Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano

The applicant was born in DATE and is currently serving a life sentence in GPE .

On an unspecified date the applicant went to ORG headquarters to complete certain procedures regarding the sale of his car and found out that a warrant for his arrest had been issued by ORG .

Subsequently , at TIME on DATE the applicant went to ORG . It appears that at some point he confessed to his involvement in the shooting of a certain GPE and as a result , at TIME he took part in a photo identification procedure . According to a report drawn up by the police and signed by the applicant , the applicant turned himself in and confessed to his involvement in the shooting of GPE , which had taken place in DATE , and identified GPE as his accomplices . There was no record indicating that the applicant had been advised of his rights , including his right to legal assistance and his right to remain silent , under LAW in force at the material time .

At TIME , the applicant participated in a reconstruction of the events ( yer gösterme ) . According to the record drafted by police officers and signed by the applicant , the latter described in detail what steps he had taken before the shooting , how he had shot GPE in DATE in GPE , and how he had left the crime scene . There was no record indicating that the applicant had been advised of his rights , including his right to legal assistance and to remain silent , under LAW in force at the material time .

The police started questioning the applicant at TIME . According to the applicant , he was shown an arrest warrant , dated DATE , in which the offence was indicated as “ breaching PERSON no . MONEY ( LAW ) ” and the deadline stipulated in the statute of limitations was “ DATE ” . In this connection , the police officers told him that the offence for which he was being sought was illegal possession of firearms and explosives contrary to PERSON no . DATE . They said that any statement given by him was merely a “ formality ” , since the time - limit for prosecution of that offence had already expired in DATE . The applicant therefore agreed to give a statement . His statements were transcribed on a pre - printed form . According to this form , he had been reminded of his rights to remain silent and to be represented by a lawyer . It appears that the applicant had refused legal assistance , since the first page of the record includes a pre - printed phrase stating “ No lawyer is requested ” with the applicant ’s signature underneath . He was thus questioned in the absence of a lawyer .

The applicant was accordingly questioned at ORG of ORG about his involvement in the ORG ( ORG of Kurdistan , an illegal organisation ) and the wounding of a certain FAC in DATE . In his CARDINAL - page statement , the applicant admitted to his involvement in the ORG and explained in detail that he had shot GPE upon the instructions of the illegal organisation .

On DATE the applicant was questioned again by the GPE public prosecutor and the investigating judge . According to the statement drawn up during the questioning by the public prosecutor , the applicant had been advised of his rights again . However , the statement he gave was similar to his police statement .

NORP Before the investigating judge , the applicant was advised of his rights again . He stated that he did not want the assistance of a lawyer and repeated the content of his police statement . The investigating judge first ordered the applicant ’s release ; however , following an objection by the prosecutor , he ordered that the applicant be placed in detention pending trial .

On DATE the public prosecutor at ORG filed an indictment with that court and accused the applicant of carrying out activities for the purposes of bringing about the secession of part of the national territory , an offence under LAW . In his indictment , the public prosecutor also indicated that the applicant had turned himself in .

During the hearings before ORG the applicant was represented by a lawyer . At a hearing held on DATE , the applicant gave evidence in the presence of his lawyer and retracted the statements he had made previously . He maintained , in particular , that he had been tricked by the police into giving incriminating statements by being shown a paper in which the time - limit for prosecution of the offence he was accused of committing had expired . He denied his involvement in the shooting and rejected the accusations against him . The applicant further submitted that he did not know the co - accused , GPE , GPE or M.N.A.

During the same hearing , the trial court deemed it necessary to hear from people who had been tried for the same incident in a previous case , no . LOC , namely M.N.A. , PERSON and GPE , with a view to verifying the defence submissions of the applicant and his co - accused , GPE In this connection , the trial court ordered that the necessary steps be taken to find out in which prisons M.N.A. , GPE and PERSON had been held and ordered an enquiry as to their addresses in the event that they had been released from prison . The trial court further ordered that a confrontation take place once the witnesses had been located . It ordered that photographs be taken of the applicant and GPE , CARDINAL from the side and the other from the front , and sent with the reports concerning the case , in the event that M.N.A. , PERSON and GPE were located outside its jurisdiction . If they resided in the centre of GPE , they should be heard in person .

The trial court also ordered that the address of the victim , GPE , be ascertained with a view to bringing him before the court , so that evidence could be taken from him in person .

At a hearing held on DATE , the trial court heard evidence from PERSON as a witness . PERSON said that he neither knew nor had ever seen the applicant and MONEY He did not have direct knowledge of GPE ’s shooting and had given his previous statement as a result of information he had obtained from M.N.A. and PERSON The trial court reiterated its orders concerning M.N.A. , GPE and GPE

At a hearing held on DATE , GPE ’s lawyer submitted a medical report issued by ORG , dated DATE , which stated that M.N.A. suffered from depression . The lawyer accordingly asked the trial court not to call M.N.A. as a witness . The trial court did not respond to that request .

Under PERSON no . CARDINAL of DATE , published in ORG on DATE , ORG were abolished . The case against the applicant was therefore transferred to ORG .

On DATE was questioned by ORG , pursuant to a letter rogatory from the trial court . According to the transcript of the hearing at FAC , M.N.A. was serving a sentence in the PERSON E - type Prison at that time . He explained that in DATE , together with the applicant and a certain GPE , he had received instructions from the ORG and PERSON to shoot GPE Accordingly , while he had secured the area , the applicant and GPE had gone to shoot GPE He had heard gunshots but had not seen GPE being shot . He further identified the applicant and GPE from the photographs . ORG then asked M.N.A. to clarify the inconsistency between the statements he had given to the police and the public prosecutor in DATE and those he had just given to the court . M.N.A. insisted that he was now telling them the correct version of the events . The court reminded him that in his statement of CARDINAL DATE before the public prosecutor he had said that he had not known the accused , and asked him to clarify that point . PERSON then explained that it was because he had been questioned as an accused on DATE . He repeated that he was now telling them the correct version of the events .

On DATE , at the seventh hearing , ORG statement was read out . The applicant objected to the statement , referring to the inconsistency of ORG ’s statements since DATE . GPE lawyer also referred to the medical report in respect of M.N.A. and requested that his statement be considered as unreliable . The trial court did not provide a response to that request . It reiterated its orders concerning GPE and GPE

On DATE the eighth hearing was held , and the trial court again reiterated its orders concerning GPE and GPE

At the ninth hearing on DATE the trial court once again reiterated its orders concerning GPE and GPE

At the tenth hearing on DATE the victim , GPE appeared before the trial court and gave evidence as a witness . GPE submitted that he had not seen the applicant or FAC at the crime scene and that they had not been involved in his shooting . He gave a detailed description of the people who had shot him .

On DATE ORG found the applicant guilty as charged and convicted him on the basis of the case file as a whole , including the record of the reconstruction of the events and the report of the photo identification .

The court accordingly sentenced the applicant to life imprisonment , under LAW , for carrying out activities with the aim of bringing about the secession of part of the national territory .

On DATE ORG quashed the judgment and remitted the case to the first - instance court in order to determine whether the terms of the new LAW , which had entered into force on DATE ( no . DATE ) , were more favourable for the applicant . The case was thus re - examined by ORG in view of the recent legislative changes .

On DATE the applicant ’s lawyer requested that the trial court bring PERSON before the court in order to cross - examine him directly and arrange a physical confrontation between him and the applicant . ORG rejected the request on the grounds that it had already examined and rejected the same request .

On DATE ORG , relying on the same pieces of evidence , once again found the applicant guilty as charged under LAW of LAW and sentenced him to life imprisonment .

The applicant lodged an appeal on DATE , in which his lawyer submitted , inter alia , that ORG ’s statements should not have been taken into consideration given the medical report on his mental state . He further submitted that the applicant had been deceived by the police and asked ORG to declare his statements inadmissible and in contravention of LAW .

On DATE ORG rejected the applicant ’s appeal .


CASE OF SERGIYENKO AND SACHENKO v. UKRAINE

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

André Potocki;Mārtiņš Mits;Síofra O’Leary

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

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law . In application no . DATE the applicant also raised another complaint under the provisions of the Convention .


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

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

ORG ( “ the Government ” ) were represented by their then Agents , ORG and PERSON of ORG .

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

The applicant was CARDINAL of the co - owners of CARDINAL plots of land situated in the city of PERSON . The first plot of land ( “ plot A ” ) measured CARDINAL sq . m and the second plot of land ( “ plot B ” ) QUANTITY . m.

On an unspecified date the applicant initiated civil proceedings with the Korça ORG ( “ ORG ” ) seeking the partition of both plots of land in order to determine the shares of each of the co - owners . The co - owners agreed to the request .

On DATE ORG ruled in favour of the partition of both plots of land . It found that the applicant ’s share consisted of CARDINAL QUANTITY of plot A and QUANTITY of plot B. That decision became final on an unspecified date in DATE , no appeal having been lodged against it .

On an unspecified date in DATE the applicant instituted a second set of proceedings for the partition of both plots of land , requesting allocation of both plots of land to him in view of the fact that he was the owner of the majority of shares . The co - owners contested the applicant ’s request to have both plots of land allocated to him .

On DATE , having regard to the fact that the applicant was the owner of the largest portion of both combined plots of land upon which a multi - storey building could be erected in accordance with the urban study plans , ORG allocated him both plots of land . ORG rejected the other co - ORG request to have plot B awarded to them . Moreover , the court ordered that the applicant pay compensation to all co - owners , in respect of their property shares , in accordance with an expert ’s report .

