No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicant was born in DATE . He is a lawyer who lives and practises in GPE .

The facts of the case may be summarised as follows .

At DATE , in the course of criminal proceedings against ORG and another individual on charges of aggravated theft , punishable by imprisonment of DATE , ORG ( “ the ORG ” ) decided that in the interests of justice CARDINAL lawyers should be appointed defence counsel for the CARDINAL accused , who could not afford to pay for a lawyer but wished to be legally represented .

ORG sent a request to ORG asking them to nominate CARDINAL lawyers as defence counsel to represent the accused . The letter stated , inter alia , that the counsel ’s remuneration would be determined in accordance with the Ordinance of ORG on ORG Minimum Remuneration DATE ( “ the LAW ” ) .

In a letter of CARDINAL DATE , sent to the applicant and ORG , ORG nominated the applicant to represent PERSON The letter contained the following text :

“ In accordance with section DATE of GPE , you must act as defence counsel ... and appear at the hearing in the court proceedings . Failure to comply may result in disciplinary action under LAW and civil liability vis - à - vis the parties [ to the criminal proceedings ] .

In its decision to appoint [ you as ] defence counsel , the [ criminal ] court ... must set [ your ] remuneration in an amount not lower than the minimum provided for in the Remuneration Ordinance . Otherwise you must refuse to provide legal representation because you are at risk of a disciplinary [ sanction ] for breach of section CARDINAL ( CARDINAL ) of LAW and the instructions of ORG ... ”

ORG held a hearing in the criminal case against PERSON on DATE . At the beginning of the hearing , at TIME , the court appointed the applicant as ORG ’s counsel and invited him to state his position in respect of whether there was an obstacle to proceeding with the hearing or not .

The applicant replied that he would represent ORG if the court undertook to comply with section CARDINAL(CARDINAL ) of LAW , which in turn referred to LAW , and thereby determined his remuneration at or above the minimum CARDINAL NORP levs ( ORG ; the equivalent of CARDINAL ( ORG ) ) provided for in law .

The presiding judge refused to determine the minimum remuneration at that point in time . He warned the applicant that he would fine him if he refused to act as counsel for the defendant .

Following this exchange , the applicant refused to represent the defendant and left the courtroom .

The court fined the applicant ORG CARDINAL ( approximately FAC ) . The decision imposing the fine referred to LAW ( see paragraph CARDINAL below ) and stated as follows :

“ In the court ’s view , the lawyers already appointed to serve as defence counsel should not have asked about their remuneration [ at this stage of the proceedings ] . The court would be in a position to estimate that amount only after the collection of all evidence and following the final oral pleadings . By raising the question of setting their remuneration at a minimum of ORG CARDINAL before the examination of the case started , the [ CARDINAL lawyers ] showed manifest disrespect for the court and were in breach of the Code of Criminal Procedure . Despite a warning , they did not comment , they refused to act as legal representatives nominated by the Plovdiv Bar upon this court ’s request ... and left the courtroom . Seeing that in the present case the defendants must be legally represented ... the hearing will have to be adjourned owing to the unjustified absence of their defence counsel .

Therefore , [ the applicant and the other lawyer ] shall be fined ORG CARDINAL each . ”

Then the prosecutor requested a TIME break so that new counsel could be found for the accused . He submitted that , in view of the principle of speediness of criminal proceedings and the fact that all witnesses and experts were there in the courtroom , the hearing should not be adjourned to a later date . The court granted the request and decided to proceed with the case at TIME on DATE .

The hearing was resumed as scheduled . The prosecutor asked the court to appoint another lawyer who was present in the courtroom as counsel for the accused and to give him time to get acquainted with the case file . The court granted the request .

At TIME the new lawyer stated that he had acquainted himself with the case and agreed to be appointed defence counsel . The court did so and proceeded with the case . The proceedings ended with a plea bargain agreement between the prosecutor and the defendants . The court set the replacement defence counsel ’s remuneration at ORG MONEY ( about EUR CARDINAL ) .

On an unspecified date the applicant appealed against the fine imposed on him ( see paragraph CARDINAL above ) . He claimed that he had not been appointed by ORG in accordance with the law . In particular , the court had been bound by law , specifically LAW , to determine his remuneration in the actual decision to appoint him counsel ( see paragraph CARDINAL below ) ; the court had also had to determine the amount according to LAW . By refusing to comply with those legal requirements , the court had breached the law . Therefore , the applicant ’s refusal to act as counsel had been justified ; he should not have been held responsible for the adjournment of the hearing and he had not acted disrespectfully . Consequently , he submitted , the fine had been unlawful .

