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

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant gave birth to a son , PERSON , whose father was PERSON , her partner .

Following their separation in DATE , the applicant and PERSON agreed that ORG would live with the applicant and PERSON would visit him regularly .

On DATE E. took the boy to PERSON in GPE .

The applicant followed them to ORG , where she attempted to visit her son , but was prevented from doing so by PERSON

On DATE the applicant applied to ORG of PERSON ( “ the ORG ” ) for a residence order under which ORG would live with her . She submitted that PERSON had lived with her from birth until his removal by his father the previous October . They were very attached to each other . She had a stable income , a spacious flat , good character references , and was capable of providing NORP with everything necessary in terms of his living expenses , education and development . She also complained that since the removal she had made many attempts to visit her son , but PERSON had prevented her from seeing him .

On DATE the childcare authority of the Chertanovo District of GPE visited the applicant ’s flat in GPE and found the living conditions there suitable for a small child .

On DATE the Justice of the Peace of ORG of GPE of GPE convicted PERSON of assault and battery , finding PERSON guilty of assaulting and injuring the applicant in DATE , and sentenced him to a fine .

On DATE the childcare authority of ORG visited PERSON ’s flat in PERSON and found that the living conditions there were suitable for a small child . The officials noted that PERSON lived in the flat with his mother PERSON and his son I.

On DATE the childcare authority of ORG issued its report on the case . The report reiterated that PERSON ’s living conditions were suitable and further read as follows :

“ [ E. ] works as a senior medical officer at [ a private medical clinic ] and , according to him , has a DATE income of MONEY ...

The child has been living with his father [ E. ] for a long time . His mother lives in GPE and does not participate in his upbringing . The boy is very attached to the father and receives a lot of attention , tenderness and care . Bearing in mind the best interests of [ I. ] , [ the childcare authority of ORG ] considers that a residence order in respect of [ I. ] in favour of his father [ E. ] would not be contrary to the child ’s interests and would not hinder his contact with the mother . ”

At the hearing concerning the applicant ’s application for a residence order , PERSON stated that PERSON had indeed lived with his mother until recently , but he was not at all attached to her . PERSON had financially supported them and had visited them regularly . The applicant was “ not leading the right kind of life ” and she would have a bad influence on I.

At the hearing , an official of the childcare authority of ORG reiterated the findings contained in the report of DATE .

On DATE ORG dismissed the applicant ’s application for a residence order in her favour . It held that a residence order in respect of I. should be granted to his father , even though he had not requested it . The court held as follows :

“ LAW of [ LAW ] provides that a court decides on the claims submitted by a claimant . However , the court may go beyond those claims in cases provided for by the federal law .

DATE [ LAW ] provides that if no agreement can be reached , a dispute between parents must be decided by a court , having regard to the child ’s best interests .

It follows that the court may go beyond the parties’ claims and make a residence order in respect of the child in favour of the father [ E. ] .

The report of the childcare authority of ORG no . ... of DATE indicates that it is preferable to make a residence order in respect of the child [ I. ] in favour of his father [ E. ] , and not to hinder his contact with his mother .

The available information shows that both parents have good character references from their employers and their neighbourhoods , have permanent employment , stable incomes , and real estate .

According to inspection reports , the living conditions of both parents meet the conditions necessary for raising and accommodating a child .

Point CARDINAL of Ruling no . CARDINAL of ORG of DATE enumerates , in line with LAW of [ LAW ] , factors which must be taken into account when deciding on a dispute concerning a child ’s residence arrangements . These factors are the child ’s attachment to each of the parents and [ any ] siblings , the relationship between the child and each of the parents , the child ’s age , the GPE moral and other personal qualities and the possibilities each of them have for creating [ proper ] conditions for the child ’s upbringing and development ( in the light of such considerations as each parent ’s occupation , employment schedule , and financial and family situation ) , and other factors defining the situation in each parent ’s place of residence . The Plenary Ruling stresses , in particular , that the better financial or living conditions of CARDINAL of the parents can not , in themselves , constitute a decisive reason for granting this parent ’s application for a residence order in his [ or her ] favour .

The better financial and living conditions of CARDINAL of the parents ( the claimant has a higher income and owns residential property in GPE ) can not constitute a decisive reason for making a residence order in her favour and for rejecting the other parent ’s claim , because there are other factors .

By contrast , [ the applicant ] is a single mother who has CARDINAL more child from her previous marriage : a daughter [ NORP ] born on DATE . This age is most difficult , and requires special attention from the mother .

Because she works , on DATE the claimant placed ORG in a [ nursery school ] in GPE , despite the fact that , by her own admission , he suffers from a congenital central neural system anomaly : dysgenesis of the corpus callosum .

The [ factors considered ] above indicate that [ the applicant ] is unable to create [ proper ] conditions for the child ’s upbringing and development . Because of her work , she does not have enough time to devote to her children . These circumstances could have a disastrous impact on the child ’s immature mind .

It has been established that the defendant occupies a managerial position at work . His income allows him to create comfortable financial and living conditions . He lives with his mother [ A. ] , who helps to raise [ I. ] . The childcare authorities’ report indicates that the child is attached to his father .

The defendant has not hindered [ the applicant ’s ] contact with the child .

Under Articles CARDINAL and DATE of [ LAW ] , each party must prove the circumstances on which [ he or ] she relies in support of [ his or ] her claims or submissions .

In the court ’s opinion , the claimant has not submitted evidence in support of her arguments in [ the ] adversarial proceedings . ”

The applicant appealed . She complained , in particular , that the residence order had been granted to PERSON at ORG own initiative , as PERSON had never requested it . She further submitted that she was perfectly capable of providing NORP with everything which he needed for his development . Her elder daughter was healthy and self - reliant and did not require any special attention . Her daughter would therefore not hinder her ability to take care of NORP ; on the contrary , she was of great help . The applicant had placed ORG in a nursery school to give him a pre - school education and to further his social adaptation . His medical condition was not an obstacle to his attending a pre - school . ORG finding that she did not have enough time to take care of her children was not based on any evidence . Neither her working schedule nor that of PERSON had been examined . Nor had the court explained how , within such a short period of time , PERSON could have become more attached to his father than his mother , with whom he had lived from birth until his recent abduction . Lastly , the applicant complained that PERSON was preventing her from seeing her son . That fact had been confirmed by the childcare authorities’ representative at the hearing , who had recounted PERSON ’s assertions that he would not allow any contact between PERSON and his mother .

On DATE ORG of GPE upheld the judgment on appeal , finding that it was lawful , well - reasoned and justified . The judgment was based on the best interests of the child , taking into account his age , his attachment to the father , and the father ’s ability to create proper conditions for his son ’s upbringing and development .

NORP In reply to a complaint by the applicant that she had been prevented from seeing her son for a long time , by a letter of DATE , a deputy mayor of ORG informed her that PERSON had stated to the childcare authorities that he would not allow any contact between PERSON and his mother .

By a letter of DATE , the head of the childcare authority of ORG informed the applicant that the childcare official who had issued the report of DATE had been disciplined . An internal inquiry had established that the report was based on incorrect and incomplete information . In particular , PERSON ’s statement that he had high income had not been checked . The finding that the applicant had not participated in ORG upbringing was not based on any evidence . The length of time PERSON had lived with each of the parents had not been established . Lastly , the fact that PERSON had a CARDINAL - sister living with his mother had not been taken into account . The report of DATE had therefore violated the applicant ’s rights and legitimate interests .

The applicant lodged a cassation appeal , referring , in particular , to the letter of CARDINAL DATE .

On DATE a judge of ORG of GPE refused to refer the applicant ’s cassation appeal to the ORG of that ORG for examination , finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings . Relying , in particular , on the childcare authorities’ report of CARDINAL DATE , the judge found that it was in ORG interests to live with his father .

On DATE PERSON died in a car accident . I continued to live with his paternal grandmother A.

On DATE the applicant applied to ORG of GPE ( “ the Town Court ” ) , asking that I. be returned to her .

On DATE ORG granted her application . The court held that NORP should be taken away from GPE and returned to the applicant , with whom he should live from that point onwards . On DATE ORG of GPE upheld the judgment on appeal .

On DATE ORG issued a writ of execution . On DATE bailiffs initiated enforcement proceedings .

