András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

NORP The applicant in the first case , Mr PERSON ( “ the first applicant ” ) , is a NORP national , who was born in DATE and lives in PERSON .

NORP The applicant in the second case , Mr PERSON ( “ the second applicant ” ) , is a NORP national , who was born in DATE and lives in GPE . Both applicants were represented before the ORG by Mr PERSON , a lawyer practising in ORG .

The applicants were high - ranking prosecutors . The first applicant had served , inter alia , as the Deputy Prosecutor General and the Deputy Minister of ORG . Both applicants acquired the status of a “ prosecutor in inactive service ” ( prokurator w stanie spoczynku ) in DATE .

The applicants stood for election to the PERSON ( the first ORG ) from the list of the PERSON and ORG party as nonpartisan candidates .

On DATE , during the electoral campaign before parliamentary elections , ORG ) , a body composed of senior prosecutors , Members of ORG , the Minister of ORG , ORG and the representative of the President of the Republic , passed a resolution expressing a view on the participation of prosecutors standing for election in political activities . ORG opined that prosecutors , including prosecutors in inactive service had the right to stand for election to ORG . It noted that the prosecutors in inactive service enjoyed a privileged position in comparison to the prosecutors in service in that when elected members of parliament the former were not required to renounce their status of prosecutors in inactive service . ORG recommended that this situation had to be addressed by the legislature . At the same time , it reminded all prosecutors of the statutory ban on engaging in political activity .

The applicants were elected members of the PERSON on DATE . The results of the elections were published on DATE . On an unspecified date the applicants were requested by the Speaker of the PERSON ( PERSON ) to renounce their status of prosecutors in inactive service .

On DATE ORG passed a new resolution in which it opined that both prosecutors in service and prosecutors in inactive service could not hold their position and sit as Member of ORG at the same time . The ORG stated that its previous opinion of CARDINAL DATE had only concerned the period of electoral campaign .

On DATE the Speaker of the PERSON issued CARDINAL respective orders declaring that the applicants had forfeited their parliamentary seats under LAW in conjunction with LAW . He observed that the prohibition of holding jointly a parliamentary seat and other public office ( “ incompatibilitas ” ) was the consequence of the principle of the separation of powers and of the political neutrality of the public service . LAW prescribed in LAW CARDINAL § § CARDINAL and CARDINAL the absolute and directly applicable ban on joint holding of the office of a deputy with other positions listed in this provision . The scope of this ban could not be restricted by statutory regulations .

The Speaker noted that the ban on holding jointly a parliamentary seat and the office of a prosecutor was prescribed in LAW . This rule was also reflected in the statutory norms , namely section CARDINAL § QUANTITY on the Exercise of the Mandate of the Member of the PERSON and of the ORG ( hereinafter “ The LAW on the Exercise ” ) and section CARDINALa § CARDINAL of the LAW on ORG . The scope of those various provisions was not identical , in particular with regard to the consequences of the breach of the impugned ban . LAW on the Exercise stated that deputies could not concurrently work in the position of a prosecutor and permitted in such a case for a prosecutor to benefit from an unpaid leave of absence . On the other hand , LAW required that a prosecutor who had been elected to hold a position in a ORG organ forfeit his office of the prosecutor , unless he acquired the status of a prosecutor in inactive service . The Speaker acknowledged the above divergences in respect of the impugned ban between the statutory regulation on the one hand and the constitutional regulation on the other . Nonetheless , the Speaker considered that he was obliged to apply the constitutional rule prescribed in LAW and disregard the statutory provisions incompatible with that rule .

The next issue to determine was the interpretation of the term “ prosecutor ” employed in LAW and whether this term encompassed prosecutors in inactive service . The Speaker noted that this was an autonomous constitutional term which could not be limited to its statutory definitions . Having analysed the relevant provisions of LAW as well as the case - law of ORG and of ORG , the Speaker found that the term “ prosecutor ” employed in LAW encompassed equally prosecutors in inactive service .

The Speaker noted that within DATE of the final result of the elections the applicants could have declared that they had renounced their status of prosecutors in inactive service . In the absence of such a declaration , the Speaker held that the applicants had forfeited their parliamentary seats .

The first applicant lodged an appeal with ORG . He argued , inter alia , that the Speaker had erred in finding that the term “ prosecutor ” used in LAW comprised prosecutors in inactive service . He further maintained that the Speaker had suddenly adopted a new interpretation of the term which was inconsistent with its statutory understanding ( section CARDINALa LAW and CARDINAL of the LAW on the Exercise ) as well as contrary to existing practice . He further invoked the first resolution of ORG which stated that a prosecutor in inactive service could hold the office of a deputy jointly with his status of a prosecutor in inactive service . In addition , the Speaker ’s finding that the first applicant had to irrevocably forfeit his status of the prosecutor in inactive service in order to keep his parliamentary seat breached the constitutional provisions on proportionality and equality . Lastly , invoking , inter alia , LAW , the applicant submitted that the Speaker had not informed him about the procedure initiated in his case and had not offered him a possibility to make representations .

The second applicant appealed too . He alleged , inter alia , that the Speaker had wrongly applied LAW and other provisions of the LAW regulating the right of access to the public service and the right to stand for election as well as the relevant provisions of LAW . He also invoked LAW . His main contention was that the ban prescribed in LAW did not apply to prosecutors in inactive service .

On DATE , ORG , sitting in camera , dismissed the applicants’ respective appeals .

ORG first inquired about the existing practice with regard to judges and prosecutors in inactive service sitting as MPs . It established that there had been CARDINAL case of a judge in inactive service who sat as a Senator ( Member of the ORG , the second ORG of the NORP ORG ) DATE . In that case no action was taken by the Speaker of the ORG . There had been no such cases concerning prosecutors in inactive service . In CARDINAL case concerning a judge in inactive service , the First President of ORG objected to the participation of this judge in the capacity of an expert in the works of the parliamentary commission of inquiry , considering it being incompatible with the duty of political neutrality of judges . In ORG view , the existing practice was inconsistent and did not support the ORG contention that prosecutors in inactive service could sit as MPs .

ORG carried out a detailed analysis of the term “ prosecutor ” within the meaning of LAW . It noted first that this provision used the term “ prosecutor ” without any qualification which signified that it was applicable to all prosecutors , i.e. persons appointed to a post of a prosecutor . At the date of the entry into force of the LAW , that is on DATE , the appointment to a post of a prosecutor ended with retirement . Subsequently , on DATE LAW introduced the status of a “ prosecutor in inactive service ” ( in parallel to the status of a “ judge in inactive service ” ) . Following this amendment , the public - law employment relationship of a prosecutor began with his appointment and continued until his or her death ( save for cases when a prosecutor renounced it or was divested of it as a result of a judgment ) . The said amendment altered the meaning of the term “ prosecutor ” and from its entry into force the term covered not only prosecutors in active service , but also “ prosecutors in inactive service ” .