On DATE ORG dismissed the applicant ’s appeal against the fine in a final decision . It acknowledged that pursuant to section CARDINAL(CARDINAL ) of LAW the remuneration to be paid to a court - appointed defence counsel had to be indicated in the order for his or her appointment and that it ought not be lower than the minimum provided for in LAW . However , the court found that it was only possible to determine the exact amount of remuneration to be paid at the end of the proceedings . The reason for this was that LAW provided for a lower amount in case of termination of the criminal proceedings by way of a plea bargain ( see paragraph CARDINAL below ) . The court could not predict the outcome of the proceedings at their outset . Therefore , the applicant ’s insistence on a prior determination of his fee was contrary to section CARDINAL of GPE . The applicant had thus caused an unjustified adjournment and had rightly been fined under LAW . The court finally held that the amount of the fine was proportionate to the gravity of the offence .


Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

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

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

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

The applicant was a stockbroker working as the head of trading in a brokerage firm . In DATE ORG ( hereinafter “ the Agency ” ) , an independent authority vested with supervisory powers in the field of securities market operations , requested from the applicant a number of records of securities transactions he had made in DATE .

After examining these documents and the records of the stockexchange trading system , on DATE the ORG adopted a decision to initiate proceedings for revocation of the applicant ’s stockbroker ’s trading licence ( hereinafter “ the initial decision ” ) , on the ground that in the period DATE and DATE he had carried out CARDINAL fictitious securities transactions and thereby breached ORG and LAW . In its decision , the GPE specified the controversial transactions , explaining in detail the circumstances which in its opinion implied their fictitious character .

These transactions all involved cross - trading , the brokerage firm acting as both the seller and buyer of securities for its ORG or its own accounts . In certain cases the applicant carried out multiple clients’ orders to sell securities , which were followed almost simultaneously by these same GPE orders to buy an equal amount of the same type of securities . Moreover , in some cases the brokerage firm itself had bought securities from clients and subsequently sold them back to them . Other types of crosstrade transactions involved alternate sale and purchase of securities of the same type between a client and the brokerage firm , where the CARDINAL first sold and bought from each other a certain amount of securities of equivalent type , only to subsequently DATE approximately TIME DATE sell / buy them back from each other under almost the same conditions .

According to the ORG the orders were executed by means of a special “ cross - user ” function key which ensured that the transactions were , as intended , carried out simultaneously between CARDINAL specific parties submitting matched offers , and no third party could intervene in the prearranged transaction . Given that the sales and subsequent purchases were carried out at very short intervals , that the securities were bought and sold at almost the same prices and that the transactions did not result in any change in the economic ownership of the relevant securities , the ORG took the view that they were prearranged and that the applicant , the very person who had carried them out , must have been aware of their content .

Furthermore , the ORG ’s decision included a detailed list of sixtyfive documents , among them copies of the trading records relating to the controversial transactions , which had given rise to its suspicion that the applicant had repeatedly breached the law , as well as the dates on which the alleged violations had occurred . Finally , the applicant was notified that he could make a statement on the reasons for initiating proceedings and submit evidence in support of his statement within DATE of receiving the decision .

In his reply to the ORG ’s initial decision on DATE , the applicant contested the version of events presented by the ORG , as well as the application and interpretation of the substantive and procedural law . As regards his objection to the facts , the applicant , while not contesting that he had in fact carried out the transactions in question or that these sales and purchases had been carried out between the same clients or between clients exchanging roles as buyers and sellers , argued that he had not been acquainted with the details of the transactions in question . The orders had allegedly been placed with another department , whereas the trading department had only carried them out . The applicant maintained that in the DATE period from DATE , during which CARDINAL of the controversial transactions had been made , the trading department had carried out CARDINAL securities transactions . Thus , the applicant alleged that he had not known , nor had he been required to check , whether each of these transactions was made in a correct manner . In support of his submissions , the applicant provided copies of the records of relevant transactions and balance of securities in the accounts of the relevant clients .