On DATE the bailiffs visited A. and ordered that she return PERSON to the applicant on DATE . When the bailiffs visited A. on DATE to take ORG away , PERSON and NORP were not at home . The bailiffs visited PERSON again on CARDINAL and DATE and CARDINAL DATE , but could not find her or NORP The childcare authorities also visited PERSON ’s address on several occasions , but found nobody at home . It was finally established that A. had moved out with I.

On DATE the bailiffs banned A. from leaving the country .

On DATE and ORG ’s names were put on the list of wanted persons .

On DATE I. was returned to the applicant by the police . On DATE the enforcement proceedings were closed .


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

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

The applicant was born in DATE and lived in PERSON .

He had a joint title to a plot of land in the value of CARDINAL “ gold crowns ” ( aranykorona ) . The land was , from an unspecified date on , in the possession of , and used by , a ORG “ collective farm ” . Following the adoption of Act no . II of DATE on ORG , ORG adopted a plan on the division of such properties . That decision was subsequently upheld by GPE and ORG .

On DATE a plot of arable land of QUANTITY , situated in the village of GPE , was designated by ORG for the purpose of privatisation , under lot no . CARDINAL . This measure was approved by ORG . On DATE the applicant was granted ownership of the plot by ORG . His title to the land was registered on DATE .

NORP However , he could not enter into possession , because the plot which he had been granted was apparently occupied and being used by the owners of the neighbouring plots .

The applicant brought a trespass claim before LOC , asserting that his use had been unjustifiably interfered with . Following the dismissal of his request , he sought judicial review of the decision , bringing a civil action before the Budapest II / III ORG against the neighbours , seeking protection of his possession rights .

While this case was pending , the respondents initiated the correction of the land register maps . In the ‘ remapping’ proceedings , ORG observed that plot no . CARDINAL did not exist in reality . On appeal , ORG confirmed this finding , designating a new plot for the applicant , under no . CARDINAL , on DATE . This plot was nonetheless smaller than that originally allocated to the applicant , and was apparently not suitable for farming .

Quite independently of the present dispute , on DATE a new , digitally compiled land register was put in place by the PERSON authorities , with the apparent intention of eliminating the existing inaccuracies .

NORP The applicant ’s civil action was stayed for the duration of the remapping proceedings . After the adoption of ORG final decision , ORG dismissed the action on DATE , observing that the respondents had not used the applicant ’s land unlawfully , as the plot of land registered under plot no . CARDINAL did not exist in reality . The applicant appealed .

The appeal proceedings appear to have been subsequently suspended since the applicant sought judicial review of the remapping decision . In the course of these administrative court proceedings , it was confirmed by an expert land surveyor that the applicant had originally been granted a plot which had been registered with topographic and editing errors , and that these had been duly corrected in the remapping proceedings . Therefore , the Pest County Regional Court dismissed the applicant ’s claim on DATE . This was confirmed by ORG on DATE .

NORP Since in the remapping proceedings the location of the land belonging to the applicant eventually became indisputable and it turned out that this plot was not possessed by any of the respondents , the applicant withdrew his appeal against the first - instance judgment of DATE .

As a result of the above proceedings , the applicant could finally obtain possession of the land in question DATE after having acquired it , that is , sometime in DATE .

On DATE the applicant lodged an official liability action against the District and GPE . His action was dismissed by the Buda Surroundings High Court on DATE . The court found that the applicant ’s damage had been caused by his own conduct since he had initiated a number of futile proceedings before various authorities .

The applicant appealed ; however , the appellate proceedings were suspended on account of his death on DATE , with a view to the successor ’s joining the case . It appears that the proceedings are still pending , that is , remain suspended .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Change religion or belief;Freedom of religion;Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in DATE . She grew up in ORG , which in DATE , the time relevant in this case , had CARDINAL inhabitants . She currently lives in GPE .

The applicant ’s medical records show that in DATE she was treated for DATE at ORG ( ORG psichiatrijos ligoninė ) , where doctors diagnosed her with an acute paranoid reaction disorder ( ūmi paranoidinė reakcija ) . The applicant had been taken to hospital by her parents , who had stated that she had previously joined the ORG in God religious sect ( PERSON tikėjimo sekta ) and that she had become agitated and disorientated . At her GPE request and once her health had improved , in DATE she continued treatment at a psychiatric institution in ORG ( PERSON psichoneurologijos dispanseris ) , where her diagnosis was acute paranoid psychosis ( ūmi paranoidinė psichozė ) . The doctors noted that the applicant had joined another religious sect , the NORP sect ( GPE ) , and that her condition had worsened after joining in certain of the sect ’s activities in a forest . In particular , she had not been able to communicate well and had spoken only about religion - related topics while at the hospital . Subsequently , the applicant received treatment in the same psychiatric institution in ORG in DATE , when she was diagnosed with paranoia ( paranoidinė būsena ) . She was disorientated and depressed . The doctors noted that the applicant had an inner conflict – she was dissatisfied with the hyper care ( hipergloba ) given to her by her mother , but was nevertheless not independent or mentally mature . In DATE the applicant was again admitted to hospital and treated in the psychiatric institution in ORG , where she was diagnosed with moderately severe endogenous depression ( endogeninė depresija , vidutinio gilumo ) . Once her mental state had improved , the applicant refused to stay in psychiatric institution and was released .

On an unknown date , the applicant obtained a degree in law . In DATE she won a competition to pursue postgraduate studies ( podiplominei stažuotei ) in GPE , where she studied for DATE .

In DATE , the applicant ’s father became ill with cancer . The applicant was distressed , did not sleep well and had a car accident . Her mother took her DATE to the FAC private hospital in GPE , where she was diagnosed with post - traumatic stress disorder ( potrauminio streso sutrikimas ) . She spent DATE in the hospital and was released at her own wish so she could be treated as an outpatient .

NORP In DATE the private company which employed the applicant as an in - house lawyer was put into liquidation . The applicant later found a job as a lawyer at ORG ( GPE ministerija ) .

In DATE the applicant made her first visit to FAC , the NORP branch of the PERSON religious movement ( see PERSON . ORG and Others v. GPE ( no . PERSON , § CARDINAL , DATE ) , where she started meditating ( pradėjo medituoti ) . She states that she found “ inner spiritual and emotional healing for [ her ] stressed and disharmonious inner state , [ caused by her ] father ’s illness , car accident and the loss of [ her previous private sector ] job ” .

According to the applicant ’s medical records and court decisions ( also see paragraphs CARDINAL , CARDINAL and DATE below ) , on TIME CARDINAL DATE she arrived for work as usual at ORG in GPE . She suddenly felt exhausted and asked her superior ( viršininkė ) for some time off . When her superior refused , the applicant slammed doors and ran out of the office . She was stressed and agitated . She then left her vehicle unlocked in the middle of the street , returned to her apartment , undressed completely , and began screaming on her balcony . She did not open the door to her work colleagues . The applicant ’s mother called her DATE , but could not communicate with her because of the applicant ’s state of mind . The mother then asked for help from the applicant ’s cousin , ORG

At TIME the applicant ’s sister , PERSON , and her cousin , ORG , arrived in GPE , and called an ambulance . The applicant was then taken by force to ORG ( ORG psichiatrijos ligoninė ) , a public hospital under ORG .

At the psychiatric hospital , the applicant refused to sign a form consenting to her admission and treatment . Her cousin did so instead , at TIME The applicant was agitated , aggressive and could not understand the situation . She was physically restrained CARDINAL times for TIME , and forcibly administered neuroleptics , including haloperidol . She fell asleep at TIME on DATE

Later TIME , the applicant was seen by a psychiatrist , doctor PERSON , who was also a head of division at that hospital , and doctor PERSON The doctors indicated in her medical records that the applicant “ did not object to being treated ” at that hospital ( also see paragraph CARDINAL below ) .

In her application to the ORG , and without being contradicted on this point by the ORG , the applicant stated that from CARDINAL May to CARDINAL DATE she had been placed under the strictest patient regime at ORG . She had been supervised by a nurse twentyfour TIME a day in a ward with CARDINAL other patients . She had not been able to leave the ward without a nurse .

From DATE to DATE , the applicant was under a strict care regime . She could have a walk around the hospital grounds , but only if accompanied by a nurse .

