Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

NORP The applicant , Mr PERSON , is an NORP national , who was born in DATE and lives in GPE . He was represented before the Court by PERSON of ORG , a firm of solicitors based in GPE . The respondent Government were represented by their Agent , Ms A. McLeod , of ORG .

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

NORP The applicant held the lease of premises housing a nightclub called ORG and was co - manager of the club . In DATE he was made aware of police concerns about high levels of drug usage at the club . He met with the licensing officer in DATE and in DATE and offered assurances that he took the problem very seriously and would introduce a “ CARDINAL tolerance ” approach to drugs on the LOC .

NORP In DATE an undercover police operation commenced into drug use at ORG . Over the course of the operation , CARDINAL undercover police officers attended the club and a number of them purchased ecstasy there from several drug dealers . A police raid on the nightclub took place on DATE . Around CARDINAL ecstasy pills were recovered .

On DATE the applicant and his co - manager were charged with permitting premises to be used for the supply of ecstasy DATE and DATE .

The applicant ’s trial commenced at ORG on DATE .

NORP The prosecution case was that the applicant had failed to take reasonable steps to address the drugs problem in the club . They relied on evidence covering the indictment period , namely :

- the detail and nature of the contact with police concerning the drugs problem by way of meetings and letters ;

- the prevalence of drug dealing witnessed by members of staff and by the undercover officers , who successfully purchased drugs ;

- the volume of drugs found during the search in DATE ;

- oral evidence from former members of staff that in the period following DATE the management could have done more to address the drugs problem to which they had been alerted in warning staff as to their responsibilities ;

- data recording the number of ambulances attending the LOC ; and

- oral evidence to the effect that the management of the club had informed door staff that they should cut back on the number of searches .

The oral evidence from the undercover police officers was given anonymously and they were screened from the public , the defendants and defence counsel .

The club ’s former head of security , PERSON , who had worked at the club in DATE , gave evidence of the applicant ’s tolerance of drug dealing and his obstructive approach when he , PERSON , had tried to eject and report on those caught dealing drugs at the club . He also told the jury that he was a former ORG . PERSON was cross - examined by the applicant ’s trial counsel . It was put to him that he had been sacked by the applicant for stealing money and drugs from a drug dealer , rather than arresting him . PERSON denied this . It was further put to him that his dismissal had also been informed by the fact that he had been present at a drugs murder nearby DATE before . PERSON replied that he had merely been a witness to the murder and was assisting police in that capacity .

The applicant gave evidence in his own defence . He said that he was strongly opposed to drug use and supply . He and his staff had sought to enforce a policy of CARDINAL tolerance in relation to drug supply . He had responded positively to police warnings from DATE by replacing his ORG system and changing his security company . It was impossible to keep drugs out of the club , but he had taken all reasonable steps to prevent the supply of drugs .

In his summing up to the jury , the trial judge reminded the jury that PERSON had worked at ORG in DATE for DATE and so was not there during the period covered by the indictment .

NORP On DATE the applicant was convicted by a jury and on DATE he was sentenced to CARDINAL years’ imprisonment . In his sentencing remarks , the judge commented that there had been “ large - scale , blatant supply of and use of ecstasy ” in the club , of which the applicant had been well aware and to which , at the very least , he had turned a blind eye in order to maximise the profits and reputation of the club . He referred , inter alia , to the evidence of the undercover police officers , of PERSON , of the club ’s head doorman in DATE , of other doormen at the club and of a customer .

The applicant appealed against his conviction and sentence , challenging the special measures permitted at trial to screen the undercover police officers when they had given evidence . The appeal was dismissed by ORG on DATE . The court said it had no doubt that there was ample evidence , outside the evidence emanating from the undercover police officers , from which it would have been open to the jury to conclude that there was substantial dealing in drugs at the club and that no adequate steps had been taken by management to prevent or discourage the sale of drugs .

On DATE ORG ( “ CCRC ” ) referred the applicant ’s conviction and sentence to ORG . The statement of reasons set out a single reason for the referral , namely information giving rise to the “ real possibility ” – this being the criterion stated in the relevant legislation ( see paragraph CARDINAL below ) – that ORG would find the trial evidence of “ an important prosecution witness ” , namely PERSON , no longer capable of belief .

The report detailed new evidence not disclosed at trial that PERSON had been working as a doorman in another club in DATE and had offered to sell drugs to off - duty police officers . He had told the officers that he was earning MONEY a week from selling drugs . The ORG considered that this would “ severely damage ” the credibility of the witness . It was also revealed that PERSON had lied on oath by claiming that he was a former ORG . The statement continued :

“ CARDINAL . In the course of its enquiries the ORG has located a further record which appears to be of relevance regarding [ ORG ] . The record , which is sensitive , is considered further in a FAC ( ‘ FAC C’ ) that will be provided to ORG and ORG . For reasons associated with the principle of ORG , FAC will not be provided to Mr ORG or his representatives . Whilst this course of action is contrary to the general practice of providing an applicant with full reasons for any decision made , the Commission considers that it is inappropriate in this case to pre - empt any decisions on disclosure that may be made by ORG or ORG . ”

NORP By letter dated CARDINAL DATE the ORG informed the applicant that further sensitive information had been disclosed to ORG and to the prosecution . Again , for ORG ( “ ORG ” ) reasons , a decision had been taken not to disclose the information to the applicant or his representatives . He was invited to make an application to the court or the prosecution for disclosure .

On DATE the applicant submitted provisional grounds of appeal to ORG . His first ground claimed that his conviction was unsafe “ by reason of fresh evidence concerning [ PERSON ] ” . The grounds referred to the need for a “ detailed disclosure exercise ” in the light of the PERSON report including , in particular , disclosure of ORG to that report . Appended to the grounds was a schedule of disclosure requests . The defence invited the court to conduct a thorough ORG exercise and order disclosure of the file and such further material as might be relevant . He also invited the court “ to review the ORG exercise conducted by the trial judge DATE ” . Finally , the defence asked that the prosecution disclose all material concerning PERSON ’s role in the drugs murder in respect of which he had been cross - examined at trial and invited the court to review any relevant ORG material .

On DATE , DATE and CARDINAL DATE further disclosure took place . A police statement of DATE confirmed that in DATE PERSON had claimed to off - duty police officers that he made MONEY a month selling drugs . A letter of DATE contained antecedents for PERSON Material related to PERSON ’s arrest and questioning in DATE about the drugs murder was also disclosed . A witness statement by the police officer who had given evidence at trial confirmed that he had “ commissioned a review of all material held by the police ” concerning PERSON and it had not uncovered anything which assisted the defence or undermined the prosecution .

Meanwhile , on DATE , the prosecution indicated that it intended to make a ORG application and make ex parte submissions . Part of the ORG application , it said , would relate to ORG to the ORG ’s statement of reasons . The prosecution invited the applicant to provide further particulars of the case to inform the court and the prosecution in their assessment of the potential value to the defence case of the retained material .

On DATE , in response to the prosecution invitation , the applicant submitted a note on ORG and disclosure for consideration at the ORG hearing . He contended that much of the material now disclosed by the prosecution should unquestionably have been disclosed at trial , since it would have undermined the prosecution cases and assisted the defence . He argued in particular that ORG should plainly be disclosed , since it was prima facie capable of assisting the defence or undermining the prosecution given that it had led the ORG to refer the case back to ORG . He also requested permission to address the court prior to the ORG hearing and invited the court to consider whether the interests of justice required the appointment of special counsel to represent the applicant ’s interests at the ORG hearing . He advanced CARDINAL principal arguments : first , that PERSON had provided crucial evidence against him and that the fresh evidence – and any material not yet disclosed on account of ORG – would have undermined his credibility ; and second , that the judge ’s directions to the jury had been inadequate . The note explained :

“ There may be no breach of Article CARDINAL ) in circumstances where material not in the possession of the prosecution at trial was first considered by ORG in an ex parte hearing . It is important that the ORG be able to consider the impact of the new material of the safety of the PERSON ’s conviction with the assistance of detailed argument from the Appellant ’s counsel . Article CARDINAL will not be violated if the undisclosed material is found to add nothing of significance to what has been disclosed at trial ... ”

On DATE the ex parte ORG hearing took place in ORG to consider whether material referred to by the ORG should be disclosed to the defence . Special counsel was not appointed to represent the applicant ’s interests at the hearing . The applicant was subsequently informed that , save for very limited disclosure , no further disclosure had been ordered . The court issued a direction requiring the applicant ’s representatives to confirm that “ complete and unambiguous disclosure ” by the prosecution had taken place or , if it had not , to thus inform the court .

On DATE , in a note on disclosure , the applicant ’s representatives informed the court that they were not able to provide the confirmation sought . They expressed concern that a review of material held by the police had been conducted by unknown persons on the instructions of an officer who had given evidence against the applicant at trial . They commented on the prosecution ’s failure to supply any schedules of unused material or to provide any clear indication of how the process of disclosure had been conducted , explaining that it left them with “ a deep sense of unease as to the adequacy and efficiency of the process ... ” . They concluded that it was , in their view , for the prosecution to confirm that their disclosure obligations had been met .

