limitation period DATE which had started in DATE because the perpetrator ’s identity had been known immediately after the accident in which the applicant ’s daughter had died DATE had never been validly interrupted . The applicant ’s claim for damages , brought DATE , was time - barred . The applicant had brought her claim before a tribunal , namely the criminal court , which had been barred from examining it ; this meant that this tribunal had had to transfer the claim to the civil courts with jurisdiction , but this had not been done .

The applicant filed an appeal , which was dismissed by a judgment of ORG of DATE . While it considered the applicant ’s claim well - founded in principle , since the tort resulting in the liability of ORG and his employer had been proven , that court agreed that the claim was time - barred . It pointed out that the applicant ’s bringing her claim in the context of the criminal proceedings could only have interrupted the running of the relevant time - limit if the claim had been allowed . However , after the proceedings had been discontinued , in the absence of recognition of the applicant ’s right to receive damages , the time - limit had to be considered to have never been interrupted . The applicant had to bear the adverse consequences of having brought her claim in the context of the criminal proceedings in breach of the rules , and this was so notwithstanding the fact that the claim had been , erroneously , initially accepted for examination by ORG .

The applicant lodged an appeal on points of law . In a final decision of CARDINAL DATE ORG refused to accept the appeal for a cassation review .


Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in DATE .

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

In DATE , the applicant was convicted of theft and given a DATE custodial sentence conditional on DATE probation . However , the court applied a general amnesty act and the applicant ’s conviction , including the probation period , was spent with immediate effect .

DATE , on CARDINAL DATE , a different court convicted the applicant of aggravated robbery and sentenced him to CARDINAL years’ imprisonment . Considering that the applicant had breached the terms of his probation by committing a new offence , the court ordered the suspended sentence to be activated and increased the total length of the sentence by DATE .

On DATE the ORG of ORG acknowledged that the DATE judgment had been unlawful in the part relating to the increase of the final sentence in connection with the prior conviction that had already been spent . The length of the sentence was varied to DATE imprisonment , calculated from DATE which was the date of the applicant ’s arrest . Given that the applicant had already spent DATE in detention , the ORG ordered his immediate release .

The applicant unsuccessfully tried several avenues for claiming compensation for his unlawful detention during DATE and DATE .

He sought first to exercise the “ right to rehabilitation ” under LAW ( see paragraph CARDINAL below ) . On DATE ORG in GPE rejected his application , pointing out that the “ right to rehabilitation ” only accrued to those who have been acquitted or exonerated which was not the applicant ’s case . The applicant did not appeal against that decision .

The applicant also tried to initiate criminal proceedings against Judge PERSON who had given the judgment of CARDINAL DATE . His criminal - law complaint was rejected on the ground that the limitation period had expired .

Finally , the applicant filed a civil claim for compensation under the tort provisions of LAW ( see paragraph CARDINAL below ) . On DATE ORG in GPE rejected his claim , finding that paragraph CARDINAL of Article CARDINAL did not apply because the applicant had been found guilty rather than acquitted and that the special condition of applicability of paragraph DATE the criminal conviction of the judge DATE was not fulfilled . On DATE ORG rejected an appeal against that decision .


CASE OF SOCIEDADE DE CONSTRUCOES MARTINS AND VIEIRA, LDA v. PORTUGAL

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46-2 - General measures)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

NORP The applicant company is a NORP limited liability company . The second and third applicants are the applicant company ’s managing partners ( see PERSON for details ) .

On DATE ORG ( ORG ) started an investigation into the applicant company ’s fiscal activity DATE .

Following the investigation , CARDINAL sets of fiscal criminal proceedings were instituted before the Porto and ORG .

On DATE the applicants were made defendants ( arguidos ) in both sets of proceedings .

On DATE the public prosecutor brought charges ( acusação ) against the applicant company and third applicant in FAC for tax fraud in relation to activities dating back to DATE , when the applicant company was registered in GPE .

On DATE the trial began . The hearing was adjourned to DATE and then to DATE due to the absence of some of the defence witnesses .

On DATE of the hearing , the applicant company ’s and third applicant ’s representative resigned . The hearing was adjourned pending his replacement .

NORP In DATE the applicant company and third applicant gave power of attorney to the same lawyer .