On DATE , and until her release on DATE , the applicant ’s care regime was changed and at certain times of the day she could take walks on her own within the territory of the hospital .

The applicant ’s medical record of CARDINAL DATE reads that the applicant at that time did not yet fully understand how sick she was ( pilno liguistos būklės suvokimo dar nėra ) . The record also states that “ it has emerged that the patient attends the PERSON non - traditional meditation and improvement centre . During conversation [ the applicant ] states that attending the centre ‘ brings her peace’ while not disturbing her social functions ; it is also her ‘ essential interest’ . [ The applicant ] has an uncritical attitude to attending the centre . Psycho - correction therapy to be continued ” .

The record of DATE reads that the applicant was clear - headed ( mąstymas nuoseklus ) and was not agitated ( afektas adekvatus ) . The applicant “ was gradually adopting a critical attitude towards psychotic behaviour and also about ways to spend her free time . The treatment was to be continued . ”

The record of DATE reads that “ during psycho correction , the applicant was categorical about attending the FAC , and asserted that ‘ it was a personal matter ( tai jos asmeninis reikalas)’ . The applicant showed no psychotic symptoms . ”

The applicant was released from ORG on DATE , after DATE . Her medical records , issued by that hospital and later confirmed by the court appointed experts , stated that from CARDINAL May until DATE the applicant had a transitory psychotic disorder ( tranzitorinis psichozinis susirgimas ) , which was a serious mental disorder .

The applicant ’s medical record of DATE stated that her affect ( mental state ) was flat ( calm ) and stable ( afektas lygus , stabilus ) and that she was clearheaded . She had realistic and concrete plans for the future , had a critical attitude towards psychotic behaviour ( atsiradusi kritika psichoziniam elgesiui ) , and had promised to continue treatment as an outpatient .

On DATE , while the applicant was still being held in ORG , an episode of the ORG television programme was aired on the ORG national television channel . The channel made an announcement ( anonsas ) about the forthcoming broadcast in the following way :

“ R.S. [ journalist ] : a secret has been revealed ( demaskuota paslaptis ) . There is a centre which has not been registered anywhere and where the meditation practised is so powerful that to become a member you have to submit medical proof that you are not ill with HIV . ... After such meditation PERSON is DATE in a psychiatric hospital . Her mother is in tears ... ”

NORP The programme itself contained the following statements , including CARDINAL by doctor PERSON , head of division and a psychiatrist at ORG , who was interviewed by the journalist on what appeared to be the LOC of ORG :

“ PERSON [ journalist ] : PERSON is a woman who has had a management job all her life . ... PERSON has agreed to talk because what has happened is completely unexpected . The woman did not foresee disaster , she did not foresee how her older daughter , who is now an adult , the DATE PERSON , had been charmed and what she got herself involved with . ”

“ R.S. : The organisation we are talking about DATE has many secrets ... ”

“ Doctor PERSON : It does not appear that this young woman ( mergina ) would participate in orgies . She is not hypersexual , and , well , you know , as far as I have learned , she is of high morals and studied for DATE in GPE for a master ’s degree . ”

“ R.S. : We are meeting PERSON ’s mother and her DATE sister at GPE train station . The mother and her daughter came here by train from ORG , wishing to tell PERSON ’s story . They did not wish to meet in PERSON ’s home town ( gimtuosiuose namuose ) , ORG . They are afraid to hurt PERSON ’s father . He is seriously ill and it would be hard for him to accept ( išgyventi žinią ) what has happened to his elder daughter . DATE , in the apartment in the capital where PERSON lives , the most horrible event in the young woman ’s life took place . PERSON suddenly had a complete nervous breakdown , acute psychosis . For PERSON ’s family , the reason for that psychosis is the influence of ORG . ”

The programme then discussed the activities of ORG in GPE . The journalist implied that the followers of PERSON in GPE held sex orgies . As to the applicant ’s identity , the journalist also mentioned that “ PERSON obtained a master ’s degree abroad , had an important job in State service ( dirbo atsakingą valstybinį darbą ) ” and that the person was “ currently being treated at a psychiatric hospital ” . The programme included the following statements :

“ R.S. : PERSON ’s family state that DATE before the tragedy PERSON would meditate all day and practically not speak to anyone else . She is currently being treated in a psychiatric hospital . ... After DATE of meditation PERSON was placed in a psychiatric hospital , in a state of acute psychosis ( ūmios psichozės būsenoje ) . ”

“ Doctor PERSON : They [ people belonging to sects ] do not talk about it at all . As far as I have heard , the teachings there [ at FAC ] take DATE , and enlightment happens or something of that kind . This takes place over DATE , something is being cleansed . She [ PERSON ] does not talk about that . She even says that she performs some kind of practice ( atlieka praktikas ) there ; she hides [ things ] . This is a common trait of members of sects , that they very much hide that fact . Or , if [ things ] come to light , they portray it as completely innocent . That is very common . ”

ORG , who according to the register of religious organisations in GPE is the “ leader ” and master ( lyderis ( meistras ) ) of ORG in GPE , stated during the broadcast that the applicant had been terrorised by her mother . The broadcast concluded with statements by the journalist and PERSON :

“ NORP : Maybe it is a coincidence , but a clear danger to PERSON ’s mental state appeared just after she had started meditating in accordance with PERSON teachings . The young woman will need a long and difficult course of medical treatment ( mergina dar ilgai ir sunkiai gydysis ) . The fact that she has only been in this [ ORG ] centre for DATE leads one to reflect on how the practices of ORG can affect someone who is constantly seeking to liberate their soul . ”

“ PERSON : Actually , there is a NORP atmosphere and a NORP resistance , maybe even a NORP resistance , against meditation , because there is no God in meditation ... ”

The applicant ’s mother and sister were shown during the programme and identified by their real first names as “ PERSON , PERSON ’s mother ” and “ PERSON , PERSON ’s sister ” . They made statements about the destructive influence that , in their view , ORG had had on the applicant .

On DATE on the internet site of ORG the applicant published a CARDINAL - page open letter to the journalists at GPE , signing it with her real name and surname . She expressed regret that the broadcast had not been an objective portrayal of her story . She stated that “ by using me , you have maybe created an interesting story , but it is very CARDINAL - sided . Maybe by unraveling ( narpliodamos ) the story through my mother you also wanted to protect me and sought to help me , but in reality your broadcast has caused me to feel much distrust and a lot of pain ” . The applicant then mentioned that she had previously been admitted to psychiatric institutions in DATE and DATE , emphasising that those CARDINAL periods had been unrelated to meditation . She also wrote that she had only started attending the Ojas Meditation Centre in DATE and that her emotional breakdown in DATE had had no connection to those visits . For the applicant , the GPE journalists had therefore given an unfair account of her story , and had shown bias by implying that her mental health issues had been caused by meditating at FAC . The applicant also stated that in DATE she had consulted several psychotherapists ( psichoterapeutai ) , who had helped her realise that her psychological problems had roots in her childhood , when she had been controlled by and had lived in fear of emotional and physical violence from her mother . Even at the time of writing there had been resistance and mockery from her family when the applicant had shared her new interests , such as yoga or meditation . The applicant also stated that she “ had not been put under a spell ( neapžavėjo ) ” by meditation . Instead , meditation had entered her life naturally as the result of a long and intense spiritual search . She continued :

“ Meditation for me is a way to learn about myself and the world , and on the basis of that understanding and by deepening it , to open myself to peace , joy , truth and love . DATE meditation for me is a means to reduce emotional , spiritual and psychological tension and stress , to understand the reasons behind unhappiness , including by learning how to avoid it . Meditation allows me to live a more conscious life ( sąmoningesnis ) and one which is full of joy . ”

The applicant also referred in the letter to her involuntary admission to ORG in DATE , where she had been taken by force and deceit , and where she had never agreed to be treated . She wrote that the psychiatrists had blindly believed her mother ’s stories and had diagnosed her as being under the influence of a sect ( sektantiškumas ) . That had led to the psychiatric treatment she had received being mainly directed at how to cure her from practising meditation ( pagydyti CARDINAL meditacijos ) in a hostile environment that had damaged her psychologically and emotionally . In particular , the psychiatrists at the hospital had interrogated her ( buvau kamantinėjama ) about FAC and its practices , forced her to promise not to meditate , alleged that sex orgies had taken place there , that meditation was harmful for her mental health , that she should follow the NORP religion which is traditional in GPE and that meditation was not compatible with her “ social status ” . During CARDINAL visit ( vizitacija ) , a doctor had called her “ the CARDINAL from the FAC ” , rather than using her name . The applicant also wrote that when she had spoken about meditation at FAC doctor PERSON had simply made fun of it , had said that that was not meditation , and that the applicant knew nothing about what meditation actually was . The applicant had not been able to resist the psychiatrists at the hospital because refusing to talk to them or disagreeing with their statements about the Ojas Meditation Centre or their instructions to stop meditating had been treated as signs of mental illness . For that reason , the amount of medication at the hospital had not been reduced for a long time , strong drugs had been injected into her , and her release from hospital had been postponed . The applicant also noted that she had intended to submit a written statement to the hospital that she refused treatment , but she had been persuaded not to do so because the doctors had threatened that otherwise they would diagnose her problems in such a way that could later prevent her from getting a job .