This finding was confirmed by the case - law of ORG ( judgment of DATE , case no . ORG CARDINAL/CARDINAL ) and of ORG ( inter alia , judgment of DATE , case no . SDI CARDINAL/CARDINAL ) . Both courts underlined that a prosecutor in inactive service ( or judge in inactive service ) did not cease to be a prosecutor ( judge ) and the holder of a public office . Prosecutors in inactive service continued their publiclaw employment relationship with the exception of the obligation to carry out their duties . The legislator wished to preserve the authority of the office of a prosecutor ( judge ) and thus bestowed particular privileges on those who had held those offices in exchange for the resignation from certain rights . The LAW on the Prosecution Service linked the status of a prosecutor in inactive service with a number of obligations such as disciplinary responsibility , the limitation on taking any other employment or gainful activity , the requirement to uphold the dignity of the office and the ban on engaging in political activity . At the same time prosecutors in inactive service received a special pension ( uposażenie ) which was more favourable than an ordinary old - age pension . It was further clear that a prosecutor in inactive service could voluntarily renounce his status and all the corresponding rights and obligations .

In conclusion , ORG held that there was no doubt that the term “ prosecutor ” employed in LAW covered both prosecutors in service and prosecutors in inactive service . It noted that the interpretation of the provisions of LAW , like in the present case , could not be determined by the content of statutory norms , in particular by section CARDINALa of the LAW on ORG . The ban on holding jointly a parliamentary seat and the position of a prosecutor , comprising prosecutor in inactive service , was directly prescribed in LAW . Accordingly , the fact of a prosecutor going into inactive service could not revoke the ban set out in LAW ; it was necessary that a prosecutor in inactive service renounce his status the prosecutor in inactive service .

Furthermore , ORG noted that according to section CARDINAL § CARDINAL of the Act on ORG , prosecutors were prohibited from joining any political party and from engaging in any political activity . In accordance with ORG case - law , this provision was also applicable to prosecutors in inactive service , while there was no doubt that sitting as a deputy was a political activity . In ORG view , the rules on disqualification were aimed at ensuring political neutrality of the public service and the transparent operation of the parliament free from undue influence and the conflict of interest . They were further proportional to those aims . ORG held that the constitutional provisions on the equality ( Article CARDINAL § CARDINAL ) , the right of access to the public service ( Article CARDINAL ) and the right to be elected ( Article CARDINAL ) had not been infringed . The ban which affected the applicant had its origin in the LAW itself and the drafters of LAW had carried out a balancing exercise of the various competing interests . Furthermore , the applicants had had time to consider their options and the possibility to renounce their status of prosecutors in inactive service .

ORG found that no provision of the Convention , in particular LAW No . CARDINAL or LAW , had been breached in the applicants’ case . In its view , LAW No . CARDINAL did not concern the rules on disqualification . The applicants had exercised their right to be elected a deputy , but in order to keep their parliamentary seat they had to renounce their status of a prosecutor in inactive service . ORG relied on the decision Briķe v. GPE ( no . CARDINAL , DATE ) in which ORG had dismissed the complaint of a judge who complained that in order to stand for election to ORG she had had to resign from her judicial office . ORG found that the same approach was applicable , mutatis mutandis , to the situation of the applicants in the present case .

ORG further held that LAW was not applicable to the proceedings at issue because they concerned political rights . It noted , in passing , that the applicants had been summoned to renounce their status of the prosecutor in inactive service .

The first applicant filed a constitutional complaint . He alleged that the relevant provisions of LAW breached the constitutional right of access to the public service ( LAW ) , the right to stand for election ( LAW ) as well as LAW in that prosecutors in inactive service could not sit as Deputies . On DATE ORG discontinued the proceedings , having found , inter alia , that the ban on holding jointly the offices of a prosecutor in inactive service and of an MP was prescribed directly in the LAW and therefore ORG had no jurisdiction to decide the case ( case no . ORG CARDINAL/CARDINAL ) . It noted , obiter dicta , that the inconsistent interpretation of LAW should be unified .

Article CARDINAL § CARDINAL of the LAW provides :

“ Every citizen having the right to vote , who , no later than on DATE of the elections , has attained DATE , shall be eligible to be elected to the PERSON . ”

Article CARDINAL § CARDINAL of the LAW reads as follows :

“ No judge , public prosecutor , officer of the civil service , soldier on active military service or officer of the police or of the services of State protection shall exercise the mandate of a Deputy . ”

Article CARDINAL of LAW , in its relevant part , provides as follows :

“ CARDINAL . The expiration of the mandate of a Deputy shall occur in the following cases :

CARDINAL ) holding on DATE of an office or position , which according to the provisions of LAW or statutes could not be held jointly with the office of a Deputy , subject to the provision of § CARDINAL . ”

Article CARDINAL states that an expiration of the mandate of a Deputy in the situation described above will take place if a Deputy did not submit to the Speaker of the PERSON a declaration resigning from his other office or position within DATE of the official result of the election being published .

Article CARDINAL § CARDINAL of LAW provides that a Member of ORG can not hold jointly his or her mandate with those offices or positions which according to the LAW or statutes can not be held jointly with the mandate of a Deputy .

Section CARDINAL § CARDINAL of the Act on ORG provides that a prosecutor can not join a political party or be involved in any political activity .

Section CARDINALa § CARDINAL of the same LAW reads as follows :

“ A prosecutor who was nominated , appointed or elected to hold office in the ORG organs , local self - government , diplomatic service , consular service or in the organs of the international or supranational organisations acting on the basis of an international agreement ratified by GPE shall resign from his position unless he goes into inactive service . ”


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in DATE and lives in GPE .

On TIME the applicant , then DATE , was raped by a group of CARDINAL males . CARDINAL other males allegedly participated : CARDINAL as an aider and abettor and CARDINAL others by committing a sexual assault on her . CARDINAL of the accused had not yet reached the age of majority ( DATE ) at the time of the commission of the criminal acts and were accordingly tried as juveniles .

In DATE criminal charges of rape , aiding and abetting rape and sexual assault were brought against the accused . All of them submitted in their defence that the applicant had voluntarily engaged in sexual activity with them .

The court held a number of hearings and obtained expert reports . An expert in clinical psychology found that the applicant had a learning disability and that she had not been physically or mentally capable of offering serious resistance .

On DATE ORG rendered a judgment acquitting the defendants of all charges . The verdict was based on the findings that the applicant had not seriously resisted sexual intercourse , that she had changed her testimony regarding the events surrounding one of the rape charges during the proceedings and that the defendants could not be considered to have employed force or threats which would be objectively capable of breaking the victim ’s resistance .

The Public Prosecutor appealed against the judgment .

On DATE ORG quashed the first - instance judgment , finding that the facts had been insufficiently established . It ordered that the case be remitted to the first - instance court for fresh consideration before a different panel , without the participation of the judges who had delivered the impugned judgment .

NORP In DATE ORG conducted inquiries in order to establish the place of residence of CARDINAL of the defendants . However , as the CARDINAL defendants had allegedly emigrated to GPE , they could not be found . Several more inquiries were made in DATE , DATE , DATE and DATE , but all attempts at establishing these CARDINAL defendants’ whereabouts proved unsuccessful .

DATE and DATE the applicant sent CARDINAL letters urging ORG ( previously called ORG ) to accelerate the proceedings and/or asking for a case review by the president of the court owing to delays in scheduling the first retrial hearing .

In the period from DATE to DATE the court scheduled CARDINAL hearings , all of which were , however , adjourned for failure of some of the defendants to appear .