NORP In response , on DATE the prosecution informed the applicant that the “ vast preponderance ” of the material in GPE had been disclosed in the context of the further disclosure which had taken place in DATE and DATE . They confirmed that prosecuting counsel had personally reviewed the material placed before ORG at the ORG hearing . They concluded that they were satisfied that they had complied with their disclosure obligations .

Further disclosure took place on CARDINAL DATE .

In his skeleton argument dated DATE , the applicant set out detailed argument concerning his first ground of appeal . He introduced his submissions as follows :

“ The issue is whether the fresh evidence , if available at trial , might reasonably have affected the jury ’s decision to convict the Appellant ... It plainly would have . ”

He complained that his inability properly to challenge PERSON and his account at trial because of the lack of disclosure meant that there was a real risk that the applicant ’s credibility had been unfairly damaged at trial . Lack of disclosure in relation to PERSON had , he claimed , “ potentially devastating consequences ” .

On DATE the appeal against conviction was dismissed . Regarding the PII application , the court noted that it had upheld the prosecution ’s ORG claim on CARDINAL DATE , being of the view that the material sought to be withheld would not assist the applicant and that nothing had happened to suggest a different view . It summarised his grounds of appeal as follows :

“ ( i ) [ PERSON ] was an important prosecution witness against the appellant at trial . Had the fresh evidence relating to him been available , it would have undermined his credibility and assisted the defence .

( ii ) Inadequate directions and insufficient guidance were given to the jury ... ”

Concerning the impact of the fresh evidence on the evidence given by PERSON at trial , the court noted that the indictment period began in DATE and that PERSON had worked as head doorman in DATE . It remarked that the jury had been reminded by the trial judge during his summing - up that PERSON was not at the club during the period covered by the indictment . The ORG observed that the critical question for the jury was whether they were sure that from DATE , the applicant had encouraged , allowed or failed to take reasonable steps to prevent drug use at the LOC . On this question , it said , PERSON could give no direct evidence whatever . It referred to the applicant ’s argument that with the disclosed material the whole balance of the case changed , since he would have been in a much stronger position to undermine the prosecution case and advance his own . However , it considered that , while the judge had clearly paid attention to what PERSON said , the latter ’s evidence was “ by no means ” at the heart of the case . It underlined again that PERSON ’s evidence related to DATE or more before the indictment period and that no amount of cross - examination of PERSON to expose him as a drug dealer was capable of offering any refutation of the objective evidence of the test purchase officers and other evidence of what was happening in the club at the time . The court concluded :

“ DATE . ... The real issue here was what the appellant did or did not do after the warnings given to him at the beginning of the indictment period . As regards that , the evidence of open and blatant supplies of ecstasy at the club , effectively under the noses of the staff , seems to us entirely compelling . We are wholly unpersuaded by the submission urged upon us DATE that the [ undercover ORG ] evidence did not plainly implicate the appellant . His absence over periods of time when drugs were being openly and blatantly supplied has to be viewed against what the ORG was required to prove , namely that the appellant failed to take reasonable steps to prevent drug use at the LOC . He knew full well that drugs were being frequently supplied on the LOC , to put it at its lowest . ”

The appeal against sentence was successful on the basis that new sentencing guidelines had entered into force since the applicant ’s first appeal and ought to be taken into account . The sentence was reduced to DATE . The court explicitly stated that the fresh evidence in respect of PERSON played no part in the reduction of sentence .

The applicant was informed by senior counsel that the appeal turned on disclosure and the determination that the conviction was safe was a factual determination . No matter of law of general public importance , amenable to certification for a further appeal to ORG , arose . Counsel therefore concluded that no further avenue of appeal existed .

Where a person has been convicted on indictment , section CARDINAL(CARDINAL ) of LAW DATE gives the ORG the power to refer at any time the conviction to ORG . By section CARDINAL(CARDINAL ) , any such reference is to be treated for all purposes as an appeal by the person concerned against conviction . LAW sets the conditions for making references . It provides :

“ ( CARDINAL ) A reference of a conviction ... shall not be made ... unless–

( a ) the Commission consider that there is a real possibility that the conviction ... would not be upheld were the reference to be made ,

( b ) ORG

( i ) in the case of a conviction ... because of an argument , or evidence , not raised in the proceedings which led to it or on any appeal or application for leave to appeal against ... , and

( c ) an appeal against the conviction ... has been determined or leave to appeal against it has been refused . ”

Section CARDINAL of the Act allows the ORG to require a body which has possession or control of material which may assist it in the exercise of it functions to produce the material or allow the ORG access to it .

Under the Criminal Procedure and Investigations Act ( “ ORG ” ) DATE , the prosecution must make “ primary disclosure ” of all previously undisclosed evidence which , in the prosecutor ’s view , might undermine the case for the prosecution . The defendant must then give a defence statement to the prosecution and the court , setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution . The prosecution must then make a “ secondary disclosure ” of all previously undisclosed material “ which might reasonably be expected to assist the accused ’s defence as disclosed by the defence statement ” . Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court .

Following the judgments of this ORG in PERSON v. GPE , DATE , Reports of Judgments and Decisions DATE , and ORG and Others and PERSON and Others v. GPE , DATE , Reports CARDINAL , the GPE introduced legislation making provision for the appointment of a special counsel in certain cases involving national security . The provisions are contained in ORG Act DATE ( “ the CARDINAL Act ” ) and LAW DATE ( “ the DATE LAW ) . Under this legislation , where it is necessary on national security grounds for the relevant tribunal to sit in camera , in the absence of the affected individual and his legal representatives , the Attorney‑General may appoint a special counsel to represent the interests of the individual in the proceedings . The legislation provides that the special counsel is not however “ responsible to the person whose interest he is appointed to represent ” , thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which can not be disclosed . The relevant rules giving effect to the DATE and CARDINAL Acts are set out in the ORG ’s judgment in GPE v. GPE ( [ ORG ] , no . CARDINAL , § CARDINAL , DATE ) .

In NORP v. H. ; PERSON UKHL CARDINAL , decided on DATE , ORG of ORG held , inter alia :

“ DATE since the ... enactment of the ORG have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who can not ( either personally or through his legal representative ) , for security reasons , be fully informed of all the material relied on against him . The procedure is to appoint a person , usually called a ‘ special advocate’ , who may not disclose to the subject of the proceedings the secret material disclosed to him , and is not in the ordinary sense professionally responsible to that party but who , subject to those constraints , is charged to represent that party ’s interests ...

There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent , as an advocate in ORG matters , a defendant in an ordinary criminal trial ... But novelty is not of itself an objection , and cases will arise in which the appointment of an approved advocate as special counsel is necessary , in the interests of justice , to secure protection of a criminal defendant ’s right to a fair trial . Such an appointment does however raise ethical problems , since a lawyer who can not take full instructions from his client , nor report to his client , who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer - client relationship , is acting in a way hitherto unknown to the legal profession . While not insuperable , these problems should not be ignored , since neither the defendant nor the public will be fully aware of what is being done . The appointment is also likely to cause practical problems : of delay , while the special counsel familiarises himself with the detail of what is likely to be a complex case ; of expense , since the introduction of an additional , high - quality advocate must add significantly to the cost of the case ; and of continuing review , since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure , unless the special counsel is present throughout or is instructed from time to time when need arises . Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction , and any new procedure can offer opportunities capable of exploitation to obstruct and delay . None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it . But the need must be shown . Such an appointment will always be exceptional , never automatic ; a course of last and never first resort . It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant . ... ”

Section CARDINAL(CARDINAL ) of LAW DATE provides that ORG :

“ ( a ) shall allow an appeal against conviction if they think that the conviction is unsafe ; and

( b ) shall dismiss such an appeal in any other case . ”

Pursuant to section CARDINAL(CARDINAL ) of LAW , a defendant has the right to appeal to ORG against a decision of ORG ) . Section CARDINAL(CARDINAL ) clarifies that the leave of ORG or ORG is required and that leave will not be granted unless it is certified by ORG that a point of law of general public importance is involved in the decision and it appears to ORG or ORG ( as the case may be ) that the point is one which ought to be considered by the latter court .

LAW DATE ( “ the DATE LAW ) incorporates the LAW into GPE law . Under section CARDINAL(CARDINAL ) of the LAW , a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the LAW right or rights concerned in any legal proceedings .


Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

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

ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE at ORG .

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

The applicant was a member of the local anarchist movement .

On DATE the applicant participated in a public gathering . At TIME the applicant and CARDINAL other persons were apprehended by the police and put in a police vehicle . According to the applicant , the arrest was carried out in a brutal manner : police officers twisted his fingers , gave him several blows on his back and legs and put him face down against the floor of the police vehicle . According to the police reports of DATE , the applicant was inebriated and violently resisted the police .

The applicant was released at TIME , that is , TIME after his arrest . He was not subject to any prosecution under LAW .

At TIME on the same date the applicant underwent a medical examination , which concluded that he had bruises and scratches on his face and chest . At TIME he obtained a medical certificate confirming that he was not drunk .