The applicant concluded by noting that in DATE she had attended a session at FAC , and had finally been able to meditate and recover after DATE in ORG in a hostile environment that had harmed her mind and body . She saw meditation as means to live a more conscious and meaningful life .

In DATE the applicant sued ORG for compensation for non - pecuniary damage . She alleged : ( CARDINAL ) unlawful deprivation of liberty ; ( CARDINAL ) a violation of her right to a private life ; ( CARDINAL ) a violation of her right to freedom of religion ; ( CARDINAL ) a violation of her right to the inviolability of her body ; ( CARDINAL ) failure to provide proper medical care ; and ( CARDINAL ) a breach of her right to be properly informed about her diagnosis , methods of treatment and prognosis .

Vilnius Psychiatric Hospital responded by saying that on DATE the applicant had been involuntarily hospitalised since she had been in a state of acute psychosis and had posed a danger to herself and others . The hospital also submitted that the applicant had never complained in writing about being held unlawfully . The hospital argued that it had not disclosed any confidential information about the applicant , and that it could not be responsible for the actions of the applicant ’s mother and the way the PERSON broadcast had been presented . It added that the PERSON religious movement had been acting outside the law in DATE because it had only been registered in GPE as a religious movement on DATE ( see paragraph CARDINAL below ) . Furthermore , the applicant had not proved that the hospital had had no reason to think that her non - traditional religious beliefs had been the reason behind her emotional outburst ( emocinės iškrovos priežastis ) .

ORG ordered ORG at ORG to produce a report to answer certain questions regarding the applicant ’s medical condition and her admission to ORG DATE and DATE on the basis of her medical records . The forensic report was produced in DATE .

On DATE ORG granted the applicant ’s action .

ORG noted at the outset that according to Articles DATE and CARDINAL of ORG a person could be placed in hospital without his or her consent if there was a clear and present danger of him or her harming themselves or others . Even then , a court order was needed within DATE to keep the person in hospital . Should a court refuse such an order , the forced hospitalisation and treatment had to be discontinued ( see paragraph CARDINAL below ) .

On the basis of the forensic expert report and other material , ORG firstly observed that the applicant had not actually denied that she might have required medical assistance on DATE because of her state of mind . However , the court found that as of CARDINAL DATE she had no longer been in need of medical support . That was confirmed by the applicant ’s medical file , where doctor PERSON had noted on DATE at CARDINAL TIME that “ the patient is responding to meaningful contact , is correctly orientated ( pacientė prieinama prasmingam kontaktui , orientuota teisingai ) ” . Also , at TIME on DATE , doctor ORG , the other psychiatrist treating her at ORG , had written that “ currently the patient is sleepy because of medication ... her mind is clear , she is well orientated when it comes to place and time ... currently the affect is flat ( pacientė š.m . mieguista dėl vaistų poveikio , sąmonė aiški , orientacija vietoje ir laike tiksli ... šiuo metu afektas lygus ) ” . The court also based itself on the applicant ’s other medical records . All that meant that the applicant ’s state of health had no longer corresponded to that set down in DATE ORG to permit her further forced hospitalisation . Despite that , the applicant had been held against her will and treated at ORG until DATE , without the hospital ever asking for a court order . That had been in breach of the twoday time - limit set in LAW .

ORG also agreed with the applicant ’s argument that she had not been able to leave the hospital because she was under the influence of drugs , had faced a threat of being physically restrained if she disobeyed the doctors , and had been under a strict regime . The court noted that the requirement that a psychiatric patient should normally be able to express his or her consent to be hospitalised and treated had also been underlined by ORG .

ORG also observed that there was no written evidence that the applicant had ever agreed to be placed in ORG DATE and DATE . According to the forensic expert report , the applicant had not been able to understand her actions on CARDINAL DATE ; however , the experts had not reached the same conclusion about the period DATE and DATE . That notwithstanding , the applicant had been forced to stay in hospital for DATE for treatment . The court also emphasised that the patient was always the weaker party in relation to the hospital and its personnel . The hospital ’s argument that the applicant had agreed to stay by acquiescence was therefore null and void . The court also relied on doctor ORG ’s admission during court hearings that the applicant ’s life had “ not necessarily been in danger ” for all of DATE of treatment and to the same conclusion by the applicant ’s treating doctor ORG In fact , the records signed by doctor PERSON on CARDINAL and CARDINAL DATE stating that the applicant was being treated at the hospital had given CARDINAL side ( vienašališki ) of the situation as they had not been countersigned by the applicant . In that context , the court also had regard to the applicant ’s explanation that because of the side effects of the medication ( sleepiness , inability to concentrate ) and the possibility of physical restraint ( being tied down ) in case of disobedience , she had not been able to express her disagreement about being treated at the hospital in writing . The court also considered that the consent given on DATE by the applicant ’s cousin , ORG , for the applicant to be put in hospital and treated could also not be considered as an act of agreement expressed by the applicant .

In the light of those factors , ORG concluded that the procedure set down in domestic law for forced admission to hospital and treatment had not only been breached in the applicant ’s case , but outright disregarded .

The applicant ’s mother also testified before ORG . She said that she had learned on DATE that the applicant was delirious and had asked ORG for help . That had led to the applicant being taken to ORG . The mother also said she had contacted ORG in GPE about her daughter , but had not received a constructive response . She had then contacted the journalists from GPE , because she had wished to find out what was happening to her daughter . She had not known what diagnosis the psychiatric hospital had given the applicant and had only told the GPE journalists which hospital her daughter was in .

Doctor PERSON testified that she was head of division ( skyriaus vedėja ) at ORG when the applicant had been treated there . She said that the journalists had not called her directly but that the hospital administration had informed her that they would come and had “ kind of stated that the talk would be about ORG ” . The doctor testified that she had “ not discussed [ the applicant ’s ] health ” with the journalists , only the Ojas Meditation Centre and meditation as such .

ORG then turned to the applicant ’s complaint of a breach of her right to privacy . Relying on Article CARDINAL of ORG and LAW ( see paragraphs CARDINAL and DATE below ) , the court noted that “ there was evidence in the case - file ( byloje yra pateiktas įrodymas ) that doctor PERSON had , without obtaining the applicant ’s consent to disclose confidential information , revealed to the GPE journalists that the applicant had been diagnosed with acute psychosis ( ūminė psichozė ) , that she was being treated at ORG , and that she had studied in GPE ” . The interview with the doctor had been shown during the PERSON programme on DATE . The court noted that even in DATE ( šiuo metu ) there were not many people in GPE who had studied in GPE and so that characteristic had not been very common . The court also considered that “ other information revealed to the journalists about the applicant could also allow the applicant ’s identity to be established ” , although the court did not specify what other information it meant .

The court then had regard to the applicant ’s complaint about freedom of religion by referring to LAW . It also relied on LAW ( see paragraph CARDINAL below ) .