On DATE the applicants informed ORG that they had sought a judicial review before ORG of a tax adjustment applied to them regarding the applicant company ’s fiscal activity DATE .

On DATE ORG suspended the fiscal criminal proceedings in accordance with LAW das Infracções Fiscais não Aduaneiras – “ RJIFNA ” ) .

On DATE the applicants applied to ORG ( ORG ) for an order to have the criminal proceedings expedited ( pedido de aceleração processual ) .

On CARDINAL DATE ORG dismissed their application on the grounds that the delay in the proceedings , under the law , was attributable to ORG rather than ORG . The ORG pointed out that the applicants should have therefore lodged their expedition application with ORG .

The proceedings are still pending before ORG .

On DATE the public prosecutor of ORG brought charges against the CARDINAL applicants for tax fraud and abuse ( fraude fiscal e abuso de confiança fiscal ) in relation to activities that had taken place DATE , when the applicant company was registered in GPE .

On DATE the applicants contested the proceedings . On DATE they applied for them to be suspended until a final decision was adopted in relation to the judicial review pending before FAC ( see paragraph CARDINAL above ) .

On DATE ORG ordered that the proceedings be suspended in accordance with LAW RJIFNA and requested information from FAC regarding the progress of the judicial review .

On DATE ORG informed ORG that the proceedings brought by the applicants against the tax adjustment were still pending .

On DATE ORG suspended the proceedings until a final decision was adopted by ORG .

On DATE ORG informed ORG that the judicial review was still pending .

On DATE the applicants applied to ORG to have the proceedings expedited .

On DATE ORG dismissed their application on the grounds that the fiscal criminal proceedings had been suspended in accordance with the law . It also considered that their request should have been made to ORG .

On DATE and DATE the applicants instituted proceedings in tort ( ação de responsabilidade civil extracontratual ) against the ORG in the PERSON and Braga Administrative and ORG ( case ORG . ORG and CARDINAL respectively ) , claiming damages for the excessive length of the above - mentioned criminal proceedings .

According to the latest information received by ORG on DATE , the proceedings are still pending .


CASE OF KITANOVSKA STANOJKOVIC AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

On DATE two persons wearing black masks entered the applicants’ house with an intention to rob them . They hit GPE , the applicants’ husband and father , as well as the first applicant , inflicting on them severe injuries . In consequence , on DATE PERSON died . After the incident , the first applicant was admitted to hospital where she remained in the intensive care unit until DATE .

On DATE the public prosecutor requested that ORG ( “ the trial court ” ) launched preliminary proceedings against PERSON ( DATE at the time ) on account of aggravated robbery and remanded him in custody . On DATE , the trial court ordered PERSON ’s detention for DATE . The detention was ordered on account of the risk of him absconding and interfering with the investigation , namely “ influencing the victims witnesses , in particular since they live in ( PERSON ’s ) vicinity ” .

By a decision of CARDINAL DATE , an investigating judge of the trial court extended ORG detention for DATE for the same reasons as before . On DATE the investigating judge ordered his release finding that “ his attendance at the trial can be secured with a more lenient measure ( seizure of passport and obligation to report to the court ) ... Taking into account the individual circumstances and needs of [ PERSON ] , his age , the fact that he is a regular student in DATE of secondary school and a young man in development , [ the court ] considers that there are grounds for termination of the detention order ... ”

On DATE the public prosecutor lodged an indictment against PERSON and a certain PERSON They were indicted on charges of aggravated robbery with respect to the incident of DATE .

On DATE ORG , after it had heard evidence from the accused , the applicants , witnesses , experts , representatives of ORG ( who suggested that PERSON should be sentenced to a prison term if he was found guilty ) , and admitted considerable material evidence , including several expert reports ( including a psychiatric expert report which confirmed that PERSON had been mentally fit when the crime had been committed ) established the following :