On DATE the applicant and other persons complained to the NORP district prosecutor ’s office , GPE ( “ the district prosecutor ’s office ” ) about police brutality on DATE .

On DATE the district prosecutor ’s office refused to initiate criminal proceedings against the police officers for lack of evidence of a crime , having concluded that it was impossible to establish whether the officers had inflicted any injuries on the applicant or other persons .

On DATE the district deputy prosecutor overturned the decision of DATE .

On DATE the district prosecutor ’s office again refused to initiate criminal proceedings on the grounds that the persons participating in the public gathering of CARDINAL DATE had refused to comply with the police order to stop the gathering and had resisted lawful arrest ; accordingly , the police had acted lawfully in order to overcome violent resistance .

According to the applicant , he was served with a copy of the decision of CARDINAL DATE on DATE . It remains unclear whether the applicant had attempted to obtain a copy prior to that date .

On DATE the applicant challenged the decision of DATE before ORG , GPE ( “ the ORG ” ) .

On DATE ORG declared the decision unlawful on the grounds that the seriousness of the injuries allegedly sustained by the applicant had not been assessed and issued an instruction ordering the prosecutor to re - examine the matter .

On DATE the district prosecutor ’s office again refused to open an investigation .

According to the applicant , he managed to obtain a copy of the decision of DATE on DATE . It remains unclear whether the applicant had attempted to obtain a copy prior to that date .

On DATE the applicant challenged the decision of DATE before ORG .

On DATE ORG declared the refusal of DATE unlawful on the grounds that the seriousness of the injuries allegedly sustained by the applicant had not been assessed .

On DATE the district prosecutor ’s office issued a new refusal to open an investigation on the grounds that it was possible that the injuries had been sustained after the applicant ’s release from the police station .

According to the applicant , he received a copy of the decision of CARDINAL October CARDINAL in DATE . It is not known whether the applicant had sought a copy earlier .

On DATE the applicant ’s lawyer challenged the decision of CARDINAL DATE before ORG .

On DATE ORG declared the decision of CARDINAL DATE unlawful noting the incompleteness of the preinvestigation inquiry .

On DATE the district prosecutor ’s office issued a new decision refusing to open an investigation .

According to the Government , on DATE the GPE prosecutor ’s office overturned unspecified refusals to open an investigation by the district prosecutor ’s office .

On DATE the applicant and other persons held a picket in front of ORG in GPE . They were arrested as they had failed to duly notify the city authorities of the picket . According to the applicant , he was arrested at TIME When brought to the police vehicle , he received CARDINAL blows to his head . He was then required to sit on the floor of the vehicle . Once in the police station , a police officer inflicted TIME blows to the applicant ’s head and chest . According to the police reports of DATE , the applicant had violently resisted arrest .

The applicant was released shortly after his arrival at the police station . In the applicant ’s submission , it happened TIME after the arrest . According to the Government , the applicant was arrested at TIME and released at TIME

At TIME on the same date the applicant underwent a medical examination in a hospital and was diagnosed with bruises and scratches on the body and limbs and a bruise on the chest .

On DATE the applicant complained to the district prosecutor ’s office of police brutality .

On DATE the district prosecutor ’s office refused to open an investigation on the grounds that the participants of the picket had violently resisted the police .

On DATE a Justice of the Peace of GPE Circuit no . CARDINAL imposed on the applicant a fine of MONEY under LAW for his participation in the unauthorised picket .

On DATE the applicant challenged the refusal of CARDINAL DATE before ORG .

On DATE ORG declared the decision of DATE unlawful .

On DATE the district prosecutor ’s office again refused to open criminal proceedings against the police officers .

The applicant allegedly received a copy of the decision of DATE on DATE .

On DATE the applicant challenged the refusal of DATE before ORG .

In his submission , the applicant received a copy of the decision of CARDINAL October CARDINAL on DATE .

On DATE the applicant ’s lawyer challenged the refusal of DATE before ORG .

On DATE ORG declared the decision of CARDINAL October CARDINAL unlawful .

According to the Government , on DATE the prosecutor ’s office of GPE quashed unspecified refusals to open an investigation by the district prosecutor ’s office .


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

András Sajó;Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in DATE and lives in GPE , GPE .

The applicant is one of the heirs of PERSON PERSON , who used to live in GPE . On DATE Mr ORG purchased movable and immovable goods from the bankrupt estate of a company by way of a public tender .

On DATE the sale in question was annulled by a court order on the ground that the instalments had not been paid in time . The decision annulling the sale became final on DATE and on DATE Mr ORG was requested by ORG to return the purchased goods within DATE . He did not comply with that request .

On DATE Mr ORG died .

Due to his non - compliance with ORG order to return the goods , on DATE the bankrupt estate of the aforementioned company filed an action against Mr ORG ’s heirs , including the applicant , before ORG ( hereinafter “ the ORG ” ) for the recovery of the goods or their equivalent value .

A lawyer acting on behalf of the applicant and the other heirs of Mr ORG submitted a petition to ORG on DATE , arguing , inter alia , that the case had been lodged outside the statutory time - limit and thus had to be rejected . The lawyer submitted that the statutory DATE time - limit had started to run on DATE but that the plaintiffs had not lodged their action until DATE .

On DATE CARDINAL experts appointed by ORG submitted their opinion on the value of the goods . CARDINAL of the experts considered the value to be MONEY ( ORG ) , whereas the third expert considered it to be in the region of ORG CARDINAL .

On DATE ORG issued an interim decision , rejecting a request to hear CARDINAL witnesses who , according to the applicant , would have provided pertinent information about the value of the goods in question . ORG considered that the existence of the expert reports made it unnecessary to hear the applicant ’s witnesses .

In its decision of CARDINAL DATE ORG ordered Mr ORG ’s heirs to return the goods which were still in their possession and to pay a certain sum of money corresponding to the value of the goods which had been disposed of in the meantime . The amount of money ordered was based on the calculations made by the CARDINAL experts . ORG further awarded statutory interest on this amount accruing from DATE , the original due date for the return of the goods . No response was given by ORG in its decision to the applicant ’s objection concerning the issue of the time - limit .

The applicant appealed against the judgment and argued , inter alia , that the action for recovery should have been dismissed by ORG as it had been instituted outside the statutory time - limit . He also submitted that ORG had acted unlawfully by ordering the payment of interest on the amount due , given that no request for interest had been made by the plaintiff . He also added that ORG had failed to hear the witnesses he had proposed . The applicant asked ORG to hold a hearing before rendering its decision .

On DATE ORG upheld the judgment of ORG without holding a hearing and without providing any answers to the applicant ’s objections .

On DATE ORG rejected a request by the applicant for rectification of its previous decision .


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in DATE and lives in Batman . At the time of the events giving rise to the present application , he was the head of the Batman branch of ORG ( DEHAP ) and subsequently the ORG for ORG DTP ) .

On unspecified dates in DATE and DATE the Batman public prosecutor ’s office initiated CARDINAL criminal investigations against the applicant . On DATE , DATE , DATE and DATE the applicant made statements before the Batman public prosecutor in relation to his attendance at a number of public meetings .

NORP In particular , when he was questioned on DATE the applicant was asked about his participation in an event commemorating a number of deceased members of the ORG ( NORP Workers’ Party , an illegal armed organisation ) held on DATE . The applicant responded that he had become aware of that event when demonstrators had started to march to the cemetery where the deceased were buried . As he was the head of the Batman branch of ORG , he had attended the march in order to keep the demonstrators under control and to prevent any possible disturbances in the town .

When questioned on DATE , the applicant stated that on CARDINAL DATE he had been the head of the DEHAP branch in Batman and that he had not praised the leader of the ORG in his speech . The applicant added that although PERSON , the leader of the ORG , was in prison , he was regarded as a political actor by the local population . The applicant ’s intention had been to express that social fact and he was against any kind of violence . When the public prosecutor reminded him of the violent acts of the ORG , the applicant once again stated that he was against violence regardless of whom it emanated from .

On DATE the Batman public prosecutor asked the applicant why he had referred to the ORG leader as “ Esteemed / Mr ( Sayın ) Öcalan ” during CARDINAL of his speeches . The applicant responded that he had used the word “ Sayın ” as a matter of courtesy . He stated that he had not intended to disseminate propaganda in favour of the ORG or to praise a criminal .

Lastly , on DATE the applicant was questioned by the Batman public prosecutor in the context of a criminal investigation opened against him on suspicion of membership of the ORG . He stated that he had participated in several demonstrations and readings of press statements in his capacity as the head of the Batman branch of DEHAP and the ORG , and that he had not committed any offence during those events . He denied the veracity of the allegation that those public meetings had been organised in accordance with the instructions of the ORG . When he was asked about a sentence condemning both the death of NORP soldiers and ORG members which he had uttered during a speech , the applicant stated that he would utter that sentence again without hesitation . He also stated that the petition campaign entitled “ I accept PERSON as a political actor ” had not been started upon the instructions of the ORG . He accepted that he had demanded an end to the solitary confinement of PERSON and addressed the latter as “ Esteemed / Mr ( Sayın ) Öcalan ” . However , he denied the allegation that he had had the intention of disseminating propaganda in favour the ORG . The applicant contended that he had attended the demonstrations and meetings in question in order to control the crowds and to prevent any possible disturbances . Lastly , he claimed that his aim was to contribute to peace and democracy .

