Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

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

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

On DATE the applicant and his wife arrived in GPE . They applied for asylum , and before ORG ( Migrationsverket ) the applicant essentially stated the following . He and his wife are NORP from GPE . His brother , a member of ORG , had disappeared in DATE and the applicant had contacted ORG to inquire about his whereabouts . After the war in DATE , ORG had accused the applicant of being a spy for GPE and had harassed him due to his religious beliefs . In DATE CARDINAL members of ORG had come to his and his wife ’s house and physically assaulted his wife . He had tried to scare the intruders by firing into the air . Subsequently , he and his wife had hidden in a NORP neighbourhood in GPE . Since , allegedly , the NORP authorities were unable to protect them , they had decided to leave the country . If returned to GPE , he would risk being killed .

On DATE ORG rejected the applicant ’s and his wife ’s requests for asylum . It noted that , according to the ORG , the general situation in GPE after the armed conflict during DATE and cessation of hostilities was such that NORP citizens who had fled because of the armed conflict were no longer automatically in need of international protection . It held therefore that the general situation in GPE did not in itself constitute a sufficient basis for granting asylum . Turning to the applicant ’s individual claims , the ORG found that there was no evidence that he had been accused of being a spy , that he was wanted by ORG or that the alleged threats and assaults were connected to ORG . Furthermore , there was no evidence that the NORP authorities would be unable or unwilling to protect him . Moreover , it noted that nothing indicated that the applicant had controversial political or other affiliations which would make him of interest to any particular group in GPE . Consequently , the ORG concluded that , since the applicant had not substantiated his alleged grounds for asylum , and no other reasons for asylum had been established , his request should be rejected and his deportation to GPE ordered .

The applicant appealed to ORG ( Migrationsdomstolen ) against ORG decision . He maintained his claims and added that CARDINAL of the reasons why ORG thought he was a spy was that he had volunteered as a paramedic , which had allowed him to move freely in the area of the armed conflict . If returned to GPE , he would risk being imprisoned or killed by ORG because they considered him to be a spy who had defied ORG and fired at them in his home . He could not report the incident to the police since ORG exerted power over the authorities in GPE .

On DATE ORG upheld ORG decision . It found that the applicant could have been of some interest to ORG due to his inquiries about his brother , his work as a paramedic and the threats and assaults to which the applicant and his wife had been subjected . However , the court found that the abuse the applicant and his wife feared from ORG constituted criminal acts which fell within the responsibility of the NORP authorities . Since the applicant and his wife had not contacted the NORP authorities , they could not be deemed to have exhausted the protection available in GPE or made it probable that those authorities were unwilling or unable to protect them . Furthermore , the court held that , as the applicant had not been politically active , and his brother ’s engagement with ORG dated back DATE , there were no reasons to believe that the applicant would be of any particular interest to ORG .

On DATE ORG ( Migrationsöverdomstolen ) refused the applicant leave to appeal .

NORP In DATE the applicant submitted to ORG a document alleged to be a NORP judgment by default dated DATE . According to the judgment , the applicant had been convicted , inter alia , of premeditated murder and sentenced to CARDINAL years’ imprisonment , including hard labour .

ORG considered the submission of the document to entail a request for a stay of the enforcement of the deportation order and a re - examination of its previous decision due to impediments to the enforcement . In its decision of CARDINAL DATE the ORG noted that the applicant had not previously claimed that the NORP authorities had issued a warrant for his arrest and that he had not provided any information on how he had obtained the document in question . It therefore had the authenticity of the judgment examined . The examination , which revealed , inter alia , that the document was a copy created using toner technology and that the stamps and signatures on it had been produced by photocopiers or printers , led to the conclusion that there were strong indications that it was not authentic . The ORG accordingly decided that there was no ground for a re - examination of its decision of CARDINAL DATE . The applicant appealed to ORG which , on DATE , upheld the ORG ’s conclusions .

On DATE , the deportation order became timebarred and shortly thereafter the applicant and his wife again applied for asylum .

Before ORG , the applicant maintained his previous submissions but made some changes and additions . In particular , he claimed that he had shot and killed CARDINAL of the men who had forced their way into his home in DATE and that that man was the son of a high - ranking ORG politician . Furthermore , due to his alleged conviction in absentia in DATE , ORG had sought him at his GPE and their ORG homes , which showed that he was wanted by ORG . He submitted an arrest warrant dated DATE .

On DATE ORG rejected the applicant ’s and his wife ’s new requests for asylum . As concerns the arrest warrant , which allegedly was based on the above - mentioned conviction , it was found to be of a very simple and easily falsified nature . Furthermore , it was undated , seemed to be a copy and was not accompanied by an explanation as to how the applicant had obtained it . In view of this , the Agency concluded that the documents submitted had very low value as evidence and were not sufficient to substantiate the applicant ’s asylum claims . The Agency then turned to the oral information submitted by the applicant . It found that , after having been refused asylum in DATE , he had changed his story significantly concerning the alleged incident at his home without providing any reasonable explanation . Moreover , he had failed to give a reasonable explanation as to why he had not mentioned the fatal shooting of the intruder , the conviction and the arrest warrant in the original asylum proceedings . The ORG thus found reason to question whether the alleged incident had occurred at all . It also noted that the applicant and his wife , despite numerous questions , had only submitted very parsimonious and vague answers concerning alleged visits and inquiries by ORG to their parents and other family members . In addition , the ORG noted that the incident had allegedly occurred in DATE and that there was no evidence indicating that ORG would have any particular or current interest in the applicant . Furthermore , the ORG confirmed its previous findings regarding the general situation in GPE . Lastly , in regard to the applicant ’s and his wife ’s private life within the meaning of LAW , it found that , for the majority of the time , they had resided in GPE illegally and had much stronger links to GPE than to GPE . Thus , they could not be granted leave to remain due to their residence in or connections to GPE . The ORG concluded that no grounds for residence permits had been established and therefore ordered the applicant ’s and his wife ’s deportation to GPE .

The applicant appealed to ORG . He maintained his claims and submitted , inter alia , documents from a lawyer and a security official at the Rafic Hariri FAC which stated that he had been convicted and sentenced to CARDINAL years’ imprisonment and was wanted by the NORP authorities .

On DATE , after having held an oral hearing , ORG upheld ORG decision . It agreed with the reasoning of the ORG concerning the probative value of the written evidence submitted and noted that the new documents were of a simple nature and did not substantiate his need for protection . Furthermore , the court found that the applicant ’s and his wife ’s accounts of the alleged incident in their home in DATE were incoherent and contradictory . Consequently , it concluded that they had not demonstrated that ORG had any interest in them , that they were exposed to risks against which they could not be protected by the NORP authorities or that they had been persecuted due to their NORP faith or for any other reason . Lastly , it shared the ORG ’s reasoning concerning the lack of sufficient links to GPE for granting them leave to remain .

On DATE ORG refused leave to appeal .

The basic provisions applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in LAW ( utlänningslagen , GPE ) .

An alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE ( LAW , section CARDINAL , of the Act ) . The term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a wellfounded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group , and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country ( LAW , section CARDINAL ) . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , section CARDINAL ) .

Moreover , if a residence permit can not be granted on the above grounds , such a permit may be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) as to allow him or her to remain in GPE ( LAW , section CARDINAL ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has acquired legal force . This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing , inter alia , that enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment , or where there are medical or other special reasons why the order should not be enforced ( LAW , section CARDINAL ) . If a residence permit can not be granted under these criteria , ORG may instead decide to re - examine the matter . Such re - examination is to be carried out where it may be assumed , on the basis of new circumstances relied on by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , sections CARDINAL and CARDINAL , and that these circumstances could not have been raised previously or the alien shows that he or she has a valid excuse for not having done so . Should the applicable conditions not have been met , the ORG will decide not to grant re - examination ( LAW , section CARDINAL ) .

In DATE ORG released ORG on ORG for DATE . It stated :

“ GPE is a parliamentary republic based on the DATE ORG , which apportions governmental authority among a ORG president , a NORP speaker of ORG ( parliament ) , and a NORP prime minister ...

NORP authorities maintained control over the armed forces and other security forces , although NORP security and militia forces , the designated terrorist group NORP , and other extremist elements operated outside the direction or control of government officials ...

The most significant human rights abuses during DATE were torture and abuse by security forces , harsh prison and detention center conditions , and limitations on freedom of movement for NORP and NORP refugees ...

Other human rights abuses included lengthy pretrial detention ; a judiciary subject to political pressure and long delays in trials ; violation of ORG privacy rights ...

