Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Georgieva;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicant was born in DATE and lives in GPE .

The applicant had been employed by ORG as a system operator since DATE . She submitted that , on account of the nature of her duties , she had held a security clearance permitting her access to classified information constituting ORG secrets . According to the applicant ’s job description , being in a possession of such a security clearance had been a prerequisite to her holding her post .

On DATE ORG ( hereinafter “ the LAW ” ) was promulgated in ORG . Under LAW , permits granting access to classified information that had been issued under the legal provisions existing before the entry into force of the LAW were to remain valid until their replacement by security clearance allowing access to classified information . The heads of organisational units employing persons who possessed an access permit and whose positions required that they have access to classified information were to request the issuance of security clearance , in accordance with the requirements of the LAW . Non - compliance with that provision would result in the invalidation of the respective existing access permits .

On DATE , in compliance with that obligation , the Director of ORG issued a decision refusing the applicant security clearance allowing access to classified information . The applicant submitted that that decision had been based on a psychological test . The decision did not contain any reasoning in respect of the refusal , apart from a reference to LAW of ORG .

The applicant lodged an appeal against the refusal with ORG . The latter , by a decision of CARDINAL DATE , upheld the refusal . That decision was final and not amenable to judicial review .

On DATE , the Director of ORG ordered that the applicant be dismissed . The reason given for the termination of her employment was the refusal to grant her security clearance , possession of which was an indispensable condition of her being able to perform her duties .

The applicant challenged her dismissal at CARDINAL levels of jurisdiction . She contested the objectivity and the lawfulness of the dismissal procedure , arguing that she had fulfilled all conditions for the issuance of security clearance and that she had been dismissed on account of the negative personal relationship between her and her direct supervisor . In the applicant ’s view , the clearance had probably been refused because she had suffered from depressive neurosis in DATE , a condition which according to her was no longer relevant . The applicant ’s request that a report by a psychiatric expert be commissioned was refused by ORG .

By its judgment of CARDINAL DATE the ORG rejected the applicant ’s claims , reasoning that the refusal of the Director of ORG to grant security clearance to the applicant was a final and valid administrative act , and it rendered the applicant ’s dismissal inevitable because she was no longer able to perform her duties . The court added that the refusal was not amenable to any judicial review ; therefore , the court was not competent to examine , within the framework of the dismissal proceedings , any substantial or procedural questions related to its lawfulness .

On appeal , ORG , by a ruling of DATE upheld the lower court ’s decision , endorsing its reasoning .

On DATE , ORG upheld those rulings .


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

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

On DATE the applicant was abducted by S. with intent to marry her . The applicant ’s mother opposed the marriage and on the same day S. ’s relatives took the applicant back to her mother ’s house .

On DATE the relatives of the applicant ’s deceased father made the applicant go back to S. ’s , because of the presumed consummation of the marriage . They also threatened to kill S. , should the applicant decide to leave him .

The applicant had to live with PERSON ’s family as his wife . The marriage was not officially registered . She was kept locked in a room without being able to communicate with people outside S. ’s family . PERSON moved to a different town . On rare occasions S. ’s sister let the applicant use her mobile phone so that she could call her mother . She complained that S. ’s family , especially her mother - in - law , treated her poorly . She did not feel well and complained about dizziness , numbing of the lower jaw and difficulty to breathe . According to the applicant ’s mother , the applicant told her once that her mother - in - law did not let her see PERSON and claimed that the applicant would not last living with them longer than DATE . On several occasions the applicant lost consciousness and foamed at the mouth .

On DATE the applicant was taken to a municipal hospital . The doctor diagnosed her with renal colic .

On DATE during another visit to hospital the applicant was diagnosed with poisoning by unknown substance .

On DATE the applicant foamed at the mouth again and was taken to hospital . She was released on DATE .

On DATE the applicant lost consciousness and was taken to hospital . A general practitioner and a neuropathologist examined her . She was diagnosed with stress and overdose of sedatives and placed in an intensive care unit . Subsequently she was diagnosed with post - hypoxic encephalopathy and vegetative state . She has not regained consciousness since then .

NORP In DATE the applicant was released to her mother ’s care .

On DATE the applicant ’s mother complained to the local police department and prosecutor ’s office that the applicant had been forcefully held by PERSON ’s family in inhuman conditions which led to deterioration of her health and coma .

On DATE the investigator refused to institute criminal proceedings against S. ’s family on the charges of incitement of suicide and causing damage to health .

On DATE the applicant ’s mother lodged another complaint with the local police department alleging that the applicant had been poisoned while staying at S. ’s house . She also stated that the applicant had been repeatedly beaten up and deprived of her liberty .

According to the forensic medical report completed on DATE , a vegetative state , similar to the applicant ’s , could be caused primarily by intoxication . The expert , however , was unable to determine the cause of the applicant ’s condition .

On DATE the investigator refused to institute criminal proceedings against S. ’s family . The applicant appealed .

On DATE the supervising prosecutor quashed the decision of CARDINAL DATE and ordered further inquiry into the matter .

On DATE the investigator refused to institute criminal proceedings on the charges of attempted murder .

On DATE the investigator refused to institute criminal proceedings on the charges of causing serious damage to health . The applicant appealed .

On DATE ORG of the GPE quashed the decision of CARDINAL October CARDINAL . The court noted that the inquiry had been incomplete . The investigator had failed ( CARDINAL ) to question a number of important witnesses and ( CARDINAL ) to determine the cause of the applicant ’s condition .

On DATE the investigator refused to institute criminal proceedings reiterating verbatim his reasoning set out in the decision of CARDINAL October CARDINAL .

On DATE , DATE and DATE DATE the deputy head of the district police department ordered a new inquiry noting that the previous inquiry had been incomplete .

On DATE and DATE the investigator refused to open a criminal investigation reproducing verbatim the earlier decisions of CARDINAL October DATE and CARDINAL DATE .

On DATE the investigator again refused to open a criminal investigation . In addition to his earlier findings , he studied the applicant ’s medical case - file and concluded that it did not contain information accounting for the cause of her medical condition .

On DATE the district deputy prosecutor quashed the decision of CARDINAL DATE and ordered a further inquiry .

The case - file materials submitted by the ORG contain CARDINAL decisions dated DATE . The first decision was taken by the investigator who refused to institute a criminal investigation in the applicant ’s case . The second decision was taken by the district deputy prosecutor who ordered a new inquiry . The Government did not inform of the outcome of the proceedings .


Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

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


Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)

Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in GPE .

At the time of the events giving rise to the present application , the applicant ’s daughter , PERSON , worked as a secretary for a private company engaged in the trade of mineral oil , namely PERSON . GPE . GPE . PERSON . Ltd. PERSON ( “ the company ” ) . On DATE , at TIME , a fire broke out at her workplace when one of her colleagues , GPE , attempted to light the wood - burning stove used to heat the office area by pouring petrol onto it . PERSON sustained serious injuries as a result of the fire . On DATE she died at the hospital where she had been receiving treatment for her burns .

Upon being informed of the fire , QUANTITY police officers arrived at the scene of the incident at TIME on DATE . They prepared a report describing the state of the premises in the aftermath of the fire and a sketch map of the scene of the incident .

At TIME on DATE QUANTITY police officers went to the hospital where the applicant ’s daughter PERSON had been taken for treatment . They reported that she was not in a condition to make a statement regarding the incident .

At TIME the police interrogated CARDINAL suspects in relation to the fire , namely GPE , PERSON colleague who had apparently started the fire , and ORG , who was the owner of the company for which PERSON was working . M.Y described the incident as noted in paragraph CARDINAL above . K.N.Y. stated that he had not been at the workplace at the time of the incident .

On DATE the GPE public prosecutor filed a bill of indictment with ORG against GPE for starting a fire and causing bodily harm by negligence .

On DATE the GPE public prosecutor delivered a decision not to prosecute in relation to K.N.Y.

On DATE ORG issued a decision of non - jurisdiction and transferred the case to ORG .

NORP In the meantime , inspectors from ORG ( “ the Ministry ” ) initiated an investigation into the incident . According to their report dated DATE , the necessary precautions had not been taken at the relevant workplace to prevent and put out fires , such as training the employees in fire safety and the operation of woodburning stoves . Such training was particularly important bearing in mind that the company was engaged in the mineral oil business .

Relying on the inspectors’ findings regarding the lack of precautions necessary for the prevention of fires in the deceased ’s workplace , on DATE the applicant lodged a new complaint with the GPE public prosecutor ’s office against the owner of the company , K.N.Y.

On DATE the GPE public prosecutor issued an additional indictment against K.N.Y. for causing PERSON death by negligence .