“ At TIME on DATE the accused LOC and PERSON , on the basis of a prior agreement , arrived [ at the applicants’ house ] with an intention to steal movable objects . With the use of force and dangerous object DATE a metal hammer with a wooden grip , they intentionally inflicted serious injuries on the now deceased PERSON ] and [ the first applicant ] in order to achieve their aim ... Wearing black masks , [ LOC and PERSON ] arrived in front of [ the applicants’ house ] ... PERSON opened the door . They both entered the house . PERSON immediately started hitting PERSON on the head and hands with the metal hammer . PERSON sustained serious injuries - head wounds , multi - fragmented fractures accompanied with brain haemorrhages under the hard tissues of the brain ... linear skull fracture , as a result of which he died on DATE . Soon after , PERSON , [ the first applicant ’s daughter and the second and third ORG sister ] appeared and started screaming . PERSON then physically assaulted her by hitting her on the head ... She fell down , pretending to be dead . After [ the first applicant ] had heard ORG screaming , she arrived in the kitchen in order to see what was going on , but when she arrived in the living room , she was assaulted by the minor PERSON He punched her hard in the head , inflicting severe injuries , namely CARDINAL head wounds [ cuts and bruises ] ; CARDINAL sizeable skull fractures ; haemorrhages under the soft tissues of the brain ; and a brain lesion in the area of the left temple ... ... [ the first applicant ] , GPE ] and L.[J. ] were taken by ambulance to ORG . They were admitted by GPE , a doctor who was on duty at the time , who noted the serious physical injuries which both PERSON ] and [ the first applicant ] had sustained . They were kept in hospital , since their injuries were life - threatening ... ”

As stated in the judgment , “ [ the second applicant ] was not able to recognise her parents given their injuries . Her mother was so much beaten that she could not see ; her eyes were closed and her face was so much coloured ( модро ) that she could not recognise her . ”

The court found PERSON and PERSON guilty of aggravated robbery and , relying on LAW in relation to sub - paragraph CARDINAL of LAW ( see paragraph CARDINAL below ) , sentenced them to CARDINAL and CARDINAL years’ imprisonment respectively . The time which PERSON had spent in pre - trial detention was to be deducted from the total length of his custodial sentence . As victims , the applicants were advised to pursue compensation claims by means of a separate civil action for damages .

By judgments of CARDINAL DATE and DATE , ORG and ORG , respectively , dismissed PERSON ’s complaints about alleged errors on the facts and law , as well as alleged violations of the procedural rules . Both courts upheld the lower court ’s judgment finding no grounds to depart from the facts as established by the trial court and the reasons given for the conviction .

On DATE an enforcement judge responsible for execution of the custodial sentence issued an incarceration order ( упатен акт ) in respect of PERSON According to that order , PERSON was required to report to ORG on DATE in order to serve the sentence . On CARDINAL DATE PERSON requested that the sentence be postponed for family and health reasons . This request was dismissed by decisions of DATE and CARDINAL DATE by the enforcement judge and a CARDINAL - judge panel of the trial court , respectively . On DATE the detention centre informed the enforcement judge that PERSON had not arrived at the facility on the specified date . By letters dated DATE , DATE and DATE , the enforcement judge notified the trial court in GPE responsible for minors about PERSON ’s failure to report to the detention facility and sought instructions “ given the urgent nature of the proceedings ” . These letters remained unanswered .

The Government submitted that after the above correspondence , no enforcement judge had been appointed to deal with the case for DATE . After such a judge had been appointed , on DATE another incarceration order had been issued in respect of PERSON The latter sought , to no avail , for the custodial sentence to be adjourned . On DATE the detention centre advised again that PERSON had not arrived at the facility .

On DATE the enforcement judge ordered PERSON ’s arrest . PERSON was arrested on DATE and started serving his custodial sentence on DATE . The detention centre confirmed by letter that PERSON would remain in custody until DATE .


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

NORP The applicant , Mr PERSON GPE , is a NORP national who was born in DATE and lives in GPE .

NORP In DATE the applicant was accused of an administrative offence under LAW ( CAO ) . According to the applicant , he was unaware of the charge .

A hearing was listed for DATE . Since the hearing notification was returned to the court as “ after expiry of the storage term ” , the judge rescheduled to CARDINAL DATE and issued a new notification . This notification was also returned to the court with the same note .

According to the applicant , he remained unaware of the charge and did not receive the above notifications .

By a judgment of DATE a justice of the peace convicted the applicant ; his driving licence was suspended for DATE and DATE . The applicant allegedly first learned about this judgment on DATE , when he was involved in a traffic accident .

The applicant appealed against the judgment . On DATE ORG held a hearing ; heard the applicant ’s representative ( the applicant waiving his right to be present ) ; examined evidence ; and upheld the judgment .