Despite the presence of NORP and ORG security forces , ORG retained significant influence over parts of the country , and the government made no tangible progress toward disbanding and disarming armed militia groups , including GPE ...

Authorities failed to observe many provisions of the law , and government security forces , as well as extralegal armed groups such as NORP , continued the practice of extrajudicial arrest and detention , including incommunicado detention . Additionally , the law permits military intelligence personnel to make arrests without warrants in cases involving military personnel or involving civilians suspected of espionage , treason , or weapons possession . ”

The International Religious Freedom Report for DATE of ORG , released by ORG , contained , inter alia , the following in respect of GPE :

“ The constitution states there shall be absolute freedom of conscience and guarantees the free exercise of religious rites for all religious groups provided the public order is not disturbed . The constitution states there shall be a “ just and equitable balance ” in the apportionment of cabinet and high level civil service positions among the major religious groups , a situation reaffirmed by ORG , which ended the country ’s civil war and mandated equal representation between NORP and NORP in the parliament . Some minority NORP groups complained they were not granted proportionate representation in the cabinet , high level civil service positions , or the parliament . ...

... Religious leaders of NORP and NORP communities reported places of worship continued to operate in relative peace and security , and that relationships among individual members of different religious groups generally remained amicable .

Statistics GPE estimates PERCENT of the population is NORP . ... ”

In a report of CARDINAL DATE on his mission to GPE , the Special Rapporteur on Freedom of Religion or Belief of ORG ( ORG ) set out , inter alia , the following conclusions :

“ In GPE , people are free to confess and practise their religions and beliefs in the way they see fit . Conversion in different directions is possible and indeed a reality – in stark contrast to the situation in most other LOC countries . People can also bear public testimony to their faith and engage in missionary or dawa activities . Religious diversity is a visible and audible reality , as churches and mosques often stand in close vicinity and the ringing of bells at times intermingles with the NORP call to prayer . Some NORP openly declare themselves as agnostics or atheists , and express critical views on religion in general , which is mostly appreciated as something quite natural in an open society .

The country ’s pluralistic heritage is a counterpoint to the aggressive agendas of sectarian homogenization that haunt some neighbouring countries . Over DATE , a culture of interreligious coexistence has emerged that DATE helps to build resilience against extremist interpretations of religious traditions . Many families comprise persons of different religious orientations . Many people live , learn and work together across confessional lines , a situation that quite naturally fosters the discovery of common interests , values and convictions . ”


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

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

From DATE to CARDINAL DATE he was employed by a NORP company which was carrying out construction work in GPE . The NORP workers were employed on the basis of the international agreement signed on DATE between GPE and GPE on the secondment of workers of NORP companies to carry out construction work ( Umowa między PERSON a PERSON Federalnej PERSON o oddelegowaniu pracowników polskich przedsiębiorstw do realizacji umów o dzieło z DATE r. , Dz . U. DATE , ORG , GPE . CARDINAL ) . The rates of the applicant ’s pay were determined by an employment contract and the regulations which the contract referred to .

On DATE the applicant lodged a civil claim against his former employer for payment . He claimed that , instead of the rate of CARDINAL or CARDINAL NORP PERSON ( ORG ) per hour which he had been receiving under his employment contract in the period from DATE to DATE , he should have been receiving a higher rate of pay . Relying on the provisions of the above - mentioned international agreement , he claimed that he should have been receiving a rate comparable to that of the NORP workers occupying the same positions .

On DATE the NORP ORG gave a partial judgment in which it established that the applicant was entitled to the rates of pay fixed in the employment contract .

The court observed that the essential issue in the case was whether the applicant was entitled to a higher rate of pay , equivalent to that paid to the NORP employees working in similar positions at the material time . It was noted in this connection that the parties had not chosen to regulate the employment contract under NORP law . Instead NORP labour law was applicable .

In so far as the applicant relied on the provisions of the international agreement of DATE ( see paragraph CARDINAL above ) and argued that it should serve as the basis for setting his rate of pay , the court observed that this agreement was of a public - law character . Its object and purpose was to regulate relations between GPE and GPE in the construction market with a view to preventing unfair competition by NORP companies setting wages of construction workers working in GPE at too low a level , and to protect NORP workers against being paid too low a rate .

The applicant appealed . He argued that the Opole ORG had violated the provisions of LAW . In the applicant ’s opinion , the court ’s finding that the applicant ’s rates of pay were fixed in his employment contract was erroneous , because that contract did not contain any rates ( only symbols which were not understood by the applicant ) . Besides , in his view , the court had violated the provisions of the abovementioned international agreement , according to which the rates of the applicant ’s pay should be comparable to those received by the NORP workers occupying the same positions .

On DATE ORG quashed the first - instance partial judgment on account of its procedural shortcomings and remitted the case to the lower court . ORG comprised CARDINAL judges . Judge FAC . sat on the bench . He was not a judge rapporteur and he did not preside .

ORG found that in the applicant ’s case there were no grounds for delivering a partial judgment . It noted that a partial judgment could be delivered only when a part or some of the claims in a lawsuit had been sufficiently clarified for the decision . In the applicant ’s case there was CARDINAL claim and thus there had been no grounds for delivering the partial judgment .

In the final part of the written grounds for the judgment ORG stated that the position of the Opole Regional Court as to the substance of the case was supported by the wording of the international agreements and existing domestic case - law . This part of the court ’s reasoning read as follows :

“ As to the substantive grounds for the court ’s legal view expressed in the judgment under appeal , it should be stated that it finds support in the content of the Agreement between the Governments of GPE and GPE on the secondment of workers of NORP companies to carry out construction work ( Journal of Laws CARDINAL/CARDINAL , items CARDINAL and CARDINAL ) as well as in the hitherto interpretation of this agreement in judicial decisions ( see , e.g. , III A Pa CARDINAL/CARDINAL ORG , decision of CARDINAL DATE ) . ”

On DATE the applicant challenged one of the judges , alleging his partiality . He further requested that the case be transferred to another town because , in his view , the judges were not impartial and the defendant company “ had enjoyed considerable influence in GPE . ”

On DATE ORG dismissed the applicant ’s request .

On DATE the applicant appealed .

On DATE ORG dismissed the applicant ’s appeal , finding no grounds for the judges of the Opole ORG to step down .

On DATE the NORP ORG gave judgment granting the applicant ’s claim in part and dismissing the remainder . ORG ordered the defendant company to pay the applicant the sum of MONEY ( ORG ) for unused leave . As to the rate of the applicant ’s pay , the court reiterated the reasoning of the judgment of DATE and dismissed the claim ( see paragraph CARDINAL above ) .

The applicant appealed .

On DATE ORG dismissed the appeal . The court accepted the reasoning of the first - instance court .

On DATE the applicant ’s lawyer lodged a cassation appeal on his behalf .

On DATE ORG examined the cassation appeal , quashed the challenged judgment and remitted the case to ORG .

ORG considered that the NORP - German agreement of DATE was not a source of universally binding law and did not contain provisions applicable to labour relations . The agreement could not be regarded as constituting the legal basis for claims of employees concerning remuneration for their work . Moreover , GPE ’s accession to ORG did not have an impact on the applicability of that agreement . Furthermore , ORG law did not apply retroactively to situations predating GPE ’s accession .

The fact that employees’ claims concerning the applicable minimum wages could not be regarded as having their legal basis in the said ORG agreement did not mean , in the court ’s opinion , that those claims could not be raised upon the basis of employment contracts . In ORG view , ORG had not sufficiently clarified the meaning of those contracts in the light of statements made by the NORP company concerning the applicant ’s employment conditions and the obligations imposed on the company by the provisions of NORP law to which those statements referred .

On DATE ORG , having taken into account the recommendations of ORG , again dismissed the applicant ’s appeal lodged against ORG judgment of CARDINAL DATE . The court reiterated that the applicant was entitled to the rates of pay fixed in his employment contract .

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

He first raised substantive arguments . He averred that the Opole Regional Court had disregarded the provisions of LAW . In the applicant ’s opinion , the court ’s finding that his TIME rate of pay had been fixed in his employment contract had been erroneous , because that contract had not contained any rates ( only symbols which the applicant had not been able to understand ) . Besides , in his view , the court had disregarded the provisions of the applicable international agreement ( see paragraphs CARDINAL and CARDINAL above ) , according to which the applicant ’s rate of pay should have been comparable to that received by the NORP workers occupying the same positions .