On DATE the applicant was brought before ORG and questioned in respect of his involvement in a demonstration held on DATE in Batman . He submitted that he had attended the demonstration with a view to preventing violence , since he was the head of the ORG at the material time . The court ordered the applicant ’s remand in custody .

On DATE the Batman public prosecutor decided to transfer the investigation to the ORG public prosecutor ’s office , holding that the offence which the applicant had committed , namely membership of a terrorist organisation and carrying out membership activities , was not within his office ’s jurisdiction .

On DATE the ORG public prosecutor filed an indictment with ORG , charging the applicant and a certain PERSON , under LAW § CARDINAL of LAW , with disseminating propaganda in favour of the ORG on QUANTITY occasions . In the indictment the public prosecutor listed a total of CARDINAL marches and demonstrations which the applicant had attended . He noted that during those marches and demonstrations , demonstrators had chanted slogans and carried banners praising the ORG and its leader , PERSON , and that the applicant had made speeches in NORP at QUANTITY of those CARDINAL assemblies .

On CARDINAL DATE ORG held the first hearing on the merits of the case . During the hearing , the applicant contended that he was the head of the Batman branch of the ORG . Although he had participated in the public meetings indicated in the indictment , he had not chanted any slogans or carried banners containing illegal expressions . He further submitted that he had not directed demonstrators to commit any illegal acts . The applicant stressed that in general he attended such public meetings at the request of the security forces , since the latter asked him to be present in order to prevent any possible clashes between themselves and the demonstrators .

During the second hearing held on DATE the public prosecutor submitted his observations on the merits of the case . The public prosecutor contended that the applicant had attended various illegal public meetings between DATE and DATE and that he had made speeches in which he had praised the ORG and its leader . The public prosecutor alleged that those events had been organised either in line with the policies of the ORG or under its instructions with a view to supporting that organisation . Taking into account the intensity , variety and continuity of the applicant ’s activities , the public prosecutor considered that the applicant ’s acts constituted knowingly and willingly aiding the ORG . He then asked ORG to convict the applicant under LAW CARDINAL and CARDINAL § CARDINAL of LAW of membership of the ORG .

On DATE ORG held the fourth and the last hearing in the case and convicted the applicant and his coaccused of membership of an illegal organisation under LAW on the basis of LAW and CARDINAL § CARDINAL of the same Code , finding it established that the applicant had knowingly and willingly aided the ORG . The applicant was sentenced to DATE and CARDINAL months’ imprisonment . The judgment of ORG , insofar as relevant , reads as follows :

“ In the indictment dated DATE it was alleged that PERSON had committed the following acts :

Attendance at the reading out of a press statement and an illegal march held on DATE in the Mem - u GPE in Batman during which the demonstrators chanted slogans in favour of the ORG and PERSON ;

Attendance at the event commemorating a deceased ORG member held in the Batman cemetery on DATE , making a speech in NORP and making participants say prayers in NORP ;

Attendance at the reading out of a press statement at the Batman branch of DEHAP on DATE regarding the petition campaign entitled “ I accept PERSON as a political actor ” ;

Attendance at the illegal demonstration held on CARDINAL DATE to commemorate CARDINAL members of the ORG killed by the security forces in an armed clash which had occurred in Batman ;

Attendance at the demonstration organised by DEHAP and held on DATE , during which the demonstrators chanted illegal slogans , and making a speech in NORP addressed to the press and the demonstrators ;

Attendance at the demonstration held on DATE during which the demonstrators chanted slogans in favour of the ORG and PERSON and carried banners , and making a speech in NORP addressed to the press and the demonstrators ;

Attendance at the demonstration held on DATE protesting against the attempts to close down ORG , the alleged solitary confinement of PERSON and the statement by PERSON , the leader of the ORG ( ORG ) regarding the events that had occurred in PERSON during which the demonstrators chanted slogans in favour of PERSON , and making a speech in NORP addressed to the press and the demonstrators ;

Attendance at the reading out of a press statement and at a march held on DATE protesting against the solitary confinement of PERSON , during which the demonstrators chanted illegal slogans and carried banners , and making a speech in NORP addressed to the press and the demonstrators ;

Attendance at the march and the reading out of a press statement held on DATE in Batman , during which illegal slogans were chanted , and making a speech in NORP ;

Attendance at the illegal demonstration and the reading out of a press statement held on DATE close to the ORG branch , during which illegal slogans were chanted and banners were carried , and making a speech in NORP ;

In his defence submissions PERSON stated that he had participated in the demonstrations and the reading out of press statements mentioned in the indictment but that he had neither chanted slogans nor carried banners . He stated that he had not directed demonstrators to chant slogans or to carry banners .

PERSON submitted that he had attended those meetings at the request of the security forces and that the latter had asked him to warn the crowds not to resist them and to work with them with a view to preventing possible disturbances .

The file contains police reports , photographs and video recordings of the events which the accused attended and the speeches he made .

On the basis of the evidence in the file , it has been understood that during all the demonstrations and marches held in Batman which PERSON attended , slogans in favour PERSON were chanted and the demonstrators carried banners . It has also been understood that the speeches made by the accused praised PERSON .

It is established that the accused attended the public meetings in question and organised them .

Although the accused submitted that their aim had been to prevent clashes between the demonstrators and the security forces and [ that they ] had not had the intention of disseminating propaganda in favour of the ORG when they had participated in the demonstrations and marches in question , taking into account the content of the case file and their acts during those meetings , their defence submissions have been found to be baseless .

As a result of the trial and in the light of the evidence ,

It has been established that PERSON worked as the head of the Batman branch of DEHAP and that subsequent to the closure of DEHAP he was the head of the Batman branch of the ORG .

He attended CARDINAL marches and demonstrations held between DATE and DATE , organised by the above - mentioned political parties . Illegal slogans were chanted and illegal banners were carried during those meetings . In some of those meetings , PERSON read press statements containing expressions praising PERSON . All of the marches and demonstrations in question were illegal within the meaning of section CARDINAL/b of ORG no . CARDINAL ) .

It has been established that all of those marches and demonstrations were organised in line with the ‘ NORP Political Struggle’ strategy adopted by the ORG recently ; that the media broadcasts in line with the ORG ’s strategies had announced those marches and demonstrations prior to them , and that the same media organs had used those demonstrations as propaganda materials after they had been held .

PERSON and PERSON organised several illegal demonstrations in line with the ORG ’s instructions and during those demonstrations they addressed the demonstrators who chanted slogans and carried banners containing expressions in favour of the ORG and PERSON . In their speeches the accused praised the ORG ’s leader . Taking into account the continuity and nature of their acts , it is considered that those acts went beyond the offence of dissemination of propaganda in favour of a [ terrorist ] organisation and amounted to the offence proscribed by LAW , that is to say , ‘ knowingly and willingly aiding an illegal organisation without being in the hierarchical structure’ . Therefore , it has been decided to convict the accused under LAW .

On DATE ORG upheld the first - instance judgment .

By PERSON no . DATE , which entered into force on DATE , paragraph CARDINAL of LAW was amended . The applicant applied to ORG requesting it to examine whether the amended version of that provision could be considered to be in his favour and , if so , whether the execution of his sentence could be suspended . He added that he was currently serving his prison sentence .

On DATE ORG decided to reduce the applicant ’s sentence to DATE , DATE and CARDINAL days’ imprisonment . The court rejected the applicant ’s request to have the execution of his sentence suspended .


Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

NORP The applicant in the first case , PERSON , is an NORP national , born in DATE . The applicant in the second case , PERSON , is an NORP national , born in DATE . The President granted the applicants’ requests for their identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . They are represented before the ORG by Mr H. Graupner , a lawyer practising in GPE .

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

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

NORP In DATE ORG conducted police investigations in respect of the first applicant on suspicion of his having committed homosexual acts with consenting male persons within the age bracket of DATE , an offence under the former Article CARDINAL ( Gleichgeschlechtliche Unzucht mit CARDINAL unter CARDINAL Jahren ) of LAW .

On an unspecified date ORG charged the first applicant with these offences .

On DATE ORG acquitted him of the charge .

On DATE the first applicant lodged a request with ORG for the deletion of both the electronically processed data and of the data manually processed in paper files concerning the proceedings in his case .

On DATE ORG informed the first applicant that it had deleted the electronically processed data but rejected the request concerning the data processed in paper files . Thereupon the first applicant filed a complaint concerning this decision with ORG .