The court found valid the applicant ’s complaints that the doctors had tried to dissuade ( atkalbėti ) her from meditating , attempted to alter her views on non - traditional meditation religion and had treated her against meditating and attending the Ojas Meditation Centre . That conclusion was based on the applicant ’s medical file , which contained the following records for CARDINAL May and DATE and DATE : “ ... absence of a critical attitude towards attending [ ORG ” ; “ during psycho - correction expressed opinion in categorical terms about attending FAC , argues , that ‘ it is a personal LOC ” ; “ when efforts were made during psycho - correction to get the applicant to form a critical attitude ( suformuoti kritiką ) towards non - traditional religious beliefs , [ the applicant ] for a long time remained uncritical and also categorical ” . The first - instance court underlined the fact that the psychiatric hospital had not provided any proof of the suggestion that practising a non - traditional religion would place the applicant or others in danger . The court thus concluded that “ by attempting to alter the applicant ’s attitude to non - traditional religion , meditation , and their practice at FAC ” the hospital had breached her right to freedom of religion . Lastly , the court rejected as legally irrelevant the hospital ’s assertion that at the time of the applicant ’s admission to hospital the meditation centre had been operating “ unlawfully ” . ORG observed that the religious movement had been a party to court proceedings for its registration at the time and had been registered on CARDINAL DATE .

After finding that between CARDINAL DATE and DATE the applicant had been placed in hospital and given treatment against her will in breach of domestic law ( see paragraph CARDINAL above ) , ORG considered that there had therefore been a breach of the applicant ’s right to the inviolability of her body . Furthermore , ORG had failed to prove that it had properly informed the applicant about her state of health , her diagnosis , the methods of treatment and the prognosis for her condition ( see paragraph DATE below ) .

However , ORG dismissed as unsubstantiated the applicant ’s claims that she had been provided with inappropriate medical care at ORG and that the doctors there had forged her medical records .

ORG thus granted the applicant ’s civil claim in full and awarded her MONEY ( ORG , MONEY ( ORG ) ) in compensation for non - pecuniary damage . She was also awarded legal costs of LTL MONEY ( EUR CARDINAL ) .

Vilnius Psychiatric Hospital appealed . According to the hospital , there was no proof that doctor PERSON had disclosed confidential information about the applicant ’s acute psychosis and that she was being treated at the hospital . The doctor had merely given an opinion about an unidentified person . Moreover , the doctor had pointed out during the firstinstance hearings that she had only given her views when answering the questions the journalists had put to her . CARDINAL witnesses – the applicant ’s mother , sister and the journalist GPE – had explained during the firstinstance court ’s hearings that the television programme had been initiated by the applicant ’s relatives , who had provided information about the applicant . The first - instance court ’s reference to studies in GPE as a way of identifying someone was not sufficiently weighty either , and such information was not protected under LAW .

As to the applicant ’s right to freedom of religion , the hospital argued that the lower court had erred in equating meditation with religion . The fact that since DATE the applicant had attended meditation sessions of “ unknown origin and manner ( neaiškios kilmės ir pobūdžio meditacijas ) ” and that they could have been CARDINAL of the reasons behind her illness , had not been denied . The hospital insisted that in DATE ORG had been operating outside the law . The hospital also relied on a CARDINAL DATE statement by ORG that PERSON movement centres did not have the status of a religion ( see paragraph CARDINAL below ) , which supported the hospital ’s view that meditation was not a religious practice . Accordingly , the applicant ’s “ fictitious ” ( tariama ) religious freedom had not been breached .

The applicant responded by submitting that the right to privacy included the right not to have her health or other confidential information revealed to the journalists or her mother . The applicant added that when she had been in the psychiatric hospital , doctor PERSON had persistently asked about the meditation she practised and had spoken of it with contempt . Doctor PERSON would tenaciously try to persuade her to denounce her religion and give up meditation .

On DATE ORG upheld the hospital ’s appeal in part .

The appellate court upheld ORG finding that on the basis of her health on DATE the applicant had been lawfully placed in ORG . Her condition DATE had corresponded to the domestic legal requirements for involuntary hospitalisation ( see paragraph DATE below ) . However , the hospital had not provided any evidence that her treatment from CARDINAL May had been indispensable . It was therefore clear that as of that date her treatment at the hospital and her presence there had been involuntary and also amounted to an unlawful deprivation of liberty . ORG relied on ORG practice in case no . CARDINAL of DATE to the effect that it was obligatory to follow the procedure set out in LAW and CARDINAL of ORG , both when providing a patient with the necessary help ( būtinoji pagalba ) and when placing that person in hospital without his or her consent . Under that procedure , it had been possible to place the applicant in hospital and treat her without her consent for no longer than TIME . Without a court order , the forced hospitalisation and forced treatment had to be discontinued . However , there was no information in the case file that such an order had been granted . To make matters worse , the hospital had never even asked the court for such an authorisation . ORG thus fully shared the lower court ’s view that legal procedures had been outright disregarded , making the applicant ’s stay in the hospital unlawful .

ORG noted that under LAW and LAW , patients had a right to have information about their health kept confidential ( see paragraphs CARDINAL and CARDINAL above ) . It could not be disclosed by doctor in charge of treatment or by hospital administration .

That being so , ORG did not agree with the firstinstance court ’s conclusion that doctor PERSON ’s interview with the journalists , which had been shown during the television programme of DATE , had disclosed information that had revealed the applicant ’s identity . The appellate court relied on ORG ruling in case no . CARDINALK-CARDINAL - CARDINAL/CARDINAL of DATE , where it had found that in cases where there was no direct mention of a person in a publication , the process of identification was based on the aggregate evidence of the presence of features which could sufficiently describe the person in mind ( see paragraph CARDINAL below ) . In the particular case of the applicant , ORG also referred to her open letter of DATE to the GPE journalists ( see paragraphs CARDINAL above ) , where she had acknowledged that the television broadcast had been instigated by members of her family , that she had not been shown in the programme in person , and that she had been given a different name . ORG considered that the fact that the main character of the programme ( laidos herojė ) had studied in GPE was not sufficient to establish that the programme was about the applicant . As the applicant had not established that the information disclosed during the broadcast had allowed her to be identified , her claim for breach of privacy had to be dismissed .

Lastly , the appellate court rejected the applicant ’s argument that her privacy had been breached because confidential information had been given to her mother . The applicant had been treated earlier in psychiatric institutions in GPE and ORG because of mental health problems and her mother had been aware of those previous periods in hospital . Moreover , providing information to close relatives about the applicant ’s health could not be regarded as a breach of her right to privacy .

ORG noted that the right to freedom of religion had been enshrined in LAW ( see paragraph CARDINAL below ) and LAW . It also noted that LAW , people in hospital had the right to perform religious rites . That right could be restricted by a psychiatrist ’s decision only if there was a clear danger to the patient or others , and such restrictions had to be recorded in the patient ’s medical file ( see paragraph CARDINAL below ) .

On the facts of the case , ORG disagreed with the lower court ’s conclusion that there had been a breach of the applicant ’s right to freedom of religion while she was in ORG . For ORG , there was no evidence in the file that the applicant had been forbidden from performing religious rites . Even though the medical records showed ( ORG matyti ) that her doctors had tried to get the applicant to form a critical attitude towards her religious convictions ( religinius įsitikinimus ) , there was no information that any restrictions had been applied to her . ORG found that “ the ORG attempts to get the applicant to form a critical attitude towards her religious convictions did not mean that [ the applicant ’s ] religious freedom had been breached ” .

ORG upheld the lower court ’s findings that there was no proof that the applicant had received inappropriate medical treatment . It also shared the lower court ’s conclusion that ORG had not properly informed the applicant about the treatment she received therein .

Having dismissed part of the applicant ’s complaints , ORG lowered the award for non - pecuniary damage to LTL CARDINAL ( approximately EUR CARDINAL ) . The applicant was also ordered to pay ORG legal costs of ORG CARDINAL ( approximately EUR CARDINAL ) . Lastly , the appellate court quashed the part of the first - instance decision on the applicant ’s costs being paid by the hospital so she had to bear the legal costs herself .

On DATE the applicant submitted an appeal on points of law . She argued that the lower courts had failed to properly apply Convention norms on the right to privacy and freedom of religion .

By a ruling of DATE ORG refused to admit the appeal for examination , holding that the applicant ’s arguments were not sufficient to merit examination .

On DATE the ORG applied to ORG to be registered as a religious community .