On an unspecified date , PERSON , CARDINAL of the CARDINAL co - owners of plot B , lodged an appeal with ORG ( “ Court of Appeal ” ) challenging the amount of the compensation paid to him as well as the part of the decision which awarded the applicant plot PERSON He alleged that since the other co - defendants owned QUANTITY of plot B , they should have been awarded plot B. No appeal was lodged by the CARDINAL co - owners of plot A.

On an unspecified date ORG gave notice of the proceedings to the other CARDINAL co - owners of plot B who were involved as parties to the proceedings before ORG .

On DATE the court adjourned the hearing , none of the parties having shown up . Only the representative of CARDINAL co - owners , who also had shares in plot A , was present .

On DATE the court adjourned the hearing , PERSON being absent on the strength of a ( medical ) report . According to the record , CARDINAL co - owners as well as the representative of CARDINAL co - owners , who also had shares in plot A , were present at the hearing .

On DATE the court decided to continue the proceedings . CARDINAL co - owners as well as the representative of CARDINAL co - owners , who also had shares in plot A , were present . The court decided to hear the expert and the parties’ lawyers at the next hearing .

On DATE almost all parties , save CARDINAL co - owner , were present . The court fined the expert for non - appearance at the hearing .

On DATE CARDINAL co - owners as well as the representative of CARDINAL co - owners , who also had shares in plot A , were present at the hearing . The expert , who was questioned by the parties , stated that the CARDINAL plots of land were not connected to each other .

On DATE ORG , having heard the co - owners , dismissed the grounds of appeal of ORG in respect of plot B and upheld the ORG decision as regards both plots . According to ORG ’s share was so small ( CARDINAL sq . m. ) that the award of that property to him would be against its purpose . It pointed to the fact that he had lodged an appeal alone , without being joined by the other co - owners who were parties to the proceedings before ORG . The relevant parts of the decision read as follows :

“ All parties consented , on the whole , to the [ ORG ] decision , with the exception of ORG , who appealed against it only in so far as the first part of the decision is concerned [ that is plot B ] , to which he is a party and has a [ legitimate ] interest ( me këtë vendim të gjykatës , përgjithësisht kanë qenë dakort të gjithë palët përjashto të paditurin V.Q. , i cili ka ankimuar vendimin vetëm për pjesën e parë të tij , ku është pale dhe ka interes ) .

The remaining defendants did not join their forces to claim the plot of land jointly , not least that the remaining defendants , CARDINAL of them , lodged no appeal ( të paditurit nuk i bashkuan pjesët dhe ta kërkonin këtë sipërfaqe të përbashkët , për më tepër të paditurit e tjerë që në numër janë CARDINAL persona , nuk kanë bërë ankim ) .

Out of all defendants , only V.Q. who owns CARDINAL sq . m , lodged an appeal ( prej tyre është ankuar vetëm i padituri V.Q. që si person ka ... dy metra dhe gjashtëdhjetë centimetra katrorë ) . ”

In compliance with ORG decision , on DATE the applicant paid all CARDINAL co - owners compensation corresponding to their respective shares in plots A and PERSON entered his property titles over both plots in ORG on DATE .

On DATE V.Q. , joined by CARDINAL co - owners of plot B , appealed to ORG . CARDINAL co - owner did not sign the appeal . The appellants argued that , even though they had attended the hearings before ORG , this had not been reflected in that court ’s judgment . That the appeal was signed only by PERSON was to be attributed to the lawyer who had lodged the appeal . No appeal was lodged by the CARDINAL co - owners , in respect of plot A , with ORG .

On DATE ORG , sitting as a bench of CARDINAL judges , by majority , quashed the ORG decision in respect of plot B and found , inter alia , as follows :

“ It follows , as also accepted by the courts , that the defendants have sought to retain this plot of land . Their appeal to ORG states that they have the same interest and they jointly claim the plot of land . The appellants own the majority of the plot ( QUANTITY ) . Under these circumstances , contrary to ORG finding , the appellants own the majority of the plot and share the same interest . As they do not seek the partition of that plot , on the basis of the foregoing provision [ referring to LAW ] , the plot should be awarded to the [ CARDINAL ] appellants ( siç ka rezultuar dhe siç pranojnë dhe vetë gjykatat , të paditurit e kanë kërkuar ta mbajnë këtë sipërfaqe . Edhe në kërkesën ankimore , ORG së PERSON i është parashtruar se ata i kanë interest e njëjta dhe e duan pjesën bashkarisht . PERSON , të gjithë të paditurit zotërojnë në këtë sipërfaqe pjesën më të madhe ( CARDINAL/CARDINAL pjesë ) . Në këto rrethana , kur ndryshe nga sa pranon gjykata e PERSON , të paditurit kanë pjesën më të madhe dhe interest e njëjta si dhe nuk kërkojnë t’u pjesëtohet trualli ... pjesa u duhet lënë këtyrë të fundit ) . ”

ORG reasoning that , since GPE [ the applicant ] owns the majority of the plot of land measuring QUANTITY m , the other plot of land measuring QUANTITY . m should be awarded to him for the purpose of constructing a multi - storey building , is erroneous . These plots of land , irrespective of their neighbouring position and of the fact that they have the same owners , should be treated as CARDINAL separate objects which have been subject to the partition proceedings for the sake of judicial economy ( NORP i gjykatës se paditësi GPE ka në pronësi pjesën më të madhe të truallit me sipërfaqe QUANTITY prandaj dhe trualli me siperfaqe CARDINAL mCARDINALI duhet lënë atij për t’u përdorur me qëllim ndërtimin e pallateve shumëkatëshe është i gabuar . PERSON troje , pavarësisht nga pozicioni kufi me njëri - tjetrin dhe nga fakti se kanë pjesërisht të njëjtët bashkëpronarë , duhen trajtuar si dy sende te veçanta që janë pjesëtuar në të njëjtin gjykim vetëm për ekonomik gjyqësore . ) ”

As regards plot A , ORG upheld the ORG of Appeal decision and found that ,

“ In respect of the other plot [ referring to plot A ] , the court ’s decision is just and should be upheld . The applicant obviously owns the majority of the plot , CARDINAL QUANTITY . Even if matters stood differently , any appeal by the other CARDINAL co - owners [ to ORG ] would be time - barred ( rënë në dekadencë ) as they had not lodged an appeal with ORG . In light of the above , plot [ A ] should be allocated to the applicant . ”

ORG held that the appellants in whose favour plot B was allocated were to compensate the applicant in cash for his share . There was no dissenting opinion .

On an unspecified date the applicant lodged a constitutional complaint with ORG . He complained that he had been deprived of his right to a fair trial , referring to the incoherent reasoning in ORG decision . While ORG had ruled that any possible action by the CARDINAL co - owners in respect of plot A would be considered time - barred as they had failed to avail themselves of the appeal to ORG , it had not adopted the same approach with respect to the CARDINAL co - owners as regards plot B , who had not lodged an appeal with ORG , but whose appeal before ORG had been declared admissible and decided in their favour .

On DATE ORG , sitting as a bench of CARDINAL judges , declared the applicant ’s complaint inadmissible . It found that :

“ the [ applicant ’s ] claims do not concern violations that would render the process unfair . They relate to aspects of proof and the determination of the merits of the case , which fall within the jurisdiction of the lower courts . ”

On DATE , ORG refused a request by the applicant for a review of the same court ’s decision of DATE .

Article CARDINAL states that a civil action may be jointly brought by co - claimants against co - defendants provided that they have joint rights and obligations , which have the same basis on points of fact or law .

Article CARDINAL reads , in so far as relevant , as follows :

“ Each party acts on his / her own against the opposing party provided that his / her procedural actions or omissions result in neither damage nor profit to the other parties .

If , owing to the nature of the legal relationship in dispute or because of a legal provision , the effect of the decision to be adopted is to be extended onto all parties , the procedural actions which were carried out by CARDINAL party shall have effect also on other parties who did not appear before the court or did not undertake such actions within the prescribed time - period . ”

Articles CARDINAL - CARDINAL of the Code of Civil Procedure regulate the partition of common or inherited property by virtue of a court decision . The first phase of the partition proceedings consists of a court interim decision which determines the identity of the joint owners , the object to be partitioned and the corresponding parts belonging to each owner . In the second phase of the partition proceedings , the court determines the value of the various objects to be partitioned , after having received a prior opinion of experts . Any inequality in the value of the objects included in the shares is to be compensated in money . The court decides on the financial relationship of the parties arising from their joint ownership .

The relevant provision of the Civil Code reads as follows :

Article CARDINAL

“ The partition of the co - owned object shall be effected by the agreement of all of the co - owners ... When the object is real property , the partition shall be effected by a notarial deed . The partition of the co - owned object corresponds to its division in kind , proportionate to the shares of each co - owner , provided that the partition is possible and does not damage the relevant purpose of the object ...

... When some of the co - owners make a request [ that the object be allotted exclusively to them ] , the court may so order , obliging those co - owners to reimburse other co - owners in relation with the partitioned property the cash amount equivalent to the value of their shares .

In unifying decision no . CARDINAL of CARDINAL DATE ORG clarified the nature of the interim decision given at the conclusion of the first phase of the partition proceedings . It ruled that , given its sui generis nature , the interim decision concerning the first phase of the partition proceedings was final and could not be revisited by the court deciding on the second phase of the partition proceedings .