On DATE and DATE ORG and ORG of GPE respectively rejected the applicant ’s applications for review under LAW ( see paragraphs DATE below as regards the applicable procedure ) .

Under LAW of the ORG a prosecutor institutes administrative - offence proceedings for a number of offences , but also has the right to institute administrative - offence proceedings in any other case . He can participate in the examination of the case , lodge various applications , and issue a report on issues arising in the case . He can also appeal against the decision in the case , irrespective of whether he previously participated in the proceedings .

Under the ORG , depending on the subject matter decisions concerning administrative offences can be issued either by a non - judicial authority or by a court ( LAW of the ORG ) .

At the relevant time , LAW of the ORG contained provisions concerning review of such decisions .

Review could be sought by the person or legal entity accused of the administrative offence , the victim of the offence , or their representative ( Article CARDINAL ) . If the decision on the administrative offence concerned a legal entity or a person engaged in entrepreneurial activities it was reviewed by a commercial court in accordance with the rules of commercial procedure ( Article CARDINAL ) .

An ordinary appeal against a ruling on an administrative offence could be lodged within DATE ( or DATE for some offences ) following receipt of the copy of the decision ( Article CARDINAL ) . The appeal should be examined within DATE ( or less for some offences ) following receipt of the case file by the reviewing court or authority ( LAW . The reviewing authority or court is not bound by the scope of arguments , and reviews the case in its entirety ( LAW ) .

Article CARDINAL gave prosecutors the right to seek review of decisions on administrative offences within the procedure and time - limits set out in GPE CARDINAL - CARDINAL of the ORG .

Article CARDINAL provided for further review of final court decisions on administrative offences . A regional prosecutor or deputy or ORG or deputy had the right to apply for such a further review . According to the ruling no . CARDINAL of DATE by ORG of GPE , individuals prosecuted in an administrative - offences case also had a right to lodge an application for supervisory review ( paragraph CARDINAL ) .

If the judge in the supervisory review had doubts about the lawfulness of the impugned court decisions he or she could request the case file and then examine the case in its entirety , going beyond the grounds for review raised by the author of the supervisory - review application ( paragraph CARDINAL of the ruling of DATE ) .

Supervisory review was to be carried out by the presidents of the regional courts or their deputies , or by the President of ORG of GPE or her deputies . Reviewing this provision , ORG ( decision no . CARDINAL-O of DATE concerning the constitutional interpretation of LAW ORG ; this decision was officially published in DATE ) stated that the reviewing court was to inform the person affected by the administrative offence proceedings about the application for review lodged by the victim . ORG also stated that until legislative amendment of the ORG concerning the scope of review , grounds for review , the reviewing courts’ powers , timelimits for seeking review , and the procedure for such a review , the reviewing courts were to be guided by the relevant provisions of LAW of LAW ( see paragraphs QUANTITY below ) .

Article CARDINAL of the ORG was deleted . Article QUANTITY provides that the first - instance and appeal judgments , which became final , can be challenged by way of review by the defendant or his counsel , the victim , legal representative of a minor or another vulnerable person , or legal representatives of a legal entity . Review can be sought by a regional prosecutor or deputy or ORG or deputy . Since DATE the public official who submitted the administrative offence case for judicial examination is also entitled to seek review .

Requests for review should be lodged before regional courts or ORG of GPE . Such requests are to be examined by the presidents of such courts or their deputies . ORG is empowered to deal with appeals against decisions taken on review at the regional level . In other cases , ORG should have similar competence ( Article CARDINAL ) .

Requests for review should indicate the grounds for the review ( Article CARDINAL ) . The scope of the review should be limited to the grounds indicated in the request and observations in reply . If the interests of legality so require , the review judge can review the case in its entirety . Renewed requests for review on the same grounds before the same court are not allowed ( Article CARDINAL ) .

The reviewing court should issue a decision within DATE of receipt of the application or within DATE of receipt of the case file , if so requested by the reviewing court ( Article CARDINAL ) .

ORG held that the review procedure in respect of final court decisions under the ORG is aimed at the correction of fundamental errors in such decisions , in line with the requirements of LAW No . CARDINAL to the LAW ( decision no . PERSON of DATE ) .