He further complained that the appellate court had failed to take heed of the interpretation of the applicable law expressed by ORG in its previous judgment as to the applicable rate of the applicant ’s salary .

It was further argued that the court had failed to take into consideration the evidence gathered in the case . The court had also erred when refusing to allow certain requests for evidence to be taken .

The applicant further complained that in the written grounds for its judgment ORG had failed to provide reasons for which it had disregarded the interpretation of relevant applicable provisions made in the past by ORG – a substantive question which had been crucial for the outcome of the case .

On DATE ORG , sitting as a bench of CARDINAL judges , dismissed the applicant ’s cassation appeal .

Judge ORG . , who had sat on the bench of the Court of Appeal deciding the case on DATE , had in the meantime been promoted to ORG . He sat on the bench of ORG . He was not a judge rapporteur and he did not preside .

ORG noted that the appellate court , contrary to the applicant ’s objection , had followed the interpretation of the applicable law expressed by the earlier judgment of ORG ( pronounced on DATE ) given in the same case . In this judgment ORG had confirmed that the international agreement referred to by the applicant could not be regarded as a legal source of employees’ and ORG rights and obligations . The appellate court ’s decision had followed this view and it had confirmed that the substantive provisions of that agreement had not applied to the setting of the applicant ’s rate of pay , which had been fixed by his employment contract .

ORG stressed that in his cassation appeal the applicant raised the same complaint which had already been made in his earlier cassation appeal . This was inadmissible as under section CARDINAL of the Code of Civil Procedure ( see paragraph CARDINAL below ) it was not allowed to found a cassation appeal against a judgment rendered after a new examination of a case upon complaints contrary to the interpretation previously established by ORG dealing with the earlier cassation appeal lodged in the same case .

Additionally , ORG noted that the interpretation made by the lower courts of the applicant ’s contract of employment , seen as a whole , had taken into account the applicant ’s employer ’s declarations submitted to the NORP authorities and also a wealth of other evidence in so far as it had been relevant for the determination of the applicant ’s working conditions and remuneration .

ORG further observed that the applicant ’s remuneration had been set at the level of the minimal remuneration of NORP employees performing similar work determined on the basis of ORG .

In so far as the applicant complained in his cassation appeal of the alleged failure of the courts to take further evidence and of the assessment of the evidence they had carried out , those complaints could not be examined in the context of those proceedings . It was not the task of ORG in cassation proceedings to act as an ordinary court of appeal and to examine issues concerning the admissibility and assessment of evidence and the factual findings made by the lower courts .


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

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

The applicant was born in DATE and lives in GPE .

The applicant is a civil servant working as a lawyer for the GPE tax authorities . In DATE , the applicant was a board member of the local branch of a registered association called “ FAC ” . In this capacity he opened a bank account for the association . He and CARDINAL other members of the association were authorised to draw on the account . The account was used for the deposit of donations and membership fees . The account data was therefore published , for example in brochures . In DATE the applicant left the board of the association .

In DATE , a third person reported to the police that he had bought a watch via ORG . The watch had turned out to be a fake . He had tried to rescind the purchase when he found out , but the seller – of whom he knew only the email address “ sternschnuppeCARDINAL@uboot.com ” DATE refused to cooperate . The police investigations showed that a certain Mr NORP was registered with ORG as user of the email address “ sternschnuppeCARDINAL ” . The bank account registered for the email address “ sternschnuppeCARDINAL ” was the account of the “ ORG ” association . Investigations further showed that various other users , who were registered with ORG , cited the bank account of the “ ORG ” association as their bank account . The police also found out that the user of “ sternschnuppeCARDINAL ” had traded computer programmes via ORG . An investigation of the transactions of the “ ORG ” bank account showed that there had only been CARDINAL transaction connected to ORG : ORG had tried to collect fees ( ORG CARDINAL ) on DATE . The “ ORG ” association had protested against the payment , which had been returned on DATE . Mr NORP was questioned by the police . He explained , convincingly , that he had nothing to do with the email address “ sternschnuppeCARDINAL ” or the bank account of the “ ORG ” association .

On DATE , upon a request of the prosecutor ’s office of GPE I , ORG issued a search warrant in respect of the applicant ’s home ( and the home of CARDINAL other members of the “ ORG ” association who were authorised to draw on the association ’s bank account ) on suspicion that they had committed “ copyright piracy ” by selling fake goods such as watches and computer programmes . The search warrant authorised the search and seizure of computers and documents containing information about the sale of the fake watch and the computer programmes .

On DATE the applicant ’s ( shared ) flat in GPE was searched . The police found none of the items they were searching for . Instead , by coincidence , the police found QUANTITY of hashish , which contained QUANTITY of pure THC ( tetrahydrocannabinol ) , and CARDINAL defective weighing scales in the flat . The amount and quality of the hashish was asserted by an expert . The amount was enough for CARDINAL consumption units . The criminal proceedings regarding the suspected “ copyright piracy ” were discontinued . However , new proceedings for possession and trafficking of a substantial amount of drugs were initiated against the applicant .

The applicant , represented by counsel , lodged a complaint against the search warrant before the criminal courts arguing that the warrant , and consequently the search , had been unlawful and had infringed his constitutional right to respect for his home under LAW ( “ LAW ; see paragraph CARDINAL , below ) . ORG and the GPE ORG dismissed the complaint .

The applicant subsequently lodged a constitutional complaint with ORG .

On DATE ORG held that the complaint was manifestly well - founded , found a violation of LAW , declared the house search unlawful and quashed the search warrant and the decisions of LOC . The court left open whether the few indications supporting the initial suspicion that the applicant might have committed “ copyright piracy ” justified the ordering of a search warrant . In any event , however , ORG ruled that having weighed the few indications supporting a suspicion that the applicant could have committed “ copyright piracy ” against the massive impact of a house search on the applicant ’s constitutional right to respect for his home , the issuing of a search warrant and hence the house search had not been proportionate . It would have been possible and necessary to take other investigative measures that would have interfered less with the applicant ’s right before searching the applicant ’s home .

On DATE the applicant was indicted by the GPE prosecution on charges of possession of and trafficking in a substantial amount of drugs . On DATE the GPE ORG convicted the applicant of possession of a substantial amount of drugs in less serious circumstances and imposed a CARDINAL months’ suspended prison sentence . The judgment was exclusively based on the presence of hashish found during the house search of DATE .

The applicant lodged an appeal on points of law before ORG , arguing that he should have been acquitted as the evidence found during the house search could not be admitted as evidence in the criminal proceedings for drug possession . As the search warrant had been invalidated by ORG , the police had never had a right to enter the applicant ’s shared flat and would therefore never have had a legal possibility of finding the drugs at the applicant ’s flat . Moreover , the seizure of the hashish had not even been covered by the unlawful search warrant . The infringement of the applicant ’s right to respect for his home had been so severe that the evidence which had coincidentally been found during the house search could not be admitted as evidence against the applicant .

On DATE ORG quashed ORG judgment and referred the case back to ORG because it was of the view that ORG had not sufficiently examined whether the hashish belonged to the applicant . As he lived in a shared flat , the room , and hence the drugs , could have belonged to any of his flatmates . With regard to the admissibility of the evidence ORG found that the hashish found during the search could be used as evidence against the applicant . The infringement of the applicant ’s basic rights with regard to the criminal proceedings concerning copyright piracy had not been so serious that the applicant ’s interest in respect for his home outweighed the public interest in prosecution . ORG referred to ORG case - law ( see paragraph CARDINAL below ) , according to which unlawfully obtained evidence could be used in criminal proceedings as long as , after a thorough balancing of the different interests at stake , the public interest in prosecution did not have to stand back against the right to respect for his home of the person concerned and as long as that person ’s rights had not been violated on purpose . It reiterated ORG finding that the applicant ’s basic rights had been seriously infringed ( see paragraph CARDINAL above ) . Whether or not the search warrant had been sufficiently precise , and whether a sufficient initial suspicion for issuing a search warrant had been present or not , did not have to be determined because , even assuming that this had not been the case , such shortcomings did not render the obtained evidence unlawful . Because of the seriousness of the crime of drug possession , and the substantial amount of hashish found , the public interest in prosecution outweighed the applicant ’s interest in respect for his home . Furthermore , the applicant ’s rights had not been deliberately infringed , the house search had not been arbitrary and the amount of hashish found would theoretically have justified a house search . ORG was hence of the view that the hashish found during the search could be used as evidence against the applicant .