On DATE the Director of ORG at ORG informed the applicant that the court had encountered difficulties identifying some of the GPE residences . He also noted that DATE and DATE there had been frequent changes of the presiding judge in her case due to judges being promoted . He mentioned that in the aforementioned period CARDINAL different judges had been dealing with the case .

Following this information , on DATE the applicant suggested that the charges against the CARDINAL defendants , CARDINAL charged with rape and the other with aiding and abetting rape , who were allegedly residing in GPE and could not be found , be severed into a separate case and an international arrest warrant be issued against them .

On CARDINAL DATE ORG issued a detention order against the CARDINAL defendants , which served as a legal basis for the issuing of the international arrest warrant .

On DATE the court held the first hearing , followed by CARDINAL more . It also obtained reports from CARDINAL experts , CARDINAL in neuropsychiatry and the other in clinical psychology .

On DATE the court found CARDINAL defendant guilty of rape under the first paragraph of LAW and CARDINAL defendants guilty of aggravated rape under the second paragraph of LAW . Regardless of the fact that they were tried as juveniles , the rules of sentencing applicable to adults applied to them as they had all reached the age of CARDINAL before the judgment was given . The defendants were sentenced to prison sentences ranging from DATE on account of , inter alia , the significant passage of time from the commission of the crime until their conviction . However , the court concluded that prison sentences were appropriate in order to make the defendants realise the gravity of their offences , particularly as they had not shown any genuine regret over the criminal acts committed against the applicant who continued to suffer from the consequences thereof . Lastly , the court acquitted the CARDINAL defendants who had been charged with sexual assault .

The convicted defendants appealed ; however , their appeals were dismissed by ORG on DATE . Their subsequent extraordinary appeals ( requests for the protection of legality ) were also dismissed by ORG on DATE .

The defendant charged with aiding and abetting the rape of the applicant , whose whereabouts had been unknown and whose case had been separated from the main proceedings , was extradited to GPE on DATE . On DATE the court held a hearing and found the defendant guilty . He was sentenced to DATE in prison . The defendant ’s subsequent appeal was dismissed on DATE .

The other missing defendant was arrested in GPE and detained on DATE . After having been extradited to GPE , the court held hearings on CARDINAL and DATE and on the latter date convicted him of aggravated rape under the second paragraph of LAW . He , too , was sentenced to DATE in prison . He appealed against the verdict ; however , on DATE his appeal was dismissed by ORG .

On DATE the applicant lodged a civil claim against all CARDINAL defendants and a number of the defendants’ parents , seeking compensation for non - pecuniary damage she had sustained as a result of the rape .

On DATE the civil panel of ORG stayed the civil proceedings pending a final decision in the criminal proceedings . The civil trial was resumed in DATE .

Subsequently , CARDINAL hearings were held and on DATE the first instance court gave a judgment awarding the applicant MONEY ( ORG ) , together with default interest . The applicant and some of the respondent parties appealed . On DATE ORG upheld the applicant ’s appeal and dismissed the respondents’ appeal . In the civil retrial , ORG found that the CARDINAL respondents who had initially been excluded from liability for damages owing to their acquittal in the criminal proceedings were jointly liable for the damages awarded to the applicant .

One of the CARDINAL respondents appealed against the judgment , but on CARDINAL DATE ORG dismissed his appeal .

Following unsuccessful settlement negotiations with ORG , on DATE the applicant lodged a claim with ORG seeking compensation in the amount of ORG CARDINAL,CARDINAL , the maximum amount that could be awarded for non - pecuniary damage incurred as a result of the length of the criminal proceedings . She relied on the Protection of the Right to a Trial without Undue Delay Act ( hereinafter “ the CARDINAL Act ” ) . She submitted that her interest in the criminal proceedings had not only been of a pecuniary nature but also aimed at safeguarding her rights under LAW .

On DATE the court rendered a judgment , finding that the applicant ’s right to trial within a reasonable time had been breached and that the ORG was to pay ORG CARDINAL,CARDINAL to the applicant , together with default interest . The court pointed out that the overall duration of the proceedings had amounted to DATE and DATE , noting in particular the lack of any activity DATE . Moreover , it observed that the applicant ’s case had involved CARDINAL major criminal acts , a gang rape and a sexual assault , which , in addition to posing a considerable threat to society , had caused severe mental distress to the applicant . The court emphasised that due to the nature of these criminal acts committed against her , the criminal proceedings ought to have been conducted in a particularly diligent , determined and prompt manner ; however , that had not been the case . It was further noted that the lengthy proceedings had been extremely stressful for the applicant , who had been forced to relive the painful events too many times , in addition to which she had had no effective remedies at her disposal in order to accelerate the proceedings . Thus , having regard to the importance of the case for the applicant and the lengthy period of absence of any procedural acts on the part of the criminal court , the court deviated from the general practice of the domestic authorities to award , within the statutory range of CARDINAL , PERCENT of the sum that would be awarded for a violation of the right to trial within a reasonable time by ORG . Thus , the applicant was awarded the maximum amount possible under LAW , although she would have apparently not been entitled to such amount purely on the basis of the excessive length of proceedings .

The applicant and the ORG Attorney lodged appeals . On DATE the ORG modified the first - instance judgment in so far as it concerned the costs of proceedings . It rejected the remainder of the appeals .

On DATE the applicant lodged a constitutional appeal and initiative petition for the review of the constitutionality of LAW in so far as it limited the maximum amount to be awarded for a violation of the “ reasonable time ” requirement to LAW . She alleged that the statutory limitation of compensation in this manner was unconstitutional , as the maximum amount did not constitute sufficient redress for particularly arduous cases such as her own .

On DATE ORG rejected the constitutional appeal as inadmissible . Consequently , the applicant ’s petition for the review of the constitutionality of LAW limitation on compensation was also rejected , as the court held that the possible annulment of the challenged statutory provision could not have had any legal effects on the applicant ’s position .

At the time of the incident , the applicable criminal law was the DATE LAW of GPE . However , in the course of the retrial proceedings , a new LAW was adopted in DATE introducing more lenient sentences for the criminal offences of rape and aggravated rape . In accordance with the general principle of domestic criminal law that a law more lenient on the perpetrator may be applied retroactively , LAW was used in the proceedings , which reads , in so far as relevant , as follows :

“ ( CARDINAL ) Whoever compels a person of the same or opposite sex to submit to sexual intercourse with him by force or threat of imminent attack on life or limb shall be sentenced to imprisonment for not CARDINAL and not DATE .

( CARDINAL ) If the offence under the preceding paragraph has been committed in a cruel or extremely humiliating manner or successively by CARDINAL perpetrators or against an offender serving a sentence in a closed or semi - open type of penal institution , the perpetrator(s ) shall be sentenced to imprisonment for not DATE .

Section CARDINAL(CARDINAL ) of LAW DATE provides that the presiding judge shall schedule a first trial hearing within DATE of receipt of the indictment . If he fails to do so , he must inform the president of the court thereof , and the latter is required to take the necessary steps to schedule the hearing . A provision to this effect was also included in the previously applicable Criminal Procedure Act DATE .

According to LAW , which constitutes the statutory basis for awarding compensation for non - pecuniary damage , such compensation may be awarded in the event of the infringement of a person’an award .