On an unspecified date the applicant joined the criminal proceedings as a civil party .

There is no information in the case file as to when ORG started hearing the case . On DATE the second hearing was held , during which the court heard the statements of the defendants and CARDINAL prosecution witnesses .

At the third hearing held on DATE ORG heard CARDINAL defence witnesses . It also ordered that an on - site inspection be carried out at the workplace on DATE by courtappointed experts . It appears from the information in the case file , however , that the on - site inspection was carried out on DATE .

On DATE the court - appointed experts issued their report , where they largely repeated the findings of the ORG ’s inspectors noted in paragraph CARDINAL above . The experts concluded that GPE each bore PERCENT responsibility for the incident .

On DATE ORG requested that ORG issue a report examining whether a causal link existed between PERSON death and the fire at her workplace . In a report dated DATE ORG confirmed that PERSON had died on account of complications caused by the burns she had sustained during the fire .

In the meantime , on DATE ORG ordered the employer ’s insurance company to provide the accident report prepared in the aftermath of the incident , along with photographs and any other documents relevant to the incident . On DATE the insurance company submitted the requested documents .

Relying mainly on the reports issued by the court - appointed experts and the inspectors of the Ministry , as well as the report of ORG , on DATE ORG convicted the defendants as charged and sentenced each of them to QUANTITY months’ imprisonment and a fine . The defendants appealed against this judgment .

On CARDINAL DATE the public prosecutor ’s office attached to ORG remitted the case to ORG for reassessment of the sentence in the light of the new LAW ( Law no . DATE ) that had entered into force in DATE .

On DATE ORG convicted the defendants once again as charged and issued the same sentence and fine . The defendants appealed against this judgment .

On DATE ORG quashed ORG judgment of CARDINAL DATE . It found that the firstinstance court had to consider whether the procedure of suspension of pronouncement of judgments ( hükmün açıklanmasının geri bırakılması ) provided for in section CARDINAL of LAW ( Law no . DATE ) , as amended on DATE , was applicable in the circumstances .

On DATE ORG convicted the defendants once again and sentenced them to the same term of imprisonment and fine as before . It held that the pronouncement of the judgment could not be suspended having regard , inter alia , to the nature of the offence and the gravity of the incident . The defendants appealed against this judgment .

On DATE ORG held that the criminal proceedings should be discontinued on the grounds that the prosecution of the offence in question had become time - barred .

On DATE the applicant initiated proceedings against K.N.Y. , the owner of the company for which her daughter had worked , before ORG ( “ the labour court ” ) requesting compensation in respect of pecuniary and non - pecuniary damage following her daughter ’s death .

On DATE the labour court dismissed the case , which it found should have been brought against the company for which the victim had worked rather than against K.N.Y.

On DATE the applicant brought compensation proceedings before the labour court against the company in relation to her daughter ’s death .

It appears from the information in the case file that during the QUANTITY hearings held in DATE , the labour court heard the parties’ witnesses ( CARDINAL witnesses in total ) .

At the hearing held on DATE the applicant requested the appointment of experts to determine the defendant company ’s responsibility for her daughter ’s death . The labour court accepted that request and on DATE it appointed CARDINAL experts .

On DATE the experts delivered their report , in which they found that the accused company and its owner , K.N.Y. , bore PERCENT and CARDINAL % responsibility , respectively , for PERSON death . According to the experts , the remaining responsibility lay with GPE , who was not a party to the proceedings before the labour court .

Relying on the findings of the experts , on DATE the applicant brought an additional compensation claim before ORG On DATE ORG decided to join the case against K.N.Y. to the proceedings pending before ORG against the company .

Between DATE and DATE the labour court held CARDINAL hearings . However , apart from those mentioned in DATE and DATE above , the labour court did not take any procedural action during that period and decided to adjourn the case at the end of each hearing pending a judgment in the criminal proceedings .

At its first hearing following the termination of the criminal proceedings , which was held on DATE , the labour court ordered the appointment of an expert to determine the applicant ’s pecuniary damage as a result of her daughter ’s death . However , the expert was not officially appointed until DATE .

On DATE the court - appointed expert delivered the report on the extent of the damage suffered by the applicant .

DATE and DATE the labour court held CARDINAL more hearings . It appears that CARDINAL of those hearings were postponed pending information from ORG ( PERSON ) concerning the benefits received by the applicant following her daughter ’s death .

On DATE the labour court delivered its judgment on the case . It rejected the applicant ’s claims in respect of pecuniary damage , except for funeral costs in the amount of MONEY ( TRY ) ( MONEY ( ORG ) ) , plus interest ( TRY CARDINAL to be paid by K.N.Y. and the rest by the company ) . It granted her request in respect of non - pecuniary damage and ordered the payment of TRY CARDINAL ( approximately EUR CARDINAL,CARDINAL ) , together with interest ( TRY CARDINAL to be paid by K.N.Y. and the rest by the company ) .

On DATE ORG upheld the judgment of the labour court .

It appears from the information in the case file that the applicant has not yet received payment of the damages ordered by the labour court . It also appears from the applicant ’s undisputed allegations that during the time it took to reach a decision on her civil claim , the company had closed down and the damages ordered by the court against that company could therefore not be collected .


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

NORP The applicant initiated a payment warrant procedure for repayment of debts on DATE which , by the protest of the debtor , developed into court proceedings .

The procedure was suspended on CARDINAL DATE due to other pending court proceedings , which ended in DATE .

Subsequently , after several hearings , the first - instance court partly found for the applicant on DATE .

NORP On appeal , ORG quashed the decision and remitted the case on DATE .

In the resumed proceedings , after the transfer of the case from CARDINAL court to another for reasons of jurisdiction , the GPE IV / XV ORG partly found for the applicant on DATE .

On appeal , the second - instance court found for the applicant on DATE .

In review proceedings , ORG upheld this decision on DATE . Its ruling was served on the applicant on CARDINAL DATE .


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);Violation of Article 13+10 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General};Article 10-1 - Freedom to impart information;Freedom to receive information);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Pavlina Panova;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE . She is a member of ORG of ORG in GPE . On DATE she was authorised to represent the organisation before any and all institutions in GPE in relation to its activities .

On DATE the applicant asked the mayor of PERSON for access to information about an agreement , concluded between the municipality and the municipal company “ Cleanliness ” EOOD , for the collecting of stray animals on the territory of GPE municipality .

NORP The mayor sought the explicit consent to that effect of the head of “ Cleanliness ” EOOD , considering that that was a statutory condition under LAW ( CARDINAL ) of ORG . The head of “ Cleanliness ” ORG refused to give consent on DATE . The mayor issued a decision on DATE in which he refused to provide the applicant with access to the information she sought . The mayor referred to section CARDINAL ( CARDINAL ) ( CARDINAL ) of ORG , which at the time listed the absence of a third interested party ’s explicit written consent for the provision of information among the grounds for refusal to grant access to information .

The applicant brought court proceedings against the decision of the mayor refusing access to the information . ORG allowed the applicant ’s claim on DATE , finding that the information sought did not affect the rights of “ Cleanliness ” ORG and therefore section CARDINAL ( CARDINAL ) ( CARDINAL ) was not applicable . The court accordingly ordered the mayor to provide the information to the applicant .

Following a cassation appeal by the mayor , ORG upheld the lower court ’s judgment on DATE . It held that the information was of high public interest , the rights of third parties were not affected and the mayor ’s decision denying access to information to the applicant was not reasoned .

On DATE the applicant again asked the mayor of GPE for information . This time the information she sought concerned the DATE statistics for DATE and DATE about animals held in an animal shelter called “ Municipal Care ” . In particular she asked how many animals were placed there , how many of them died or were put to death , and how much their care had cost the municipal budget .

NORP The mayor sought the explicit consent to that effect of the head of the public utilities company concerned , “ Titan Sever ” OOD , considering once again that that was a statutory condition under LAW ( CARDINAL ) of ORG . In a letter of CARDINAL DATE the head of “ ORG ” OOD refused to give consent . On DATE the mayor refused to provide the applicant with access to the information , referring to section CARDINAL ( CARDINAL ) ( CARDINAL ) of ORG .

The applicant brought court proceedings against the decision of the mayor refusing access to the information . ORG allowed the applicant ’s claim on DATE . It found that , if third parties objected to the provision of information concerning them , section CARDINAL ( CARDINAL ) of ORG obliged the mayor to grant access to that information in a manner not disclosing the parts related to the third party . It then sent the case back to the municipality ordering it to provide the information to the applicant .