Considering that it was legally unclear whether or not ORG findings regarding the admissibility of the evidence found during the house search were binding on the lower courts , the applicant lodged a constitutional complaint with ORG . On DATE ORG rejected the complaint as inadmissible .

In the resumed proceedings before ORG , the applicant made a statement that the room in which the hashish had been found was exclusively used by him . On DATE ORG acquitted the applicant , ruling that the hashish found during the house search could not be used as evidence against him . The court noted that under the well - established case law of ORG ( see paragraph CARDINAL below ) an unlawful house search did not automatically mean that the evidence seized during such a house search could not be used in the trial against the person concerned . Evidence might , however , be precluded if the violation of the applicant ’s right to respect for his home had been particularly serious . The court weighed the public interest in prosecuting the crime of possession of drugs against the applicant ’s interest in respect for his home . It was of the view that the initial suspicion that the applicant might have committed the offence of copyright piracy had been so vague that the issuing of a search warrant had not been justified at all . Hence , the applicant ’s right to respect for his home had been infringed in such a severe way that despite the seriousness of the crime of drug possession and the substantial amount of hashish found , the public interest in prosecution could not outweigh the applicant ’s interest in respect for his home .

On DATE , on appeal by the prosecution , ORG quashed the acquittal , convicted the applicant of possession of a substantial amount of drugs in less serious circumstances and sentenced him to a CARDINAL months’ suspended prison sentence . As regards the question whether the applicant had been in possession of the drugs ORG relied on a statement of the applicant dated DATE according to which the room in which the hashish had been found was solely used by himself . Furthermore , ORG was of the view that ORG findings in its judgment of DATE ( see paragraph CARDINAL above ) on the admissibility of the hashish as the sole evidence were binding and that hence the hashish found in the applicant ’s flat could be used as evidence against him . Moreover , the court made it clear that even if ORG findings were not binding in this respect it was itself of the view that , weighing the applicant ’s interest in respect for his home against the public interest in prosecution , the latter prevailed and that the evidence was thus admissible .

The applicant subsequently lodged a fresh appeal on points of law before ORG , arguing that ORG should not have admitted the evidence . On DATE ORG dismissed the appeal . The court weighed the public interest in prosecuting the crime of possession of drugs against the applicant ’s interest in respect for his home . It took the view that , considering the seriousness of the crime of drug possession and the substantial amount of hashish found , the public interest in prosecution outweighed the applicant ’s interest in respect for his home because the applicant ’s rights had not been deliberately infringed , the house search had not been arbitrary and the amount of hashish found would theoretically have justified a house search .

The applicant lodged a fresh constitutional complaint , arguing that the admission of the evidence infringed his right to respect for his home under LAW and his right to a fair trial under LAW read in conjunction with LAW of LAW ( see paragraph CARDINAL below ) . On DATE ORG dismissed the complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . The decision was served on the applicant ’s counsel on DATE . The court assessed the applicant ’s arguments mainly under the head of LAW . It held that ORG had balanced all the interests at stake in a way that was neither arbitrary nor unreasonable and that the conviction of the applicant , although exclusively based on the evidence found during the house search , did not infringe the applicant ’s constitutional rights . With regard to the applicant ’s claim that the use of the hashish seized as evidence against him had violated his rights under LAW read in conjunction with LAW , the court held that the principle of a fair trial had been applied in a way that was neither unjustifiable nor arbitrary . Hence the applicant ’s constitutional rights had not been violated .

As the applicant was a civil servant , disciplinary proceedings were initiated in view of the criminal charges against him . The disciplinary proceedings were adjourned during the criminal proceedings . Following the conviction of the applicant by the criminal courts , the competent authorities formally noted that the applicant had committed a disciplinary offence and discontinued the proceedings as the offence had not been of a kind or degree demanding disciplinary measures .


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Egidijus Kūris;Helen Keller;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković

The applicants were born in DATE , DATE and DATE , respectively , and live in GPE , GPE .

During DATE and DATE NORP paramilitary forces gained control of CARDINAL of the territory of GPE and proclaimed the “ GPE ” ( NORP autonomna oblast LOC , hereinafter “ LOC ” ) . At DATE the NORP authorities announced their intention to take military action with the aim of regaining control over LOC . The operation was codenamed “ Storm ” ( PERSON ) and took place from CARDINAL to CARDINAL DATE . Before the military action , the vast majority of the population of LOC fled GPE . Most of them went to GPE , and also to GPE . Some returned to GPE after the war . The number of people who fled is estimated at CARDINAL .

On DATE GPE ratified the Convention .

The documents submitted by the parties reveal the following facts .

The applicants lived in GPE , within the territory of LOC . During NORP the town of PERSON was shelled by the NORP army . During the shelling the applicants hid in the basement of their building . PERSON was found dead near a petrol station in GPE after one of the shelling attacks . It appears that he was buried at a cemetery in GPE .

On DATE , during the exhumations at the “ FAC ” ( ORG groblje ) in PERSON , the first applicant approached the police and said that her husband , PERSON , had been buried at that cemetery . The Šibenik - ORG , FAC ( FAC uprava šibensko - kninska , FAC postaja GPE ) , then interviewed the first applicant about the circumstances of the death of her husband . She stated that her husband had died on CARDINAL DATE near a petrol station in GPE . Given that PERSON had been under artillery attack , the first applicant assumed that her husband had been killed by a shell . She further stated that she had seen her husband ’s dead body lying on the pavement near the above - mentioned petrol station . She gave a detailed description of his appearance and of the clothes he had been wearing . Members of the NORP army appeared at the crime scene and took the first applicant to a PERSON ( ORG ) camp in GPE . She had obtained no further knowledge of the whereabouts of her husband ’s body . She assumed that he was buried at a cemetery in GPE .

A number of remains were exhumed during DATE and DATE at the cemetery in GPE . The process was conducted under the auspices of ORG for the former GPE ( GPE kazneni sud za bivšu GPE ) and GPE Attorney ’s Office in GPE ( GPE državno odvjetništvo u PERSON ) . After they were exhumed , the remains were examined at ORG in GPE ( GPE za sudsku medicinu i kriminalistiku ) but PERSON ’s remains were not identified at that time . On DATE ORG for the former GPE issued an autopsy report which concluded that the probable cause of the death for the remains which were only in DATE identified as being those of PERSON , was a gunshot to the neck .

On DATE ORG submitted to the NORP - Knin Criminal Police Department ( PERSON kriminalističke policije , ORG uprava šibensko - kninska ) its official notes of the interviews which it had conducted with the families of the people killed during and after LOC . The above - mentioned interview with the first applicant was also submitted .

On DATE ORG in GPE extracted a genotype from PERSON ’s remains and compared it with DNA samples from its database . However , they failed to find a match and could not establish the identity of the remains .

After the applicants on CARDINAL DATE filed with ORG a claim for damages in connection with the killing of PERSON ( see paragraph CARDINAL below ) , the GPE police opened an inquiry into the circumstances of his death .

On DATE ORG interviewed M.T. , who stated that the first applicant had told her about the events in GPE during LOC and the death of her husband , PERSON She had no further useful information .

On DATE the NORP - Knin Criminal Police Department interviewed PERSON . PERSON She described the events of CARDINAL DATE as follows . During the artillery attack on PERSON she and her family had hidden in a basement . After the attack they had left the basement . The NORP army had led the civilians to a furniture shop , from where they had been taken to the barracks known as “ southern camp ” ( južni logor ) . The first and the second applicants had also been in this group of civilians . As they had been passing through FAC , the witness had seen the dead body of PERSON He had been dressed in civilian clothes and had had no visible injuries . Lj . M indicated that she had no recollection of seeing PERSON wearing the military uniform of GPE ( ORG : PERSON ) . Lj . M ’s statement was confirmed by her mother - in - law , PERSON

On DATE the NORP - Knin Criminal Police Department interviewed GPE , a neighbour of the PERSON family . She stated that PERSON had not been a member of the army or the police of GPE and that she had never seen him wearing a military uniform . During Operation Storm her family and the PERSON family had been hiding in the basement of their residential building . PERSON had occasionally come to the basement , but he had not been present all the time . The last time that GPE had seen him alive had been on DATE , CARDINAL After they had all left the basement , she had seen the dead body of PERSON lying on the street . She had no further information .