On DATE ORG partly allowed the first applicant ’s complaint , ordering ORG to modify the filing cards ( PERSON ) and filing registers ( PERSON ) by noting the acquittal while maintaining the reference to LAW . It dismissed the first applicant ’s complaint as regards the data processed in ordinary paper files DATE known as “ copy files ” ( Kopieakte ) DATE which contained copies of all the reports and communications generated by the authority and sent to other authorities , such as the public prosecutor , because data processed in paper files did not fall under the definition of filing systems ( Dateien ) within the meaning of LAW . The right of deletion set forth in that LAW was therefore not applicable .

In ORG view , information held in such information research tools could not be completely deleted or scrambled . In accordance with the relevant provisions of LAW , all administrative actions by administrative authorities – including police authorities – had to be documented and archived . Only by doing so was it possible to review the lawfulness of the actions of the authorities , which was necessary in a ORG governed by the rule of law . This was required by the rules regulating the authority ’s internal mode of operation ( GPE ) . However , such data had to be complete and correct , which meant that subsequent developments – in particular if the person concerned by the investigations had been acquitted DATE also had to be recorded . The question of whether or not the authority could use such data in its work was distinct from the issue of the archiving and recording of data and required that separate rules on the use of such data be applied .

On DATE the first applicant lodged a complaint with ORG and with ORG .

On DATE the Constitutional Court quashed ORG decision . In ORG view ORG had misinterpreted the applicable law when it had held that only the provisions on the archiving and storage of data for the authority ’s internal use were applicable because the filing cards at issue did not only contain information of a general character but details about an individual person , such as that person ’s name and address . Therefore , they recorded not only internal matters of the authority but also sensitive personal data . The authority should therefore have applied the rules for the use and processing of individual data under LAW ( Sicherheitspolizeigesetz ) and should have weighed up the private and public interests accordingly . Since ORG had failed to do so , ORG quashed its decision .

On DATE ORG discontinued the proceedings because ORG had already quashed the decision .

Meanwhile , the police authorities , taking into account the legal opinion in ORG decision , blanked out entries in the filing register by superimposing black bars over the first applicant ’s name , date of birth , address and the respective file number and reference to LAW on the filing cards . This having been done , the applicant maintained his complaint of DATE in respect of the data processed in the copy files only .

On DATE ORG again decided on the first applicant ’s appeal and rejected his request to delete the data concerning him that had been manually processed in ordinary paper files , the “ copy files ” . Referring to ORG case - law , it found that the right to deletion of data under LAW and LAW was not applicable to data manually processed in paper files because such files were unstructured compilations of information and did not qualify as filing systems ( ORG ) under LAW .

On DATE the first applicant again lodged complaints with ORG and ORG .

ORG dismissed the complaint on DATE . It rejected the first applicant ’s argument that LAW and the case - law of ORG established a right to deletion of personal data in an ordinary paper file . The cases relied on by the first applicant , namely PERSON v. GPE ( no . CARDINAL , ORG CARDINALII ) and PERSON ( no . CARDINAL/CARDINAL , ORG CARDINALV ) , had to be distinguished from the present case as they concerned completely different sets of facts . In ORG view , LAW did not impose a wider right to deletion of data than already contained in LAW which transformed into domestic law ORG Directive CARDINAL of DATE on the protection of individuals with regard to the processing of personal data and on the free movement of such data ( ORG , CARDINAL/CARDINAL/CARDINAL ) . Also ORG with regard to ORG of DATE only concerned automatically processed data and did not extend to personal data in a conventional copy file or paper file .

Moreover , it was apparent and not disputed by the first applicant that , following the blackening out of his name , date of birth and address in the file register and of the reference to the paper files in the index card , the paper files at issue were no longer traceable via these information tools . This reduced the accessibility of his personal data to such an extent that there was no longer any interference with his rights under LAW . That being so , ORG concluded that there had been no breach of the first applicant ’s rights under LAW either .

On DATE ORG dismissed the first applicant ’s complaint for the same reasons as those relied on by ORG .

In DATE ORG conducted investigations in respect of the second applicant on suspicion of his having committed homosexual acts with consenting male persons within the age bracket of DATE , an offence under former LAW , and on suspicion of having committed sexual acts with persons under DATE , an offence under LAW ( PERSON ) of LAW .

On an unspecified date ORG charged the applicant with those offences .

On DATE ORG acquitted him of these charges .

In DATE ORG conducted investigations in respect of the second applicant on suspicion of his having committed offences under LAW and QUANTITY of LAW .

On an unspecified date ORG charged the second applicant with those offences .

On DATE ORG convicted him of having committed homosexual acts with consenting male persons within the age bracket of CARDINAL under former LAW and sentenced him to DATE imprisonment . He was acquitted of the other charges .

In DATE ORG conducted investigations in respect of the second applicant on suspicion of his having produced pornographic pictures of persons under the age of DATE , an offence under LAW ( Pornographische Darstellungen Minderjähriger ) , and of having committed an offence under LAW of LAW .

On an unspecified date ORG charged the second applicant with an offence under LAW .

On DATE ORG convicted him as charged and sentenced him to DATE imprisonment .

On DATE the second applicant lodged a request with ORG for the deletion of the electronically processed data and the data manually processed in files , and held by the police authorities , concerning these CARDINAL sets of proceedings .

In a decision of CARDINAL DATE ORG informed him that no electronically processed data relating to the above proceedings existed any longer and rejected the request concerning the data processed in paper files .

On an unspecified date the second applicant lodged a complaint against that decision with ORG .

On DATE ORG dismissed the complaint . It found that , as regards the non - electronically processed data stored in ordinary paper files , LAW and the right to request a deletion was not applicable as such paper files constituted an unstructured compilation of information but not a filing system ( ORG ) within the meaning of LAW . As regards the filing cards and filing registers the Commission noted that on DATE the police authorities , after having been invited to comment on the applicant ’s complaint , had informed the ORG that all references in these research tools to the issues under LAW had been rendered illegible ( unkenntlich gemacht ) . In the filing registers , the name and address of the applicant had also been deleted . Under the storage and deletion rules for ORG ( ORG ) copy files were deleted DATE following DATE of recording , while index cards and filing registers were destroyed after DATE . In such circumstances the ordinary paper files ( “ copy files ” ) relating to investigations in respect of the applicant essentially served the purpose of documenting the activities of the authority and no longer allowed the tracking of sensitive information on the applicant in relation to Article CARDINAL of LAW . The applicant ’s complaint was therefore ill - founded .

On DATE the applicant applied for legal aid in order to lodge a complaint with ORG . In addition , he proposed that the case be referred to ORG of ORG for a preliminary ruling .

On DATE ORG , referring to its case - law in similar cases , dismissed the request for legal aid for lack of prospects of success .

On DATE the applicant lodged a complaint with ORG .

On DATE ORG , referring to its previous case - law ( in particular its decision of DATE in the first applicant ’s case DATE see paragraphs CARDINAL above ) , declined to deal with the case because it lacked any prospect of success .

Article CARDINAL of LAW , in force until DATE , concerned consensual homosexual acts and read :

“ A male person who after attaining DATE fornicates with a person of the same sex who has attained DATE but not DATE shall be sentenced to a period of imprisonment of DATE . ”

On DATE , responding to a request for review made by ORG , ORG found that LAW of LAW was unconstitutional .

On DATE , following ORG judgment , ORG repealed LAW . It also introduced LAW , which penalises sexual relations with persons DATE under specific conditions and which is formulated in a gender - neutral way . That amendment , published in ORG ( ORG ) no . CARDINAL/CARDINAL , came into force on DATE .

A more detailed description of the law , ORG judgments concerning LAW and its replacement by LAW can be found in PERSON and Others v. GPE , ( nos . CARDINAL , CARDINAL , CARDINAL and CARDINAL , § § DATE , DATE ) .

Article CARDINAL , paragraph CARDINAL of the Criminal Code reads ;

“ Anyone who performs a sexual act on a person under the age of DATE or has a sexual act performed on himself or herself by such a person , with the exception of the offence under LAW , shall be sentenced to a period of imprisonment of DATE . ”

Article CARDINALa , paragraph CARDINAL of the Criminal Code reads :

“ Whoever

produces or

NORP offers to someone else , procures , leaves to someone else , shows or makes otherwise accessible

a pornographic image of a person under the age of CARDINAL shall be sentenced to imprisonment for DATE . ”

LAW of DATE contains the basic provisions governing the protection of personal data including a right of information and a duty to delete ( section CARDINAL ) . LAW distinguishes between manually recorded data and electronically processed data . Manually recorded data are subject to deletion in so far as they constitute a “ filing system ” . A “ filing system ” ( Datei ) is defined as a structured collection of data ( section CARDINAL , point CARDINAL ) . A certain degree of organisation is necessary for an amount of manually processed data to qualify as a “ filing system ” . According to the case - law of ORG ( judgment of DATE , CARDINAL Ob CARDINAL ) and ORG ( decision of CARDINAL DATE , DATE ) , card indexes and lists constitute filing systems , but mere files ( ORG ) do not . A “ paper file ” or “ copy file ” is therefore not deemed to be a filing system within the meaning of LAW and is not subject to the right of deletion under this act ( decision of ORG of DATE ORG A no . CARDINAL/CARDINAL ) .