Under LAW , the right to a trial within a reasonable time is guaranteed to , amongst others , injured parties in criminal proceedings . LAW provides for a compensatory remedy and fixes the maximum amount that may be awarded . It reads as follows :

“ ( CARDINAL ) Monetary compensation shall be payable for non - pecuniary damage caused by a violation of the right to a trial without undue delay . Strict liability for any damage caused shall lie with GPE .

( CARDINAL ) Monetary compensation in respect of individual , finally decided cases shall be awarded in an amount of MONEY .

( CARDINAL ) When deciding on the amount of compensation , the criteria referred to in section CARDINAL of this Act shall be taken into account , in particular the complexity of the case , the actions of the ORG , the actions of the party [ making the claim ] and the importance of the case for that party . ”


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

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

On DATE the applicant , the owner and CEO of a large dairy producer , was charged with large - scale fraud and money laundering and summoned for questioning . He did not show up for a few initial interviews and the investigator put his name on the list of fugitives from justice .

On DATE the investigator , acting on the information that the applicant had fled abroad , asked ORG in GPE for a detention order .

The detention hearing was fixed for DATE . The applicant ’s lawyers had been notified of the date and time of the hearing on DATE but did not show up and asked the investigator to postpone the examination of his application because they were busy in other proceedings . ORG appointed legal - aid counsel to represent the absent applicant , proceeded with the hearing and issued the detention order , referring to the fact of the applicant ’s absconding to GPE and from there to GPE , the gravity of the charges against him and the risk of interference with the investigation . On DATE the applicant ’s lawyers appealed .

On DATE the applicant was arrested in GPE .

On DATE the ORG heard an appeal against the detention order . The applicant and his lawyers were present at the hearing . Considering that the risks of flight and obstruction of the investigation were sufficiently established , ORG upheld the detention order .

NORP The applicant ’s detention was later extended on QUANTITY occasions . The applicant appealed against each of the detention orders , lodging statements of appeal within DATE of the hearing date . It took the appeal courts CARDINAL DATE to examine the complaints .

The most recent detention order of DATE was quashed on appeal by ORG on DATE . ORG considered that there was no evidence substantiating the risk of absconding or interfering with justice . The investigation had been pending for DATE of which the applicant had spent DATE in custody . ORG concluded that that the proceedings had been unreasonably long and ordered the applicant ’s release on bail .

While in custody , the applicant asked the investigator to be allowed to receive visits from his mother , wife and children and also pastoral visits from CARDINAL NORP priests , GPE and S.

With the investigator ’s consent , the applicant ’s mother and daughters visited him on CARDINAL occasions in DATE and DATE . In DATE and DATE the investigator interviewed his wife and mother as potential witnesses but they refused to testify , invoking the constitutional guarantee against self - incrimination . The investigator refused the applicant ’s subsequent applications to see his family , stating that such visits could “ have a negative influence on the conduct of the investigation ” . As to the NORP priests , on DATE the investigator invoked the same ground to refuse a visit from S. On DATE the investigator once again refused a pastoral visit , stating that the applicant should see the prison chaplain instead .

Counsel for the applicant applied for a judicial review of visiting restrictions .

On DATE and DATE the ORG pronounced the refusal of pastoral visits to be lawful and justified , holding that the investigator had full discretion to determine whether or not such visits ran counter to the interests of the investigation . On DATE ORG upheld the latter decision on appeal , holding that a restriction on religious rights was an inherent consequence of the pre - trial detention .

As regards family visits , on DATE the ORG granted the applicant ’s complaint in part , finding as follows :

( a ) restrictions on visits from the applicant ’s wife and mother in the period after the investigator had interviewed them as witnesses in the criminal proceedings had been lawful and within the discretion of the investigator ;

( b ) restrictions on visits from the wife and mother in DATE had not been justified but no relief could be afforded to the applicant because they had already been granted the status of witnesses and the investigator might wish to interview them again at some point in time ;

( c ) restrictions on visits from the applicant ’s children were not justified and the investigator had an obligation to remedy a breach of the applicant ’s rights .

On DATE the applicant ’s representative before the ORG , PERSON , asked the director of the remand prison to allow her to see the applicant and provided credentials confirming her status . Her application was referred to the investigator .

On DATE PERSON lodged a complaint with the ORG claiming that the prison director should have authorised her visit without any restrictions , on the basis of LAW guaranteeing unhindered access of an applicant to his representative .

On DATE ORG dismissed the complaint , finding that PERSON was not the applicant ’s counsel in the domestic criminal proceedings and could not therefore visit him . On DATE ORG upheld that decision on appeal .


Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Robert Spano

The applicant was born in DATE and lives in GPE . At the material time he was an editor of the web - based media site GPE .

On DATE CARDINAL adult sisters published an article and a letter on their website encouraging people to study the background of candidates in the forthcoming ORG elections . In particular , the sisters warned against A , a relative of theirs , who was standing for election . In the letter they alleged that A had sexually abused them when they were children . The sisters had previously sent the letter to their relatives , the police and the child protection services . For some unknown reason , the police had not instigated an investigation .

On DATE , PERSON published an article about the ORG allegations . The article was based on an interview with CARDINAL of the sisters and on the letter posted on their website . A was also contacted and his response , in which he denied the allegations , as well as his statement that he would not make any further remarks on the matter , were reported in the article . Pictures of the sisters were published with the article .

On DATE Pressan published an article about comments made by A to a newspaper where he rejected all the allegations and threatened PERSON with a lawsuit for being the first to publish the allegations . Furthermore , the article contained comments from CARDINAL of the sisters . Pictures of CARDINAL of the sisters and of A were published with the article .

On DATE PERSON published an article about the ORG having received a letter from ORG ’s lawyer offering to settle the matter , failing which A would bring defamation proceedings against them , and about the sisters welcoming the opportunity to prove their allegations in court . The article was based on an interview with the sisters and statements on their website . A ’s rejection of the allegations was also included in the article . Pictures of the sisters were published with the article .

On DATE and DATE and CARDINAL DATE , PERSON published further articles about the matter , based on the ORG statements on their website and in other media interviews , on DATE s comments in other media and on A ’s daughter ’s comments in a television interview . Pictures of the sisters were published with all the articles .

Other media also published articles and interviews with the sisters .

NORP In the meantime , on DATE , A lodged defamation proceedings before ORG against the applicant and requested that the following statements be declared null and void :

A. “ Sisters : We will not keep quiet while a child abuser stands for election to the LAW ”

B : “ We can not sit quietly by while a child abuser stands for election to the LAW ”

C : “ I do not know whether our actions are legal , however that is a secondary point . The man is dangerous and on the loose ”

D : “ The sisters will not be silenced by [ A ’s ] daughter PERSON abuse is not the private affair of his family ”

E : “ Child abuse is never a private affair that the family of child abusers can undertake to solve . Child abuse is a crime ”

F : “ Child abusers should not be allowed to hide DATE Forgiveness can not entail codependency ” .

According to LAW , subsection CARDINAL , of LAW ( no . GPE , Lög um prentrétt ) the publisher or editor is liable for the publication if no author is identified . A argued that responsibility for the statements lay with the applicant as the editor of GPE by virtue of LAW of LAW , applied by analogy , since the author of the articles was not identified .