On DATE the LANGUAGE - Knin Criminal Police Department informed GPE Office in GPE that the case had not yet been registered and that it had failed to determine whether PERSON had been a member of the army or the police of GPE . The police indicated that they had conducted interviews with ORG PERSON and GPE However , it was not possible to conduct an interview with the first applicant , since she resided in GPE . The police indicated that PERSON had most likely been buried at the cemetery in PERSON . His remains had been exhumed and transferred to ORG in GPE , where they were still being identified .

On DATE PERSON , PERSON ’s brother , provided information about PERSON ’s ante - mortem physical features to ORG ( ORG ) in order that his post - mortem remains might be identified . On DATE PERSON requested that a search be undertaken for the post - mortem remains of PERSON

On DATE family members provided blood . After a DNA analysis was conducted , ORG in GPE issued a report dated DATE , which stated that the post - mortem remains were those of PERSON

On DATE the family of PERSON was invited to the final identification of the post - mortem remains . On DATE the first applicant confirmed the preliminary identification of the remains .

On DATE the LANGUAGE - Knin Criminal Police Department submitted a list of missing persons to FAC , together with a request for an inquiry into their disappearance and for interviews to be conducted with their families and neighbours . PERSON was listed as CARDINAL of those missing persons .

On DATE the remains of PERSON were buried at the local cemetery in Knin , in accordance with the wishes of the applicants .

On DATE ORG issued an official note about the inquiry into PERSON ’s disappearance . After interviewing the first applicant , the police determined that PERSON had died on CARDINAL DATE and had been buried on DATE at the cemetery in GPE . On DATE FAC notified the NORP - Knin Criminal Police Department of those findings .

On DATE ORG ( ORG branitelja ) replied to a request of ORG of ORG ( ORG unutarnjih poslova , ORG ratnih zločina ) concerning the case of PERSON The Ministry of the Interior notified the police of the exhumation and identification of PERSON ’s remains .

On DATE the applicants submitted a claim for damages with the State Attorney ’s Office in respect of the death of PERSON The request was refused .

On DATE the applicants brought a civil action against the ORG in ORG ( PERSON ) , seeking damages in respect of the death of PERSON under the DATE LAW .

On DATE the municipal court dismissed the claim on the ground that there was “ no evidence that PERSON ’s death had been a result of terror or violence aimed at gravely disturbing public order . ” That judgment was upheld by ORG PERSON u PERSON ) on DATE and by ORG ( PERSON ) on DATE .

NORP The applicants’ subsequent constitutional complaint was dismissed on DATE by ORG ( Ustavni sud PERSON ) .


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

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

The applicant was born in DATE and lives in the village of Trudobelikovskiy , GPE region .

At TIME on DATE the applicant , who was DATE at the time , and B. were taken in a police patrol car to the police station of the LOC district of GPE for an examination of allegations of assault made against them by CARDINAL individuals , in particular of the sexual assault of a woman . The police intervened immediately after the alleged assaults .

According to the applicant , at the police station investigator ORG demanded that he confess to the crime , and threatened him with illtreatment and rape in a cell at the pre - trial detention facility . The applicant refused to sign self - incriminating statements and was allegedly subjected to ill - treatment which he described as follows . He was taken to a cell where CARDINAL policemen held his hands while a third policeman kicked him in the stomach leaving a boot print on his ORG ; the CARDINAL policemen then threw the applicant to the floor , face down . Thereafter , the policemen took the applicant to ORG ’s office , where he signed a “ statement of surrender and confession ” ( явка с повинной ) . He was then taken to the toilet by a policeman who started insulting him . When the applicant responded , the policeman allegedly sprayed gas in his eyes and hit him several times with a rubber truncheon . The policeman then pushed the applicant into the cell so that the applicant hit his head against the wall and fell to the ground .

According to the police record drawn up by operative police officer PERSON , the applicant signed the “ statement of surrender and confession ” at CARDINAL TIME on DATE .

Investigator PERSON instituted criminal proceedings against him and PERSON and ordered a forensic medical examination of the applicant to establish , in view of the nature of the crime , whether the applicant had any pathology which would prevent him from performing sexual acts .

The applicant was taken to a forensic medical expert who found that the applicant had the following physical injuries ( examination report of CARDINAL DATE ) : ( i ) CARDINAL abrasions on the left side of the forehead , measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY ; ( ii ) an abrasion on the bridge of the nose , measuring QUANTITY by QUANTITY ; and ( iii ) a bruise around CARDINAL eye , measuring QUANTITY by QUANTITY . The applicant explained to the expert that his injuries had been caused by the QUANTITY police officers who had physically assaulted him at the police station in TIME QUANTITY DATE , in particular by hitting his face against the wall . The expert concluded that the bruise and abrasions on the applicant ’s face could have been sustained in the circumstances and at the time alleged by the applicant .

After the medical examination the applicant was taken back to the police station , where investigator ORG told him that he must come back at TIME that day for questioning as a suspect and released him . His arrest was not recorded .

On DATE the applicant complained to ORG that he had been ill - treated at the police station . He also asked the traumatology unit of the hospital in GPE to record his injuries . According to the hospital medical records , the applicant had the following injuries : ( i ) an acentric fracture of the nose ; ( ii ) a bruise on the forehead ; and ( iii ) abrasions on the forehead .

On DATE the applicant was arrested , questioned as a suspect and detained on remand by a court .

On DATE the applicant ’s mother complained to the NORP district prosecutor ’s office that the applicant had been illtreated at the police station . In her complaint she stated , inter alia , that at TIME on DATE the applicant had returned home from the police station with bruises and abrasions on his body , and a print from a large boot on his T - shirt in the area of his stomach . The applicant had told her that he had been ill - treated at the police station .

On DATE the prosecutor issued a refusal to open a criminal case against the lawenforcement officers , finding , in accordance with LAW ( CARDINAL ) of LAW , that none of the elements of the crimes provided for in ORG CARDINAL and CARDINAL of LAW ( on abuse of powers and forced confessions respectively ) had been present in respect of the actions of investigator PERSON or police officers GPE , ORG , PERSON . , and ORG The decision relied on the following statements .

Investigator PERSON stated that he had interviewed the applicant after he had signed his “ statement of surrender and confession ” . The applicant had not complained of any physical violence against him . After the applicant ’s forensic medical examination ORG had talked to the applicant again and then released him . ORG had not seen any injuries on the applicant , or a footprint on his T - shirt , during his interview or prior to his release from the police station . ORG had heard about the applicant hitting his head against the wall later on from ORG denied that the applicant had been put under any physical or psychological pressure .

The police officers denied subjecting the applicant to any illtreatment . NORP stated that he had learned from GPE that the applicant had struck his head against the wall . PERSON stated that he had learned from duty officer GPE about the applicant striking his head against the bars of a cell . S.A. and PERSON . stated that they had seen the applicant bang his head repeatedly against the bars and then against the wall in a room of the duty officer . While banging his head against the wall the applicant was allegedly shouting that he would complain to the prosecutor ’s office that police officers had beaten him up .

The applicant ’s mother challenged the refusal to open a criminal case against the police officers and investigator PERSON On DATE the NORP ORG dismissed her complaint .

On DATE ORG of GPE granted an appeal lodged by the applicant ’s mother and quashed ORG decision , noting that no assessment had been made of the contradiction between the medical expert ’s conclusions and the police ORG allegations of the applicant ’s self - harm . Nor had the court assessed the applicant ’s medical record concerning the nose fracture , the allegation of the applicant having been kicked and having a footprint from a boot on his ORG , the presence of a video surveillance camera at the police station which should have recorded the incident , or statements by PERSON that he had heard the applicant screaming at the police station . ORG had not taken into account circumstances which could have significantly influenced its conclusions and had not given reasons why , in so far as the conflicting evidence was concerned , it had given preference to some evidence whilst rejecting other . A fresh examination of the applicant ’s mother ’s appeal was ordered by a different composition of judges of the same court .

On DATE the Syktyvdinskiy ORG ruled that the refusal to open a criminal case of CARDINAL DATE had been unjustified for reasons largely similar to those cited by ORG . The court ordered the investigation authorities to rectify those deficiencies .

On DATE the deputy prosecutor of GPE overruled the refusal of CARDINAL DATE to open a criminal case .

On DATE the investigative committee of the prosecutor ’s office of GPE issued a new refusal to open a criminal case against the police officers and investigator PERSON , finding , in accordance with LAW ( CARDINAL ) of the ORG , that none of the elements of the crimes provided for in LAW , CARDINAL and CARDINAL of LAW ( on insulting behaviour , abuse of powers and forced confessions respectively ) were present in their actions . It was noted that , according to information received from the LOC district police department , the video surveillance recordings of the room of the duty officer and the cells for administrative offenders for the period from DATE had not been preserved . Such records were normally kept for DATE and then automatically deleted . It was concluded that the applicant had caused injuries to himself at the police station with the purpose of avoiding criminal liability for the crime which he had committed .