Moreover , the applicant claimed that the documents identified in the ORG ’s initial decision did not justify the conclusion that he had actually used the “ cross - user ” function key to carry out the controversial transactions . In so far as the ORG disagreed with his view , the applicant suggested that an expert in securities trading be appointed to examine this issue . He also suggested that that expert submit his report at an oral hearing , enabling the applicant to ask him or her relevant questions , or in written form , in which case the applicant would submit written comments .

The applicant also joined to his reply an initiative for a review of the constitutionality of certain provisions of LAW applicable to his case , explaining that he would be lodging this initiative with ORG . In the initiative he challenged , inter alia , a number of provisions regulating proceedings before the ORG and judicial review proceedings , including the provision stipulating that the ORG ’s decisions were , in principle , rendered without holding a hearing . The applicant requested that the initiative be considered a constitutive part of his reply .

On DATE the applicant lodged his initiative for the review of constitutionality of certain provisions of LAW with ORG .

On DATE the ORG refused the applicant ’s request for an oral hearing and the appointment of an expert , without giving any reasons .

On DATE the Agency , sitting in a panel composed of CARDINAL members of its ORG , rendered a decision revoking the applicant ’s trading licence ( hereinafter “ the final decision ” ) on the ground that he had carried out CARDINAL fictitious securities transactions and thereby had repeatedly breached the law and stock - exchange trading rules . As regards , firstly , the applicant ’s request for an oral hearing and the appointment of an expert , the Agency held that the information on fictitious transactions through the use of the “ cross - user ” function key had been obtained from the records of the stock - exchange trading system , which had been presented to the applicant . According to the Agency , the tabular extracts from the trading system records , where all controversial transactions featured the “ cross - user ” status , clearly manifested that the “ cross - user ” function key had been used in these sales and purchases .

In this connection , the ORG considered that the manner in which the transactions had been carried out was sufficiently established by the documentary evidence already included in its decision to initiate proceedings for revocation of the applicant ’s trading licence , as well as by the records of transactions and other documents submitted by the applicant . According to the ORG , there was no controversy regarding the facts which would have necessitated an oral hearing or the appointment of an expert .

The applicant sought leave for judicial review before ORG , challenging the ORG ’s final decision , as well as its decision rejecting his procedural requests for the appointment of an expert and for an oral hearing . In his request , the applicant essentially repeated the pleas made in his reply to the initial decision , and added a number of new complaints . Complaining that his earlier requests to this effect had been refused by the ORG without cause , the applicant requested that an expert be appointed and that an oral hearing be held , although a hearing in these proceedings was excluded by law . Nevertheless , the applicant argued that the statutory exclusion of oral submissions was unconstitutional , and proposed that this issue be raised before ORG and that the judicial review proceedings be suspended pending the decision of ORG . Moreover , the applicant maintained that the documents relied upon by the ORG did not prove that he had actually carried out the transactions at issue by using the “ cross - user ” function key , and that the ORG must have based its conclusion to this effect on other documents which had not been referred to in its decisions .

On DATE ORG rendered a decision on the review of constitutionality of certain provisions of LAW , in which it joined several applications regarding the same matter . Some of the challenged provisions of the LAW were found to be unconstitutional ; however , none of those pertained to procedural matters , including the provisions on holding of oral hearings .

On DATE ORG dismissed the applicant ’s action for judicial review without holding an oral hearing . Having found that the controversial transactions had all involved cross - trading between what were essentially the same clients , ORG held that the ORG ’s conclusions as to the facts were correct . Moreover , considering that the purchases and sales had followed each other at very short intervals , ORG agreed with the ORG that the applicant must have been aware of the irregularity of the transactions in question . The court pointed out that the applicant had failed to adduce any arguments capable of rebutting the ORG ’s conclusions . Also , the court dismissed the applicant ’s complaint against the ORG ’s decision not to appoint an expert and/or hold an oral hearing , reiterating that the ORG had sufficiently established the facts of the case . Finally , regarding the alleged failure of the ORG to indicate all evidence on which its conclusion as to the use of the “ cross - user ” function key had been made , ORG held that , as the applicant had not previously challenged the initial decision , it was only possible to examine his complaints regarding the final decision of the Agency .

The applicant lodged a constitutional complaint against the judgment of ORG , challenging the refusal of the ORG and ORG to hold an oral hearing and appoint an expert . He also claimed that the ORG had failed to indicate all evidence used in the proceedings , and that ORG erroneously rejected his complaint in that regard without addressing its merits .