During the proceedings before ORG , B , a journalist , was identified as the author of the articles . He gave a statement before ORG , but was not involved further in the proceedings . B stated that he had contacted A for comments before publishing all the articles , but he had been unsuccessful after publishing the first article . He also stated that he had tried to establish the ORG credibility and the truthfulness of the allegations by interviewing the sisters , A ’s son , the police , CARDINAL of the ORG employers , another alleged victim and other people mentioned by the sisters in their writings , who could confirm that the allegations were not appearing for the first time because of A ’s candidacy , but had been known to the family and the police for DATE . B had also tried to contact ORG , without success .

NORP Before FAC , the sisters stated that they had been quoted correctly in GPE and they had approved the publishing of their statements . Furthermore , they said that A had not initiated defamation proceedings against them .

By judgment of CARDINAL DATE ORG found in favour of the applicant .

As regards the issue of legality , ORG came to the conclusion that LAW of LAW did not apply to material published solely on the internet and that section CARDINAL , subsection CARDINAL , could not be applied by analogy in the case . However , ORG stated that a supervisory obligation was placed on editors of web media , where articles were published without identifying the authors , and that the editor was obliged to ensure that material published on web - based media did not cause others harm or interfere with a person ’s private life . Therefore , ORG rejected the applicant ’s claim that the case was wrongly directed against him .

As regards the merits of the case , the judgment contained the following reasons :

“ The impugned statements were published on [ Pressan ] on DATE after [ A ] had , along with CARDINAL people , declared his candidacy for ORG . It was a gathering of CARDINAL elected members , established by law by ORG , which would prepare a proposal for a new constitution . There would be general elections , where the same rules about eligibility and the right to vote applied as in the NORP election ” ...

When the statements in sections A - C are compared to the ORG writings on their website on DATE , the court has to agree with [ the applicant ] that both the headline in section A and the statements in sections B and C are verbatim from their letter . [ ... ] Furthermore , it can not be overlooked that the ORG allegations were not emerging for the first time because of [ A ’s ] candidacy ; they had been proclaimed for DATE and were known to many , including the police . [ The applicant ] was therefore not publishing allegations that were being directed against [ A ] for the first time , but disseminating further allegations regarding offences that had emerged long before . [ The applicant ’s ] arguments about the public having the right to be informed about the candidates in public elections can not be ignored . By introducing themselves publicly to gain voters’ confidence and to persuade people to vote for them , [ candidates ] in a way become public persons and can not expect all media coverage about them to be as positive as their own . Disputes , resolved and unresolved , regarding their earlier behaviour are matters to which one can expect attention to be drawn . By competing for voters’ attention , candidates usually undertake to be heavily criticised and have to tolerate this up to a point , although that point should be determined on a case - by - case basis . [ The applicant ] did not present the ORG allegations as his own , he just disseminated them further . Therefore , he will not be held accountable for the statements which are directly quoted from the sisters , which the latter have confirmed before the court to be theirs . The court does not agree with [ A ] that [ the applicant ] went beyond the limits of his freedom of expression under LAW . ...

The statements in sections D and E were published on DATE when the elections for ORG were over . [ A ’s ] daughter had discussed the ORG writings about her father in a television interview and declared , inter alia , that he was not a public person and that allegations about child abuse did not belong in the media . The sisters reacted to this criticism on their website and then [ Pressan ] published their reactions . [ ... ] No new discussions about [ A ’s ] case were initiated by the sisters this time , their writings were by way of reply . The statement in section D that appeared as a headline on [ Pressan ] quotes the ORG replies but is partly rephrased . The statement in section E published in an article on [ Pressan ] is mostly directly quoted . However , this statement can be understood as a statement by the media itself . Even though the statement is not directly quoted , it is of a general nature and refers to child abusers in general . The sisters have also testified before the court that they consider that they have been correctly quoted . So the court concludes that [ the applicant ] did not go beyond the limit of the freedom of expression guaranteed in LAW , with the statements in sections D and E. ”

On DATE A appealed to ORG against ORG judgment .

By a judgment of CARDINAL DATE ORG partly overturned ORG judgment and found defamatory the statements in sections A , B , D and part of the statement in section C , consisting of insinuations that A was guilty of having abused children , and ordered the applicant to pay , LAW , CARDINAL GPE ( ORG ) ( MONEY ( ORG ) ) for non - pecuniary damage , plus interest in compensation and LAW ( CARDINAL ORG ) for A ’s legal costs before ORG and ORG . Under Article CARDINAL of the Penal Code the statements were declared null and void .

As regards the issue of legality , ORG noted that the author of the articles had been identified and that the applicant had confirmed that he had agreed to the publication of the articles . ORG also confirmed that LAW of LAW did not apply to material solely published on the internet . Furthermore , ORG stated that LAW , subsection CARDINAL , of LAW could not be applied by analogy to the case . However , the applicant had a supervisory obligation which entailed that he should conduct his editorial duties in such a way that the published material would not harm anyone by being defamatory . ORG referred in this respect to a ORG judgment of DATE . Therefore , ORG rejected the applicant ’s claim about the case being wrongly directed against him .

As to the merits of the case , the judgment contained , inter alia , the following reasons :

“ The court can agree with [ the applicant ] that candidates for assignments in the public interest have to endure a certain amount of public discussion of their ability and skills and attributes and whether or not they can be trusted to bear this kind of responsibility . However , this can not justify that [ A ] , without any further or additional information , was accused of this criminal act in the media , [ act ] punishable by LAW . Here it has been taken into account that [ A ] has not been found guilty of the conduct nor has he been under investigation because of it . It does not change anything that the journalist discussed the matter with [ A ] and others , who claimed they could testify about the incident , while working on the story and [ A ] rejected the allegations . In the light of the aforementioned , the limitation on the freedom of expression had to be justified in accordance with LAW . ” ...


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

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

On DATE the applicant was stopped by a NORP customs officer at the border crossing into GPE . After having checked the applicant ’s documents , the officer informed the applicant that , having failed to declare his Opel car when entering GPE , he had infringed the NORP customs regulations . The officer instituted administrative proceedings against the applicant and impounded his car .

On DATE Colonel PERSON , Head of ORG of ORG , examined the applicant ’s case . He found the applicant liable for having failed to declare the car and ordered him to pay a fine in the amount of MONEY ( RUB ) . He further ruled that the applicant ’s car , which had been impounded by customs , should be returned to the applicant . The applicant appealed .

On an unspecified date ORG of GPE fixed the hearing for DATE .

On DATE ORG examined the applicant ’s appeal and upheld the decision of DATE . The court heard the case in the applicant ’s absence . In the operative part of the judgment , the court advised the applicant of his right to appeal against the judgment adopted by ORG .

According to the applicant , the letter from ORG notifying him of the date and time of the court hearing reached him on DATE .

On DATE the applicant received a copy of ORG judgment of DATE by post .

On an unspecified date the applicant lodged an appeal with ORG . On DATE ORG sent a letter to the applicant informing him that his appeal was dismissed .

NORP The subsequent request by the applicant for supervisory review was dismissed by ORG of GPE on DATE .

On DATE the Acting Head of ORG of ORG discontinued the enforcement proceedings in respect of the decision of DATE . He noted that the applicant was a foreign national and had no assets or known place of residence in GPE and that it was impossible to enforce the decision of DATE on account of the expiry of the relevant time - limit .