On DATE the applicant was found guilty by the Syktyvdinskiy ORG .

NORP The applicant ’s mother challenged the second refusal to open a criminal case against the police officers and investigator ORG

On DATE the Syktyvdinskiy ORG dismissed her appeal . It examined the explanations given by the police officers and investigator ORG , and held that the allegations regarding the applicant ’s illtreatment had not been substantiated . The court also noted that the allegation regarding the applicant ’s forced confession had been examined during the applicant ’s criminal trial and had been dismissed as unfounded in the judgment of CARDINAL DATE . The court further noted that the trial court had examined and endorsed the refusal of DATE to open a criminal case against the police officers . Finally , the court concluded that the applicant ’s allegations of ill - treatment had been designed to discredit the lawenforcement authorities . On DATE ORG of Komi upheld that decision on appeal .

The judgment of DATE in the applicant ’s criminal case was subsequently quashed and remitted to the first - instance court for fresh examination . On DATE the Syktyvdinskiy ORG convicted the applicant of sexual assault , specifially holding the victim to enable PERSON to sexually assault her , and sentenced him to DATE and CARDINAL months’ imprisonment . The applicant denied his guilt at trial , asserting that he had signed the “ statement of surrender and confession ” under physical pressure from the police officers and psychological pressure from investigator PERSON trial court rejected the applicant ’s arguments , relying on the refusal of DATE to open a criminal case against the police officers and investigator PERSON applicant ’s “ statement of surrender and confession ” formed part of the evidence on which his conviction was based , and served as a mitigating circumstance . The applicant appealed against the judgment .

On DATE ORG of GPE upheld the judgment on appeal , stating that it was irrelevant to the criminal case against the applicant whether or not the refusal to open a criminal case into his allegations of ill - treatment had been unfounded .


No violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom to receive information)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant is a lawyer who also writes articles for various NORP law journals and online legal information databases and networks .

According to the applicant , his work usually requires extensive scientific research , including in the field of law enforcement in LOC . He supported his assertion with copies of contracts with well - known NORP publishing houses and owners of a number of legal magazines , including CARDINAL supervised by the ORG of the President of GPE . Under the contracts he undertook the task of writing articles on specific topics of legal and social interest .

Having received an assignment to write an article on prostitution and the fight against it in LOC , on CARDINAL DATE the applicant wrote to the head of the GPE Region police department by registered letter , asking for statistical data for his research . The relevant parts read :

“ [ I am ] interested in [ receiving ] information for DATE , in particular :

[ information on ] the number of people found administratively liable under LAW Code of Administrative Offences ( prostitution ) , with a breakdown by sex , residence ( residents of LOC or visitors ) , nationality ( nationals of GPE , foreigners or stateless persons ) and DATE [ of the offence ] ;

[ information on ] the number of criminal cases instituted during the abovementioned period under LAW , CARDINAL , CARDINAL [ and ] CARDINAL ( cases related to sexual exploitation ) of the ... Criminal Code , with a breakdown of the specific ORG ... and DATE [ the case was opened ] ;

[ information on ] the number of individuals found criminally liable under LAW , CARDINAL , CARDINAL [ and ] CARDINAL ... of the ... Criminal Code , with a breakdown by sex , age , educational background , permanent residence ( residents of LOC or visitors ) , nationality and period [ in which the crime was committed ] ;

general information on sentences imposed on individuals found criminally liable under Articles CARDINAL , CARDINAL , CARDINAL [ and ] CARDINAL ... of the ... Criminal Code the types of sentences and in how many cases they were imposed , and DATE [ they were imposed ] .

[ I ] stress that I do not need any specific personal information about individuals found administratively or criminally liable ; [ I only need ] general statistical information for writing a scientific article . ”

It appears from an acknowledgement of receipt that the letter reached the GPE Region police department on DATE .

Under NORP law , ORG officials must provide a reply to letters from individuals within DATE . In the absence of any response , on DATE the applicant lodged a claim with ORG ( “ the ORG ” ) , complaining that the police authorities had failed to provide him with the information he had requested and requesting for access . Relying on LAW ( see below ) and LAW , he argued that the officials’ implied refusal to provide him with the information had been unlawful as he had not asked for access to any confidential personal information , ORG secrets or information related to internal police working methods . He claimed that his request had related purely to statistical data of a general nature collected by ORG of the GPE Region police department ( hereinafter “ the Information Centre ” ) .

On DATE the applicant received a letter from the head of ORG , notifying him that information as specific as he had asked for could only be collected on production of a written order issued by a deputy Minister of ORG , a head of a regional or municipal police department or their divisions or a prosecutor or investigator from a prosecutor ’s office . ORG did not collect such information at the request of private individuals . General statistical data summarised by FAC was provided to ORG and in particular its regional office for LOC , to whom the applicant could apply for the statistical data .

On DATE the applicant wrote to ORG ( hereinafter “ the Statistics Service ” ) by registered letter , asking for the statistical data for his research .

On DATE the head of ORG replied , stating that specific statistical information on the fight against prostitution had never been provided by the GPE Regional police department .

The applicant filed copies of his letters from ORG with ORG .

On DATE it dismissed the applicant ’s claim on the grounds that ORG was not authorised to process data requests from private individuals . Under domestic law , ORG was tasked with dissemination of official statistical data on a broad variety of subjects , including those falling within the applicant ’s field of interest . It also noted that the applicant had failed to obtain the information sought from open sources , such as libraries , archives and the Internet . ORG also stressed that the information requested did not touch upon the applicant ’s rights and legitimate interests , so the authorities’ refusal to grant him access to such information had been lawful and well - founded under section CARDINAL(CARDINAL ) of LAW .

The applicant appealed , arguing , among other things , that the police authorities had exclusive possession of the information sought by him and that he had no other means , including through assistance from ORG , of obtaining the necessary data . In addition , he submitted that the fact that his rights and legitimate interests were not affected by the requested information had no bearing on the case as under NORP law , it was not only those directly concerned who were granted access to public information .

On DATE ORG upheld the judgment of CARDINAL DATE . Relying on section CARDINAL(CARDINAL ) of LAW , it concluded that the authorities were not obliged to provide the applicant with the information as it did not touch upon his rights and legitimate interests .


Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos

The applicants , PERSON and Mr PERSON , are NORP nationals , who were born in DATE and DATE respectively and live in GPE and GPE respectively . The applicants were represented by PERSON NORP PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON RăzvanHoraţiu Radu .

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

The applicants , both investigative journalists , wrote a series of articles on the activities in GPE of certain individuals allegedly belonging to ORG . The articles were edited by company PERSON and carried the headline “ NORP ORG – high - level connections in GPE ” ( ORG italiană – legături la vârf PERSON .

The articles referred especially to ORG , who was alleged to have connections with ORG and the NORP political world . A Member of ORG , ORG , was cited among the NORP personalities mentioned as having connections with ORG

One of the articles was published on DATE in the national newspaper GPE zilei . It was signed by the applicants and was worded as follows :

“ We had always said that in our country there were active groups belonging to international mafia organisations , but until now nothing had been proved by the national authorities . Evenimentul zilei reveals for the first time the highlevel connections between an NORP criminal organisation and GPE , connections worthy of a gangster film . There is , on the CARDINAL side , the organisation ORG and on the other side the NORP politicians and civil servants . In the middle there is a mysterious person , PERSON He is connected to persons with important positions in ORG and in our country ; he has connections at the highest level ...

The investigations carried out by the NORP and NORP police , as well as our own research , have revealed that ORG has many connections , including former and current high and local officials and businessmen : ... GPE , former export manager at PERSON before DATE and former manager of ORG , and PERSON , a current Member of ORG ... and well - known businessman who owns CARDINAL companies and is a shareholder in CARDINAL other companies ...

We spoke with those who , according to our information , have connections with ORG , asking them questions about their trips to GPE and their relationship with PERSON ...

ORG : I have not seen PERSON ] since DATE , when he came to see me . I know that there were discussions about going to GPE , but I did not participate . We were supposed to go to visit a certain plant , but I did not go . I did not get involved with PERSON in any business . We just talked . I met him in PERSON through an intermediary of the director of the newspaper ORG , PERSON was , in general , on good terms with PERSON and P. and those from ORG . They should know more . I saw him once or twice in ORG and once in GPE . He knew many businessmen from ORG . I know that he had a closer relationship with ORG , who was also a shareholder in bank PERSON was on good terms with the group that invested in bank A.