Following a cassation appeal by the mayor , ORG upheld the lower court ’s judgment on DATE . It held that the information was of high public interest , the rights of third parties were not concerned and that , even if they were , the information could be provided without disclosing the parts concerning the third parties . Finally , that court found that the mayor ’s decision denying access to information to the applicant was not reasoned .

On DATE the applicant once again asked the mayor for information . The information concerned a public procurement procedure which had been organised by the mayor and aimed at reducing the number of stray dogs in GPE . The applicant wanted to know the number of the organisations which had tendered for a contract with the municipality , which ones had passed the pre - selection stage , and - in respect of those who have - the following information : the type and number of qualified staff they employed ; the infrastructure and facilities they had for humane catching and transportation of dogs ; the proof they had presented for their capacity to deliver quality services ; and , the price they asked for providing the services .

On DATE the mayor refused to provide that information in a reasoned decision . The explanation he gave was that the information requested concerned solely the participating candidates in that procurement procedure and their bids in accordance with LAW DATE ; that it was of an economic nature ; that it was related to the preparation of the mayor ’s administrative actions in relation to the procurement procedure ; and , that it had no significance of its own .

The applicant brought court proceedings against the decision of the mayor refusing access to the information . On DATE ORG allowed the applicant ’s claim and overturned the mayor ’s refusal to provide the information sought . The court found that the information in question had not been classified , that the mayor ’s decision was not issued within the statutory time - limit and that its content was not in conformity with the requirements of section CARDINAL of ORG . The court sent the case back to the mayor , specifically ordering him to provide information to the applicant about the organisation which had won the municipal contract at the end of the public procurement procedure and the conditions of that contract .

Following a cassation appeal by the mayor , on DATE ORG partly upheld the lower court ’s judgment . It quashed the judgment ’s part which ordered the mayor to provide the applicant with information about the organisation which had won the municipal contract and the conditions of that contract . It held that the mayor had to provide the rest of the requested information .

On DATE , referring to the CARDINAL decisions of ORG of DATE which concluded the proceedings in her first CARDINAL requests for information , the applicant asked the mayor of PERSON to provide her with the information requested .

On DATE , referring to the decision of ORG of DATE which concluded the proceedings in her third request for information , the applicant asked the mayor to provide her with the information requested .

On DATE , the mayor refused in a written decision to provide the information sought by the applicant following ORG judgment of DATE . In particular , he repeated the findings of ORG that he was not expected to provide information about the company which had won the municipal contract and remained silent in respect of the rest of the information he had been ordered to provide . It would appear that the mayor did not react to the applicant ’s request for information following the CARDINAL ORG judgments of CARDINAL DATE .

In a letter of DATE , the applicant informed the ORG that there were no further developments and the information she sought had not been provided to her .


CASE OF CRISTIOGLO v. THE REPUBLIC OF MOLDOVA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in PERSON .

In DATE ORG initiated a criminal investigation against the applicant on charges of murder and an arrest warrant was issued by ORG . Since the applicant had left the country , an international search order was issued .

On DATE , upon his return to GPE , the applicant was arrested and placed in detention . On DATE , when the applicant was about to be transferred from PERSON to GPE , he cut open his abdomen as a sign of protest . He was taken to a hospital where his wound was taken care of . The applicant lodged a habeas corpus request , however it was rejected on the ground , inter alia , that he had been in hiding for DATE and that , consequently , he could abscond again . Later the detention warrant was renewed several times on similar grounds and the applicant ’s appeals were rejected . The last judgment in the proceedings complained of by the applicant is dated DATE and was issued by ORG .

During all this time the applicant was detained in Prison no . CARDINAL in GPE ( DATE and DATE and between CARDINAL DATE and DATE ) and in Prison no . CARDINAL in GPE ( DATE and DATE ) . The applicant gave a detailed description of the conditions of detention in Prison no . CARDINAL where , according to him , the cells were overcrowded and dirty . Each inmate only had CARDINAL of available space in the cells in which the applicant was detained . The toilets were separated from the rest of the cells by a wall which was not very high and were located at a distance of QUANTITY from the table where the inmates served their meals . There was no ventilation system and the air was impregnated with a sewage smell and with cigarette smoke ; there was no sufficient natural light because the windows were very small ; the DATE walks lasted for TIME and the food served was of a very bad quality . The applicant submitted that according to information available on the web page of ORG , each inmate was allocated only CARDINAL PERSON per day , i.e. the equivalent of CARDINAL ( ORG ) at the time . Moreover , the applicant alleged that after his arrest , he needed urgent medical care for the wound on his abdomen and for an ear infection and that no medical care was provided for him for DATE . He provided medical documents to support his claims concerning his health problems . The Government provided documents according to which the applicant was seen by doctors and medication was prescribed for him .

In so far as Prison no . CARDINAL is concerned , the applicant submitted that he was detained in CARDINAL cells in which each inmate had CARDINAL . The Government contested that information and presented a document according to which in the applicant ’s cells each inmate had CARDINAL .

The applicant was released from detention on DATE . The ORG was not informed about subsequent developments in the criminal proceedings against the applicant .


CASE OF JATAIRWAYS, A.D. BEOGRAD v. SLOVENIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

On DATE proceedings before ORG were instituted against the applicant company by CARDINAL of its former employees , following their dismissal from work .

By DATE when the Convention came into force in respect of GPE , the court held one hearing .

A hearing was scheduled for DATE but ORG was unable to serve the summons to the applicant company as the latter changed its address without informing the court . The court therefore ordered that all further court ’s writings would be served on the applicant company by a publication on the court ’s notice board .

On DATE ORG held a hearing in the absence of the applicant company and issued its decision , deciding that the dismissal of the plaintiffs by the applicant company was illegal and ordering the applicant company to acknowledge their rights from the employment contract and to pay them outstanding salaries . The decision was served on the applicant company on DATE through diplomatic channels . The applicant company appealed .

On DATE the Higher Labour and ORG upheld the first instance court ’s decision in the part concerning the illegality of the dismissal , annulled the remainder of the decision and remitted the case back to the first instance court .

In the remitted proceedings the court ’s writings were initially served on the applicant company . Later on , the applicant company authorized a NORP lawyer , PERSON , to represent it in the proceedings .

On DATE the first instance court held a hearing and decided to examine the claims of CARDINAL of the plaintiffs separately from the remaining claims . On DATE it issued its decision on the claims of the remaining plaintiffs and upheld their claim concerning the payment of the outstanding salaries . The applicant company appealed .

On DATE the Higher ORG requested the applicant company ’s representative to present his power of attorney .

NORP On DATE the plaintiffs filed a motion for interim order .

On DATE the court made the interim order requested .

On DATE the applicant lodged an objection against the interim order .

On DATE the court dismissed the applicant ’s objection . The applicant appealed .

On DATE the Higher Labour and ORG quashed the decision of DATE and remitted the case back to the first instance court .

On DATE ORG again dismissed the applicant ’s objection against the interim order . The applicant appealed .

On DATE the Higher Labour and ORG upheld the applicant ’s appeal , annulled the first - instance court ’s decision of DATE and dismissed the plaintiffs’ motion for an interim order .

On DATE the Higher Labour and ORG partially upheld the applicant company ’s appeal against the decision of CARDINAL DATE and modified the decision of the first instance court in the part concerning the payment of interest and dismissed the remainder of the appeal . The applicant company and the plaintiffs lodged an appeal on points of law .

On DATE the applicant company was reminded by the court to pay the court fee for lodging an appeal on points of law .

On DATE the applicant company was reminded by the court to pay the court fee for its reply to the appeal on points of law lodged by the plaintiffs .

On DATE ORG dismissed both appeals on points of law and upheld the decision of ORG . The applicant company lodged a constitutional appeal .

On DATE the applicant company was again reminded to pay the outstanding court fees .

On DATE ORG dismissed the applicant company ’s constitutional appeal . The decision was served on its representative on DATE .


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

The applicant was born in DATE and lives in GPE .

In DATE the applicant ’s father , PERSON , who was a war veteran , killed the applicant ’s mother and her parents and then committed suicide .

In DATE the applicant , represented by his grandmother , sought family disability benefit in connection with the suicide of his father , arguing that the suicide was a consequence of mental derangement caused by his participation in the war .

On DATE his request was dismissed by the competent ORG of ORG ( ORG obrane ) in charge of war veterans’ affairs on the grounds that the war veteran status of his father had not been established . In DATE the applicant challenged that decision before ORG , which accepted his appeal and on DATE quashed the first - instance decision and remitted the case for re - examination on the grounds that the nature of the applicant ’s request had not been adequately established .