NORP In decision no . CARDINAL of DATE ( CARDINAL ) , relying on Article CARDINAL of the ORG , ORG ruled that a civil action contesting the amount of compensation in an expropriation case , lodged by CARDINAL co - owner , had effect on all co - owners who did not initially join the co - owner in the first - instance court proceedings or did not carry out procedural acts within prescribed time - limits . In that case , ORG accepted a co - owner ’s civil action , but rejected the appellants’ action on the ground that it had been lodged out of time . ORG , relying on LAW ORG , found a breach of the appellants’ right to a fair hearing and reasoned , inter alia , that the co - owner ’s action should have been regarded as carried out by the appellants , who were the remaining co - owners .


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

The applicant was born in DATE and lives in PERSON .

The applicant was employed with a ORG - owned gambling service provider for DATE .

On DATE the applicant ’s employment was terminated by mutual agreement with effect from DATE . Under this agreement , the employer paid the applicant a gross amount of MONEY ( ORG ) ( MONEY ( ORG ) ) , subject to payroll burdens .

Under new legislation ( see paragraph CARDINAL below ) the severance payment was subsequently taxed at a PERCENT rate in its part exceeding ORG CARDINAL ; the income tax and social security contributions already paid ( see paragraph CARDINAL above ) were deducted from the tax payable . Thus , the applicant paid an additional ORG CARDINAL,CARDINAL,CARDINAL ( QUANTITY ) in special tax on CARDINAL DATE .


Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Reasonable suspicion);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in DATE . He is currently detained in GPE .

NORP The applicant is a journalist who had been working since DATE for the DATE newspaper PERSON , which was viewed as the principal publication medium of the “ ORG ” network and was closed down following the adoption of Legislative Decree no . CARDINAL , issued on DATE in connection with the state of emergency ( see paragraphs QUANTITY below ) . From DATE onwards , he also lectured on comparative politics and NORP political history at a private university in GPE .

In DATE leading up to the attempted military coup of DATE the applicant had been known for his critical views on the serving government ’s policies .

During TIME a group of members of the NORP armed forces calling themselves the “ Peace at ORG ” attempted to carry out a military coup aimed at overthrowing the democratically elected parliament , government and President of GPE .

During the attempted coup , soldiers under the GPE control bombarded several strategic State buildings , including the parliament building and the presidential compound , attacked the hotel where the President was staying , held the Chief of ORG hostage , attacked television channels and fired shots at demonstrators . During TIME of violence , CARDINAL people were killed and CARDINAL were injured .

DATE after the attempted military coup , the national authorities blamed the network linked to PERSON , a NORP citizen living in GPE ) and considered to be the leader of a terrorist organisation known as GPE / PDY ( “ ORG / Parallel State Structure ” ) . Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of that organisation .

On DATE the government declared a state of emergency for a period of DATE as from DATE ; the state of emergency was subsequently extended for further periods of DATE by ORG , chaired by the President , most recently with effect from DATE .

On DATE the NORP authorities gave notice to the Secretary General of ORG of a derogation from LAW CARDINAL .

On DATE , in the course of CARDINAL of the criminal investigations initiated in respect of suspected members of GPE / PDY , the applicant was arrested at his home in GPE and taken into police custody .

On DATE the applicant , assisted by his lawyer , was questioned at ORG . During the questioning the applicant denied that he belonged to an illegal organisation . DATE , the GPE public prosecutor sought a judicial order for the applicant ’s pre - trial detention on suspicion of belonging to an illegal organisation .

On DATE , several editors and columnists of the DATE newspaper GPE , including the applicant , were brought before the GPE CARDINALth ORG . The magistrate questioned the applicant about his alleged acts and the accusations against him . The applicant stated that he had joined PERSON in order to be able to express his opinions ; that he was in favour of a democratic system corresponding to NORP standards ; that he was a secular person ; that he had not been aware of the threat posed by PERSON movement until after the attempted military coup of CARDINAL DATE ; and that he was opposed to any attack on democracy .

At the end of the hearing , the magistrate , taking into account the contents of the articles written by the applicant DATE and finding that they had promoted the terrorist organisation in question , even after DATE ordered his pre - trial detention . He noted in that connection that although criminal proceedings had been instituted against ORG ( the editor - in - chief of PERSON ) before the attempted military coup , the applicant had continued to work for the newspaper and within the organisation ’s media structure . In the reasons given for ordering the applicant ’s pre - trial detention , the magistrate took the following factors into consideration : the strong suspicions against him ; the nature of the alleged offence and the fact that it was among the offences listed in LAW ( “ the ORG ” ) – the so - called “ catalogue offences ” , for which a suspect ’s pre - trial detention was deemed justified in the event of strong suspicion ; the risk of absconding ; the state of the evidence and the risk of its deterioration ; and the risk that alternative measures to detention might be insufficient to ensure the applicant ’s participation in the criminal proceedings .

On DATE the applicant lodged an objection against the order for his pre - trial detention . He argued that there was no justification for detaining him . He also contended that his state of health was incompatible with the conditions in the prison where he was being held . In a decision of CARDINAL DATE the GPE CARDINALth ORG dismissed the applicant ’s objection .

On DATE the applicant lodged a fresh application for his release . In a decision of CARDINAL DATE the GPE CARDINALth ORG rejected the application . In his decision , the magistrate stated in particular that it was an established fact that in order to prepare the ground for a military coup , the instigators needed to create the perception that the leaders of the country concerned were dictators . In his view , the applicant ’s articles accusing the President of GPE of being a dictator and calling for him to leave office had contributed to propaganda of that kind .

On DATE the GPE public prosecutor filed a bill of indictment with ORG in respect of several individuals , including the applicant , who were suspected of being part of the NORP / PDY media network , in particular accusing them , under LAW , CARDINAL and CARDINAL in conjunction with LAW ( “ the CC ” ) , of attempting to overthrow the constitutional order , ORG and the government by force and violence , and of committing offences on behalf of a terrorist organisation without being members of it . The public prosecutor sought the imposition of CARDINAL aggravated life sentences and a sentence of up to fifteen years’ imprisonment on the suspects , including the applicant . As evidence , he produced CARDINAL articles written by the applicant in DATE and DATE .

NORP The public prosecutor submitted that the articles by the applicants and other individuals being charged in the same criminal proceedings against leading members of GPE / ORG ’s media wing could not be regarded as an expression of the ORG opposition to or criticism of the government . In the applicant ’s case , the public prosecutor contended that the expressions he had used had gone beyond the limits of freedom of the press in that they had undermined the rights of the official authorities and endangered social peace and public order . The public prosecutor found that the applicant had not hesitated to call for a possible military coup in his articles and , in short , had discharged functions serving the interests of the terrorist organisation in question .

During the criminal proceedings , the applicant denied having committed any criminal offence .

The criminal proceedings are currently pending before the GPE CARDINALth ORG .

On DATE the applicant lodged an individual application with ORG . He complained that he had been placed in pre - trial detention on account of his articles and alleged that this infringed his right to liberty and security and his right to freedom of expression and of the press . He also contended that his state of health was incompatible with the conditions of his continued detention since he was suffering from benign prostate hyperplasia , hyperlipidaemia , hyperuricemia , a multinodular goitre and sleep apnoea . On that account he asked ORG to indicate an interim alternative measure to detention , thus allowing him to be released pending trial .

In a decision of CARDINAL DATE ORG refused to apply an interim measure of that kind . In reaching that decision , it noted firstly that the applicant ’s health had been regularly monitored from the start of his pre - trial detention , and that there was a ORG hospital inside the prison where he was being held . In that connection , it noted that on DATE , following a request he had made to that effect DATE , the applicant had been examined in prison by a general practitioner and had then been transferred to the urology department of the ORG hospital , where he had undergone a medical examination on DATE , and that his next appointment had been scheduled for DATE . In those circumstances , ORG found that keeping the applicant in pre - trial detention did not currently constitute a danger to his life or health . It added that should there be a change in his health or the conditions of his detention , he would be entitled to make a further application for an interim measure to secure his release .

On DATE the Constitutional Court gave a judgment ( no . CARDINAL/CARDINAL ) in which it held , by CARDINAL votes to CARDINAL , that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press .