Apparently , the decision of CARDINAL-O of DATE was not applied by some regional courts ( see decision no . CARDINAL - CARDINAL of CARDINAL DATE by ORG , and , a contrario , decision no . CARDINAL of DATE by ORG ) ; some regional courts stated that this decision was no longer applicable following the deletion of LAW ORG during the legislative reform in DATE ( see decision no . DATE of DATE by ORG ) . It appears that a number of regional courts have recently maintained the position that there is no time - limit for seeking review proceedings under the ORG :

- GPE City Court : decisions no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINALa-CARDINAL/CARDINAL , no . CARDINAL of DATE ;

- Novosibirsk Regional Court : decisions no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINALa-CARDINAL - DATE of CARDINAL DATE ;

- ORG : decisions no . CARDINAL of DATE , no . CARDINAL of DATE ;

- ORG : decisions no . CARDINAL - CARDINAL - CARDINAL of DATE , no . CARDINAL - CARDINAL - CARDINAL of DATE ;

- ORG : decision no . CARDINAL of DATE ;

- ORG : decision no . CARDINAL of CARDINAL DATE ;

- Supreme Court of GPE : decision no . CARDINAL of CARDINAL DATE .

Cases concerning the charges under the ORG in respect of legal entities and entrepreneurs are examined according to the procedures prescribed by LAW ( CCOmP ) .

Prior to the changes which entered into force on DATE ( Federal Law no . CARDINAL of DATE ) , supervisory review of final judgments issued by commercial courts was regulated under LAW of the ORG

Article CARDINAL of the CComP provided that supervisory review of final judgments was carried out by ORG of GPE . This review could be sought by the parties to the proceedings and , in some cases , by a prosecutor ( see also ORG DATE and CARDINAL of the CComP ) .

The grounds for review included “ substantial violations of rights and legitimate interests relating to entrepreneurial or another economic activity as a result of a violation or wrong application of material or procedural law ” ( Article CARDINAL of the CComP ) . The application for review was to be lodged within DATE the last impugned judgment entered into force , provided that the other review remedies had been exhausted ( ibid . ) .

Article CARDINAL provided that the application was to be examined by a panel of judges , who had to decide whether the case was to be transferred for examination by the Presidium of ORG ( see also LAW .

Article CARDINAL of the Code contained the grounds for varying or overturning lower courts’ decisions : violation of consistency in interpretation and application of the law by commercial courts ; violation of human rights and freedoms , as protected by the well - recognised principles and rules of international law or by an international treaty of GPE ; and violation of the public interest .

On this ORG ’s position concerning the supervisory review procedure under the CComP prior to the amendments in DATE , see GPE and Others v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE .

For a summary of the amended provisions of the CComP in force since DATE , see GPE v. GPE DATE . ) , no . CARDINAL , § § DATE , DATE .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

The applicant was born in DATE and lives in GPE .

By a decision of DATE ORG restored the applicant ’s property rights to QUANTITY of land in the context of restitution of property rights which had been violated by the unlawful nationalisation during the NORP regime . Subsequently , the plot of land was registered in the land registry in her name .

On DATE the applicant sold the plot of land for CARDINAL NORP litai ( ORG ; MONEY ( ORG ) ) to CARDINAL private buyers , PERSON and GPE , who became the owners of the plot .

In DATE ORG found that a mistake had been made in granting the plot of land to the applicant and notified her and , later , the public prosecutor .

In DATE the public prosecutor initiated civil proceedings to have the decision of DATE and sale contract annulled on the ground that in DATE part of the same plot of land had already been sold by the ORG to a private buyer , ORG Moreover , the plot was situated in a community garden ( sodininkų bendrija ) and therefore the former owner ’s rights to it could not be restored under LAW ( PERSON nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas – hereinafter “ PERSON on Restitution ” ) .

At the same time criminal proceedings had been instituted into possible forgery of the documents . However , suspicions with regard to the applicant were not confirmed , and the proceedings were discontinued in DATE .

ORG acknowledged that the plot of land had been assigned to the applicant unlawfully .

On DATE assets belonging to the applicant amounting in value to LTL CARDINAL , including bank deposits and her pension , were seized to ensure satisfaction of the prosecutor ’s civil claim .

On DATE the GPE CARDINALst ORG granted the prosecutor ’s claim . The transfer of title involving the plot of land was annulled . Ownership was awarded to ORG and the applicant was ordered to pay ORG CARDINAL to PERSON and PERSON The applicant did , however , reserve the right to have her ownership rights to a plot of land restored .