On DATE ORG dismissed the applicant ’s constitutional complaint , finding , first of all , that the ORG had indicated all the documents used as evidence in the proceedings to revoke his trading licence , first in its initial decision and then in its final decision . Accordingly , the court was of the view that the ORG ’s conclusions as to the applicant ’s use of the “ cross - user ” function key were clearly based on the documentary evidence and thus did not require a complex assessment of opposing and contradictory evidence . Moreover , the applicant had been provided with sufficient opportunity to comment on the evidence which was the basis for the revocation of his licence . Therefore , although the ORG agreed with the applicant that ORG had erred in concluding that he should have challenged the ORG ’s initial decision to initiate the proceedings at an earlier time , it considered that remitting the case back to ORG for further examination could not lead to a different conclusion with regard to the documentary evidence used in the proceedings before the Agency .

As regards the applicant ’s complaint that the ORG had refused to appoint an expert , ORG reiterated that the ORG had given an adequate explanation of the use of the “ cross - user ” function key and the records of the stock - exchange trading system . Therefore , in ORG opinion , ORG had not been required to make a specific pronouncement on this question .

Finally , as regards the applicant ’s complaint that the ORG had also refused to hold an oral hearing , ORG held that he had not put forward this complaint in his application for judicial review before ORG , thereby failing to use that remedy in substance . As regards the lack of an oral hearing in the judicial review proceedings , ORG emphasised that a hearing in those proceedings was excluded by law . Nevertheless , ORG took the view that the applicant ’s right to be heard was not affected either , as he had had the opportunity to present his submissions in written form .

At the time of the events at issue the securities market operations and the powers of the ORG in respect thereof were regulated by LAW . The LAW designated the ORG as an independent legal entity , led by a ORG which was composed of the president and CARDINAL members appointed by the Government . The members of the ORG were required to hold a university degree and enjoy the reputation of renowned experts in the field of finance or commercial law .

Proceedings in individual matters before the ORG were conducted pursuant to ORG , unless otherwise provided by LAW . The parties to the proceedings were invited to make their statements in writing . An oral hearing was held only exceptionally , the LAW providing as follows :

“ ( CARDINAL ) The Agency shall adopt decisions without a hearing .

( CARDINAL ) Notwithstanding the first paragraph , the president of the senate may convene a hearing if he or she considers that this is necessary in order to explain or establish relevant facts .

( CARDINAL ) The president of the senate may , without a hearing , hear parties to the action and other persons if he or she considers that this is necessary in order to explain or establish relevant facts . ”

Oral hearings in judicial review proceedings were specifically ruled out by LAW .

NORP Moreover , with regard to the reasons for revoking an individual ’s trading licence , the Act provided as follows :

“ ( CARDINAL ) The Agency shall withdraw a licence to provide services ...

if a stockbroker acts in severe contravention of the rules pertaining to the organised market ( LAW .

( CARDINAL ) The following shall be deemed a severe violation of the provisions referred to in items CARDINAL and/or CARDINAL of the first paragraph of this Article ...

recurring violations of the said provisions . ”

“ In providing services with regard to the securities on the organised securities market , brokerage firms shall be obliged to comply with the trading rules and other general acts of the stock exchange and with the requirements of the responsible bodies of the stock exchange . ”


No violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)

Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in DATE and lives in GPE . At the material time , the applicant was a journalist and a freelance writer for the web - based media site PERSON .

The Federation of Icelandic Fishing Vessel Owners ( hereafter “ the LIU ” ) represented fishing vessel owners in GPE and safeguarded their common economic , financial , legal , technical and social interests .

The applicant claimed that a private website , B , was publishing anonymous blogs , constantly lobbying for the PERSON and discrediting persons who spoke against it .

On DATE a newspaper , DV , published an article regarding rumours that the PERSON was providing financial support to website PERSON It was alleged that this support amounted to CARDINAL NORP GPE ( ORG ) DATE . In the article , no mention was made of the ORG ’s chief executive office ( hereafter “ A ” ) .

On DATE the applicant published an article on GPE under the headline “ PERSON pays CARDINAL for offensive material ” and referred to the article in DV . A sent a short statement to PERSON submitting that the PERSON had not supported website PERSON The statement was published on PERSON on DATE .