With regard to the applicant ’s complaint concerning the lawfulness of his pre - trial detention , ORG noted firstly that the evidence forming the basis for his detention had included : ( i ) an article entitled “ As if it were a religious war ” ( “ PERSON ” ) , published on DATE ; ( ii ) an article entitled “ The President must not remain a spectator ” ( “ Cumhurbaşkanı Seyirci Kalamaz ” ) , published on DATE ; ( iii ) an article entitled “ Between PERSON and the LOC ” ( “ FAC ile ORG ” ) , published on DATE ; ( iv ) an article entitled “ Yes , both the crime and the punishment are individual ” ( “ ORG ” ) , published on DATE ; ( v ) an article entitled “ This nation is not empty - headed ” ( “ PERSON Değildir ” ) , published on DATE ; and ( vi ) an article entitled “ The solution is a government without GPE ” ( “ PERSON Erdoğan’sız GPE ” ) , published on DATE . After examining the substance of these articles , ORG found that they mainly dealt with matters relating to the “ DATE [ DATE ] ” criminal investigations . In them the applicant had set out his opinion that the government members implicated in the criminal investigation in question should be brought to justice and that it was the responsibility of the President and the ruling party ’s leaders to take action to that end . He had contended that the government ’s reaction to the investigation had been unjust . ORG also observed that the applicant had written that if the investigation in question had been carried out on the orders of suspected members of GPE / PDY , they too should be the subject of a criminal investigation . However , he had maintained that it was unfair to accuse all members of the ORG movement . ORG further noted that in the articles in question , the applicant had not argued that the government should be overthrown by force . On the contrary , he had asserted that the ruling party would lose in the next elections . ORG also found that the article published DATE before the attempted military coup suggested that the applicant was opposed to coups d’état . It held that he had been expressing opinions on a topical issue that were similar to those of the opposition leaders . In ORG view , the investigating authorities had been unable to demonstrate any factual basis that might indicate that the applicant had been acting in accordance with the aims of GPE / PDY . It added that the fact that he had expressed his views in PERSON could not in itself be deemed sufficient to infer that the applicant was aware of that organisation ’s goals . Accordingly , it concluded that “ strong evidence that an offence had been committed ” had not been sufficiently established in the applicant ’s case . Next , ORG examined whether there had been a violation of the right to liberty and security in the light of LAW ( providing for the suspension of the exercise of fundamental rights and freedoms in the event of war , general mobilisation , a state of siege or a state of emergency ) . On this point , it noted firstly that in a state of emergency , the LAW provided for the possibility of taking measures derogating from the guarantees set forth in LAW , to the extent required by the situation . It observed , however , that if it were accepted that people could be placed in pre - trial detention without any strong evidence that they had committed an offence , the guarantees of the right to liberty and security would be meaningless . Accordingly , it held that the applicant ’s pre - trial detention was disproportionate to the strict exigencies of the situation and that his right to liberty and security , as safeguarded by LAW , had been breached .

Next , with regard to the complaint concerning freedom of expression and of the press , ORG observed that the applicant ’s initial and continued pre - trial detention on account of his articles amounted to interference with the exercise of that right . Taking into account his arguments regarding the lawfulness of his pre - trial detention , ORG held that such a measure , which had serious consequences since it resulted in deprivation of liberty , could not be regarded as a necessary and proportionate interference in a democratic society . It further noted that it could not be clearly established from the reasons given for ordering and extending the applicant ’s pre - trial detention whether the measure met a pressing social need or why it was necessary . Lastly , it found that it was clear that the applicant ’s pre - trial detention could have a chilling effect on freedom of expression and of the press , in so far as it had not been based on any concrete evidence other than his articles ( see paragraph CARDINAL of ORG judgment ) . Regarding the application of LAW , it referred to its findings concerning the lawfulness of his pre - trial detention ( as set out in paragraphs CARDINAL of ORG judgment – see paragraph CARDINAL above ) and held that there had also been a violation of freedom of expression and freedom of the press as enshrined in Articles CARDINAL and CARDINAL of the LAW .

With regard to the applicant ’s complaint that the conditions of his detention were incompatible with respect for human dignity , ORG noted that he had access to the treatment required for his condition within the prison where he was being held , and declared this complaint inadmissible as being manifestly ill - founded .

The applicant did not submit a claim for compensation in respect of non - pecuniary damage . Accordingly , ORG made no award under that head . The applicant claimed an unspecified sum in respect of the pecuniary damage he had allegedly sustained . ORG found no causal link between the violation established and the damage alleged on that account and dismissed the claim . However , it held that the applicant was to be awarded CARDINAL Turkish liras ( TRY – MONEY ( ORG ) ) in respect of costs and expenses .

As the applicant was still in pre - trial detention on the date of delivery of its judgment , ORG decided to transmit the judgment to the GPE CARDINALth ORG so that it could take “ the necessary action ” .

On DATE the applicant ’s lawyer applied to the GPE CARDINALth ORG for his client ’s release .

On DATE , the GPE CARDINALth ORG rejected the application , on the grounds that it had not yet received official notification of ORG judgment .

On DATE the GPE CARDINALth ORG , having observed that ORG judgment had been published on its website , examined of its own motion the question of the applicant ’s pre - trial detention . Noting firstly that the examination of the merits of an individual application to ORG against a judicial decision entailed determining whether there had been a violation of fundamental rights and what measures would be appropriate to put an end to the violation , and secondly that grounds of appeal on points of law could not be examined by ORG in the context of an individual application , it found that ORG did not have jurisdiction to assess the evidence in the case file . On that account , ORG judgment no . CARDINAL/CARDINAL was not in compliance with the law and amounted to usurpation of power ( görev gasbı ) . Regarding the effects of ORG judgments , ORG added that only judgments that were in accordance with the LAW and the law should be deemed to be final and binding . It noted , moreover , that more extensive reasoning could be given to justify keeping the applicant in pre - trial detention and that the file contained sufficient evidence against him in that regard . However , this would create the risk of prejudging the case ( ihsas - ı rey ) , seeing that a detailed explanation of the reasons justifying continued detention could be seen as an expression of the judges’ opinions before they had determined the merits of the case . Accordingly , ORG held that it was impossible to accept ORG judgment . Lastly , reiterating that the judgment in question amounted to usurpation of power , it held , by CARDINAL votes to one , that there was no need for it to give a decision on the applicant ’s pre - trial detention .

The judge in the minority observed in his dissenting opinion that he agreed with the majority ’s conclusion that ORG judgment was not in compliance with the law . However , noting that ORG judgments were final and binding on ORG , he expressed the view that the applicant ’s release should be ordered .

On DATE the applicant lodged an objection with a view to securing his release .

In a decision of CARDINAL DATE the GPE CARDINALth ORG unanimously dismissed the applicant ’s objection , essentially on the same grounds as the CARDINALth ORG had done .

On DATE the applicant lodged a further individual application with ORG . Relying on DATE , DATE and DATE of the Convention , he complained mainly that he had been kept in pre - trial detention despite ORG judgment of DATE .


Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom to impart information);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

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

The applicant is a non - governmental organisation that publishes ORG Iskra , a newspaper in LOC . As of DATE , the PERSON branch of ORG of GPE and the PERSON branch of ORG of GPE , a nationwide movement , were listed as the applicant organisation ’s founders . This information was specified on the front page of the newspaper .

Pursuant to the ORG of incorporation , the founders were in charge of setting up an editorial board and determining the editorial policy ; in the case of disagreement on the editorial policy the matter was to be resolved by a meeting of the ORG representatives .

During the election campaign for ORG , the lower chamber of ORG , on DATE , the applicant organisation expressed to ORG of GPE ( see paragraph CARDINAL below ) its intention to accept proposals for publication for a fee and , as required by law , published the fees applicable to the publications on behalf of political parties ( MONEY ( RUB ) per page ) . The applicant organisation specified that the above fee “ was not applicable to the newspaper ’s founder ” . The applicant organisation signed a contract with ORG for this purpose for publications on CARDINAL , DATE , DATE and DATE . The contract mentioned a fee of RUB CARDINAL per page ; the total amount of the contract was RUB CARDINAL for CARDINAL pages . Some of the publications in the applicant organisation ’s newspaper on these dates did mention the ORG ’s sponsorship , others did not ( see paragraph CARDINAL below ) .

Apart from the publications mentioned above , on CARDINAL and CARDINAL DATE the applicant organisation ’s newspaper also published , in the same DATE issues , CARDINAL articles written by its staff correspondent , PERSON Both articles were critical of Mr Stroyev , the then governor of GPE and the former Chairman of ORG ( the upper chamber of ORG ) . Governor PERSON was a candidate at those elections : he was no . CARDINAL on the regional list of GPE ( ORG ) , a political party aligned with President PERSON and dominant in ORG . ORG was CARDINAL of the main opposition parties at those elections .

The first article was entitled ‘ Hatred , PERSON style’ . It can be summarised as follows . It described Governor PERSON as a person consumed by hatred towards people who oppose him . The journalist referred to the decision of the governor to wind up a publicly owned newspaper , PERSON . According to journalist PERSON , that decision was a direct consequence of a conflict between Mr PERSON and the newspaper ’s former editor - in - chief who kept criticising PERSON ’s policies . The speaker of the municipal council , who was politically weak owing to a corruption scandal involving municipal land , was unable to oppose the decision of the governor to close the newspaper . Most of the regional journalists under PERSON became servile ; those few who , like the editor - in - chief of PERSON , remained independent and refused to flatter Mr PERSON , were subjected to pressure and fell victim to Mr PERSON ’s hatred . The article then turned to the story of CARDINAL deputies of the regional legislature . They were elected as members of ORG and were originally in opposition to Mr PERSON , but later they both became members of GPE . CARDINAL of them was a businessman . The author suspected that the first deputy had changed political sides because of very serious pressure exerted by the PERSON administration on local businessmen . The second deputy was a history professor . The article suggested that his decision to leave ORG was also forced . The journalist ironically supposed that in fact Mr PERSON did not want GPE to win the elections , since he was doing everything to make the electorate angry with the ruling party . In DATE the town population voted in large numbers for ORG , which was in fact a vote of disapproval of Mr PERSON ’s policies . However , the journalist supposed that Mr PERSON ’s personal interests always prevailed over those of ORG . The town mayor tried to protect himself by joining GPE , but this was a weak defence against Mr PERSON ’s hatred . The only people Mr PERSON loved and defended were his own relatives and protégés . The article cited the example of Mr PERSON ’s nephew , a businessman suspected of abuse of public funds and fraud . His case was still pending ; the article suggested that regional law - enforcement agencies being discouraged from pursuing the investigation actively . The article then turned to the dismissal of the head of the regional public ORG , who reported on abuses of funds allocated for road maintenance . The newly appointed head of ORG , who was Mr PERSON ’s man , came to the opposite conclusion , namely that the manipulation of the road funds had been perfectly in order . Nevertheless , the money had been spent ; as a result , the federal authorities had had to allocate additional funds for road maintenance in LOC . Mr PERSON tried to get credit for that funding , but it was not GPE money that had been used , as they claimed , but DATE . In the opinion of the author , by trying to present the whole situation as his personal achievement Mr PERSON was making a fool of President PERSON and of the population of LOC .