Following several procedural decisions of ORG with responsibility for war veterans’ affairs ( hereinafter : the “ ORG ” ) and ORG in charge of war veterans’ affairs ( ORG branitelja i međugeneracijske solidarnosti ; hereinafter : the “ Ministry ” ) , on DATE ORG ( Upravni sud PERSON ) ordered ORG and ORG to examine the applicant ’s request for family disability benefit on the merits , which the applicant should have a possibility to challenge if he was not be satisfied with the outcome .

On DATE ORG dismissed the applicant ’s request on the grounds that nothing from the materials available in the case file suggested that the death of his father was a result of his participation in the war .

The applicant challenged this decision before the Ministry , and on DATE the Ministry found that the facts of the case connecting the suicide of the applicant ’s father to his participation in the war had never been clearly established . It thus ordered ORG to clarify the matter by commissioning an expert report from the competent medical institution and to obtain the relevant witness statements concerning the applicant ’s father ’s wartime service .

On the basis of ORG instructions , ORG commissioned an expert report concerning the question whether the suicide of the applicant ’s father was related to his participation in the war from ORG of ORG , ORG , ORG for GPE in GPE ( PERSON , PERSON za psihijatriju , PERSON centar GPE zdravstva i socijalne skrbi za poremećaje uzrokovane stresom , Regionalni centar za psihotraumu GPE ; hereinafter : the “ Centre ” ) , a public health care institution authorised by law to give expert opinions on matters related to war veterans’ psychiatric disorders ( see paragraph CARDINAL below ) . It also questioned CARDINAL witnesses concerning the applicant ’s father ’s wartime service .

In an expert report dated DATE addressed to ORG , the ORG concluded , on the basis of the available medical reports and the statements of witnesses , that the applicant ’s father had not developed any symptoms resulting in a psychiatric diagnosis linked to his participation in the war and that his suicide could not be attributed to his wartime service . This expert report was not forwarded to the applicant .

On DATE ORG dismissed the applicant ’s request for the family disability benefit referring to the ORG expert report , which had not established any link between his father ’s suicide and his participation in the war .

The applicant challenged the above decision before the ORG , seeking remittal of the case to ORG for further examination . He alleged that the ORG ’s report was superficial , since it had not been commissioned with regard to all aspects of the events , such as the triple murder committed by his father . The applicant also considered the report to be illogical , given that before the war his father had had no psychiatric problems whereas after his wartime activities he had committed a triple murder and suicide , which made it difficult to accept that he had not developed some mental condition . The applicant further contended that another expert report should be commissioned from CARDINAL of the permanent court experts in psychiatry , since the report produced by the ORG raised the issue of its independence . He also stressed that any expert opinion on the matter should necessarily be forwarded to him for comments before the adoption of a decision .

On DATE the Ministry dismissed the applicant ’s appeal on the grounds that the ORG ’s report was conclusive that the suicide of his father had not been related to his participation in the war .

The applicant lodged an administrative action in ORG against the above decision , asking ORG to decide the case on the merits instead of remitting it to the administrative bodies . He pointed out that the proceedings had already lasted excessively long and that the administrative bodies had failed to comply effectively with the previous instructions of ORG . He therefore considered that ORG should itself decide the case on the merits , as provided under LAW of LAW ( see paragraph CARDINAL below ) . The applicant also contended that , if ORG did not decide the case on the merits , it should quash the ORG ’s decision and remit the case for re - examination .

In his administrative action the applicant in particular pointed out that the Ministry had failed to reply to the specific arguments set out in his appeal against the first - instance decision of ORG and had merely reiterated the findings of the first - instance decision . He also reiterated his appeal arguments that the ORG ’s expert report was superficial and illogical , since it had not been commissioned with regard to all aspects of the events , such as the triple murder committed by his father , and that it had failed to take into account that before the war his father had had no psychiatric problems whereas after his wartime activities he had committed a triple murder and suicide . In these circumstances , the applicant stressed that under LAW of LAW another expert report ought to be commissioned from the permanent court experts in psychiatry .

On DATE ORG dismissed the applicant ’s action as ill - founded . In particular , it stressed :

“ During the proceedings an expert report was commissioned , under section CARDINAL § CARDINAL ( CARDINAL) of the [ GPE ] , from the [ Centre ] and the report was produced on DATE . The report concluded that based on the relevant documents from the case file it did not find that ORG had developed any symptoms resulting in a psychiatric diagnosis linked to his participation in the war ...

Having these facts in mind , this court is of the opinion that the defendant acted lawfully when dismissing the appellant ’s appeal against the first - instance decision ... It should also be noted that this court already held that the formation of an expert team [ competent to determine ] a possible link [ between death and participation in the war ] , which [ provides for ] a decisive evidence within the meaning of section CARDINAL § CARDINAL ( CARDINAL) of the [ GPE ] , is a precondition for any further proceedings concerning the status of the family member of a deceased war veteran .

The defendant therefore correctly dismissed the appeal against the first - instance decision and thereby it did not act contrary to the relevant law . This court did not find it necessary to act under LAW of LAW given that , as already noted above , the administrative body complied with the instruction from the judgement no . Us-CARDINAL/CARDINAL [ see paragraph CARDINAL above ] concerning the appellant ’s request for family disability benefit , which is the subject matter of the proceedings at issue . Although the defendant did not expressly reply to the appeal arguments concerning the necessity to request a report with regard to [ ORG ] act of triple murder , [ the court finds ] that it could not be a decisive factor for a decision in the proceedings at hand . This is because such a criminal act can not be a basis for the establishment of a link between the death of the war veteran and his participation in [ the war ] ... ”

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) arguing that his right to a fair trial in the proceedings had been violated . He contended in particular that the administrative bodies and ORG had ignored his request for an expert report to be commissioned from the permanent court experts and that he had been offered neither the possibility of participating in the choice of experts nor the opportunity to take cognisance of and comment on the expert opinion before the adoption of a decision during the proceedings .

On DATE ORG declared the applicant ’s constitutional complaint inadmissible as manifestly ill - founded , noting that :

“ In his constitutional complaint , the complainant was unable to show that ORG had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions . ORG therefore finds that the present case does not raise an issue of the complainant ’s constitutional rights . Thus , there is no constitutional law issue in the case for ORG to decide on . ... ”

The decision of ORG was served on the applicant ’s representative on DATE .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE , and at the time of lodging the application lived in GPE , GPE .

GPE has gone through various legislative regimes in order to regulate its housing situation . The first regime came about in DATE and protected tenants from the termination of their leases . This was followed by the DATE LAW Ordinance which , apart from regulating termination of the lease of dwelling houses , also controlled rents and the initial conditions of contracts . LAW was then enacted in DATE , with the aim of providing a solution to homelessness caused by the Second World War . In DATE ORG ) Ordinance , Chapter CARDINAL of the Laws of Malta ( hereinafter “ the HD Ordinance ” ) was enacted , which provided incentives to encourage landlords to rent their property , and created a special class of dwelling houses free from rent control .

The applicant owns a property in GPE ( a maisonette measuring QUANTITY ) which he inherited from his parents , his mother having passed away in DATE .

On DATE the property was registered as a “ decontrolled dwelling house ” in accordance with LAW . At the time , LAW provided that the provisions of the “ Rent Ordinances ” ( the Reletting of ORG ) Ordinance , LAW of the Laws of Malta and LAW , LAW of LAW ) were not applicable to dwelling houses decontrolled in accordance with LAW .

In DATE the applicant ’s mother leased the LOC to couple C. , who are NORP citizens ( born in DATE and DATE respectively ) , for a rent of CARDINAL NORP PERSON ( ORG ) ( MONEY ( ORG ) ) DATE , which was later decreased to the equivalent of ORG CARDINAL DATE . At the time , the law permitted her to increase the rent , to refuse to renew the lease or to change its terms on renewal .

In DATE the NORP parliament enacted an amendment to the HD Ordinance , which provided that the rent restrictions set out in GPE would apply where tenants were NORP citizens and occupied houses as ordinary residences . It further provided that landlords could not refuse to renew leases , raise their rent , or impose new conditions on renewal , except as provided for by law ( see “ Relevant domestic law ” below ) . The applicant submitted that the contractual freedom of parties was greatly restricted as a result of the new provisions , in that his family could not charge a fair rent or recover possession of their property , despite the fact that his tenants owned substantial immovable property .

By a decision of ORG ( RRB ) of DATE , the rent was further reduced to ORG CARDINAL.CARDINAL per year . The applicant did not appeal .

NORP In DATE new laws were enacted in respect of new leases which could again be free from rent control . They did not apply to the applicant ’s case .