On DATE the applicant published an article on Pressan where he responded to A ’s statement . The article stated that A had to do better than just denying that direct payments had been made to website B and that the PERSON , directed by A , was accountable for the offensive material published anonymously on website B. Furthermore , the applicant called into question whether or not the respectable representatives of the PERSON ’s member companies had agreed to the organisation ’s funds being paid through intermediaries to gossips such as the owners of website B.

On DATE the applicant published a third article on the matter on Pressan . The article stated that the PERSON supposedly supported website B with ORG CARDINAL DATE through companies owned by [ Mr Y ] , who was also the owner of website B. Furthermore , the article stated that the applicant knew that not all ORG board members were aware of the organisation ’s support for the offensive material on website B since the payments were well - disguised in the organisation ’s financial records .

NORP Moreover , it stated that the applicant had been told that it was possible that none of the ORG ’s board members knew about the organisation ’s CARDINAL being used to support anonymous slander on website B and that A alone had decided to use the funds in this way . The applicant added that he had not received confirmation of the last statement . A picture of A appeared beside the text of the article .

On DATE A lodged defamation proceedings against the applicant before ORG and requested that the following statements be declared null and void :

“ A. The ORG , directed by [ A ] , is left accountable for the offensive material that is published anonymously on the gossip [ website B ]

B. Then there is the question of whether respectable representatives of the ORG ’s member companies would accept that the organisation ’s funds are being paid through intermediaries to gossips such as the owners of [ website B ]

C. The PERSON supposedly supports [ website B ] with almost ISK CARDINAL DATE through companies owned by [ Mr Y ]

D. I know that some of the ORG ’s board members are not aware of the support for the offensive material on [ website B ] , because the payments are well - disguised in the organisation ’s financial statements . I have been told that it is possible that no ORG board members know that the organisation ’s CARDINAL are being used to support anonymous slander on [ website B ] - that the CEO alone decided to use the organisation ’s funds in this way . ”

By judgment of CARDINAL DATE ORG found that CARDINAL of the statements , namely that under item D above , had been defamatory and ordered the applicant to pay A ORG CARDINAL ( MONEY ( ORG ) ) in nonpecuniary damages under LAW , plus interest , and LAW ( CARDINAL ORG ) for A ’s costs before ORG . It declared the statement null and void .

The judgment contained the following reasons :

“ ... [ A ] is the chief executive officer of ORG or PERSON , as the GPE is called in everyday speech , and he has held the job for DATE . Part of his job is , inter alia , to participate in public debate on maritime affairs and to express the views and policies of the PERSON .

In DATE there has been extensive debate on the advantages and flaws of the current fisheries management system . There are different views on this system in society , and it is of great concern , as the fishing industry is CARDINAL of the fundamental and most important industries of this country . [ A ] has , because of his occupation , appeared publicly on behalf of the PERSON and advocated the organisation ’s views . The defendant , who writes on a regular basis about various social matters , has discussed the fisheries management system though his writings and criticised certain aspects of it .

According to LAW ) of the LAW no . CARDINAL/CARDINAL everyone has the right to freedom of opinion and belief . Article CARDINAL ) of the LAW states that everyone shall be free to express his thoughts , but shall also be liable to answer for them in court . The law may never provide for censorship or other similar limitations to freedom of expression . Article CARDINAL(CARDINAL ) of the LAW states that freedom of expression may only be restricted by law in the interests of public order or the security of the ORG , for the protection of health or morals , or for the protection of the rights or reputation of others , if such restrictions are deemed necessary and in agreement with democratic traditions . LAW contains an equivalent provision , cf . Act no CARDINAL/CARDINAL on LAW .

Therefore , the present case concerns balancing the fundamental provisions on freedom of expression and the right to respect for private life .

In the court ’s view the following statement applies directly to [ A ] : “ I know that some of the ORG board members are not aware of the financial support for the offensive writings on [ website B ] , because the payments are well - disguised in the organisation ’s financial statements . I have been told that it is possible that no members of the PERSON board know that the organisation ’s CARDINAL are being used to support anonymous slander on [ website B ] - that the CEO alone decided to use the organisation ’s funds this way ” . [ The applicant ] does not maintain that this does not apply directly to [ A ] , his plea for acquittal is based on the fact that the statement does not imply that [ A ] has committed a criminal offence ; furthermore he claims that this is not something he maintains , since he pointed out [ in the article ] that he was not able to confirm that statement .