The article had a long post - scriptum . It cited ORG findings in the case of GPE v. GPE ( no . PERSON , judgment of CARDINAL DATE ) . That case concerned a defamation claim lodged by a governor of another NORP region against a journalist of a local newspaper . The case ended with a finding of a violation of LAW by the ORG . The author alluded to similarities between her criticism of PERSON ORG ’s policies and the situation in the PERSON case .

The second article was entitled ‘ ORG sues people : people sue CARDINAL . It also concerned several topics . It opened with the statement that the electorate of PERSON did not trust the authorities and at the DATE and DATE elections preferred to support ORG . Next , it touched upon the story of PERSON . , a former forest inspector who was dismissed from her job as a result of a reorganisation of the forestry authority . CARDINAL other workers of the forest authority also lost their jobs . The article alleged that the reform of the forest authorities was initiated by Governor PERSON in breach of federal legislation . It suggested that the reform was driven by the need to facilitate industrial tree - cutting . Ms ORG . sued the regional authorities , and at the relevant time the proceedings were pending . However , in the opinion of the journalist , there was little hope for impartiality on the part of the regional courts . The article then turned to the case of PERSON , who had made statements critical of the governor during a public rally and had been prosecuted for slander . The article then analysed recent public statements of the governor , who had criticised the policy lines of former President PERSON , whereas he himself during that period had been Chairman of ORG , and therefore the second most important statesman in the country . According to the journalist , the proceedings in the case of PERSON PERSON were adjourned , probably because Governor PERSON wanted to avoid a scandal before the date of elections . The article closed with the suggestion that President PERSON should not have associated himself such controversial figures as Governor PERSON .

On DATE ORG of the regional ORG examined both articles . ORG concluded that the articles contained elements of electoral campaigning ( агитация ) . ORG concluded as follows :

The publications contained “ negative , purposeful , systematically published information about a member of ORG GPE political party ... PERSON E. Stroyev . The above - mentioned publications have created a negative attitude on the part of the voters towards ... GPE . Although the text of the articles does not call for people to vote for or against GPE , all the electorate understand that this is in fact counter - campaigning [ against Mr PERSON ] ” . The publications “ did not correspond to the current information policy of the organisations editing mass media ” , which ( the policy ) was “ aimed at informing the voters about the development of the electoral campaign ... [ and ] about the political parties participating in it ” . Those articles , in the opinion of ORG , fell “ outside the information space created by the political parties during the ongoing electoral campaign ” . The publication of those articles was not paid for from the official campaign fund of any party participating in the campaign , contrary to section CARDINAL § CARDINAL of LAW of DATE .

Consequently , in the opinion of ORG , publication of those articles amounted to a breach of electoral law punishable by a fine in accordance with Article CARDINAL.CARDINAL of LAW ( ORG ) .

The official of ORG compiled an administrative offence record against the applicant organisation , referring to the legislative provisions defining “ campaigning ” ( see paragraph CARDINAL below ) :

“ [ The applicant organisation ] has committed an administrative offence : publications on CARDINAL and CARDINAL DATE containing elements of election campaigning as defined in sections CARDINAL and CARDINAL § CARDINAL(CARDINAL ) of ORG Elections Act ” ...

Liability for this offence is prescribed under : Article CARDINAL § CARDINAL of the ORG . ”

The case was then submitted to a justice of the peace . On CARDINAL DATE the justice of the peace examined the case . At the hearing the editor - in - chief of the newspaper explained that both articles were informational in essence and were not a part of the election campaign . They reflected the author ’s opinion of Governor PERSON . Consequently , there was no need for those articles to be paid for from any candidate ’s campaign fund .

The judge held that , according to ORG , taken in conjunction with LAW , “ election campaigning ” meant publications where information about one of the candidates prevailed and was combined with negative comment about him or her . Having studied the impugned articles the judge agreed with ORG that they primarily concerned candidate PERSON , and secondly were negative . The judge concluded that those articles were in substance election “ campaigning ” . Such material should either have been paid for from the campaign fund of CARDINAL of the candidates or have been published free of charge ; in any event , the newspaper had been required to indicate who had sponsored the publication . No such mention had been made in the articles . Consequently , the publication of both articles amounted to a breach of the electoral law . The applicant organisation was therefore found guilty of the administrative offence described in Article CARDINAL § CARDINAL of the Code of Administrative Offences of DATE ( hereinafter “ the CAO ” ) . The justice of the peace ordered the applicant organisation to pay a fine of MONEY ( RUB , equivalent to MONEY ( ORG ) at the time ) .

NORP The applicant organisation appealed to the Zheleznodorozhny ORG of Orel . On DATE it heard the applicant organisation ’s representatives and rejected the appeal . The relevant extract from the judgment reads as follows :

“ Having regard to the fact that the publication of the above articles took place during an election campaign period , the judge considers that the above - mentioned articles contained elements of election campaigning , and therefore could be described as campaign literature . This conclusion is supported by the words of the representatives of the newspaper ... who acknowledged that the articles contained criticism of Governor PERSON ... ”

The appeal decision entered into legal force on DATE .

On unspecified dates the applicant organisation received a copy of this decision and lodged a supervisory - review application with the President of ORG . The scope of that application remains unclear .

Without holding a hearing , on DATE the acting president of the court issued a decision dismissing the application . The reasoning of the decision of the acting president was identical to that of the lower courts . On an unspecified date the applicant organisation received a copy of the acting president ’s decision .

NORP The applicant organisation then lodged a supervisory - review application with the President of ORG . The scope of this application remains unclear . On DATE the Vice - President dismissed it . On an unspecified date the applicant organisation received a copy of this decision .

On an unspecified date the applicant organisation introduced an individual application before ORG , arguing that the impugned provisions of LAW and ORG ran counter to freedom of the press . The Acts de facto regarded any critical material published during a pre - election period as “ campaigning ” , and imposed additional requirements on such publications .

By a letter of DATE ORG informed the applicant organisation that its application was not allowed because , in substance , it was merely challenging the factual and legal findings made by the courts in the administrative offence case .

On an unspecified date the applicant organisation resubmitted its application to ORG . On DATE a panel of judges of ORG issued a decision ( определение ) refusing examination of the application . It held as follows :

“ In its ruling of DATE ORG made the following statement of principle concerning a distinction between information for voters and pre - election campaigning . To protect the right to free elections , freedom of expression on the part of the mass media may be restricted , provided that the balance of constitutional values has been respected ...

[ LAW ] distinguishes between information for voters appearing in the mass media and pre - election campaigning by them . Both information and campaigning can influence voters to make certain choices , thus the obvious and only criterion to distinguish between them would be the existence of a particular aim , namely to incline voters to support or oppose a certain candidate ... Without such an aim in mind there would be no dividing line between information and campaigning , to the effect that all information would amount to campaigning . This would go against the constitutional guarantees of freedom of information and freedom of expression ...

It is incumbent on the courts and other authorities to establish that there is a campaigning aim in each case ... Thus , in view of the above statement of principle , the impugned legislative provisions can not be considered to have violated the applicant organisation ’s rights or freedoms ... Establishment of the specific circumstances ( whether or not the information provided by the applicant organisation concerned the electoral campaign rather than the reporting on the candidate ’s professional activity as a governor ) are beyond of ORG competence ... ”


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE .

According to the applicant ’s medical history he has suffered from various mental conditions since DATE and has been admitted to hospital and treated in various psychiatric facilities several times . The applicant ’s records contain information on alcohol abuse , suicide attempts , threats of violence against neighbours and medical professionals , and about a number of organic , psychiatric and personality disorders , including psychosis and paranoia .

DATE the applicant was taken to hospital CARDINAL times following suicide attempts , alcohol - induced paranoia , claims of unspecified murder threats , claims about explosives planted in various public places and threats to neighbours that he would blow up a petrol canister .

According to a report issued on DATE by the local ambulance service the applicant called for emergency assistance at his home CARDINAL times in DATE ( CARDINAL times on DATE alone ) . On each occasion there was no apparent reason for the call . The applicant behaved aggressively towards medical personnel , made sexual advances to female doctors and consumed alcohol in their presence . The service requested a police escort for further visits to his address . They stated that visits to the applicant meant there were delays in providing assistance to people who were in genuinely life - threatening situations and presented a danger to ambulance staff .

According to a police report of DATE the applicant contacted the police CARDINAL times in DATE alleging that nomadic tribes had attacked him , that he had found an unexploded Second World War shell , and that explosives had been placed at an industrial facility . The applicant ’s alerts were acted upon and found to be groundless .

On DATE the applicant was admitted without his consent to ORG no . CARDINAL ( GPE больница № CARDINAL г. ORG ) ( “ the hospital ” ) . The grounds for his admission were repeated , groundless telephone calls to the police about the presence of explosives at an industrial facility , a series of calls to the emergency medical services with offers of sexual services to female doctors , as well as threats of violence against ambulance staff . The applicant refused to be treated or admitted to hospital voluntarily .