On DATE ORG rejected the application because it considered that although the ORG was on the “ border between self - help psychology and religion ( egzistuojantis savipagalbos psichologijos ir religijos paribyje ) ” , it should not be treated as a religious community . Even though the PERSON teachings mentioned in ORG by - laws were called religious , meditation there was more based on esoteric doctrines of self - improvement than on a religious practice whose main feature was connecting with God , gods or other sacred forms . ORG also noted that PERSON movements did not have the status of a religion in western LOC countries .

The Ojas Meditation Centre then started court proceedings . Its action was eventually granted by ORG on DATE . The court found no evidence that ORG propagated any controversial practices amongst its members . It was registered as a religious community ( religinė bendruomenė ) on DATE ( see PERSON v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ) .

In her observations sent to ORG on DATE , the applicant stated that she had continued to DATE to practise meditation at FAC .


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Just satisfaction dismissed (out of time) (Article 41 - Just satisfaction)

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

The applicant was born in DATE and lives in LOC .

The Anti - Corruption Department of ORG ( “ the DNA ” ) started a criminal investigation against the applicant , his wife and CARDINAL businessmen on suspicion of repeated corruption offences committed in his capacity as mayor of PERSON .

NORP The prosecutor sought authorisation for the interception of the applicant ’s telephone calls . The transcripts of the intercepted telephone calls were admitted as evidence against the applicant .

On DATE police officers belonging to the DNA carried out a search at the applicant ’s home . They carried out another search at the applicant ’s office at ORG .

The applicant was taken to the DNA ’s GPE headquarters on the basis of a summons to appear before the investigative body .

Newspaper and television crews were present and the events were given widespread media coverage .

At TIME on DATE the prosecutor ordered the applicant ’s remand in custody .

The applicant ’s pre - trial detention was ordered by an interlocutory judgment delivered DATE by ORG . The court reasoned that it was necessary to stop the criminal activity of the applicant , who was allegedly preparing to commit a new corruption offence . The court also referred to the seriousness and the continuous nature of the offences . It stressed that the applicant had acted in his capacity as mayor when he had allegedly committed the offences . It concluded that the public would be shocked if the applicant were to be released . In assessing the concrete danger to public order if the applicant were released from detention , the court stressed that the offences had allegedly been committed over a long period of time ( starting in DATE , when he had been appointed mayor , until the time of his arrest ) , that they were repetitive and that the perpetrator was a mayor in charge of protecting legal order . The court pointed out that as the applicant ’s wife was under investigation , the applicant having used her law firm to cash the money received as bribes , his release from prison would allow him to influence her position . It concluded that his release from detention would intimidate other persons in possession of information relevant for the investigation .

The applicant appealed . On DATE ORG and ORG upheld the above judgment , holding that there were strong indications from the criminal investigation file that the accused had committed the crimes .

The applicant ’s pre - trial detention was regularly extended by interlocutory judgments of ORG .

The court reasoned that the extensions were justified on account of the nature and severity of the offences for which the applicant was under investigation , and the fact that he might obstruct the course of justice by intimidating possible witnesses and the persons who had lodged complaints against him .

The applicant lodged appeals against the interlocutory judgments ; all the appeals were dismissed by final decisions of ORG and ORG .

The applicant lodged several applications for his release from prison under judicial supervision . He mainly emphasised that he had a stable family , CARDINAL minor children and an unblemished reputation . He also pointed out that he had been accused of non - violent crimes and had no criminal record .

ORG dismissed the applicant ’s requests on the grounds that the evidence in the file pointed to a strong likelihood that he had committed the corruption - related offences . It held that such offences might attract a prison sentence longer than DATE . It also held that releasing the applicant would give rise to a real danger to public order , given the circumstances in which the acts had been committed , and their consequences and social impact .

The applicant appealed , pointing out that his personal situation had changed , in that he was no longer the mayor of GPE . The appeal court ’s decisions were upheld by ORG and ORG .

On DATE the investigation against the applicant was extended in connection with other offences allegedly committed by him , namely trading in influence , complicity in and incitement to money laundering , and complicity in and incitement to forgery .

On DATE the prosecutor issued an indictment concerning CARDINAL co - accused , including the applicant and his wife , and the case was registered with ORG . The applicant was charged with passive corruption , and repeated complicity in and incitement to money laundering and forgery .

Following a request lodged by the applicant , ORG and ORG decided on DATE to transfer the file to ORG in order to avoid any possible partiality on the part of the judges .

According to the latest information , the criminal proceedings are still pending .

Excerpts from conversations between the applicant and other defendants or third parties , which had been obtained through telephone tapping during a criminal surveillance operation conducted prior to the criminal prosecution , were subsequently published in several newspapers before the applicant and his co - accused had been committed for trial .

Even the headlines of the articles published in the press during that period referred to the fact that they contained excerpts of the recorded conversations . Thus on DATE , the newspaper GPE zilei published an article with the headline , “ Exclusive : Shocking revelations in the PERSON file . The names of all the persons under investigation and new excerpts from the telephone conversations . Evidence that PERSON received clothes as a bribe ” ( Exclusiv : PERSON tari din PERSON . PERSON mari : numele tuturor celor cercetați și interceptări noi . Dovada că PERSON lua șpagă în haine ) .

On DATE the newspaper ORG published an article with the headline , “ Excerpts of intercepted phone conversations : PERSON , the mayor of GPE , acknowledged that he had at home CARDINAL telephones with pre - paid cards , in order not to be intercepted ” ( Stenograme : PERSON , primarul GPE , recunoaște că avea în casă trei telefoane cu cartele preplătite , ca să nu poată fi interceptate ) .

On DATE another article containing excerpts of the applicant ’s recorded telephone conversations was published on the website of the newspaper ORG . It started with the following statement : “ Pure coincidence , the excerpts of the telephone conversations offered for publication in the investigation of mayor PERSON for corruptionrelated offences stops , with suspense , exactly when the NORP Prime Minister enters the scene ” .

The publication of excerpts from the applicant ’s recorded telephone conversations continued after the applicant had been committed for trial .

Other pieces of evidence from the prosecution file were likewise published and commented on in the press . On DATE the newspaper ORG published an article with the headline , “ ORG document . The reasoning of the interlocutory judgment ordering the pretrial detention of mayor PERSON and businessman PERSON ” ( Document integral . PERSON sentinței de arestare a primarului PERSON și a omului de afaceri C. S. ) .

Several press articles contained excerpts of telephone conversations between the applicant and persons not involved in the criminal proceedings . On DATE ORG published an article with the headline , “ Interception . CARDINAL - way conversation : businessman PERSON , mayor PERSON and driver J. ”

Many of the press articles referred to aspects of the applicant ’s private life without any connection to the criminal proceedings instituted against him . They were based on information found in his criminal file . On DATE the newspaper ORG published an article with the headline , “ PERSON details from the private life of mayor PERSON ! The mayor of GPE , romance with a subordinate ” . DATE , on DATE , the DATE newspaper GPE zilei published an article about a search carried out at the home of the mayor ’s subordinate with the headline , “ Bombshell in the ‘ ORG file : TIME search at home of his supposed sweetheart ” .

The applicant was detained in the detention facility of GPE police station between CARDINAL DATE and DATE , except for CARDINAL short periods ( from DATE and from CARDINAL to DATE ) when he was detained in the GPE central remand facility on account of his presence before ORG and ORG .

ORG The applicant claimed that he had been detained in a small cell measuring CARDINAL sq m with CARDINAL tiers of bunk beds . Access to a toilet was very difficult as the toilets were in the corridor . The cell lacked natural light and ventilation and the smells from the sewage system were noxious .

The applicant was held in cell no . CARDINAL , which measured QUANTITY , and in cell no . CARDINAL , which measured QUANTITY The first cell had CARDINAL metal beds , foam mattresses , bedrolls , CARDINAL metallic nightstands , a table and CARDINAL chairs . The second cell had CARDINAL metal beds and was similarly furnished . The applicant was detained alone in both cells . Moreover , he was allowed to keep a television set in the cell .

The cells had natural and artificial light , and the applicant was allowed to use an extra lamp to improve the lighting . The cells were ventilated through windows covered with wire netting .

The sanitary facilities and the showers were in the corridor . The applicant had permanent access to the sanitary facilities and to the showers during daylight hours , whenever he requested it .

The time spent outside the cells was TIME .