On DATE ORG dismissed an appeal by the applicant .

By a final decision of CARDINAL DATE ORG upheld the decisions of the lower courts .

On DATE the order requiring the applicant to pay LTL CARDINAL was enforced by a bailiff .

According to information submitted by the applicant , she had to borrow money to comply with the order to pay LTL CARDINAL and to cover other legal expenses . She also alleged that the unlawful actions of the authorities and the related court proceedings had caused her health to deteriorate significantly , as she had suffered stress and later become disabled .

In DATE , after receiving a refusal from ORG to compensate her for her loss , the applicant brought a claim against the ORG before the administrative courts for ORG CARDINAL ( about EUR CARDINAL ) in pecuniary damage and LTL CARDINAL ( about EUR CARDINAL,CARDINAL ) in non - pecuniary damage .

By a final decision of CARDINAL DATE ORG upheld the decision of the first instance court and granted the applicant ’s claim in part awarding her LTL CARDINAL ( approximately ORG CARDINAL ) for pecuniary ( part of her legal costs and expenses ) and LTL CARDINAL ( approximately EUR CARDINAL ) for non - pecuniary damage . The court also concluded that the unlawful actions of the national authorities had violated the applicant ’s legitimate expectations and had had an impact on her health , given her old age . However , the court dismissed most of the applicant ’s claims to have reimbursed the pecuniary loss she had allegedly sustained as a result of the annulment of the transfer of title to the plot and the court proceedings she had had to undergo . In that connection , the courts noted that the applicant had no legal grounds to claim compensation for pecuniary damage , given that she had unlawfully had her ownership rights to the disputed plot restored .

Later , by a decision of DATE ORG restored the applicant ’s property rights by granting her a new plot of land of QUANTITY .


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

DATE the applicant , as an entrepreneur , was providing heating installation services to PERSON proizvodnju konfekcije i trikotaže PERSON , a socially - owned company based in ORG ( hereinafter “ the debtor company ” ) .

On DATE ORG opened insolvency proceedings in respect of the debtor company ( St. CARDINAL/CARDINAL ) .

The applicant duly submitted his claim .

On DATE ORG rejected his claim and instructed him to initiate a regular civil suit and request determination of his claim . The applicant lodged a separate civil claim .

On DATE ORG ruled in favour of the applicant by recognizing his claim and ordered the debtor company to pay the applicant the costs of the civil proceedings .

On an unspecified date thereafter , the said judgment having become final , was acknowledged within the insolvency proceedings .

NORP On DATE ORG issued a decision ordering payment of PERCENT of the total debt to the applicant . The applicant received this payment on an unspecified date .

The debtor company was ultimately struck from the relevant public register on DATE .

On DATE the applicant lodged a constitutional appeal complaining against ORG decision of CARDINAL DATE and that his right to work and right to compensation for work and providing services were infringed , because he received PERCENT of the total debt . He asked further ORG to order the payment of the rest of the debt .

On DATE ORG dismissed the applicant ’s appeal finding that it is not vested with the power to order such a payment . That decision was delivered to the applicant after DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria

The first applicant , Mr PERSON was born in DATE and lives in ORG . The second applicant , Mr Zoltán PERSON was born in DATE and lives in ORG . The third applicant , Mr PERSON was born in DATE and lives in ORG . The fourth applicant , Mr PERSON was born in DATE and lives in GPE . The fifth applicant , Mr PERSON was born in DATE and lives in ORG . The sixth applicant , Mr PERSON was born in DATE and lives in LOC . The seventh applicant , Mr PERSON was born in DATE and lives in ORG . The eighth applicant , Mr István Dudás was born in DATE and lives in GPE .

The applicants were heard as suspects on different dates ( the first applicant on DATE , the second applicant on DATE , the third and fourth applicants on DATE , the fifth applicant on DATE , the sixth applicant on DATE , the seventh applicant on DATE and the eighth applicant on DATE ) .

ORG preferred a bill of indictment with ORG on DATE charging the applicants with fraud and forgery . On CARDINAL DATE ORG found the applicants guilty as charged and sentenced them to different punishments ( applied reprimands for the first applicant , criminal fine for the second , seventh and eighth applicants and DATE probation for the third , fourth , fifth and sixth applicants ) .