On DATE the ORG certified that ( CARDINAL ) the decision concerning the applicant ’s administrative liability had come into force on DATE ; and ( CARDINAL ) the applicant had failed to reclaim his car within DATE .

On an unspecified date the regional agency in charge of the federal property applied to ORG seeking to reclaim the applicant ’s car as bona vacantia .

On DATE ORG granted the agency ’s claims in full . It took into account that , as claimed by the agency , the applicant had been repeatedly summoned to the regional customs office to pick up his car . According to the documents submitted by the Government , the court decided to hear the case in the applicant ’s absence given that he had been duly notified of the hearing and chose not to attend . The applicant did not appeal .

On DATE the judgment of CARDINAL DATE was enforced .

On DATE the leaders of the Strategy-CARDINAL movement notified the Mayor of GPE of their intention to organise a rally ( from CARDINAL to CARDINAL p.m. ) at FAC in the centre of GPE and a march ( from TIME ) from FAC down FAC to FAC on DATE ( DATE ) . CARDINAL people were expected to attend . The events were organised to promote the right to peaceful assembly as set forth in LAW and the freedom of Parliamentary elections in GPE .

On DATE the Government of GPE refused to agree on the venues for the rally and the march . According to the authorities , there was archeological and construction work going on in FAC and the march , according to the indicated route , would “ disrupt the normal functioning of the city ’s infrastructure and traffic [ and ] infringe the rights and interests of people who would not take part [ in the rally and the march ] ” . The authorities further suggested CARDINAL alternative venues for the planned events , also located in the centre of GPE .

On DATE the leaders of the Strategy-CARDINAL movement informed the Mayor of GPE that the rally would take place at the venue indicated in their notification of DATE .

On DATE the rally was held as planned by its organisers at FAC . The applicant took part . At TIME he was arrested and brought to the police station . According to the arrest record , the applicant had taken part in an unauthorised gathering and chanted slogans such as “ Down with PERSON ” , “ Let us stop the dictatorship ” and “ Fascism shall not pass ” .

On DATE the Justice of ORG . CARDINAL of the LOC of GPE found that the rally held on DATE had been organised in contravention of the existing procedure and that the applicant had taken part in it without having verified whether it had been legitimate . The court found the applicant administratively liable for violation of the established procedure for organising a public assembly and fined him RUB CARDINAL . The applicant appealed .

On DATE the Tverskoy District Court of GPE upheld the decision of CARDINAL DATE on appeal .


Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

NORP The applicant in the first case , PERSON , is a NORP national who was born in DATE . The applicant in the second case , PERSON PERSON , is a NORP national who was born in DATE . Both applicants live in GPE and were represented before the Court by Ms K. PERSON , a lawyer practising in GPE .

The second applicant is a well - known journalist , producer and television presenter . The television shows he was presenting at the relevant time included a political talk show and a news magazine .

The applicants married in DATE . The wedding reception was held in the GPE , an ancient palace surrounded by an NORP garden in GPE . The wedding ceremony took place in the PERSON , also in GPE . Both locations are well - known tourist attractions and are generally open to the public .

Among the CARDINAL wedding guests were well - known journalists , television presenters and sports personalities . The mayor of GPE also attended the wedding .

Due to the anticipated media interest in the wedding , the applicants’ legal representative had informed the relevant newspapers beforehand that the applicants did not wish any reports to appear containing details of the wedding . In addition , both locations were closed to the public and only invited guests were allowed inside .

On DATE the magazine PERSON , a so - called “ people ’s magazine ” with a circulation of CARDINAL , published an article about the wedding . The article was announced on the cover of the magazine and illustrated with several photographs . Besides photographs of wedding guests and old photographs of the applicants , one photograph showed the first applicant on DATE , taken before the wedding ceremony inside the restricted area . It was ( erroneously ) captioned “ ORG WED PERSON after the wedding vows ” ( ORG PERSON nach dem Jawort ) . During the subsequent civil proceedings , the question of where the photograph of the first applicant had been taken from was a matter of contention . While the applicants asserted that it had been taken from outside the restricted area , through a hole in the wall ‒ using a strong telephoto lens ‒ the magazine maintained that they had no information regarding the photograph ’s provenance since it had been purchased from a stock photographic agency . They speculated , however , that it could just as easily have come from CARDINAL of the accredited photographers , or from an invited guest , or from a member of staff .

The article itself informed the reader about the precautions taken by the applicants to prevent press coverage but also gave details about the wedding , including the nature of the catering , the drinks , the ORG outfits , the music and the decoration of the church . The article also included quotes from the address given by the priest , and from the speeches of the second applicant and the first applicant ’s father , as well as an excerpt from an intercessory prayer recited by CARDINAL of the applicants’ children .

After publication of the article and at the request of the applicants , the magazine signed a cease and desist declaration regarding the further publication of a number of statements from the article outlining the details of the wedding . The magazine refused to sign such a declaration in respect of the above - mentioned photograph of the first applicant .

On DATE ORG issued a cease and desist order in respect of further publication of the photograph of the first applicant on DATE .

The first applicant brought proceedings against the magazine , claiming ORG CARDINAL,CARDINAL as a notional licence fee , LAW in damages and LOC of pre - trial expenses for the cease and desist declaration .

On DATE ORG reaffirmed the cease and desist order , awarded the applicant LAW in damages and ordered the magazine to reimburse the pre - trial expenses .

The court held that the article concerned an event of public interest because the second applicant was CARDINAL of the most famous and popular television presenters in GPE , who had a strong influence on shaping public opinion . His wedding was therefore anyway of public interest and even more especially so since the public were interested in knowing who had a sufficiently close relationship with him to be invited to attend his wedding . The latter point was of particular importance in terms of enabling the public to judge the second applicant ’s journalistic independence . The court also found that the chosen wedding locations increased the level of public interest in the wedding , since the CARDINAL places were amongst GPE ’s most popular tourist attractions . The court found that neither the article nor the photograph showed the applicants in a negative light , nor were they in any way derogatory . Nor did the photograph touch on the core of the applicants’ privacy , as it did not show the wedding ceremony itself . Nonetheless , the court found that publication thereof had not been justified by a legitimate interest as the first applicant had chosen to retreat to a secluded place , away from the public eye . Furthermore , the applicants had made clear their intention to prevent press coverage of their wedding by asking the press to refrain from reporting it and taking precautions to create a degree of seclusion by restricting access to the wedding location(s ) .

NORP However , the court held that publication of the article alone ‒ regardless of the accompanying photograph ‒ constituted a serious enough violation of the first applicant ’s personality rights to justify damages . In particular the publication of core details of the wedding party and ceremony ‒ such as quotes from the speeches , the range of drinks and food offered during the wedding and the choice of music ‒ could not be justified by any public interest but rather constituted a voyeuristic intrusion into the applicants’ privacy . Concerning the notional licence fee , the court held that it could not be considered normal commercial practice to pay royalties to the subjects of a news report . Consequently the magazine had not saved royalties which they would normally have had to pay to the first applicant for publishing the report and the photograph .