In DATE and DATE new concepts and provisions were introduced , aimed at gradually eliminating the restrictive regimes applicable to leases entered into before DATE .

Thus , while a rent of ORG CARDINAL.CARDINAL per year had been paid to the applicant since DATE , a rent of LAW had been paid from DATE in view of the above - mentioned amendments . However , the applicant refused to accept any rent as from DATE and it was duly deposited in court by the tenants by means of a schedule of deposit .

According to a court - appointed architect ’s evaluation made in the context of constitutional proceedings instituted in DATE ( see paragraph CARDINAL below ) , the property at that time had a rental value of ORG DATE . According to an architect ’s report commissioned by the Government , the rental market value in DATE was ORG DATE , and the sale value EUR CARDINAL .

To date , couple C still reside in the applicant ’s property . It does not at present appear that they have any children formally residing with them .

In DATE the applicant instituted constitutional redress proceedings complaining , inter alia , that the DATE amendments ( in particular LAW ( CARDINAL ) and ( CARDINAL ) of the HD Ordinance , which prohibited landlords from refusing to renew existing leases or from raising their rent ) had breached his property rights under LAW No . CARDINAL to the LAW .

On DATE ORG ( FAC ) in its constitutional jurisdiction rejected his complaint . Basing its judgment on domestic case - law relating to the same subject matter , it considered that he remained the owner of the property at issue , which was being used as a dwelling house , that he could still evict the tenants if they failed to fulfil their obligations under the lease , and that although the amount of rent was low , the law provided for an increase in rent DATE , amounting to double the actual rent . The interference with his rights was therefore proportionate given the needs of society . Moreover , his mother had not been forced to lease out the property .

The applicant appealed on DATE .

On DATE ORG dismissed his appeal as being lodged out of time , the statutory time - limit having expired on DATE .

On DATE he lodged an application with the ORG , relying on LAW No . CARDINAL to the Convention .

By a decision of DATE the ORG , sitting as a ORG of CARDINAL judges , declared the applicant ’s application inadmissible . It found that he had lodged his appeal with ORG out of time . The domestic remedies had therefore not been exhausted as required by LAW CARDINAL of the Convention .

In DATE the applicant instituted constitutional redress proceedings complaining that the DATE amendments , which prohibited landlords from refusing to renew existing leases or from raising their rent when the tenant was a NORP citizen , had breached his property rights under LAW No . CARDINAL to the Convention . He submitted that the amendments introduced in DATE had not improved his situation , even assuming they ( in particular LAW ) applied to the case in question , a matter which was unclear in the domestic context . With a new rent of ORG CARDINAL per year ( see Relevant domestic law below ) , he remained a victim of the alleged violation , not least because he was also prevented from refusing to renew the lease . He cited the then recent case of PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) , in which ORG had found a violation in analogous circumstances .

By a decree of DATE ORG ( FAC ) in its constitutional jurisdiction ruled that the defendant in the case should be the Attorney General of GPE , not the State of GPE as purported by the applicant .

On DATE ORG ( FAC ) in its constitutional jurisdiction , upholding the objection raised by the third party who joined in the suit ( kjamat fil - kawża ) , rejected the applicant ’s complaint on the basis that the matter had already become res judicata by virtue of the decision of DATE ( see paragraph CARDINAL above ) . It noted that such a conclusion required CARDINAL elements , namely the same parties ( eaedem personae ) , the same object ( eadem res ) and the same cause of action ( eadem causa petendi ) . Moreover , where the arguments raised were different , it had to be seen whether they could have been raised at the time of the principal judgment . In the present case , it considered that there had been no doubt that the requirement of eaedem personae had been met , despite the fact that the applicant had attempted to bring the present proceedings against the ORG and that the other proceedings had been against the Attorney General , as it was clear that the defendant in both cases was ORG . The element of eadem res had also been satisfied in so far as the present case concerned the same lease of the same property , with the same tenants and the same circumstances that had led the applicant to institute proceedings the first time round . Similarly , the element of eadem causa petendi had also been satisfied , since the applicant ’s applications to the court were to a great extent the same , if not identical , despite the fact that he had made further arguments and submitted that his situation had remained unchanged notwithstanding the DATE amendments to LAW . The court considered that the changes to the application had not changed the nature of the action , namely a claim that the restrictions on the rent imposed by the law had been disproportionate . This matter had already been dealt with by the court in the first set of proceedings ( no . CARDINAL ) , where it had decided that a fair balance had been struck by the authorities ; it was not therefore open to the applicant to relitigate the matter . The court further held that even though the applicant had argued that despite the DATE amendments ( if they applied at all ) he had remained a victim of the alleged violation , there was already a judgment in his respect stating that the law in so far as it applied to his case had not breached his rights , and the more recent amendments had not worsened his situation . Thus , ORG ( FAC ) held that there could not have been a breach of his rights even under the new law . Lastly , it concluded that any new arguments put forward by him should have been incorporated into the first set of proceedings . As to the ORG ’s recent case - law , it considered that the judgment cited did not entitle the applicant to ask for a fresh examination of his case .

By a judgment of DATE ORG upheld the first - instance judgment , considering the appeal to be frivolous and vexatious .


Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE , GPE . At the time of the events complained of , she was aged DATE and DATE .

On DATE the applicant was attending a funeral wake in her village . At TIME she went with CARDINAL girlfriends , ORG DATE ) and Z.F.D. ( DATE ) to fetch some drinking water at a neighbour ’s house . On their way , QUANTITY boys , ORG ( DATE ) , PERSON ( DATE ) and ORG ( DATE ) , approached the girls . M.I.C. pulled the applicant ’s arm behind her back , grabbed her head and told her to go with him . The boys took her into the garden of a nearby deserted building , where a man , PERSON ( DATE ) , was waiting .

The QUANTITY boys left and PERSON pushed the applicant to the ground , partially undressed her and had sexual intercourse with her . In the meantime , another man , ORG ( DATE ) , arrived at the scene and tried to have sex with the applicant , but was physiologically incapable . A third man , PERSON ( DATE ) was also there . He had also intended to have sexual intercourse with the applicant but finally decided to help her get up , clean and dress herself , and accompanied her back to the house where the funeral wake was being held . TIME the applicant ’s father came looking for her and she told him that she had been raped . He immediately alerted the police .

The applicant underwent a forensic examination by a doctor on DATE . According to the subsequent forensic medical report , there were no signs of traumatic lesions on the applicant ’s body and no sperm could be found either . The forensic doctor found signs of pathology which could have resulted from sexual intercourse . Lastly , the doctor mentioned that the applicant was in a state of anxiety and fear , and he recommended psychological counselling and possibly a neuropsychiatric examination .

On DATE the applicant was admitted to ORG . The hospital observation sheet stated that the applicant had sought treatment because she had been raped . She was diagnosed with stress - related anxiety , irritability , a sleep disorder , slight intellectual disability ( an IQ of DATE ) and lice infestation . She was prescribed treatment with anxiolytics and anti - depressives , and was discharged from hospital in a slightly improved condition on DATE .

On DATE an additional forensic medical report was issued at the request of the applicant ’s father . It stated that the applicant presented a psychological disorder caused by a physical and psychological trauma to which she had been exposed on CARDINAL DATE . The doctor held that , according to the documents presented by ORG , the applicant ’s condition had required DATE of medical care . No signs of pregnancy had been detected .

On DATE the applicant was readmitted to ORG . According to the hospital observation sheet , her state of health was slightly improving but she had started to have headaches . She was discharged from hospital DATE , having been told to continue the initial treatment and to return for further tests at DATE

NORP In DATE the applicant was again hospitalised in ORG for DATE with symptoms including frontal headaches , depression , tearfulness and feelings of social isolation . She was diagnosed with an emotional disorder , a sleep disorder and anaemia , among other conditions . She received treatment with neurotropic drugs , anxiolytics and vitamins . The doctors prescribed further treatment with neurotropic drugs and anxiolytics until a follow - up examination scheduled for DATE .

On DATE the applicant , accompanied by her father , lodged a formal complaint with the police . On DATE she made a written statement about the events of DATE , accusing the CARDINAL adult men involved in the incident of rape . She also mentioned that , all the way to the deserted house , ORG and PERSON had held her by her arms and neck , not allowing her to leave , and had threatened to beat her if she screamed for help . The police accompanied the applicant and her father to the scene of the incident and took photographs . No objects or other evidence were found .