On DATE the applicant was transferred to FAC . He was detained there for the following periods :


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

András Sajó;Guido Raimondi;Helen Keller;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano

The applicant was born in DATE and lives in GPE . He is a professional writer and journalist , and states that he is a human rights activist .

He published an article on the front page of issue CARDINAL of the DATE magazine Türkiye’de PERSON ( “ DATE in GPE ” ) , which came out on DATE . His article , which was entitled “ If the pashas [ the generals ] refuse to obey ” , contained criticisms of high - ranking officers who were about to retire . He hinted that some generals in the armed forces were wo nt to sound false alarms concerning an alleged advance of fundamentalism and anti - secularism , which they then used as a pretext for interfering in the country ’s general politics , and that they appeared to have links with certain business circles , the media , senior civil servants and even the ORG , endeavouring to create a political atmosphere that tallied with their worldview . He suggested that the high - ranking officers in question should set up a political party on retirement and present their political projects to the people , instead of “ deciding on the future of the nation on their own , in the name of the nation ” . He added that in his view the army generals who he claimed were interfering in the country ’s general politics were far removed from social realities and that in their approach to social affairs they lacked any empathy with and sensitivity towards the various social strata .

By an indictment of DATE , ORG with ORG in GPE applied to ORG within that ORG for the applicant ’s prosecution under LAW CARDINAL and CARDINAL of LAW , which , in the ORG ’s view , penalised acts vis - à - vis high - ranking military officers geared to damaging hierarchical relations within the army and undermining confidence in commanding officers .

The applicant submitted an objection as to the jurisdiction of ORG to try him , on the grounds of his civilian status and relying on the LAW and his right to freedom of expression .

By a decision of CARDINAL DATE ORG declined jurisdiction in favour of ORG on the grounds that the offence at issue was not military in nature and the applicant should be tried by the non - military courts for denigration of the ORG armed forces , which offence was punishable under LAW . ORG noted that by claiming that the armed forces were led by commanding officers who appeared to have links with certain business circles and even the ORG , and to be far removed from social realities , the applicant had tarnished the image of the whole armed forces . It emphasised that the commanding officers who had been criticised were plenipotentiary representatives of the armed forces empowered to act on behalf of the latter .

On DATE the commanding officer of ORG lodged an appeal on points of law against the aforementioned decision to decline jurisdiction . He submitted that the impugned article constituted an act which had to be assessed under LAW § CARDINAL of LAW . He argued that the military criminal provision in question constituted a lex specialis vis - à - vis LAW .

The Military Prosecutor also lodged an appeal on points of law on the same grounds , submitting that ORG should have jurisdiction to adjudicate the case , and that the applicant had not targeted all the armed forces but had undeniably tarnished the image of CARDINAL Generals , which was liable to undermine the confidence of the rank - and - file in these officers and thus damage hierarchical relations within the armed forces .

The applicant was not apprised of the appeals on points of law lodged by the commanding officer and ORG , both of which were added to the case file .

On DATE ORG , which assessed the appeals on points of law , quashed the decision declining jurisdiction and referred the case back to ORG . In its reasoning ORG mentioned the need to reclassify the facts and to assess them under LAW . It specified that the provisions of LAW and ( the former ) LAW shared the same substantive and moral elements , but differed in providing protection for individuals ( LAW ) and the Institution itself ( LAW , respectively . ORG held that even though the applicant ’s article had comprised elements of both the aforementioned criminal offences , the general tenor of the impugned article had apparently concentrated on the behaviour of CARDINAL specific Generals rather than the overall armed forces . Therefore , the accusation that the officers were disobedient , that is to say that they lacked discipline , was liable to undermine the lower ranks’ confidence in them and thus damage hierarchical relations within the armed forces .

By a judgment of DATE ORG , having reconsidered the case , once again decline jurisdiction in favour of the non - military courts . It stated that new legislation on the press attributed to the non - military criminal courts jurisdiction to hear and determine offences committed via the press and specified that such offences no longer came under special legislation .

On DATE the commanding officer of ORG lodged a fresh appeal on points of law against ORG decision declining jurisdiction . He pointed out that the CARDINAL DATE judgment of ORG had been delivered after the amendment to the legislation in question and that the provisions of LAW ( Law No . CARDINAL ) enabling civilians to be tried by military courts had not been amended .

While the case was still pending before ORG , Law No . CARDINAL of DATE made a series of amendments to LAW , inter alia abolishing military court jurisdiction for trying civilians for offences such as those with which the applicant was charged . The Prosecutor with ORG therefore referred the applicant ’s file to ORG , accompanied by an opinion to the effect that the military courts had no jurisdiction in such matters .

By a judgment of DATE the military court once again decline jurisdiction and referred the case to ORG .

Meanwhile , following the merger of the Bağcılar and PERSON judicial districts , the case was referred to ORG . By a judgment of DATE , the latter court declined jurisdiction and referred the case to the ORG , which held jurisdiction for offences committed via the press . By a judgment of CARDINAL DATE , the ORG referred the case to the Bakırköy CARDINALth ORG on the grounds that that court was the former ORG . By a judgment of CARDINAL DATE the Bakırköy CARDINALth ORG referred a jurisdictional dispute to ORG . Finally , ORG decided in favour of the ORG in the jurisdictional dispute , and referred the case to that court .

By a judgment of DATE the PERSON CARDINALnd criminal court declared the proceedings statute - barred under LAW .


No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

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

The applicant was born in DATE and lives in GPE .

The facts of the case , as submitted by the parties and as they appear from the documents submitted by them , may be summarised as follows .

On DATE the applicant , a caretaker employed at ORG ( Halk Eğitim Merkezi ) in GPE , was taken into police custody on suspicion of child molestation , after being caught in an allegedly indecent position with X. , a DATE pupil at the primary school located in the same building as the Public Education Centre .

On DATE ORG lodged an indictment with ORG , charging the applicant with the sexual abuse , sexual assault and unlawful detention of a minor , pursuant to ORG CARDINAL § CARDINAL ( a ) , CARDINAL § CARDINAL ( f ) ( CARDINAL ) and QUANTITY ( a ) of LAW .

During the ensuing criminal proceedings , ORG heard statements from the applicant , the parents of X. , the psychiatrist who had interviewed the girl after the incident , and the teachers and personnel at ORG and the neighbouring primary school , including the teacher PERSON , who was the sole eyewitness to the incident . Denying the allegations against him , the applicant stated that on TIME in question , he had entered one of the classrooms in the building for cleaning purposes , where the alleged victim was already present with another pupil . While he was busy cleaning , X. had asked for a simit ( a type of bread roll ) and had attempted to hug him , as a result of which gesture he had lost his balance and fallen onto a desk with X. It was at that point that the teacher PERSON had entered the classroom .

E.U. , on the other hand , testified before the trial court that as she opened the door of the classroom in question , she saw the applicant sitting on a desk in the dark with his legs apart , hugging X. who was sitting on his lap , facing the blackboard . Within TIME , upon seeing her , the applicant threw X. away in panic . PERSON stated that while she had never witnessed similar behaviour by the applicant before , the scene she had seen on DATE in question looked suspicious . She also confirmed that there was another pupil in the classroom at the time .

S.P. , who worked in the same primary school and was also the uncle of X. ’s mother , asserted before the court that although he had never witnessed any suspicious behaviour on the part of the applicant , he had heard a colleague , PERSON , say that the applicant had engaged in indecent behaviour towards some pupils at the school where he had worked previously . However , PERSON , who was the deputy principal at the applicant ’s previous school , denied giving PERSON any such information concerning the applicant or hearing any adverse rumours or complaints about him for that matter .

X. ’s father alleged that according to the information he had received from PERSON and PERSON respectively an employee and the manager at ORG ‒ the applicant had been dismissed from his previous job for similar behaviour . PERSON denied this allegation , but PERSON confirmed that the above - mentioned PERSON had given him this information , although he himself had never witnessed any indecent behaviour by the applicant .

Another witness , ORG , confirmed that the applicant had apologised to him following the incident . There is no information in the case - file as to the exact content of this apology .

NORP The psychiatrist who interviewed X. after the incident reported that the latter lacked the mental capacity to comprehend and recount what might have taken place on the relevant day and , for that reason , it would be futile , and possibly harmful for her well - being , for the trial court to question her .