On DATE ORG set ORG judgment aside and dismissed the first applicant ’s action in its entirety . It confirmed ORG reasoning regarding public interest on the basis of the popularity of the wedding locations . It furthermore , and in particular , emphasised that , owing to the influence of the second applicant on public opinion and his role in presenting political television shows , the public had a legitimate interest in knowing who was invited to his wedding ‒ including the mayor of GPE ‒ and to judge whether the public opinion presented by him was consistent with or contradictory to his real life . As the wedding was a shared event in the life of both the applicants , the first applicant was obliged to accept the public ’s interest in the life of the second applicant .

NORP However , the court disagreed with the findings of ORG concerning the level of interference with the first applicant ’s personality rights . It held that the details published about the wedding , such as information regarding drinks , food and music , were not core private issues but constituted information that was generally discussed and of interest in the context of a wedding . Furthermore , the court pointed out that it was normal practice and to be expected that , in the context of a wedding , photos would be taken by different people , whether invited guests or not . As the photo of the first applicant did not show her in a negative light and was not published on the front page of the magazine , its publication could be justified by public interest . Lastly , ORG gave special consideration to the publication of quotes from the priest ’s address , the speeches of the second applicant and the first applicant ’s father , and an excerpt from an intercessory prayer recited by CARDINAL of the applicants’ children . It reasoned that this information was more intrusive than the rest of the published details . Nonetheless , even though the wedding was not open to the general public , CARDINAL guests had been invited , and they were not bound to confidentiality . As these guests were not all part of the core family , the speakers and the applicant had to accept that certain information would be communicated to persons who were not invited and to the general public . In conclusion it reasoned that the mere desire on the part of the applicants to have no press coverage could not outweigh the legitimate public interest in the wedding , the published details and the photograph .

The first applicant ’s complaint against the refusal of leave to appeal on points of law was rejected .

On DATE ORG declined to admit the applicant ’s constitutional complaint , without providing reasons ( CARDINAL BvR CARDINAL/CARDINAL ) .

The second applicant also brought proceedings against the magazine , claiming damages of at least EUR CARDINAL,CARDINAL and EUR CARDINAL in pre - trial expenses for the cease and desist declaration .

On DATE ORG dismissed the second applicant ’s action . It endorsed the reasoning of ORG and quoted its judgment of DATE at length .

NORP The applicant ’s appeal and complaint against the denial of leave to appeal on points of law were rejected .

Article QUANTITY of LAW ) guarantee freedom of expression and the freedom of the press and provide that these freedoms are subject to the limitations laid down in the provisions of the general laws and in the statutory provisions for the protection of young people and are also subject to the obligation to respect personal honour ( ORG der persönlichen GPE ) .

Section CARDINAL § CARDINAL of ORG ( Gesetz betreffend das NORP an GPE der bildenden PERSON ) provides that images can only be disseminated with the express consent of the person concerned . LAW ( CARDINAL ) of the LAW provides for exceptions to that rule in cases where the images portray an aspect of contemporary society ( GPE aus dem Bereich der GPE ) as long as publication does not interfere with a legitimate interest of the person concerned ( section CARDINAL § CARDINAL ) .

Article CARDINAL § CARDINAL of LAW ( ORG ) provides that anyone who , intentionally or negligently , unlawfully infringes another ’s right to life , physical integrity , health , freedom , property or other similar right , shall be liable to furnish compensation for the resulting damage . LAW stipulates that monetary compensation may be demanded in respect of non - pecuniary damage only in the circumstances provided for by law . These include an injury to a person ’s body , health , freedom or sexual selfdetermination .


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

NORP The applicants’ personal details as well as the facts in relation to each case are set out in the FAC to this judgment .

The applicants complained of the excessive length of different civil and administrative proceedings under LAW .

NORP In case of the first and fourth applicant ORG rejected their the constitutional appeals , whereas in case of the second and third applicant ORG found a violation of a right to a trial within reasonable time , but awarded no damages .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in DATE and lives in GPE .

At the time of the events she belonged to an artistic group called ORG , which was known for its provocative public performances .

On DATE the applicant , together with CARDINAL other members of the above - mentioned union , made what she described as an “ act of performance ” , which , according to both parties’ accounts , consisted of the following . They went to the Eternal Glory Memorial to those who perished in the Second World War , which contained the tombs of CARDINAL soldiers , including that of an Unknown Soldier . The applicant took a frying pan prepared in advance , broke some eggs into it and fried them over the Eternal Flame at the Tomb of the Unknown Soldier . CARDINAL of her friends joined her and fried sausages on skewers over the flame . Another member of the group filmed the event . CARDINAL police officers approached them and made a remark that their behaviour was inappropriate , without further interference . On DATE the applicant posted the video on the Internet on behalf of ORG . It was accompanied by the following statement :

“ Precious natural gas has been being burned , pointlessly , at FAC in GPE for DATE now . This pleasure costs taxpayers CARDINAL hryvnias [ ORG ] per month . And this is only one ‘ eternal ORG pagan temple , whereas there are MONEY of them throughout GPE . On DATE ORG reacted to this by an act of protest in LOC in the capital . It showed that people should use the ‘ eternal ORG .

We suggest to the outraged representatives of ORG of GPE to follow the example of ancient NORP vestal virgins and to carry out around - the - clock duty at the ‘ eternal flames’ , keeping the fire lit manually by wood . There is no doubt that communists will have no problems with fulfilling this task , because they already have experience of taking care of the PERSON monument in GPE and their financing is much better than that which the vestal virgins had . ”

While the parties did not provide a copy of the video in question to the ORG , it was possible to view it on several publicly available websites . In addition to the factual account from the parties summarised above , the ORG notes that the soundtrack to the video was a famous DATE NORP song “ The battle is going on again ” ( devoted to the victory of the DATE revolution and optimism about the future of the communist regime ) . The video started with the following opening titles : “ GPE presents ” , “ Recipe of the day ” , “ Eternal fried eggs on the eternal flame ” . The participants in the performance did not make any public address and their conversation was not audible . They had no posters or other visual aids , apart from the food and cooking utensils . It could be seen on the video that once the applicant had broken the eggs in the frying pan and was about to approach the fire , while her friends held skewers with sausages , the CARDINAL police officers appeared and the applicant explained something to them and they left . In order to reach the flame the applicant had to step over a sculpture of a wreath of oak leaves and step on the words “ Glory to the Unknown Soldier ” .

There were several complaints to the police that the action on the video had amounted to desecration of the Tomb of the Unknown Soldier and called for criminal prosecution .

On DATE the police questioned NORP , CARDINAL of the women who had participated in the performance . She submitted that she had not known the other members of the group and that she had met them by chance . As they had allegedly explained to her , they had been hungry and had intended to cook food in order to eat it .

On DATE criminal proceedings were instituted against NORP and CARDINAL unidentified persons on suspicion of hooliganism .

On DATE NORP wrote a confession that she had participated in a protest against inappropriate use of natural gas and that she regretted it . She knew only the first names of the other participants .

On DATE another criminal case was opened against her and CARDINAL unidentified persons in respect of the same event , this time on suspicion of desecration of a tomb . It was joined to that opened earlier . Subsequently the charge of hooliganism was dropped .

NORP The police retrieved photos of several persons who might have been involved in the incident from the passport office ’s database and showed them to NORP She recognised the applicant .