CASE OF AXEL SPRINGER SE AND RTL TELEVISION GMBH v. GERMANY

No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The first applicant company , ORG , is a publishing house operated in the legal form of a ORG registered in GPE . The second applicant company , ORG , is a broadcasting company set up as a private limited company registered in GPE .

On DATE the defendant , PERSON , then aged DATE , was arrested . The public prosecutor ’s office charged him with killing his parents , dismembering their bodies , burning some of the parts , flushing others down the toilet and disposing of the rest by putting them in barrels . S. confessed to the police . Several NORP newspapers reported on the case . Some published pictures of PERSON , which mostly showed him at a much younger age .

NORP The public prosecutor ’s office obtained a psychiatric expert opinion in DATE . The expert concluded that PERSON was suffering from a schizoid personality disorder at the time when he had committed the offence .

The trial against PERSON began on DATE at ORG . Photographers working for the applicant companies attended the hearings to take still photographs and make videorecordings of the defendant .

Prior to the start of the hearing , the presiding judge informed the photojournalists orally that the defendant ’s face would have to be made unidentifiable “ in the usual manner ” before any images of him were published .

According to the applicant companies , the presiding judge had indicated at the beginning of the hearing on DATE that anyone who failed to comply with this order no longer needed to show himself at ORG of GPE and apply for permission to take photos of future proceedings . The applicant companies submitted a copy of an email of a journalist who attended the hearing confirming the alleged statement of the presiding judge .

The Government contested the applicant ORG assertions that the presiding judge had threatened not only to bar journalists from taking photographs during the proceedings against the defendant , but also from future proceedings before ORG . The Government submitted that according to the presiding judge no such statement had been made .

S. repeated his confession on DATE of the hearing .

By a letter of CARDINAL DATE the second applicant company asked the President of ORG to change the presiding judge ’s oral order . It pointed out , inter alia , that several unpixelated pictures of PERSON had been published in different newspapers before . By a letter of the same date the president replied that he had forwarded the letter to the presiding judge for lack of competence .

On DATE the presiding judge supplemented his order and provided his reasons in writing . The only media representatives who were permitted to take photographs and make video - recordings of S. were those who had previously registered with the court and given an assurance that prior to the publication or forwarding of the material , the face of S. would be disguised by a technical process , for example by pixelisation , so that it would only be possible to use the images in such a form . Journalists were barred from further reporting on the case if they failed to comply with the order .

The presiding judge stated in his reasons that he had to balance the public interest in being informed and the personality rights of S. He acknowledged that the crime at issue was very different from “ usual crimes ” and that permitting only pictures that disguised PERSON impaired the public ’s ability to be informed . However , he held that the order was justified in view of the need to protect the personality rights of S. He reasoned that it was unlikely that the case had caused a sensation throughout GPE . No nationwide television channel besides the second applicant had shown any interest in reporting on it . He stressed the importance of the presumption of innocence , finding that reporting on S. in a way which identified him could have a “ pillory effect ” . Consequently , according to the presiding judge the personality rights of PERSON , who had never been in the public eye or sought to contact the media and who had expressly requested that his identity be concealed , outweighed the public interest in being informed . Furthermore , the order had already proved to be necessary as there had been individual violations of the judge ’s instructions following DATE of the hearing .

On DATE the presiding judge sent the supplemented written order to a number of journalists , including some who worked for the applicant companies .

On DATE the applicant companies filed an objection ( Gegenvorstellung ) , requesting the suspension of the judicial order banning the publication of images enabling identification “ during the proceedings against ( ... ) S. ” ( ” für die Dauer des Prozesses gegen ( ... ) S. ” ) . The applicant companies stressed the fact that S. had confessed to the crime on DATE of the hearing .

On DATE the presiding judge upheld the order . He held that the implications of the confession and its credibility could only be assessed at the end of the hearing .

Further hearings took place on DATE and on DATE . On DATE ORG delivered its verdict , sentencing the defendant to prison on CARDINAL counts of murder .

On DATE ORG declined to consider a constitutional complaint by the applicant companies , without providing reasons ( no . DATE ) .


CASE OF TRISHKOVSKAYA AND OTHERS v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement)

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

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law . The applicants in applications nos . CARDINAL and ORG also raised a complaint under LAW No . CARDINAL to the Convention .