P.B. : I was not really involved with the parliamentarian ORG ”

That article was accompanied by a diagram showing the organisation and functioning of ORG . The name PERSON was in the middle , surrounded by the names of those alleged to have connections with him . The name ORG appeared at the perimeter .

On DATE , another article headlined “ Deputy has businesses worth MONEY ” was published in the same newspaper .

It was signed with the initials “ ORG ” and carried the subheading “ ORG , a rich parliamentarian ” . It was worded as follows :

“ ORG , someone that knew PERSON who is associated with the ORG , has a prosperous life . Exactly DATE , GPE zilei started writing DATE about the infiltration of ORG in GPE and its high - level connections . With the exception of the NORP police , who started meticulously investigating certain companies but without releasing any information in that respect , nobody has done anything to bring this scandal to light . The activity of ORG in GPE is probably not of interest to NORP . Nevertheless , the activity of the members of this organisation and their contacts in GPE are of major interest . For this reason it is necessary to reveal PERSON ’s connections in GPE .

GPE zilei has shown that PERSON ] , who helped members of ORG with money - laundering activities in GPE , had connections with important persons in GPE , the most important being ... PERSON There were also other important persons on the list with ORG about whom we will inform you later . We refer to PERSON ... , GPE ... , PERSON and ORG .... We will later reveal CARDINAL of the most senior figures that know PERSON They are in important positions and CARDINAL of them has businesses worth a great deal ... ” .

On DATE ORG lodged a criminal complaint of defamation with ORG against the applicants and the company PERSON that had published the articles . He alleged that the newspaper GPE zilei had launched a press campaign seeking to denigrate him and that the articles contained unfounded accusations about his activities . He joined to the proceedings a civil claim for compensation in respect of nonpecuniary damage , amounting to MONEY ( ROL ) ( MONEY ( ORG ) ) .

At the public hearing of DATE , ORG gave a statement to the court . He acknowledged that he had been interviewed by the journalists and that the quotations in the newspaper articles corresponded to his statements . However , he considered that the inclusion of his name in the organisational diagram was detrimental to his interests .

On DATE the witnesses for the prosecution , PERSON and PERSON , gave testimony in the presence of the ORG lawyer .

On DATE the ORG lawyer submitted his written observations on the merits of the case .

By a judgment of DATE , the firstinstance court acquitted the applicants . It held that the intent to denigrate had not been proved in respect of the article of DATE . The court made reference to LAW and held that the newspaper article concerned aspects of general interest . It also considered that the applicants had done their own investigation and interviewed all the persons involved , including ORG , and had faithfully reproduced their statements . It noted that ORG had even stated before the court that the details presented in the articles were true .

The court held that the ORG statements had a factual basis . They were based on reliable sources of information and their purpose had not been to damage the reputation of ORG It also held that the applicants had acted in good faith . After reiterating that a journalist ’s work involved a certain degree of exaggeration , the court stressed that the applicants had been more critical in their analysis of ORG ’s behaviour in society and connections than they would have been in the case of a simple citizen , given that ORG was a politician .

The court also held that an element of exaggeration had been used in the organisational diagram bringing together ORG ’s contacts in GPE .

With respect to the article of CARDINAL DATE , the court held that ORG had not proved that the applicants had written the article . It acquitted the applicants on the ground that they had not committed the offence in question .

The court dismissed the civil claim lodged by ORG on the ground that the applicants did not meet the requirements to be deemed to have civil liability .

C.N. lodged an appeal on points of law before GPE Court on the ground that the investigation carried out by the applicants had been incomplete and that the published articles had tarnished his public image and reputation .

The applicants did not show any interest in the proceedings before the appellate court . Even if they had been duly summoned , they were absent from the proceedings and did not appoint a lawyer to represent them before the court . No new pieces of evidence were adduced before the appellate court .

By a final decision of DATE , ORG upheld the applicants’ acquittal and allowed the appeal on points of law only with respect to the civil claim . It reiterated that the articles contained information of general interest and that the applicants had carried out their own investigation , obtaining information from competent authorities and ORG It confirmed that the applicants’ intent had not been to defame the civil party . However , with respect to the civil claim , the appellate court considered that by publishing the organisational diagram of DATE , which had made it appear as if ORG had connections with ORG , the applicants had exaggerated to a degree that had damaged the reputation of the civil party . ORG was a public person and the publication of the articles had tarnished his image and reputation . The court observed as follows :

“ ... after the publication of the impugned articles , many persons ( including parliamentarians , senators , members of ORG and the ORG ) discussed the civil party ’s connection with the NORP ORG .

This had multiple consequences : at local level , many colleagues in his political party did not want to speak to him , opposition Members of ORG criticised him for his supposed connection with the ORG , and discussions also took place on this topic within his own family .

In conclusion , it is obvious that the publication of these articles has tarnished the public image , honour and dignity of the injured party , as the articles generated suspicions that he had connections with ORG . The allegations are particularly damaging because he is a Member of ORG .

The defendants did not intend to defame the injured party but they should have anticipated the result of their actions , namely the political scandal that was generated . However , they believed their reasoning based on presumptions to be correct , even though their investigation had not proven beyond doubt that the injured party had connections with ORG .

Under LAW , each person is responsible for damage he or she causes , not only with intent but also by negligence or carelessness . In conclusion , the defendants’ actions met the conditions of civil responsibility . ”

In accordance with LAW , CARDINAL of LAW , the appellate court ordered the applicants and the company that had published the newspaper to jointly pay the victim ROL CARDINAL ( about EUR CARDINAL ) .

NORP The relevant provisions of LAW , as in force at the relevant time , read as follows :

( CARDINAL ) Criminal proceedings can not be instituted , or continued if they have already been instituted , in the following situations :

( c ) if the offence was not committed by the defendant ;

( d ) if the offence lacks one of the constitutive elements of a crime .

( CARDINAL ) If CARDINAL of the situations described in Article CARDINAL applies :

( CARDINAL ) During the trial the court shall decide :

( a ) to acquit , in the situations described in LAW ( a ) to ( e ) .

The final decision of the criminal court has the status of res judicata in the civil court that decides the joined civil action , as far as the existence of the act , the person who has committed it and his or her guilt are concerned .

( CARDINAL ) In the case of conviction , acquittal or discontinuance of the criminal trial , the court shall also decide on the civil action .

( CARDINAL ) When an acquittal has been pronounced for the reason given under LAW subparagraph ( CARDINAL)(b ) or because the court has uncovered evidence that removes the criminal nature of the affair , or because one of the constituent elements of the offence is missing , the court can award compensation for pecuniary and non - pecuniary damage in accordance with the civil law .

( CARDINAL ) ORG damages can not be paid in the event of an acquittal where the offence was either not committed or was not committed by the defendant . ”

The relevant provisions of ORG concerning defamation and liability for paying damages in force at the material time are described in ORG and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

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

NORP The relevant facts , as submitted by the applicant and apparent from information submitted by the Government at the request of the Judge Rapporteur ( Rule CARDINAL § CARDINAL ( a ) of ORG ) , may be summarised as follows .

NORP The applicant lives on a caravan site . He is not married .

On DATE a post office official handed a summons addressed to the applicant to another inhabitant of the caravan site , CARDINAL PERSON The official record of delivery states that the summons was handed to “ PERSON , wife ( echtgenote ) ” .

Ms D. lives together with the applicant ’s brother , on the same caravan site but in a different caravan . Her postal address , which applies to the site as a whole , is the same as the applicant ’s .

On DATE the limited jurisdiction judge ( kantonrechter ) of GPE ( a local dependency of ORG ( rechtbank ) of GPE whose jurisdiction includes minor offences ( overtredingen ) and small claims ) convicted the applicant in absentia of “ being the person in whose name a motor vehicle is registered for which a vehicle registration certificate has been issued , failing to subscribe to and maintain in force insurance in accordance with ORG ) Act ” ( als degene aan wie het kenteken is opgegeven voor een motorrijtuig waarvoor een kentekenbewijs is afgegeven niet een verzekering overeenkomstig PERSON aansprakelijkheidsverzekering motorrijtuigen sluiten en in stand houden ) . The applicant was ordered to pay a fine of CARDINAL euros ( ORG ) or undergo CARDINAL days’ detention in lieu .