On DATE a panel composed of the hospital ’s resident psychiatrists examined the applicant and his medical history and diagnosed him with an organic mental disorder coupled with a psychiatric and paranoid personality disorder . The panel also found that the applicant was a danger to himself and others and that there was a risk of significant damage to his health due to the likely deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance . The relevant parts of the panel ’s report read as follows :

“ The patient had a habit of intoxicating himself heavily with alcohol , and suffered from a cranial trauma . Psychiatric disorders since DATE . Clinical history [ shows ] behavioural problems including affective instability , querulous ideas about his own relevance and persecution amounting to delusions . [ He ] has been frequently treated in psychiatric facilities owing to aggressive and auto - aggressive habits in the context of acute morbid emotional experiences . Admissions to hospital were , as a rule , ‘ involuntary’ .

In the course of clinical development the organic defects have become predominant manifesting themselves through circumstantiality , a coarsening of emotions , and the exacerbation of his querulous tendencies . The current admission is due to inappropriate behaviour : informed the police that explosives had been planted somewhere , conflicts with [ nomadic tribes ] , called for emergency medical services and when they arrived threatened the personnel , behaved improperly towards women .

During examination – fully aware of his surroundings , answers questions in detail . ‘ ORG . Believes that he is being persecuted by police because he is ‘ a person of the NORP era , and they do not want to work’ , shows an uncritical attitude towards [ his ] own behaviour , does not correct ideas of own relevance and persecution . Denies perceptual illusions .

Having regard to the lack of a critical attitude towards his improper behaviour , the presence of ideas about his own relevance and persecution , [ it ] can be concluded that he falls under LAW ( a ) and ( c ) of the PERSON of ORG and Guarantees of Citizens’ Rights Related to Its Administration of DATE ( “ LAW DATE ” ) . ”

On DATE the hospital applied for a court order for the involuntary placement of the applicant in a hospital under LAW ( a ) and ( c ) of LAW DATE as the applicant was a danger to himself and others and risked significant damage to his health from a likely deterioration or aggravation of his condition if there was no psychiatric treatment .

On DATE the Primorskiy ORG of GPE ( ORG районный суд г. ORG ) granted the application to admit the applicant to hospital without his consent . The hearing was attended by the applicant , a court - appointed lawyer , PERSON , the psychiatrists , and the prosecutor . During the hearing ORG examined the applicant ’s medical history and heard the testimony of the psychiatrists , who referred to severe alcohol abuse , erratic behaviour , frivolous calls to the police , and threatening conduct towards medical personnel . The trial record indicates that during the hearing the applicant claimed that informing the police about the alleged presence of explosives at a factory was his civic duty , complained about hospital regime and facilities and referred to his friendship with certain media personas in GPE .

The relevant parts of the court order authorising the applicant ’s treatment read as follows :

“ ... The recommendation for admission to hospital was issued ... due to the presence of a severe psychiatric disorder , which can cause significant damage to [ his ] health due to a deterioration or aggravation of the psychiatric condition in the absence of psychiatric help .

Mr PERSON did not consent to his admission to hospital since he refused treatment .

On DATE he was examined by a panel of psychiatrists , who established that [ he is ] aware of his surroundings , answers questions in detail , believes that he is being persecuted by the police because he is ‘ a person of the NORP era , and they do not want to work’ , shows an uncritical attitude towards [ his ] behaviour , does not correct his ideas of his own relevance and persecution , denies perceptual illusions . On the basis of their observations the panel concluded that the treatment of Mr PERSON as an inpatient is necessary . The court has no grounds to doubt the conclusions of the panel ’s report . There is no evidence to the contrary .

Having considered the evidence in the case , having heard the opinion of the doctors , of the lawyer , PERSON , who considered inpatient treatment to be reasonable , and the opinion of the prosecutor ... the court concludes that the application of the ORG ’s chief physician is well - founded because Mr PERSON suffers from a severe disorder which indicates a risk of significant damage to [ his ] health due to a deterioration or aggravation of his psychiatric condition in the absence of psychiatric help . ”

On DATE the applicant was formally discharged from hospital after an improvement in his mental health .

On DATE the applicant , represented by Mr PERSON , a lawyer practising in GPE , lodged an appeal against the order of CARDINAL DATE , stating , inter alia , that the legal aid lawyer PERSON had failed perform her functions properly . On DATE the applicant left hospital .

On DATE the applicant ’s appeal was summarily dismissed in a short decision by GPE ( ORG городской суд ) . The relevant parts read as follows :

“ ... In granting the application the [ lower ] court concluded that there were good reasons to place Mr PERSON in hospital against his will .

The court ’s conclusion relied on the evidence that had been submitted to it ... [ It is ] proven by the report of the panel of the ORG ’s resident psychiatrists , which describes Mr PERSON ’s condition and confirms the existence of a severe psychiatric disorder indicating a risk of significant damage to [ his ] health due to a deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance .

The arguments in the statement of appeal that legal aid lawyer PERSON did not duly discharge her professional functions may not serve as a ground for annulment of the order , which is lawful on the merits ... ”

Nothing in the materials available to the ORG suggests that the applicant had ever been restricted in his legal capacity or appointed a legal guardian .


CASE OF BONDARENCO v. THE REPUBLIC OF MOLDOVA

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

The applicant was born in DATE and lives in GPE .

NORP In DATE ORG let an apartment to the applicant . In DATE ORG declared the building in which the applicant had been renting the apartment to be under threat of collapse and on an unspecified date it was demolished . The applicant brought an action against ORG seeking the allocation of an apartment in lieu of the old CARDINAL .

By a final judgment of DATE ORG ruled in favour of the applicant and ordered ORG to provide her with an apartment .

DATE she lodged numerous complaints about the failure to enforce the judgment in her favour to no avail . The judgment of DATE of ORG has not been enforced to date .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);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);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed

George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

On DATE the applicant company entered into a contract with a sole trader , PERSON , to jointly operate a billiards club . The contract stipulated , in particular , that the sole trader would operate the club against an undertaking on the part of the applicant company to supply the club with alcohol . The contract also made provision for the manner in which profits would be shared between the parties , and set out penalties in case of breach .

On DATE the applicant company obtained a licence to sell alcoholic beverages in the billiards club .

On DATE the applicant company entered into a similar contract with another sole trader , PERSON , for the joint operation of an electronic games club . At that time the applicant company had already obtained a licence to sell alcoholic beverages in that club .

Both the billiards club and the electronic games club were operated in LOC leased by the applicant company .

On DATE the tax authorities carried out an inspection at the billiards club . They found that the sole trader , PERSON , was selling alcohol without the requisite licence . DATE , DATE , the authorities drew up a report accusing her of trading in excise goods without the requisite licence , contrary to section CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) , and impounded the alcohol ( CARDINAL bottles ) that they had found in the club . The applicant company was not notified of those events .

On DATE PERSON objected to the report , saying she had been selling the alcohol on behalf of the applicant company , which had a licence to do so . She further claimed that the impounding had been unlawful .

On DATE the regional tax director dismissed the objection , observing that the impounding could not be challenged separately as it had been ancillary to the opening of administrative - penal proceedings and had amounted to a measure intended to prevent tampering with evidence . On an appeal by PERSON , on DATE ORG upheld that decision , finding that the impounding could not be challenged in separate judicial review proceedings ; only the penal order which would conclude the administrativepenal proceedings was capable of being challenged by way of judicial review .

In the meantime , on DATE the regional tax director issued a penal order against ORG The penalties imposed thereby were a fine and forfeiture of the impounded alcohol . The applicant company was not served with a copy of the order .

Ms GPE sought judicial review of the order . On DATE the applicant company applied to intervene in the proceedings as a third party , arguing that it was the owner of the forfeited alcohol . DATE , DATE , ORG discontinued the judicial review proceedings , finding that ORG application was out of time .

A subsequent appeal by the applicant company against the discontinuance was rejected by ORG on DATE on the grounds that , not being a party to the proceedings , the company did not have standing to appeal against their discontinuance . On an appeal by the applicant company , in a final decision of CARDINAL DATE ORG upheld that decision , holding that the company did not have standing to intervene in the proceedings . The court found it irrelevant to now discuss whether or not the company could have claimed to be a victim of the administrative offence . Ensuing attempts by the company to obtain reopening of the proceedings were unsuccessful .

On DATE the tax authorities carried out an inspection at the electronic games club jointly operated by the applicant company and Ms FAC They found that PERSON was selling alcohol without the requisite licence . DATE , DATE , they drew up a report accusing her of trading in excise goods without the requisite licence , contrary to section CARDINAL ) of the Excise Act DATE ( see paragraph CARDINAL below ) . They impounded the alcohol ( fortysix bottles ) that they had found in the club . The applicant company was not notified of those events .

Ms V.G. sought judicial review of the impounding , arguing that she had been selling the alcohol on behalf of the applicant company , which had a licence to do so . On DATE ORG rejected her application as inadmissible , holding that the impounding could not be challenged in separate judicial review proceedings ; only the penal order which would conclude the administrativepenal proceedings was capable of being challenged by way of judicial review .

In the meantime , on DATE the regional tax director issued a penal order against PERSON The penalties imposed thereby were a fine and forfeiture of the impounded alcohol . The applicant company was not served with a copy of the order .

The sole trader sought judicial review of the order .

At a hearing held on DATE the applicant company applied to intervene in the proceedings as a third party , arguing that it was the owner of the forfeited alcohol . However , ORG turned its application down , finding that it had not been party to the administrative - penal proceedings . It held that the business relations between the applicant company and PERSON were irrelevant for the proceedings . It also instructed the applicant company to bring separate proceedings in the civil courts .