Section CARDINAL of LAW reads :

“ ( CARDINAL ) Everybody shall have the right to secrecy regarding the personal data concerning him , especially concerning his private and family life , in so far as he has an interest deserving such protection . Such an interest is precluded when data can not be covered by the right to secrecy because of their general availability or because they can not be traced back to the data subject ( PERSON ) .

( CARDINAL ) In so far as personal data are not used in the vital interests of the data subject or with his consent , restrictions of the right to secrecy are permitted only to safeguard the overriding legitimate interests of another ; specifically , in the event of an intervention by a public authority , the restriction shall only be permitted on the basis of laws necessary for the reasons stated in LAW . Such laws may provide for the use of data ( PERSON ) deserving special protection only in order to safeguard substantial public interests and shall provide suitable safeguards for the protection of the data subjects’ interest in secrecy . Even in the case of permitted restrictions , the intervention with the fundamental right shall be carried out using only the least intrusive of all effective methods .

( CARDINAL ) In so far as personal data concerning an individual are destined for automated processing or for manual processing ( that is , in filing systems with no automated processing ) , everybody shall have , as provided for by law :

NORP the right to obtain information revealing who processes what data concerning him , where the data originated , the purpose for which they are used , and to whom the data are transmitted ;

NORP the right to rectification of incorrect data and the right to deletion of illegally processed data .

( CARDINAL ) Restrictions of the rights set out in subsection ( CARDINAL ) shall be permitted only under the conditions laid out in subsection ( CARDINAL ) . ”

Section CARDINAL of LAW , DATE which contains a number of definitions , reads , in so far as relevant :

“ For the subsequent provisions of LAW the terms listed below shall mean :

’data’ ( ‘ personal data’ ) : information relating to data subjects ... who are identified or identifiable ; data are ‘ only indirectly ORG for a controller ( Auftraggeber ) ... , a processor ( Dienstleister ) ... , or a recipient of a transmission ( PERSON ) ... if the data relate to them in such a manner that the controller , processor or recipient of a transmission can not establish the identity of the data subject by legal means ;

’sensitive data’ ( ‘ data deserving special protection’ ) : data relating to natural persons concerning their racial or ethnic origin , political opinion , trade union membership , religious or philosophical beliefs , and data concerning health or sex life ;

’filing system ” ( ORG ) : structured collection of data accessible via CARDINAL search criterion ; ”

Section CARDINAL of LAW , which concerns the deletion of data , reads , in so far as relevant :

“ ( CARDINAL ) Every controller shall rectify or delete data that are incorrect or have been processed contrary to the provisions of LAW

NORP on his own initiative , as soon as the incorrectness of the data or the inadmissibility of the processing becomes known to him , or

NORP on a well - founded application by the data subject ( PERSON )

The obligation to rectify data under subsection CARDINAL shall apply only to those data of which the correctness is significant for the purpose of the data application ( GPE ) . The incompleteness of data shall justify a claim to rectification only if such incorrectness , with regard to the purpose of the data application , results in the information being incorrect in its entirety . As soon as data cease to be needed for the purpose of the data application , they shall be regarded as illegally processed data and shall be erased unless their archiving is legally permitted and the access to these data is specially secured . Any further use for another purpose shall be legitimate only if transmission ( PERSON ) of the data for this purpose is legitimate ; the legitimacy of further uses for scientific or statistical purposes is laid down in sections CARDINAL and CARDINAL .

( CARDINAL ) The application for rectification or erasure shall be complied with within DATE of receipt and the applicant shall be informed thereof , or a reason in writing shall be given as to why the requested erasure or rectification was not carried out .

( CARDINAL ) Within the sphere of the executive agencies responsible for the fields described in section CARDINAL ... , the following procedure shall apply as regards applications for rectification or erasure , in so far as this is required to safeguard those public interests that require secrecy : the rectification or erasure shall be carried out if , in the opinion of the controller , the demands of the data subject are justified . The requisite information for the purposes of subsection CARDINAL shall in all cases be that a check of the controller ’s data files ( FAC ) with regard to the application for rectification or erasure has been performed . The legality of this course of action is subject to review by ORG ( ORG ) ... and the special complaint procedure before ORG pursuant to section DATE ) . ”

LAW regulates the powers and duties of the authorities dealing with matters of public security and their officers in exercising their functions .

Section CARDINAL of LAW reads :

“ Admissibility of processing data

( CARDINAL ) The police authorities may investigate and further process personal data

for the purpose of fulfilling the duty to provide initial general assistance ( section CARDINAL ) ;

NORP for the purpose of averting criminal connections ( section CARDINAL , subsection CARDINAL ( CARDINAL ) , and section CARDINAL ) ;

for extended threat investigation ( section DATE , subsection CARDINAL ) under the prerequisites of section GPE subsection CARDINAL ;

for the purpose of averting dangerous assaults ( section CARDINAL , subsections CARDINAL and CARDINAL , and section DATE , subsection CARDINAL ) , including the investigation necessary for averting a threat ( section CARDINAL , subsection CARDINAL , and section CARDINALa ) ;

NORP for preventing potential dangerous assaults endangering life , health , morals , freedom , property or the environment ( section CARDINAL , subsections CARDINAL and CARDINAL ) or for preventing dangerous assaults by means of a crime analysis if DATE because of the type of the assault DATE repeated commission is likely ;

for the purpose of a search ( section CARDINAL ) ;

NORP in order to be able to maintain public order during a specific event .

( CARDINAL ) The police authorities may investigate and further process data already processed by them in the implementation of federal or regional laws for the purpose of and subject to the prerequisites of subsection CARDINAL ; they must not , however , compare electronic data within the meaning of LAW . Existing transmission prohibitions remain unaffected . ”

Section CARDINAL(CARDINAL ) of LAW reads :

“ The security police authorities may establish as data a person ’s name , sex , former name , nationality , date of birth , place of birth , address , name of parents and other names and data used by that person and further process these data in a centralized information data base as well as the reason for gathering these data and , if necessary , the reason why the authority has intervened and inform other authorities thereof , if

NORP criminal justice investigations have been instituted against the person concerned . ”

Section CARDINAL ( CARDINAL ) of LAW reads :

“ Access by the security police authorities as controller to personal data which are stored and kept accessible in accordance with LAW ( CARDINAL ) must be blocked

as regards no . CARDINAL if there is no longer a suspicion of having committed an offence against the person concerned , DATE after entering of the data into the centralized information data base , in case of CARDINAL entry pursuant to no . DATE after the latest ; ”

Section CARDINAL of LAW reads :

“ Admissibility of updating data

The police authorities are entitled to update the personal data used by them if they have lawfully verified more recent data . ”

Section CARDINAL of LAW reads :

“ Duty of correction or deletion

( CARDINAL ) If it is found that data which are incorrect or have been investigated contrary to the provisions of this federal LAW are being stored , these data shall be corrected or deleted immediately . In the same way , personal data shall be deleted if they are no longer needed for the fulfilment of the task for which they have been used , unless there is a special regulation concerning their deletion .

( CARDINAL ) The police authorities shall examine electronically processed personal data which have remained unchanged for DATE to find out whether they need to be corrected or deleted pursuant to subsection CARDINAL . For data processed in ORG , sections CARDINAL and CARDINAL shall apply . ”

In a judgment of DATE ORG found that under LAW of LAW the police authorities had the obligation to supplement and correct data they had collected pursuant to LAW ( CARDINAL ) CARDINAL . of that act and in particular to add the information whether the public prosecutor had discontinued the criminal investigations or the person concerned had been acquitted of the charges as otherwise the data stored must be considered incorrect . In addition , LAW and LAW ( CARDINAL ) CARDINAL . of LAW must be interpreted in conformity with LAW , in particular the right to data protection under LAW of LAW , which means that there exists also the obligation to delete such data once they are no longer necessary for the purpose of criminal justice even before the time - limit set un section MONEY ( CARDINAL ) CARDINAL . of LAW has expired .

The Storage and Deletion Rules for ORG ( ORG ) , an instruction ( Erlass ) by the Federal Minister for the ORG of DATE , regulate the elimination and destruction of all documents which were no longer of any use for operational purposes of ORG . This is done by fixing time limits for storing different categories of documents and the modalities for disposing of these documents after expiry of the time limit . According to LAW copy files were deleted DATE following DATE of recording , while index cards and filing registers were destroyed after DATE .

At the supranational level there are CARDINAL basic instruments which regulate the protection of personal data in LOC . ORG for ORG with regard to ORG of DATE ( European Treaty Series no . CARDINAL ) and ORG Directive CARDINAL of DATE on the protection of individuals with regard to the processing of personal data and on the free movement of such data ( ORG , CARDINAL/CARDINAL/CARDINAL ) .