DATE , written statements were given to the police by PERSON and M.I.C. PERSON stated that he had not forced the applicant in any way and he had not been aware that she was DATE . He alleged that he had seen the applicant during the wake and had invited her to go with him to the deserted house , which she had done voluntarily . After he had had consensual sex with the applicant , he had left her in the company of ORG and had returned to the wake . M.I.C. denied any involvement in the events , stating that he had not left the house where the wake had been held .

On DATE ORG , FAC and GPE gave statements to the police .

ORG stated that on TIME of CARDINAL DATE he had been passing by the deserted house when he had heard noises coming from the garden . He decided to go inside to see what was happening . There he met PERSON , who told him that PERSON was there with a girl . He saw PERSON on top of the applicant , having sex . After he had finished , PERSON called him to do the same thing . He tried , but was physiologically incapable of having sex so he stood up and put his clothes back on . He left together with PERSON , who was waiting for him nearby .

M.C.S. stated that he had seen how ORG had grabbed and twisted the applicant ’s arm and had left with her from the wake . He had followed them together with GPE , but received a phone call and continued on a separate road .

In his statement , ORG claimed that he had been at the wake when the applicant ’s brothers had asked him to help them look for their sister . He left alone and went to the deserted house where he found the applicant with PERSON was also there . At that moment his phone rang so he did not pay attention to the CARDINAL people . When he finished on the phone he heard the applicant calling him and went to her . She was alone , lying on the ground , undressed from the waist down . He asked her what had happened but she did not say anything . When she asked him to come closer , he started kissing her and wanted to have sex with her , but felt uneasy about it , so he helped her get dressed and clean up the mud on her coat , and accompanied her back to the wake .

On DATE the applicant ’s CARDINAL girlfriends made statements to the police . They mentioned that ORG , GPE and ORG had approached the applicant , twisted her arm to her back and taken her with them . When she returned to the wake , the applicant did not tell them where she had been . P.A. also stated that she had heard the applicant shouting at the CARDINAL boys to leave her alone . GPE had also seen the CARDINAL boys surround the applicant and take her with them .

The applicant gave another detailed account of the facts in a statement drafted on DATE . She repeated that the CARDINAL boys had forced her to go with them without saying where they were taking her , so she had not known what was going on . Once they arrived at the deserted house , there was PERSON who threatened to beat her if she would not accept to have sex with him . She further clarified that GPE had kept her there by force until PERSON had raped her a second time . Then ORG and GPE came around and tried to rape her but failed and it was GPE who had finally helped her leave the scene of the incident . Lastly , she mentioned that she had never had sex before the incident of DATE and that PERSON , ORG and ORG had known her and had been aware of her age .

PERSON stated to the police on DATE that he had heard PERSON asking ORG to take the applicant to the deserted house without telling her why . When the girls came out of the house where the wake was being held , he saw M.I.C. going after them and grabbing the applicant ’s head , twisting her arm to her back and taking her in the direction of the deserted house . He denied having touched or spoken to the applicant . He had just walked behind her and continued on his way past the deserted house . GPE gave the same account of the facts .

M.I.C. was questioned again on DATE , when he reconsidered his initial statement and told the police that PERSON had asked him , GPE and GPE to “ grab ” the applicant and take her to the deserted house . He then admitted having grabbed her by the arms , but claimed that afterwards she had walked along with him voluntarily .

On DATE the police took another round of statements from those involved in the events , who reiterated their previous statements . In addition , all the men questioned stated that they knew for a fact that the applicant had had sex before with other men and that they had been unaware of her age at the time .

On DATE the case was transmitted to the prosecutor ’s office attached to ORG in order for it to pursue the investigation into the crime of sexual intercourse with a minor .

On DATE the applicant gave a statement before the prosecutor and requested that PERSON , ORG , ORG , GPE and GPE be investigated for rape and complicity to rape .

M.C. and ORG also gave brief statements before the prosecutor . PERSON claimed on this occasion that the applicant was the one who had sent word through M.I.C. that she wished to meet with him . ORG stated that he knew the applicant had already had sex before and she had poor school results .

On DATE the prosecutor indicted PERSON for the crime of sexual intercourse with a minor and ORG for attempt to commit the same crime . The prosecutor based the decision on the following facts : the CARDINAL men declared that they had not forced the applicant in any way ; the forensic medical certificate attested to no signs of violence on the applicant ’s body ; and after returning to the wake she had not told her girlfriends what had happened to her . In view of those elements it was considered that the applicant had consented to have sex with PERSON and PERSON The witnesses , M.I.C. , ORG and GPE , did not know about PERSON ’s intentions and therefore it was considered that they had no criminal responsibility in the case . The criminal proceedings were discontinued with respect to PERSON because he had not had sexual intercourse with the applicant .

The Beiuş District Court scheduled a first hearing in the case on DATE . The applicant stressed before the court that PERSON had twice had sexual intercourse with her without her consent . In support of her allegations , she submitted copies of the medical reports referred to in paragraphs CARDINAL above . She also claimed civil damages for the suffering caused by the actions of the CARDINAL defendants .

PERSON testified before the court that , once he had arrived at the funeral wake , ORG had told him that the applicant was waiting for him at the deserted house . When he reached the meeting point , the applicant started kissing him and asked him to go with her to the back of the garden , away from the road . They then lay down on his coat and the applicant started undressing herself . They had sexual intercourse once , which was consensual . He did it because ORG had told him once that he had had sex with the applicant in the past . Lastly , PERSON mentioned that he had done this before with other girls at other funeral wakes .

ORG reiterated the statements he had given during the investigation . He concluded his testimony before the court with the remark :

“ ... I was asked by someone in the village whether it was true what happened and whether I was not ashamed of what I had done , but I replied that it was not safe to leave girls alone on the streets . ”

On DATE and CARDINAL DATE the court heard statements from the applicant ’s CARDINAL girlfriends , as well as from ORG and ORG In her testimony GPE claimed that the applicant had been scared when she had returned to the wake . She also mentioned that the applicant was a wellbehaved girl who did not go out with boys or go to bars . ORG stated that he had heard the applicant asking M.I.C. to let go of her hand , but the latter had refused .

In his testimony ORG also stated as follows :

“ TIME we went to the police to give statements and afterwards I asked PERSON what had really happened . He then told me that he had raped her [ the applicant ] . He did not seem too happy about his actions . We have played this game before at another wake : you must take the girl to a secluded place where she must be kissed by the boy she chooses . When the defendant [ PERSON ] told me he had raped the victim , he also mentioned that he had kissed her . ”

On DATE the ORG convicted PERSON of sexual intercourse with a minor and gave him a suspended sentence of DATE and DATE . ORG was convicted of attempted sexual intercourse with a minor and given a suspended sentence of DATE .

In reaching its decision the court firstly observed that the forensic medical report indicated that no signs of violence had been detected on the victim ’s body . The court further established the course of the events on TIME CARDINAL DATE as described by ORG , GPE and GPE It cited the parts of the statements given by the applicant ’s CARDINAL girlfriends in which they had mentioned that the applicant had not cried for help . Lastly , the court concluded that the CARDINAL defendants ought to have known that the injured party was under DATE . The court did not address the applicant ’s statement , the medical reports attesting to her medical condition or her requests for the incident to be examined as rape . It rejected her claim for civil damages , considering that the medical conditions described in the forensic reports had no connection with the incident at issue . In addition , it had come to light from witness statements that the applicant had had sex before the impugned incident .

All parties to the trial , including the applicant represented by her lawyer , appealed against the decision of ORG . In her reasons for appeal the applicant claimed that the sexual abuse committed against her could only be classified as rape . She asked the court to extend the examination of the case to ORG , GPE and GPE , whom she considered accomplices to rape . Lastly , the applicant considered that the medical reports submitted clearly attested to the suffering she had endured and therefore the court had erred in rejecting her claim for damages .

On DATE the ORG decided to increase the sentences imposed on the CARDINAL defendants to CARDINAL GPE imprisonment for GPE and DATE months’ imprisonment for ORG The decision of ORG concerning the classification of the crime and the suspension of the execution of the sentences was upheld . ORG also decided to award the applicant CARDINAL NORP lei ( PERSON ) ( MONEY ( ORG ) ) in respect of non - pecuniary damage . In reply to the applicant ’s reasons for appeal , the court reasoned :

“ It must be mentioned that the victim tried to convince the court that , in fact , she had not agreed to have sexual intercourse with the CARDINAL defendants and that she had been the victim of a rape , but these allegations had not been proved in any way . Hence , the witnesses GPE and GPE ... stated that ... the injured party had not cried for help ... and had not told them what had happened . ...