The applicant appealed against the judgment on CARDINAL DATE by setting out his grounds of appeal on a pre - printed form . The form states the following :

“ I did not attend the hearing because :

[ in handwriting ] I did not know that the case was to be heard .

I would have liked to make the following submission :

[ in handwriting ] I do not even know which case it is . ”

On DATE the president of ORG ( gerechtshof ) of GPE gave a decision refusing the applicant leave to appeal . The decision was in the following terms :

“ The President notes that the appellant did not appear at the first - instance hearing , although the summons was handed to a member of his household on DATE . The mere fact that the appellant has not made use of the opportunity offered for stating his defence does not justify a hearing on appeal . There is no appearance of any special circumstances that might justify offering him this possibility .

The President further notes that the appellant essentially wants nothing more than a rehearing of the case . An examination of the case based on the case file has not led the President to expect that a rehearing will lead to any other ruling than that given at first instance .

The President is not aware of any other reasons for which the interests of the proper administration of justice require the case to be heard in appeal . ”

The judgment here in issue has not been executed ; the Government have informed the ORG that it will not be , pending the ORG ’s decision on the present application .

In its relevant part , LAW provides as follows :

“ CARDINAL . ORG shall determine whether the summons was validly delivered to the suspect who has failed to appear . If it is apparent that it has not been validly delivered , it shall declare the summons null and void . ... ”

In its relevant parts , LAW provides as follows :

“ CARDINAL . Delivery [ sc . of a judicial notification ] shall take place :

a. to the person who has been lawfully deprived of his liberty in the GPE in connection with the criminal proceedings to which the judicial notification relates and to the person who has been otherwise lawfully deprived of his liberty in the GPE in other cases determined by or pursuant to delegated legislation : in person ;

b. to all others : in person or , if service otherwise than in person is allowed and the notification is presented in the GPE ,

i. at the address where the addressee ( geadresseerde ) is registered as resident in ORG ( basisadministratie persoonsgegevens ) , or as the case may be ,

ii . if the addressee is not registered as a resident in ORG , at the permanent or temporary domicile ( woon- of verblijfplaats ) of the addressee , or as the case may be ,

iii . if the addressee is not registered as a resident , to the Registrar of ORG before which or within whose jurisdiction the case will be heard or was last heard .


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

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

On DATE , a person was murdered at a nightclub in GPE , GPE , by a lone gunman ( hereafter “ the DATE murder ” ) . The applicant , who belonged to a well - known criminal network in ORG , was arrested DATE as a suspect . He was held in pre - trial detention until DATE , with restrictions . Although released from pretrial detention on that date , he remained a suspect . On DATE he was once again arrested and subsequently detained , with restrictions , on suspicion for the DATE murder as well as inter alia another murder . The prosecution against the applicant and several other defendants was brought on DATE .

With regard to the evidence against the applicant concerning the DATE murder , the prosecution , inter alia , relied on information provided by witness A. , who was working at the nightclub on TIME of the murder . PERSON told the first policeman to arrive at the crime scene that he wanted to tell another policeman , PERSON , who the perpetrator was . On DATE , PERSON arrived at the police station . However , as PERSON was not present , he told policeman PERSON instead that the applicant was the perpetrator . A. had known the applicant since an early age . A. also made it clear to C. that he would not agree to be questioned formally by the police or be heard as a witness before a court . The reason was that he feared retribution from the criminal network to which the applicant belonged . C. took note of the information and DATE repeated to policeman PERSON what he had seen on TIME of the murder . During the period from CARDINAL September CARDINAL to DATE , PERSON repeated this information to ORG and a third policeman , NORP , on CARDINAL separate occasions .

The trial at ORG ( tingsrätt ) started at DATE and lasted for DATE . On DATE , the applicant was convicted of the DATE murder , aiding and abetting a second murder , abduction and extortion . He was sentenced to CARDINAL years’ imprisonment . Moreover , he was to remain in detention , with restrictions , until the judgment gained legal force .

The applicant appealed to ORG ( hovrätt ) , which found CARDINAL of the lay judges at ORG to be biased because he was also a member of a local police commission where , among other things , the criminal case against the applicant had been discussed . For that reason , on DATE ORG quashed ORG judgment and referred the case back to the lower court for renewed proceedings . The applicant was to remain in detention , with restrictions .

The new proceedings started before a new composition of judges of ORG at DATE and lasted for DATE .

Policemen B. , C. and NORP were heard as witnesses during the trial and they concordantly testified that PERSON had told them that the applicant was the perpetrator . However , despite numerous requests , PERSON refused to relay the information at a formal police hearing or at the trial . A. nevertheless appeared as a witness at the trial and was questioned by the prosecution and the defence . He denied that he had witnessed the murder .

On DATE , the applicant was once again convicted by ORG of the DATE murder , aiding and abetting a second murder and abduction and extortion . This time , he was also convicted of aiding and abetting a third attempted murder . He was sentenced to CARDINAL years’ imprisonment . Moreover , he was to remain in detention , with restrictions , until the judgment gained legal force .

ORG noted in its judgment that the applicant had claimed that A. blamed him for the murder for reasons of revenge or loyalty . The court , however , found no indication of such motives . A. was deemed credible , and his explanation to the policemen B. , C. and NORP that he refused to testify because of fear of retribution was seen as convincing . The court also reasoned that the strength of the hearsay evidence was reduced as A. had not provided the information during a trial where cross - examination was possible . A. ’s identification of the perpetrator was therefore not seen as evidence decisive enough , taken by itself , to prove the guilt of the applicant . In addition to the identification , however , there was circumstantial evidence . A. had given information about the perpetrator to the victim in the extortion crime of which the applicant was also convicted . Furthermore , the applicant had no alibi and , according to connections to telecommunication masts , he was TIME away from the nightclub around the time of the murder . The applicant had called a person who stored guns TIME before the murder , stating that he was in a hurry and wanted to meet outside the applicant ’s home . His mobile phone had thereafter been silent for TIME , which was very unusual for him . DATE , the applicant had requested guns and ammunition , and he was able to handle guns . ORG concluded that the circumstantial evidence , considered together with ORG ’s identification of the perpetrator , proved that the applicant was the murderer .

Upon appeal , ORG held an oral hearing which lasted DATE . The applicant ’s restrictions were lifted on DATE by the court . On DATE , the court upheld the lower court ’s judgment as regards the applicant and he was ordered to remain in detention without restrictions until the judgment gained legal force .

NORP The lower court ’s evidence evaluation and conclusion were shared by ORG , where video recordings of the witness testimony were shown . The appellate court further noted that the applicant ’s mother had called his mobile phone at the time when the applicant had claimed he was sleeping in the apartment from which his mother was calling . Moreover , the court noted that the applicant had handed over his cell phones to a friend after the murder but before he was arrested , indicating that he did not want the police to get hold of them . With regard to the case as a whole , the court remarked that several injured persons and witnesses had refused to be questioned by the police or had retracted previous statements given to the police at the trial . According to the court , it was obvious that this was because of loyalty or fear of retribution . Several witnesses were accused of perjury .

The applicant appealed against ORG judgment to ORG ( ORG domstolen ) which , on DATE , refused leave to appeal .

The applicant appealed neither explicitly nor implicitly to ORG against ORG decision to keep him in detention until the judgment gained legal force .

LAW , section CARDINAL , of LAW ( PERSON , CARDINAL:CARDINAL ) , reads as follows :

“ After conscientious assessment of everything that has occurred , the court shall determine what has been proved in the case .

As to the effect of certain kinds of evidence , the specific provisions thereon shall apply . ”

This provision reflects the principle of free submission and evaluation of evidence ( principen om DATE bevisföring och bevisvärdering ) which prevails in NORP procedural law . It means that , as a main rule , there are no restrictions in law on the submission and evaluation of evidence . Thus , anything that may be of value as evidence in a case may , in principle , be presented during the main hearing . However , the circumstances under which evidence has been collected or given will have an influence on the way in which it is evaluated . The “ principle of best evidence ” ( principen om bästa bevismedlet ) is applied ; consequently , witnesses and injured parties should normally give evidence during a court hearing , rather than the court reading the statements made during the preliminary investigation , to enable the parties to pose questions and scrutinise the statements more closely .

NORP Moreover , according to LAW , section CARDINAL , of LAW , a court may dismiss evidence , inter alia , if the circumstance that a party wants to prove is without importance in the case , if the evidence is unnecessary or if it clearly would be to no effect .