ORG of DATE secures in LAW for every individual , whatever his nationality or residence , respect for his rights and fundamental freedoms , and in particular his right to privacy , with regard to automatic processing of personal data relating to him ( " data protection " ) ” . Under LAW the scope of this LAW is restricted to “ automated personal data files and automatic processing of personal data in the public and private sectors ” . However according to LAW may ... give notice by a declaration addressed to the Secretary General of ORG : ( c ) that it will also apply this convention to personal data files which are not processed automatically ” . Article CARDINAL of the ORG provides that “ personal data revealing racial origin , political opinions or religious or other beliefs , as well as personal data concerning health or sexual life , may not be processed automatically unless domestic law provides appropriate safeguards . ” DATE also provides that “ the same shall apply to personal data relating to criminal convictions ” .

Following ORG of DATE there has also been adopted Recommendation No . R(CARDINAL)CARDINAL of ORG in ORG ( DATE ) , which deals with the collection and processing of particular sensitive personal data including necessary safeguard measures . As LAW only applies to “ the collection , storage , use and communication of personal data for police purposes which are the subject of automatic processing ” , but it also provides that “ manual processing of data should not take place if the aim is to avoid the provisions of this recommendation ” .

Within ORG Directive CARDINAL of DATE on the protection of individuals with regard to the processing of personal data and on the free movement of such data , as in force at the relevant time , regulates the protection of personal data . According to LAW shall protect the fundamental rights and freedoms of natural persons , and in particular their right to privacy , with respect to the processing of personal data ” . Personal data within the meaning of the directive are any information relating to an identified or identifiable natural person ( LAW ) and " processing of personal data " is “ any operation or set of operations which is performed upon personal data , whether or not by automatic means ” ( LAW b ) ) . Article CARDINAL delimits the scope of the Directive , this provision reads as follows :

“ CARDINAL . This Directive shall apply to the processing of personal data wholly or partly by automatic means , and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system .

This Directive shall not apply to the processing of personal data :

in the course of an activity which falls outside the scope of Community law , such as those provided for by Titles V and VI of the Treaty on European Union and in any case to processing operations concerning public security , defence , ORG security ( including the economic well - being of the ORG when the processing operation relates to ORG security matters ) and the activities of the ORG in areas of criminal law ;

by a natural person in the course of a purely personal or household activity . ”


Alena Poláčková;Branko Lubarda;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants , Mr PERSON and PERSON , were NORP nationals , who were born in DATE and DATE respectively and lived in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE . PERSON and PERSON died on DATE and DATE respectively .

NORP On DATE the applicants’ daughter , PERSON , informed the Registry that she wished to pursue the case before the Court . She also informed the ORG that she wished to be represented by PERSON and submitted a power of attorney to that effect .

The Government did not contest that request .

Given the fact that PERSON has a “ definite pecuniary interest ” in the proceedings in issue ( see , mutatis mutandis , PERSON GPE , no . CARDINAL/CARDINAL , § DATE , CARDINAL DATE , and GPE and Others v. Serbia , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) , the ORG finds that she has standing to proceed in her GPE stead . Although PERSON is therefore now the applicant , the ORG will continue to refer to the late Mr and PERSON as the applicants .

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

summarised as follows .

The applicants owned a house in GPE measuring QUANTITY and a plot of land next to it .

On DATE the applicants entered into an agreement ( sporazum ) with GPE ( “ the Municipality ” ) . Under the agreement , they agreed to the expropriation of their house and the adjacent plot of land , while the Municipality undertook to provide them with a comfortable flat with CARDINAL separate rooms ( dvosoban komforan stan ) in the GPE neighbourhood of GPE and MONEY ( ORG ) . ORG CARDINAL was paid immediately , while another RSD CARDINAL was to be paid after the LOC took possession of the house .

On DATE ORG and Urbanism issued a decision expropriating the house and transferring it into social ownership . The applicants continued to live in the house while the adjacent plot of land was used for the construction of an apartment building .

As GPE had failed to provide them with an appropriate flat , on DATE the applicants filed a civil action against it , requesting to have an appropriate flat allocated to them or to be paid compensation for their house .

By DATE an apartment building had been built next to the applicants’ house . On an unspecified date in DATE GPE offered them a flat in the complex , which measured QUANTITY . The applicants refused to move into the apartment , as they considered it unsuitable .

On DATE an expert appointed by the GPE found that both the house in which the applicants were living and the flat which the LOC was offering were comfortable , but that the house , being bigger , was a more suitable home .

The Municipality does not appear to have ever suggested any other form of compensation .

The applicants continued to live in the house . The change of ownership was not registered with the land registry .

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

On DATE the applicants withdrew their civil action against the Municipality , and the proceedings formally ended on DATE .

On DATE the applicants filed another civil action against the Municipality , requesting the RSD CARDINAL and that a QUANTITY flat with CARDINAL separate rooms be allocated to them .

On DATE the applicants withdrew their civil action again .

On DATE the applicants entered into a new agreement with the Municipality . Under this agreement , the applicants were registered as the occupiers of the house in which they lived , and the Municipality was registered as the sole occupier of the plot of land on which the apartment building had been constructed .

The Government submitted that this agreement had settled the dispute between the applicants and the LOC , and that the DATE expropriation order was no longer effective .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

András Sajó;Egidijus Kūris;Ganna Yudkivska;Krzysztof Wojtyczek;Marko Bošnjak;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

On DATE the applicant was a victim of a car accident in which he suffered several bodily injuries . He was treated in GPE until DATE .

In DATE the applicant was suspected of having committed several thefts of leased movable goods of considerable value , in particular cars , during the period he spent running a company .

NORP In DATE the applicant moved to GPE and the proceedings against him were stayed .

On DATE the Minister of ORG requested that the applicant be extradited to GPE .

Following an extradition hearing in GPE , in DATE the applicant was transported to GPE .

On DATE the applicant was arrested .

On DATE ORG ( Sąd Rejonowy ) decided to detain him on remand for DATE , until DATE . The court referred to the reasonable suspicion that the applicant had committed the offences with which he was charged and in respect of which he would face , if found guilty , deprivation of liberty for a term exceeding DATE . It further noted that there was a reasonable fear that the applicant might obstruct the proceedings or go into hiding until the charges against him became time - barred . The court pointed out that the applicant had not remained at his place of residence , had refused to accept a summons from the prosecutor and , although he was aware that an investigation was being carried out in respect of him , he had moved to GPE in DATE with a view to waiting until the charges that had been brought against him became time - barred ; consequently , the proceedings against him had had to be stayed for DATE .

As regards the applicant ’s state of health the court found that “ the problems cited by the applicant do not require any medical treatment ” .

On DATE the applicant ’s detention was extended until DATE . The court again referred to the reasonable suspicion that the applicant had committed the offences with which he was charged and on the severity of the penalty to which he would be liable if found guilty . It further noted that there was a reasonable fear that the applicant might obstruct the proceedings or go into hiding . In this respect the court referred to the fact that the applicant had moved to GPE on a previous occasion and had had to be located by means of an international search .

The applicant appealed , referring , among other things , to his state of health . He submitted that he was suffering from serious neurological and orthopaedic problems which , if not treated properly , would pose a serious danger to his health .

On DATE ORG ( Sąd Apelacyjny ) upheld the challenged decision , confirming ORG view that the detention had been justified by the severe penalty and the possibility that the applicant might obstruct the proceedings . As regards the applicant ’s state of health the court referred to CARDINAL medical experts’ opinions dated DATE and DATE respectively , according to which the applicant could be treated in the detention facilities and was able to participate in the trial .

On DATE the relevant bill of indictment was submitted to ORG ( PERSON ) .

On DATE ORG extended the applicant ’s detention for a further DATE , until DATE . The court justified its decision by citing the high probability that the applicant had committed the offences with which he had been charged . It also found that there was a risk that the applicant might go into hiding or obstruct the proceedings ; it did not , however , give any grounds for its findings . Lastly , the court stated that there were “ no grounds for releasing the applicant from detention ... in particular , [ there were none of the grounds listed ] in Article CARDINAL of the Code of Criminal Proceedings ” .

On DATE the first hearing took place . Further hearings were scheduled for CARDINAL and DATE , DATE , DATE , DATE , DATE and DATE , CARDINAL May , DATE , DATE , DATE , CARDINAL , DATE and DATE , DATE and DATE , CARDINAL and DATE , and DATE .

On DATE ORG again extended the applicant ’s detention for further DATE . Apart from the grounds previously relied on , the court noted that the applicant had requested that several new witnesses be heard and considered that he might influence their testimony if released . The court considered that the applicant ’s declarations that he would appear before the court upon each and every summons did not correspond with his previous behaviour . It noted that on DATE the applicant had resisted being taken to the court . According to the ORG ’s submissions he had refused to be taken to the court without a wheelchair which had been provided by his wife . Lastly , the court determined , relying on the opinion of an expert neurologist and orthopaedist , that the applicant could be treated in detention .

The applicant appealed . He referred , among other things , to his state of health , the fact that he had to use a wheelchair , that he was waiting for a spine operation and that he could not undergo physiotherapy under conditions of detention .