On the basis of all the evidence before it , on DATE ORG Instance ordered the applicant ’s acquittal , holding that it was not possible to establish beyond all reasonable doubt that he had committed the sexual acts forming the basis of the charge . The court observed that the statements of the sole eyewitness were contradictory in parts and that they included her personal interpretation of what had actually taken place on the relevant TIME . It added that , despite PERSON ’s allegation that the applicant had thrown X. to CARDINAL side upon her entry in the room , no wounds or bruises had been detected on the girl ’s body .

On DATE the acquittal judgment became final in the absence of any appeal .

Parallel to the criminal proceedings pending before ORG , a disciplinary investigation was conducted against the applicant in relation to allegations of harassment .

The disciplinary investigation was carried out by CARDINAL inspectors who took statements from X. ’s father , from GPE , the manager of ORG , from GPE , a teacher at the primary school , from ORG , the principal of the primary school , and from the applicant , who was being held in detention in relation to the criminal proceedings at the time . The inspectors also took CARDINAL separate statements from the sole eyewitness , the teacher PERSON , under oath and took into account a report from the guidance counsellors of the primary school regarding the psychological and physical development of the minor X. That report , dated DATE , described the physical and social developmental attributes of the girl as weak and very timid , respectively . The medical diagnosis was stated as autism .

The investigation report which was issued at the end of the disciplinary investigation on DATE found the allegations of harassment against the applicant to be well - founded and recommended the dismissal of the applicant from the civil service on the grounds that his conduct constituted “ shameful and disgraceful conduct incompatible with the civil service ” as provided under section CARDINAL § E ( g ) of Law no . CARDINAL . In coming to this conclusion , the inspectors noted the following :

“ ... The eyewitness , GPE , reported having seen the applicant in a position which made her suspect that he had been in the course of sexually harassing the student , [ X. ] She explained that the following facts ‒ in particular , the room being dark as a result of the lights having been turned off , the applicant sitting at the desk right next to the door with his legs open with the minor on his lap and the desk in front having been pushed further away , coupled with the fact that he had been caressing the body of the minor and holding her tight around her waist ‒ had led her to conclude that [ the applicant ] had been attempting to harass her . [ She stated that ] what she witnessed did not look like a regular display of affection and when she had entered the room , he had thrown the child off him in panic . In his statement , [ the applicant ] stated that the minor had attempted to hug him while he was cleaning the floor and that , as a result of that gesture he had lost his balance and the minor had sat on his lap . He added that when GPE entered the room , he was trying to get the minor off him . [ The applicant ’s ] statement that he had fallen onto a desk with the minor as a result of the latter trying to hug him corroborates PERSON ’s version of the events . However , the part about him having lost his balance as a result of the minor ’s attempt to hug him would be quite unusual given the physical attributes of the minor in question . Moreover , the consistent statements of GPE , taken under oath , who as a mother and an educator seems to have suffered a great deal of emotional distress from these events , give the impression that the allegations against the applicant are well - founded .

The event has shocked and distressed the town community as well as the school ... The severity of this event is further exacerbated by the fact that the student in question is a mentally disabled child , ... unable to express or defend herself ... This is a disgraceful thing for a civil servant . [ The event ] has also given rise to a criminal investigation instigated by ORG office where [ the applicant ] , is accused of sexually abusing a minor who was born on [ ... ] DATE and who was unable to defend herself due to her mental incapacity , and to the remanding in custody of [ the applicant ] .

... we are of the opinion that [ the applicant ] has harassed [ X. ] and that this conduct , which is proven , falls under situations provided for in LAW § E ( g ) of law no . CARDINAL , that is to say , “ shameful and disgraceful conduct that is incompatible with the civil service ” .

On DATE the applicant submitted his written defence to ORG of ORG ( “ ORG ” ) . He requested at the outset that the investigation be postponed until the criminal proceedings against him on the same allegations had been finalised . Furthermore , denying all accusations , he challenged PERSON ’s statements as being wholly subjective and distorting the facts , bearing particularly in mind that the whole incident had taken place within DATE , as she too had acknowledged , which did not realistically allow her to make the detailed observations that she had recounted to the authorities . He added that it was not logical that he would have committed the alleged act in the presence of another pupil in the classroom right before the start of the classes .

On DATE ORG issued the following decision in relation to the applicant , in so far as relevant :

“ Upon examination of the file ... and of the defence statement duly taken [ from the applicant ] , the following has been decided :

On the basis of the information and documents in the file , the veracity of the act [ harassment of X. ] attributed to the applicant has been conclusively established ... For this reason , it has been decided unanimously to accept the proposal to dismiss the applicant from the civil service in accordance with section CARDINAL § E ( g ) of the PERSON no . MONEY [ on ORG ] , ... ”

On DATE the applicant objected to ORG decision before ORG . The applicant argued that his dismissal on the basis of a finding that he had committed the act of sexual harassment of a minor , which is a criminal act , while criminal proceedings were still pending in respect of that self - same allegation violated his right to the presumption of innocence .

On DATE ORG dismissed the applicant ’s objection on the following grounds :

“ The case concerns the dismissal of the [ applicant , ] , who worked as a caretaker , on the basis of the allegations that he harassed [ X. ] on the premises of the primary school .

Section CARDINAL E - g of Law no . CARDINAL provides that shameful and disgraceful conduct that is incompatible with the civil service requires dismissal from the civil service .

Section CARDINAL of the same PERSON also provides that the commencement of criminal proceedings against a civil servant shall not suspend disciplinary proceedings arising out of the same facts and that acquittal or conviction in the criminal proceedings shall not prevent the execution of disciplinary sanctions . ”

Although it has been argued that the sole eyewitness ’s version of the events can not be taken as a conclusive basis on which to deem that the applicant committed the act imputed to him , on the basis of the evidence in the case - file and in consideration of the position in which the applicant was found in the classroom , as well as the fact that the classroom ’s door had been shut and the lights had been turned off and the room was therefore dark as it was also very early in the morning and it was raining [ ... ] , having further regard to the statement by the principal of the neighbouring primary school , ORG , during the criminal proceedings acknowledging that the applicant had apologised to him after the incident and that he had also heard rumours about the applicant ’s similar indecent behaviour in other schools where he had previously worked , the applicant ’s argument has not been found to be credible .

NORP This statement by ORG , referred to in the ORG judgment , is not mentioned in the judgment of ORG .

On DATE the applicant appealed against the decision of ORG , which he considered to be based on groundless accusations . He argued firstly that , in circumstances where the act forming the basis of criminal and disciplinary investigations was one and the same , the criminal proceedings would be better placed to shed light on the circumstances and to arrive at an accurate conclusion regarding the facts than would be those of the disciplinary bodies , whose findings would be at best hypothetical . He pointed out that the administrative court had ignored the presence of another pupil in the classroom at the time of the incident , as well as his explanation that the door had been shut as a result of the draught from the open window . The administrative court had similarly overlooked his service record ( sicil dosyası ) and the fact that it made no mention of any allegations of misconduct in his previous post , which would be unimaginable if he had really been dismissed from that post for indecent behaviour . He also referred in this connection to the statements of GPE , the deputy principal at the previous school , denying any such allegations of indecent behaviour .

On DATE ORG dismissed the applicant ’s appeal , endorsing the first - instance court ’s reasoning and not mentioning the acquittal judgment which had been delivered by ORG in the meantime .

On DATE ORG rejected the applicant ’s rectification request .

On DATE , that is to say after lodging his complaint with the ORG , the applicant brought proceedings against ORG and requested the reopening of the proceedings concerning his dismissal from the civil service . The applicant relied on ORG final judgment of DATE , which acquitted him of the charges of sexual abuse , sexual assault and the unlawful detention of a minor , and argued before ORG that his right to the presumption of innocence had been violated in the course of the dismissal proceedings because he had been dismissed on the basis of allegations that he had committed offences in respect of which the criminal proceedings had not yet become final . On DATE , ORG dismissed the case , holding that the arguments put forward by the applicant for reopening proceedings did not fall within the exhaustive list of permissible grounds for this extraordinary remedy .

In their observations on DATE , the Government informed the ORG that appeal proceedings were pending before ORG .