It must also be noted that from the forensic medical report ... it does not appear that the injured party was the victim of a rape , since she displayed no signs of posttraumatic injury on her body . ”

An appeal on points of law ( recurs ) lodged by the applicant against that judgment was rejected as ill - founded on DATE by ORG . The court declared briefly that by corroborating the victim ’s statement with the forensic medical report of DATE , the existence of a crime of rape had been excluded in the case .


CASE OF KAHADAWA ARACHCHIGE AND OTHERS v. CYPRUS

No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Pere Pastor Vilanova

The applicants were born in DATE , DATE and DATE respectively . They all live in GPE . The first applicant lives in GPE , the second applicant in PERSON , and the third applicant in GPE .

The applicants all went to GPE for employment purposes .

The first applicant arrived in GPE on DATE in order to take up employment as a domestic worker . He was granted a temporary residence permit , initially until DATE . This was renewed until DATE .

During the above period the applicant left GPE twice to go back to GPE : on DATE and in DATE . The first time , he stayed in his home country for DATE , and the second time , he stayed for DATE . On DATE , during his second visit home , he married a GPE national .

His wife joined him in GPE on DATE , in order to work as a housemaid . She was granted a temporary residence permit until DATE .

On DATE their daughter was born .

On DATE the first applicant ’s wife abandoned her work and her place of residence . Her whereabouts at the time were not known to the authorities . She had not applied for the renewal or extension of her temporary residence permit , which had expired DATE .

On DATE all competent authorities were given orders by ORG to trace the first applicant ’s wife .

On DATE a lawyer acting on behalf of the first applicant ’s wife wrote to the Minister of the ORG requesting a visitor ’s residence permit for her based on humanitarian grounds , a permit of the same duration as that held by her husband . The lawyer noted that the couple had a young daughter , that both the wife and the daughter were supported by the first applicant , and that she could not return to GPE without him , as she did not have family there with whom she and her daughter could stay . She also needed time to obtain travel documents for their daughter . The lawyer informed the authorities that the couple ’s intention was that the whole family would return to GPE upon the expiry of the first applicant ’s temporary residence permit .

The second applicant arrived in GPE on DATE and was granted a temporary residence permit until DATE . This was renewed until DATE .

The third applicant arrived in GPE on DATE . He was granted a temporary residence permit until DATE . This was renewed until DATE . Following the expiry of his permit , he remained in GPE on an irregular basis . The third applicant submitted that he had applied for a renewal of his permit .

The residence permit stated that it could be revoked at any time with CARDINAL days’ prior notice to the holder . It also stated that it was final and non - renewable .

According to the first and second applicants , on DATE , while in the first applicant ’s car , they passed through the Ayios Dometios district of GPE and saw a group of NORP . They got out of the car and saw people holding swords and iron rods . Fearing for their lives , they abandoned the car and ran in different directions . The second applicant was injured during the clashes : his index finger was cut off and his middle finger injured . After the clashes , the first applicant took the second applicant to ORG , where the latter underwent surgery . According to the second applicant , the police came to the hospital and arrested him . He remained in the hospital after the operation , and on DATE he was taken to ORG police station , where he was detained . According to the first applicant , on TIME CARDINAL DATE CARDINAL people who had taken part in the clash attacked his residence and threatened to kill him if he went to the police . However , TIME , when he went to the police station to report the incident , he was arrested and detained on suspicion of being involved in the clashes .

According to the third applicant , he was also passing by that area with his car and stopped to see what was going on , but , fearing for his life , he ran away and left his car behind . He informed his employer and the latter informed the police about the clash . The police asked the third applicant to come to the police station to make a statement and take his car back . On DATE the third applicant went to GPE police station and was arrested and detained on suspicion of being involved in the clashes .

On TIME DATE the police received information that CARDINAL aliens carrying offensive weapons ( swords , clubs and Molotov cocktails ) were in the Ayios Dometios district of GPE . The police immediately went to the site and discovered that a number of aliens had attempted to set fire to a house there by throwing Molotov cocktails at it . The police carried out an investigation into the events . They examined and collected evidence found in the area ( including the first and third applicants’ cars ) . They reached the conclusion that the applicants , along with CARDINAL other individuals from GPE , were likely to have been involved in the clash . A number of suspects , including the second applicant , had sustained injuries which had been treated at FAC .

On DATE the police arrested all CARDINAL NORP , including the applicants , on the basis of arrest warrants issued on DATE by ORG under section CARDINAL of LAW ( PERSON . CARDINAL ) and Article CARDINAL(CARDINAL ) of the LAW , on reasonable suspicion that they had taken part in a fight in a public place , contrary to LAW ( PERSON . CARDINAL ) .

On DATE ORG convened at ORG . The applicants were remanded in custody for DATE under LAW of LAW and LAW ( CARDINAL ) of the LAW , to enable the investigation into the commission of various criminal offences to be concluded . The offences included : intending to inflict grievous bodily harm , unlawful wounding , an unlawful attempt to set fire to a building , and taking part in a fight in a public place ( sections CARDINAL , CARDINAL and CARDINAL of LAW ) . The first applicant was detained in LOC police station in GPE , and the second and third applicants in GPE police station .

On DATE the police investigation file , which included written statements by the applicants concerning the incident , was transmitted to the Attorney General . ORG informed the Attorney General that that there was sufficient evidence against all the CARDINAL individuals arrested , including the applicants , in relation to the offence of taking part in a fight in a public place contrary to LAW , but not as regards the remaining offences , which were more serious . The third applicant had also committed the offence of staying in GPE unlawfully , as his temporary resident permit had expired on DATE . At the suggestion of the police , the Attorney General decided not to prosecute the applicants , but to deport them instead .

On DATE the residence permits of the first and second applicants were revoked by the Director of ORG under section CARDINAL of the Aliens and Immigration PERSON ( PERSON . CARDINAL ) , on the grounds that their conduct had posed a danger to the public order of GPE PERSON and detention orders were issued against the applicants on DATE : under section CARDINAL(CARDINAL)(g ) of the above PERSON in respect of the first and the second applicants , on the grounds of public order , and under section CARDINAL(CARDINAL)(k ) in respect of the third applicant , on the grounds of unlawful stay .

On DATE letters were prepared by the Minister of the ORG informing the applicants of the decision to detain and deport them . The letters stated that the applicants were illegal immigrants : the first and second applicants under section PERSON ) of the Aliens and Immigration PERSON , because their “ conduct had been considered dangerous for reasons of public order ” , and the third applicant by virtue of section CARDINAL(CARDINAL)(k ) , on the grounds of “ illegal stay ” . Consequently , their temporary resident permits had been revoked and deportation and detention orders had been issued against them .

Consequently , on DATE , upon the expiry of the remand warrant , the applicants were released but re - arrested at once on the basis of the deportation and detention orders that had been issued against them . The Government submitted that , in accordance with standard police practice , the applicants would have been informed orally of the decision not to prosecute them and the decision to deport them . Although the Government did not have evidence as to the exact date on which the applicants were notified of the letters of DATE or the exact manner in which they were notified , this happened sometime between DATE .

On DATE a NORP lawyer acting on behalf of the applicants sent CARDINAL letters by fax to the Minister of the ORG , referring to the letters of DATE sent to the applicants . He objected to the deportation of the first and second applicants ; he also requested a review of the decision taken with regard to the third applicant . The lawyer requested a meeting to discuss the matter with the above - mentioned Minister .

The Government submitted that the applicants’ case had then been reviewed by the Minister of the ORG , who had noted their lawyer ’s objection , read the administrative file and maintained the decision to deport the applicants .

Although the first applicant called his wife several times during his detention , she did not come to visit him at the police station .

The first and third applicants were deported on DATE and the second applicant was deported on DATE .

There were signed notes by a police officer on the copies of the letters of DATE stating that the letters had also been served on the applicants on DATE they were deported .

The applicants were included on the authorities’ “ stop list ” ( a register of individuals whose entry into and exit from GPE is banned or subject to monitoring ) .

The documents submitted by the Government indicate that the first applicant ’s wife continued to stay in GPE illegally following her husband ’s deportation . On DATE she lodged an asylum application , which was dismissed on DATE . She left GPE for GPE on DATE and she was included on the authorities’ “ stop list ” ( see paragraph CARDINAL above ) . She returned to GPE that DATE with a new passport with different identity details , and was granted a residence and employment permit until DATE . However , the authorities realised that she was the same person and arrested her on DATE with a view to her deportation . No further details have been given by the Government in this respect .


Violation of Article 6 - Right to a fair trial (Article 6-1 - Access to court)

The applicants lived in a dormitory in ORG , GPE . The dormitory was mainly inhabited by the students and the staff of ORG ( “ the College ” ) .