On DATE ORG upheld the challenged decision relying , as previously , on the fact that in the past the applicant had gone into hiding . The court also found that the applicant had again obstructed the proceedings in that he had refused to be transported to the court hearing without a wheelchair . ORG did not uphold ORG finding that the applicant might tamper with evidence ; this , however , did not influence the court ’s overall assessment ’s state of health , the court referred to a medical opinion issued on DATE by an expert neurologist and orthopaedist according to which the applicant could participate in the court hearings and could be transported to court without a wheelchair .

On DATE ORG extended the applicant ’s detention until DATE . The court noted that the results of the applicant ’s recent treatment in FAC hospital ward had been satisfactory and that according to the experts in neurology and orthopaedics ( see paragraph CARDINAL above ) he could be treated in prison facilities . The applicant appealed .

On DATE ORG examined the applicant ’s appeal and upheld the challenged decision . As regards the applicant ’s state of health , the court , relying on a physician expert opinion of DATE , considered that there were no obstacles to his further detention and his treatment in the prison facilities . The court noted that if the applicant ’s further detention threatened his health he could be released at any time ex officio .

Meanwhile , on DATE , the applicant underwent a medical examination ordered by ORG . The applicant arrived for the examination in a wheelchair , from which he could not get up . The Government contested this submission . The doctor found that the applicant suffered from chronic pain of the thoracic and lumbar vertebral column on the basis of multilevel disc osteoarthritis and that he had suffered a spinal injury and left hip injury in DATE and DATE respectively . The doctor also ordered a further examination of the applicant , which took place on DATE . On DATE a fresh opinion was delivered , the relevant part of which reads as follows :

“ There are obstacles to [ an extension of the ] stay of the applicant in FAC because he can not receive neurological treatment there ... the results of the electromyography examination ( ORG ) show a gradually worsening ] dysfunction of the peripheral nerves ... which qualifies the applicant for neurological surgery that can only be executed in a neurological ward . After the operation and rehabilitation treatment , depending on his neurological state , the patient will be able to continue his detention in the GPE detention centre ” .

The doctor further stated that an objective assessment of the neurological state of the applicant was not possible due to his lack of cooperation .

On DATE the applicant ’s lawyer requested that ORG lift the preventive measure applied to the applicant and to release him from detention . The lawyer referred to the applicant ’s state of health . He referred , among other things , to the fact that ORG had to order breaks in hearings because the applicant had to rest “ in a horizontal position ” . He also requested that the court order a further examination of the applicant by a specialist in neurology .

On DATE ORG refused the applicant ’s lawyer ’s requests . The court held that it had already ordered a medical opinion on DATE and that that opinion would be delivered soon . The court furthermore found that the circumstances justifying the applicant ’s detention had not ceased to exist and that they had already been listed in the court ’s decision of CARDINAL DATE . The court did not find it necessary to repeat them .

On DATE a fresh opinion was delivered by a specialist in neurology . The doctor found that :

“ CARDINAL . The applicant ’s further stay in detention and refusal of medical ( neurological ) treatment may constitute a serious danger to his health or even life .

The post - operation rehabilitation should take place in a good rehabilitation ward ... it may also take place in detention , however I do not know in which detention centre such a ward exists . ”

On DATE the applicant ’s lawyer lodged an appeal against the court ’s decision of CARDINAL DATE . He requested the court , in the event that the appeal was not granted , to change the preventive measure applied to the applicant and to impose bail on him of a “ reasonable amount ” .

On DATE ORG , sitting as a panel of CARDINAL judges , upheld the challenged decision . The court held that ORG , which made a decision in first instance in composition of single judge , had been aware of the applicant ’s state of health and that this matter had been taken into account each time his detention had been extended . Apparently , the court had not yet become aware of the medical expert opinion of DATE .

On DATE ORG , acting ex officio , released the applicant and imposed another preventive measure on him , namely that of police supervision . The court found that the grounds originally relied on to impose and extend the applicant ’s detention , in particular the risk that he might go into hiding , still existed . However , given the applicant ’s state of health , his release was necessary . The court referred to a medical opinion which was completed and issued on DATE ( see above ) . It was determined that the only neurological ward in which the applicant could be treated in detention was at ORG . The applicant , however , refused to agree to be operated on there . He undertook at the same time that if he were to be released , he would undergo such an operation once he was at liberty . He also indicated the address where he could be reached and where he would collect his correspondence .

On DATE the applicant was released from detention .

According to the last information available to the ORG , the criminal proceedings against him are still pending .

DATE he was hospitalised again in a hospital in GPE .

According to the applicant ’s submissions , at the time of his deportation to GPE from GPE the whole documentation pertaining to his case – including his medical file and information about medications that he was taking – had been handed over to the NORP authorities .

As stated by the ORG and not contested by the applicant , the applicant had undergone a preliminary examination on DATE and at that time he had not informed the doctor of any illness . He stated that he felt well . He had informed the prison authorities of his previously incurred injuries only after he had been detained at FAC . As stated by the Government and not contested by the applicant , the applicant had an easy access to the shower .

On DATE the applicant was examined by the neurologist for the first time . He was advised to continue his pharmacological treatment ( he had his own medications ) and to use a hard mattress .

On DATE the applicant was examined by a physician . He complained of problems with walking and was therefore prescribed crutches . The applicant submitted that he had been prescribed crutches after he had collapsed on the floor in cell no . CARDINAL at FAC .

On DATE the applicant underwent a further neurological examination . The relevant note made by the doctor read :

“ He claims that he does not have the proper mattress ( prescribed on DATE ) . Declares [ that he has ] pain in his left leg ... during the examination [ he did ] not follow simple orders but afterwards stood up without any problems ( sprawnie ) on his own . He walks with the aid of crutches ”

On DATE the applicant collapsed while being questioned at the police station . He was then taken to hospital .

On DATE the physician considered it necessary to conduct a CAT scan of the applicant ’s spine . The examination took place on DATE .

On DATE the applicant consulted a neurosurgeon who , after seeing the results of the CAT scan , found no grounds for the applicant to undergo a spine operation . He advised pharmacological treatment and physiotherapy .

On DATE the applicant requested a wheelchair . According to the Government the director of the facility ’s health centre found no grounds for granting his request .

According to the applicant ’s submissions on DATE he again collapsed on the floor in the corridor of block X of FAC . Only then was he prescribed a wheelchair . However , since the chair which he received in the detention centre was , according to his submission , in such a state that its use constituted a danger for persons using it , the applicant requested his wife to provide him with another wheelchair ; this she did , on DATE , with the approval of the prison authorities . The ORG submitted that the approval was granted for “ social reasons ” although there were no medical grounds for so doing . However , the applicant submitted copies of CARDINAL medical certificates dated DATE , together with a note made by a psychiatrist , which read :

“ The patient collapsed in the corridor ( lost consciousness ? ) ... Patient in generally good condition .

- Wheelchair .

- Neurological examination ”

The applicant submitted another note made by a neurologist , which read :

“ DATE [ he ] lost consciousness . He complains of pain in his left hip joint . ”

The applicant submitted a copy of the record of the questioning of a certain PERSON for the purpose of civil proceedings for compensation which the applicant had instituted against ORG . ORG , who had been placed in the same cell as the applicant DATE , testified , in so far as relevant , as follows :

“ Our cell was on the [ first ] floor ; CARDINAL had to climb a long flight of stairs . The applicant used a wheelchair . I and J. ( another cell inmate ) would carry the applicant up these stairs . When PERSON was not there one of guards would come and help us out . ”

On DATE the applicant resisted being taken to the court hearing without a wheelchair .

On DATE a doctor examined the applicant at the request of ORG . The relevant parts of the medical certificate issued after the examination read as follows :

“ DATE he claims that his left leg is weak [ and that ] he has pain in his lumbar spine . ... While undressing , he easily lifts his legs without manifesting pain . When he stands up he drags his left leg and claims that he can not stand on that leg because it is weak .

In the detention he occasionally ( okresowo ) uses a wheelchair ; however , during none of the neurological or neurosurgeon consultations was it determined that the applicant needed to use a wheelchair .

In connection with the pain reported by the applicant and the results of his medical examinations , the specialist opinion of an expert neurosurgeon or neurologist is necessary in order to determine whether the applicant may be transported to court without a wheelchair . Aggravation possible . ”

On DATE the applicant complained about the pain in his spine and he was transported to ORG prison no . CARDINAL , where he underwent treatment in the prison hospital . He remained there until DATE .

During his stay in the prison hospital he remained in a cell which had been adapted for detainees using wheelchairs . According to the ORG ’s submissions not contested by the applicant he had the assistance of professional “ carriers ” when he wanted to go to the exercise yard ( the Government did not explain what exactly should be understood under that notion , in particular whether the “ carriers ” referred to above were the prison guards or other prison staff ) . He attended various forms of kinesiotherapy , including exercises to strengthen the muscles of his legs , and various other forms of treatment . He also consulted a dermatologist , orthopaedist , neurologist and ophthalmologist .

After his release from the prison hospital the applicant was advised to continue performing the exercises he had been taught . From CARDINAL DATE until his release on DATE he was again detained in FAC .

As emerges from the decision of DATE about the degree of the applicant ’s disability , he was moderately disabled and able to work in special conditions . He did not need constant assistance of another person .