On DATE the investigator questioned the applicant ’s grandmother and mother , who lived at the address of the applicant ’s registered residence . They submitted that they knew nothing about her involvement in the event in question . They also stated that the applicant did not in fact live there and denied knowing her whereabouts or having her contact details . They only knew that she had left for western GPE , without further details . The grandmother stated that the applicant had visited her DATE . The applicant ’s mother had seen her DATE and had received a telephone call from DATE .

On DATE the investigator severed the criminal case in respect of the applicant and CARDINAL unidentified persons on suspicion of desecration of the Tomb of the Unknown Soldier by a group following a prior conspiracy .

On DATE the applicant was declared wanted by the police .

On DATE the investigator applied to ORG of Kyiv ( “ the ORG ” ) for the applicant ’s detention as a preventive measure pending trial . His arguments were as follows : the offence of which the applicant was suspected was punishable by a prison term of DATE ; the applicant had absconded , as a result of which she had been declared wanted by the police ; and she could reoffend or hinder the establishment of the truth if at liberty .

On DATE a judge of ORG allowed that application in part : he ordered the applicant ’s arrest with a view to bringing her before the court for examination .

On DATE at TIME the applicant was arrested at the flat of a certain PERSON in GPE . As the latter subsequently stated during her questioning , the applicant had been living there from DATE at the request of an acquaintance .

On DATE the applicant was questioned as an accused in the presence of her lawyer . While insisting that her only intention had been to protest against the inappropriate use of natural gas , she confessed to the offence and expressed remorse .

On DATE the investigator once again applied to ORG for the applicant ’s detention as a preventive measure . His reasoning was the same as before .

On DATE and DATE CARDINAL deputies of ORG applied to ORG for the applicant ’s release in exchange of their personal guarantee of her adequate procedural behaviour .

On DATE ORG remanded the applicant in custody as a preventive measure pending trial . It noted that she was accused of a serious offence punishable by imprisonment of from DATE . Furthermore , the judge referred to the fact that the applicant had absconded and had therefore been put on the wanted list . It was also considered that she might hinder establishing the truth if at liberty . In so far as the applicant ’s lawyer relied on her positive character references from various sources , the court noted that those could not guarantee her compliance with all the procedural requirements . While having noted that the applicant also relied on the letters of personal guarantee from the people ’s deputies , the judge did not further comment on them . It was specified in the ruling that the term of the applicant ’s detention was to be calculated from CARDINAL DATE . Under the applicable legislation , the duration of pre - trial detention was limited to DATE , with the possibility of further extensions .

The applicant ’s lawyer appealed . He submitted that his client was willing to cooperate with the investigation and that there were no reasons for her detention . It was further pointed out in the appeal that the applicant had been declared wanted by the police on DATE the criminal case against her had been opened . The lawyer noted that there had not been a single summons sent by the investigation to the applicant ’s address prior to her arrest . According to her , she had found out about the charge against her only on DATE of her arrest on DATE . Lastly , the lawyer submitted that the first - instance court had not considered any less intrusive preventive measures as an alternative to detention and that it had left without consideration the people deputies’ letters of guarantee .

On DATE ORG rejected the above appeal . It noted that ORG had already duly examined all the arguments raised in it .

On CARDINAL DATE the applicant was indicted . On DATE the case was sent to ORG for trial .

On DATE the applicant applied to the court for release under an undertaking not to abscond . She submitted that she enjoyed positive character references , had no criminal record and had cooperated with the investigation . Furthermore , the applicant observed that by that time the investigation had already been completed and could not therefore be hampered . She emphasised that her actions had been nothing else than a protest driven by good motives . Several members of parliament and other prominent figures joined her in that application and expressed their wish to act as her personal guarantors .

On DATE ORG held a preparatory hearing , during which it rejected the applicant ’s application for release with reference to the seriousness of the charge against her , “ the nature and the circumstances of the offence of which she [ was ] accused ” , as well as the fact that she had been declared wanted by the police . The judge also stated , in general terms , that there were no grounds for the applicant ’s release under a personal guarantee .

On DATE the applicant applied once again to be released . On DATE ORG allowed that application and released her under an undertaking not to leave the town .

On DATE ORG found the applicant guilty of the desecration of the Tomb of the Unknown Soldier , acting as part of a group of persons following a prior conspiracy . The court noted that the applicant had convinced NORP and CARDINAL other people , whose identities remained unestablished , to carry out a performance at the “ Eternal Glory ” memorial aimed at protesting against the waste of natural gas caused by the burning of the Eternal Flame . NORP , who was questioned in court , confirmed that account of events . The court also questioned the memorial keeper , who had witnessed the performance from a distance , and the QUANTITY police officers who had spoken to the applicant and her friends ( see paragraph CARDINAL above ) . Furthermore , the court examined the video - recording of the performance as material evidence .

The judgment mentioned the statement made by the applicant during the hearing that in her opinion people bringing flowers to the memorial did not really understand what exactly it was dedicated to . She insisted that she had not committed any crime as her performance had not been meant to desecrate the Tomb of the Unknown Soldier . Furthermore , she maintained that there could not be a tomb beneath the Eternal Flame because of the gas pipe .

ORG held that the applicant ’s arguments had no impact on the legal classification of her actions and that they were refuted by the evidence as a whole . The judgment further stated in that regard :

“ ... the court considers that by committing deliberate acts in a group which showed disrespect for the burial place of the Unknown Soldier and for the public tradition of honouring the memory of soldiers who perished defending or liberating GPE and the lands of GPE from the fascist hordes , and by subsequently presenting those actions as a protest , [ the applicant ] has tried to escape social condemnation of her conduct and criminal liability for the offence . ”

Relying on local authority documents , the court dismissed the applicant ’s submission that there was no established location for the Tomb of the Unknown Soldier .

The court did not discern any aggravating or mitigating circumstances in the case . At the same time , in deciding on the penalty , it took into account , on the one hand , the fact that the applicant did not have a criminal record , that she was working as a political analyst and got positive character references by her place of residence and work . On the other hand , the court noted that the criminal offence in question was of medium gravity and that the applicant did not show any remorse for what she had done . As a result , she was sentenced to CARDINAL GPE imprisonment , suspended for DATE .

On DATE the ORG exempted NORP from criminal liability under the surety of her employer .

The applicant appealed . Relying on the definition of the desecration of a burial place under the Burial and Funeral Business Act ( see paragraph CARDINAL below ) , she maintained that in the absence of any intention by her to “ defile the family or social memory of a deceased or to show contempt for a burial place , or social and religious principles and traditions ” , there were no constituent elements of a crime in her actions . The applicant reiterated her argument that her performance had been nothing more than a protest . Lastly , she submitted that the criminal proceedings against her had violated her right to freedom of expression under LAW .

The prosecutor also appealed , considering the sentence to be too lenient .

On DATE ORG upheld the judgment of the first - instance court . It stated that desecration of a tomb could have different expressions , indicating an insulting attitude , mockery or disrespect towards a tomb or the person buried therein , regardless of the stated motives . As regards the applicant ’s argument on her right to freedom of expression , the court noted that that right was not unlimited and that the restriction in the applicant ’s case was in accordance with the law and pursued a legitimate aim . The appellate court also rejected the prosecutor ’s appeal .

NORP The applicant further reiterated her arguments in an appeal on points of law lodged by her , which was , however , rejected by ORG on DATE .