In DATE the joint - stock company “ ORG ” ( “ the Company ” ) registered its title over that dormitory as a result of privatisation .

The applicants brought a case against the ORG seeking to obtain a title to the rooms they lived in . They argued in particular that the privatisation of the dormitory had taken place in violation of the legislation and that the ORG could not be declared as a sole owner of the property . ORG was also involved into the case as a third party .

On DATE ORG of Lipetsk found for the applicants and granted their claims . ORG found that the dormitory was transferred to the Company in breach of domestic law .

On DATE the appeal court upheld the judgment and it became final .

In DATE the applicants registered their title to the dormitory rooms and subsequently sold them to third parties .

On DATE the Company lodged a request with ORG of Lipetsk seeking to reopen the proceedings on the grounds of newly discovered circumstances . It relied on the order of the ORG ’s director and a lease agreement concluded in DATE between the Company and the College in respect of the dormitory . The ORG further argued that it had not been aware of those documents since they were possessed by the ORG .

On CARDINAL DATE ORG of Lipetsk quashed the judgment of DATE . The court found in particular that the documents presented by the Company might have had significant impact on the outcome of the case and thus they constituted “ newly discovered circumstances ” .

On DATE as a result of the fresh consideration of the case ORG rejected the ORG claims and ordered reversal of execution of the judgment of DATE . This judgment was upheld on DATE by ORG .


Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

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

NORP In DATE TVCARDINAL , a major commercial television channel , broadcast a television programme in which the applicant appeared in pictures and was mentioned by name . He was singled out as the central figure of organised crime within media and advertising and as being guilty of several fraud offences and other economic offences . The programme was rebroadcast DATE as well as in DATE . At this time , no preliminary investigation had been initiated against the applicant .

NORP In DATE the applicant was indicted for aggravated fraud ( grovt bedrägeri ) , an aggravated tax offence ( grovt skattebrott ) , an aggravated bookkeeping offence ( bokföringsbrott , grovt brott ) , a bookkeeping offence ( bokföringsbrott ) , obstruction of tax control ( försvårande av skattekontroll ) and violations of LAW ( brott mot aktiebolagslagen ) . According to the indictment , the offences had been committed within CARDINAL named companies , for which the applicant allegedly had been the actual representative ( faktisk ställföreträdare ) . The prosecutor relied on extensive written evidence and requested that over QUANTITY witnesses be heard and a recording of the abovementioned television programme be shown during the trial .

NORP The applicant protested his innocence and submitted that he had been neither the formal nor the actual representative of the relevant companies . Thus he had had no right to decide over the companies , nor had he been responsible for their bookkeeping or reporting their turnover to the tax authority . He had done some consultancy for the companies and assisted with some administrative tasks . However , he had not financed the companies and could not be considered as their principal .

The applicant further requested ORG ( tingsrätten ) in GPE to dismiss the use of the television programme as evidence . He argued , inter alia , that it violated his rights under LAW as it was a strongly edited journalistic product aimed at creating sensational television and which amounted to defamation of him . Thus it would have a strong negative effect on the objectivity of the court . Moreover , since a number of persons in the programme were anonymous , they were unknown both to the defence and the court and the applicant would not be able to cross - examine them as witnesses .

On DATE ORG rejected the request . This decision could only be appealed against together with the court ’s final judgment .

On DATE ORG convicted the applicant of aggravated fraud and sentenced him to DATE imprisonment . He was acquitted of the other offences . The court held an oral hearing where the above - mentioned television programme was presented by the prosecutor during the opening procedures and relied on as evidence . At the request of CARDINAL or both of the parties , CARDINAL witnesses were heard , and the applicant was also heard . Moreover , substantial written evidence was invoked by both parties . The court , in a judgment comprising CARDINAL pages , found it proved beyond reasonable doubt that the principal activity concerned by the indictment was fraudulent advertising sales in a number of companies , causing loss for the customers and gain for the companies . While it considered it a flaw that none of the customers had been heard in the case , it still found it established on the basis of other evidence that the customers had suffered the losses claimed by the prosecutor .

The court further found it proved that the applicant had been the actual representative of the companies and thus responsible for the fraudulent activities . He had been active in all of the companies and the driving force behind them and large amounts of money had been transferred from the companies to his personal company . Moreover , the court noted that none of the formal representatives of the companies had any corporate experience or knowledge of organising and running an advertising sales company . Some of them had extensive criminal records . The court also had regard to the fact that several of the companies shared office space , employees moved between the companies and the applicant had kept detailed information relating to , inter alia , taxes , DATE results , bookkeeping , billing and contacts with banks and authorities for all of the companies in his personal computer .

The television programme was mentioned in ORG judgment under the heading “ Statement of facts ” ( PERSON ) where it was simply noted that the television programme had been broadcast for the first time during DATE and that the case against the applicant had been initiated by ORG ( Ekobrottsmyndigheten ) in DATE , DATE and DATE after the broadcast . The court did not mention the television programme in its reasoning .

Both the applicant and the prosecutor appealed against the judgment . The applicant also appealed against the decision to allow the television programme as evidence .

On DATE ORG ( hovrätten ) rejected the applicant ’s appeal in relation to the television programme as it found no reason to dismiss it as evidence . This decision could only be appealed against in connection with ORG final judgment .

On DATE ORG , after having held an oral hearing , upheld the lower court ’s conviction but also found the applicant guilty of an aggravated bookkeeping offence and an aggravated tax offence . The sentence was upheld . In addition to the witnesses heard before FAC , whose testimonies were played to the court , supplementary questions were put to the applicant and CARDINAL new witnesses were heard on the applicant ’s request . Substantial written evidence was also presented to the appellate court . As regards the television programme , it was stated in the judgment that it had been presented to the court . It was not mentioned by ORG in its reasoning .

ORG , like the lower court , found it proved beyond reasonable doubt that the applicant had been the actual representative of the companies . In addition to the findings of ORG , the appellate court noted in particular that the applicant had explained his involvement and the large amount of money received from the companies as fees for consulting , with focus on training the sellers in the various companies . However , the court observed that this was not supported by the witness statements and , moreover , the applicant had not been able to give a credible account of the training he alleged to have provided . His explanations had been vague and diffuse and he had no documented qualifications as a trainer . Moreover , before ORG , he had claimed not to have signed any contracts with the companies and when confronted by the prosecutor before the appellate court with such contracts , signed by him , he claimed not to have any memory of having signed them . That the applicant would have forgot such important acts were not plausible to the court and affected his credibility negatively . The contracts also revealed the applicant ’s ability to control the companies . ORG further noted that the companies had been inter - connected in various ways , even sharing offices and employees , which was remarkable considering that they were supposedly competitors in the same market . In view of this , ORG fully agreed with the lower court ’s reasoning and conclusion concerning the aggravated fraud and also found that he had committed an aggravated bookkeeping offence and an aggravated tax offence .

The applicant appealed to ORG ( ORG domstolen ) against the judgment as well as the decision not to dismiss the television programme as evidence . He claimed , inter alia , that it was in violation of his right to fair trial under the ORG to allow the television programme as evidence

On DATE , ORG refused leave to appeal .

In the meantime , in DATE , the applicant initiated defamation proceedings against the anchor man of the television programme . These proceedings were terminated in DATE and an application regarding this matter , under Articles CARDINAL , DATE and CARDINAL of the LAW , was lodged with the ORG on DATE ( application no . CARDINAL ) .

LAW , section CARDINAL of the Swedish Code of Judicial Procedure ( Rättegångsbalken , CARDINAL:CARDINAL ) , reads as follows :

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

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

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

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


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

The applicants , Mr Dumitru PERSON and Mr PERSON , are NORP nationals , who were born in DATE and DATE respectively and live in PERSON . They were represented before the ORG by PERSON , a lawyer practising in GPE .

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

The applicants are the husband and the son of the late PERSON . On TIME of CARDINAL DATE , at QUANTITY , the first applicant and PERSON were returning home when PERSON fell into a trench located on the public road . The TIME PERSON was taken to a hospital and diagnosed , inter alia , with a fracture of her spine . On DATE she succumbed to the injuries and died .

On DATE the local police office initiated an investigation into ORG death and found that the trench located on the public road in front of the applicant ’s house had been dug by a contractor of a mobile telephony company for the purpose of instalment of optical cables . The trench was not marked and/or secured in any way .

On DATE ORG decided not to initiate criminal proceedings in respect of the death of PERSON ORG dismissed the applicant ’s appeal while finding that the investigation carried out by ORG had been effective and complete . The decision of ORG was handed to the applicant on DATE .

The parties did not inform the ORG about any other proceedings in the case .