On DATE ORG upheld the penal order . It found that the alcohol had been properly forfeited . It reiterated that considerations concerning the business relations between PERSON and the applicant company were irrelevant for the administrativepenal proceedings . ORG upheld that judgment in a final judgment of DATE .


CASE OF TAVARES DE ALMEIDA FERNANDES AND ALMEIDA FERNANDES v. PORTUGAL

Remainder inadmissible (Article 35-3 - Ratione personae);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque

The applicants are husband and wife . They were both born in DATE and live in GPE .

The first applicant is a well - known journalist in GPE . At the time in question he was the editor of the DATE newspaper ORG .

On DATE the newspaper published an editorial written by the first applicant entitled “ The strategy of the spider ” ( “ A estratégia da aranha ” ) ; the editorial addressed the election of the President of ORG , which had taken place DATE . The article expressed the first applicant ’s opinion of the newly elected President , Judge PERSON , and on what his election meant for the NORP judicial system . The first applicant ’s editorial reads as follows :

“ The strategy of the spider

ORG , the man who will be presiding over ORG , represents the dark side of our judiciary .

Do you want a symbol , a representative , an exemplar of the wrongs of the NORP judicial system ? That ’s easy : simply mention the name of ORG and all the wrongs you can think of regarding corporatism , conservatism , atavism , manipulation , games of shadows and influence immediately DATE to mind .

The judge DATE because we are talking about a judge DATE is a man as intelligent as he is NORP . For DATE , first in ORG [ PERSON dos GPE ] , then [ as a member of ] ORG of the ORG [ FAC hereinafter “ LOC ] , and lastly [ sitting on ] ORG , this person DATE of whom the majority of NORP people have never heard – has been weaving a web of connections , of back - scratching , of favours and undertakings ( there is an even worse word , but I will avoid it ) which enabled him DATE to stick into his somewhat tousled mane the peacock feather he has been lacking : the presidency of ORG . The position is not worth very much ( who , among the readers , knows that the current president of that court is , formally , the fourth - highest - ranking figure of ORG ? ) . It carries some sinecures , perhaps some perks ... but it has little effective power .

The problem , however , lies in this question : has , or will have [ effective power ] ? The gentlemen judges , who some time ago engaged in a dispute with [ the judges of ] ORG to determine who occupied the more important place in the hierarchy ( those of ORG won ... but gave to those of ORG the consolation of having at their disposal a high - end car ... ) are n’t even much respected . [ That is ] their own fault , as it is known that they occupy their seats in ORG only for DATE in order to beef up their pensions . The president of that giant college of most reverend judges has had little power ; [ however , ] ... ORG presented himself to the voters DATE that is to say , to his peers , and those whom he helped to promote to a position from which one day they would be able to elect him DATE under the kind of manifesto which makes the hair of the most peaceful citizen stand on end . The man did n’t do this out of the goodness of his own heart : at the same time that he was acting as a trade unionist ( he asked for an increase in his salary and that less work be given to judges ... ) he acted as someone who wanted to overthrow the regime ( by wanting to sit on ORG [ LOC ] ) and added the glittering ( due to the amount of accumulated tallow ) hat of “ resister ” of reforms in the judicial sector . If it was advisable for a President of ORG to pay greater attention to PERSON and the principle of the separation of powers than to the playbook of the ORG [ ORG ] , ORG did exactly the opposite . He laid out his demands in the grandiose manner of a steelworker in a futuristic “ socialist realism ” painting , forgetting that he is a judge and the highest representative of the third [ branch of government ] , the judiciary , and claimed a place at the table of the “ first [ branch ] ” , the executive . It is true that the power of ORG is as innocuous as the plume of being president of ORG , but the claim has in itself CARDINAL perversities . Firstly , it is a sign that ORG cares more about his public prominence than the problems of justice . Secondly , and much more serious , the man is volunteering himself to be the face of a group of judges [ that is ] against the reforming decisions of those holding political power which are currently the subject of a broad consensus between the government party and the main opposition force .

It is so pathetic as to make one laugh , were we not in GPE and if we did not understand how the strategies of the spiders work . The man , I believe without fear of contradiction , is so intelligent and skilful as to be dangerous . But he already has an opponent : the new Attorney - General of the Republic , P.M. , CARDINAL of the rare people to have had the courage to stand up to him . ”

There was coverage of the election in DATE and following it in various articles in the national press . CARDINAL of those articles , published in Público on DATE , was an interview with a member ( juiz conselheiro ) of ORG , DATE , who had severely criticised the electoral system for the post of President of ORG . The relevant parts of the interview read as follows :

Q. : Why do n’t you agree with the current system of electing the President of ORG ( ORG ) ?

TIME : CARDINAL of the functions of ORG ) is the grading of judges who rise to the post of member of the ORG . How do they get to ORG ? Through a competition , and an assessment of their work by the members of the HCJ . Among those members there is a president of judges who , obviously ... has a certain degree of control over [ those judges ] . It does not cross anyone ’s mind that they are n’t people whom he trusts ... and I myself am not questioning those people . What is at stake is the system .

Q. : Because it creates inequality , is that it ?

TIME : Just look at what happens . The Vice - President of the HCJ is one of the key figures in the choosing of members of the ORG . That man should never be able to run [ for elections to the ORG ] because those who are going to elect him are those whom he has graded .

Q. : Are you saying it is a distorted system [ sistema viciado ] ?

TIME : It is a distorted system ... It is not the people – they are all serious and honest ; the problem is the system itself .

Q. : Do you support a change to the rules of [ elections ] to the post of President of the ORG ?

TIME : Yes ; the way these [ elections ] work raises doubts and questions . It is an election which has the appearance of being distorted . Whether it is , I do n’t know ... But it is clear that if [ a person ] has a key role in the admission of A or B to an [ organisation ] , then when [ that person ] has a vote he is going to vote for the person who admitted him . ”

DATE several articles on the system of elections to the post of President of ORG were published in the media within the context of elections held within that period . Some of these articles called the system into question . For example , on DATE , PERSON published an article , written by PERSON and entitled “ Grading of judges may involve a strategy of power ” ( “ PERSON juízes pode envolver estratégia de poder ” ) , for which he had interviewed a judge who had challenged the DATE [ competition ] to ORG and who had made allegations that Judge PERSON had been behind the alleged strategy . In that article , ORG made reference to a document circulating among judges in which it was alleged that “ PERSON prepared the grading of judges in order to secure a sufficient number of votes for him to be elected as President of the ORG in the next election . ”

On DATE Judge PERSON brought an action in ORG against the applicants for defamation . He sought non - pecuniary damages amounting to MONEY ( ORG ) . The applicants contested the action against them and argued that the second applicant should not have been a party ( ela era parte ilegítima ) in that she had neither benefited from the article nor had had previous knowledge of it . In fact , the second applicant had not participated at all in the writing or publication of the first applicant ’s article ; the civil proceedings for defamation had been instituted against her on the basis of ORG DATE and DATE of the Portuguese Civil Code .

During the proceedings the first applicant attempted to prove , inter alia , ( i ) that he had based his opinion on the different articles that had been published in the media on the elections to ORG , on information obtained from a source whose identity was confidential , and on conversations he had had with different people from the judiciary ( including judges who had challenged the results of the competition for posts as judge in DATE ) ; ( ii ) that the article concerned an issue of public interest ; and ( iii ) that he had written it in good faith . In this regard , several witnesses , including journalists and people from the judiciary ( comunidade judiciária ) , were heard . The relevant statements read as follows :

( i ) PERSON , chairman of ORG from DATE , with whom the first applicant talked , mentioned that he had had conversations with Judge PERSON ’s opponents , who had made references to the methods Judge PERSON used to obtain what he wanted ;

( ii ) M.J. , a former President of ORG , considered that the first applicant had made a political criticism and that he had not intended to attack the man personally but rather in his capacity as a politician and in terms of his way of engaging in politics and of his career , which had been based on trade unionism ;

( iii ) PERSON mentioned that he had contacted , regarding the article he had written , different people from the judiciary ( judges who had raised suspicions regarding the competition to ORG , judges from the trade union association of judges , and prosecutors ) about Judge PERSON and the system of elections to ORG ; he also acknowledged that he had not talked with members of the PERSON or with Judge PERSON about the issue .

On DATE ORG found for the plaintiff . It considered that the article in question had damaged the plaintiff ’s reputation and that the expressions used by the first applicant had been disproportionate and had clearly exceeded the limits on freedom of expression . It considered that the article had diminished public confidence in Judge PERSON and in ORG , thus damaging his honour and reputation . The first applicant was ordered to pay ORG CARDINAL in compensation for non - pecuniary damage . With regard to the second applicant , ORG held that under LAW she should not have been a party to the proceedings and that the compensation amount due arose from an action only attributable to the first applicant . The relevant parts of the judgment read as follows :

The editorial is ... the responsibility of its editors ... , appears in each edition of the publication and focuses on the most important events of DATE or of that edition and aims to comment , analyse , urge – in sum , form opinion .

The editorial in question was published on DATE the day immediately following the plaintiff ’s election as President of ORG .

The established facts demonstrate to us that the plaintiff , as a member of ORG , applied for the post of president of that court and was elected with CARDINAL votes out of a possible CARDINAL votes , which means that he was elected by PERCENT [ of the possible votes ] .

This is the context of the editorial .

[ The editorial examines ] the plaintiff on CARDINAL levels : how he , allegedly , managed to achieve the electoral results ; and his electoral programme as a candidate for election to the presidency of ORG .

With regard to the first topic ... in [ the editorial ] there is no expression of any value judgment . It is stated as a fact – as a manner of behaviour on the part of the plaintiff : that the plaintiff helped those who elected him to rise to the post of member of ORG , given the function that he exercised throughout his life as a union leader and as both a member and Vice - President of ORG .

The essential aim was to state that throughout his life , the plaintiff had pursued a strategy [ to attain power ] which had built a college of electors in which he could have confidence , [ pursuing that aim ] via the functions he had exercised , particularly [ during his time at ] the HCJ .

It is true that the plaintiff was leader of the trade union association of judges , a member of the HCJ DATE ( and Vice - President DATE ) and on DATE was elected President of ORG .

The defendant did not prove the veracity of this allegation .

The defendant further argues that the opinion expressed in the editorial was based – given the lack of transparency of the whole procedure – on his knowledge of the ongoing public debate about the election of the President of ORG , of the functioning of ORG , and of the plaintiff .

In the instant case it is established that when the defendant wrote the editorial , he was familiar with the news and opinions mentioned in documents [ contained in the case file ] ... and had talked to people .

The facts established concern the publication of several articles on the above - mentioned topics ...

However it is not understood how or to what extent these articles allowed the applicant to reach the conclusion that : “ For DATE , first in the trade union association of judges then [ as a member of ] ORG of the ORG , and lastly [ sitting on ] ORG , this person DATE of whom the majority of the NORP have never heard – has been weaving a web of connections , of back - scratching , of favours and undertakings ( there is an even worse word but I will avoid it ) which enabled him DATE to stick into his somewhat tousled mane the peacock feather he has been lacking : the presidency of ORG .

In the light of the above , there is nothing which allows us to reach the conclusion that the defendant had determined the veracity of his comments [ by means of accessing ] credible , diverse and verifiable sources of information .

[ With regard to the plaintiff ’s ] electoral programme as a candidate in the election of the President of ORG ... [ CARDINAL statements he made in support of that programme ] have some factual basis .

In fact , it was proved that in the letter he distributed to his colleagues , the plaintiff , as a candidate for the presidency of ORG , defended the enshrinement – through a constitutional revision – of the President of ORG as a permanent member of ORG , as well as the improvement in a timely manner , consistent with the economic situation of the country , of the remuneration of members of ORG .

The plaintiff ’s opinions may be DATE and in a democratic state are – subject to criticism , even more so when they are expressed within the context of his candidacy in the election of the President of ORG .

On an unknown date , both the first applicant and Judge PERSON lodged appeals against the first - instance judgment with ORG . The first applicant argued , inter alia , that the judgment of the PERSON court had breached his freedom of expression and should therefore be overturned . He further contended that the compensation amount that he had been required to pay was extremely high and contested some of the facts that had been established by the court . He argued that he had obtained some information only on condition that the source providing that information would remain anonymous .

NORP In his appeal Judge PERSON argued that the level of compensation should have been set at a higher amount and that the second applicant should have been considered a party to the proceedings .

On DATE ORG upheld the first - instance judgment . It held that some of the first applicant ’s comments had not exceeded the limits on freedom of expression , but that most of the content of the article had constituted an attack on Judge PERSON ’s honour , honesty and reputation . ORG emphasised that the first applicant had exceeded his right to criticise and inform . It further considered that the first applicant had not been able to prove in the proceedings the veracity of some of the allegations made in the article , even though they had been based on previous articles published in the NORP media about Judge PERSON and his election as President of ORG . With regard to the facts , ORG considered that the facts had been correctly established .

ORG ordered the applicants jointly to pay Judge PERSON CARDINAL , plus interest , in compensation for non - pecuniary damage . It considered the second applicant to be a legitimate party to the proceedings and , with regard to her , it based its decision on the fact that the applicants were married under the community property system ( regime de comunhão de adquiridos ) and she did not have any source of income and that therefore , under LAW , the income earned by the first applicant as a journalist and editor of a newspaper directly benefited both of them .

On an unknown date in DATE the applicants and Judge PERSON , respectively , lodged an appeal and a cross - appeal ( recurso subordinado ) against that judgment with ORG .

On DATE ORG declined to examine the ORG appeal . It considered that the judgment of ORG had not clearly identified all those facts which it had considered to be proven ; this made it impossible for ORG to hear the appeal . ORG ordered that the case be remitted to ORG in order for it to correct its statement of facts ; this would enable ORG to analyse the points of law that had been raised .

On DATE ORG delivered a new judgment in which it upheld its previous judgment of DATE .

As to the facts , ORG considered , inter alia , the following to have been established :

( i ) the plaintiff had been the only candidate for the post of President of ORG and had previously been a member and the Vice - President of ORG ;

( ii ) several articles had been published in the press and in blogs ( in the periods preceding and following the election ) about Judge PERSON and his electoral programme and past elections for the presidency of ORG ;

( iii ) on DATE the newspaper ORG had published an interview with TIME , a member of ORG , in which he had questioned the system of elections to the post of President of ORG on the grounds that it could be distorted in so far as the HCJ ’s functions included the grading of judges who ascended to the post of member of ORG ;

( iv ) with regard to a past competition to ORG , the DATE newspaper PERSON had , in DATE , published CARDINAL different articles in which it had raised questions about the grading of judges by the HCJ and the possible power strategy involved ; in CARDINAL of the articles ( for CARDINAL of which a judge of a ORG who had participated in the competition had been interviewed and for which a document known to judges had been consulted ) it had been mentioned that Judge PERSON had already mustered support for his election in the next elections for the post of President of ORG ;

( v ) in DATE PERSON had published an editorial [ by the then editor ] criticising the system of electing the President of ORG and of HCJ judges ; with regard to the latter , criticism was made of Judge PERSON ’s lobbying on his own account of while exercising his functions as union leader ;

( vi ) the first applicant ’s editorial had received both positive and negative comments in the press and in blogs ;

( vii ) the first applicant had had knowledge of the different articles which had been published in the media before the elections and had spoken to different people about them , Judge PERSON and the functioning of the HCJ .

As to the analysis of the merits of the case , the relevant parts of the judgment read as follows :

In the present case , it is important to take into account [ the fact ] that the person referred to in the ... text written by the defendant is a public figure , being the fourth - highest - ranking figure of ORG : the President of ORG .

Despite his being a public figure , and therefore more liable to [ be the target of ] public criticism , his honour is still protected ...

... [ I]t is important to emphasise that it appeared in the period which followed the election of the President of ORG by his peers .

... the text does not affect the plaintiff only as a public figure but also in his strictly personal sphere . In fact , starting with the latter , the expressions “ which enabled him DATE to stick into his somewhat tousled mane the peacock feather he has been lacking ” and “ ... and added the glittering ( due to the amount of accumulated tallow ) hat of ‘ resister’ of reforms in the judicial sector ” seem to manifestly extend beyond the right to inform and to criticise , attacking the plaintiff ’s personal dignity within his private sphere ...

In sum , the above - mentioned segment [ of the editorial article ] exceeds the proportionality inherent in the legitimate purpose of debate and critical information ...

That is not the case when the defendant attributes corporatism , conservatism and atavism to the plaintiff .

... [ NORP expressions fall within the scope of what has to be borne by a public figure ...

Let us now analyse the passages where it is said that we face a man and judge who “ has been weaving a web of connections , of back - scratching , of favours and undertakings ( there is an even worse word but I will avoid it ) ” and who “ presented himself to the voters DATE that is to say , to his peers , and those whom he helped to promote to a position from which one day they would be able to elect him ” .

... [ T]he above - mentioned passages put into question the professional ethics of the plaintiff in the exercise of his functions ...

However in the instant case there was no proof given of the allegations against the plaintiff ; on the contrary , ... the right to inform was exceeded . ”

With regard to the amount awarded to Judge PERSON in pecuniary damages , ORG held as follows :

“ In the instant case , the non - pecuniary damage , reflected in the violation of the right to a good name and the reputation of the plaintiff , given its severity ... had ... a negative impact in the personal sphere , including his family and professional circle , of the plaintiff .

Besides that , and this is the decisive point for the determination of the amount to be awarded , the piece written by the defendant , despite the degree of offence and suffering [ caused to ] the plaintiff , was not an obstacle to his re - election by a large majority ( larger than that previously , as everybody knew ) to the same post . As such , the severity of what the defendant wrote did not have an impact on the professional future of the plaintiff ...

In this context , it is also important to take into account the average amount ascribed to the value of life under the case - law of ORG ( which is nowadays increasing ) : EUR CARDINAL,CARDINAL .

In the light of the above , and under the applicable legal framework , it is appropriate to award the amount of LAW . ”

On DATE and DATE Judge PERSON and the applicants respectively lodged with ORG an appeal and a cross - appeal against the judgment of ORG . On DATE the applicants submitted their grounds of appeal . They complained , inter alia , that the judgment of ORG of CARDINAL DATE was in breach of freedom of expression and that the amount which they had been ordered to pay as compensation to Judge PERSON was excessive .

On DATE the appeals before ORG were discontinued on the ground that Judge PERSON had not submitted any grounds of appeal ( julgado deserto o recurso e caducado o recurso subordinado ) . As a consequence , the applicants were unable to challenge the outcome of the judgment of ORG of CARDINAL DATE .