The evaluation of whether or not the statement includes an accusation of a criminal act or is defamatory will not be based on how [ the applicant ] understands it but on how readers are expected to perceive and interpret it . The claim that the payments to [ website B ] have been disguised in the organisation ’s financial statements seems to imply that [ A ] , who is responsible for the ORG ’s financial accounts as the CEO of the organisation , condones accounting deception to hide the alleged support to [ website B ] . [ The applicant ] can not prove the statement so it is considered not to be proved .

The court considers that the second part of the statement , “ I have been told that it is possible that no ORG board members know that the organisation ’s CARDINAL are being used to support anonymous slander on [ website B ] - that the CEO alone decided to use the organisation ’s funds in this way ” , can be understood as an insinuation of fraud by abuse of position [ umboðssvik ] and negligence at work as it implies that [ A ] allocated PERSON funds against the board ’s will and without authorisation . [ The applicant ] has not shown that the statement is true , for this he carries the burden of proof .

The aforementioned statement is considered to be defamatory for [ A ] and likely to damage his reputation and honour . In accordance with the aforementioned , and with reference to LAW no . CARDINAL/CARDINAL , the statement is declared null and void . ”

The applicant sought leave to appeal to ORG , which was refused on DATE .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE , when the applicant was in the courtyard of her apartment building , CARDINAL officers from the municipal police force ( PERSON and PERSON ) pulled up in a car . After having a conversation with the applicant they twisted her arms behind her back and forced her to approach their car . She was eventually let go , but later she started feeling ill and had to call an ambulance . The applicant submits that she still felt ill effects on her health DATE after the events of CARDINAL DATE .

On DATE the applicant wrote to ORG and requested that criminal proceedings be instituted against the officers responsible . The applicant stated that she had told the officers that they could go and talk in her apartment , after which CARDINAL of them had grabbed her right upper arm and twisted her arm behind her back , she avoided the grip owing to pain , while the police officer shouted that he would teach her a lesson about resisting the police . At that moment the second policeman had grabbed and twisted the applicant ’s left arm . The policemen had then tried to push the applicant into the back of their car . They eventually let her go after her neighbours intervened . Immediately after the policemen had left , the applicant had started experiencing health problems , namely , sharp pain in her chest , high blood pressure , pain in her back , neck and head , and a loss of feeling in her hands . She had called an ambulance and had been given an injection . The following day a general practitioner had issued the applicant with a sick leave certificate until DATE and had prescribed painkillers and sedatives . The applicant asked the prosecutor to order an appointment with a forensic medical expert , pointing out that there were haematomas on her upper arms .

It appears that the prosecutor instituted criminal proceedings DATE . The case was forwarded to the ORG police for investigation .

On DATE the applicant submitted a complaint to the head of ORG . In substance she repeated her account of the events of DATE . In the concluding part of her complaint , the applicant requested that the actions of the CARDINAL officers of the municipal police be investigated . She also pointed out that as a result of their actions she had suffered mental anguish and material and psychological harm .

On DATE an inspector from the GPE and ORG adopted a decision to terminate the criminal proceedings which had been initiated by the prosecutor . The decision was adopted on the basis of statements made by the applicant ( see paragraph CARDINAL below ) , by PERSON and PERSON ( see paragraph CARDINAL below ) and by CARDINAL other witnesses ( see paragraph CARDINAL below ) as well as the forensic medical expert ’s report ( see paragraph CARDINAL below ) and a decision of ORG to take disciplinary measures in respect of PERSON and PERSON for having failed to properly document the administrative infraction committed by the applicant ( see paragraph CARDINAL below ) .

The applicant had testified that she had been washing her car in the courtyard of her neighbour ’s house and that , after she had parked the car near her house , CARDINAL policemen had pulled up . They had asked the applicant to approach their car , which she had not done because she had needed to return to her apartment urgently . The policemen had then warned her that she was disobeying police orders and had subsequently twisted her arms behind her back ; she had tried to free herself from the grip .

NORP The policemen PERSON and PERSON stated that they had been called out about an administrative violation – a car being washed in a public courtyard . Upon arrival at the scene they had noticed the applicant standing next to a car holding a bucket . PERSON had then invited the applicant to approach the police car so that a record of an administrative violation could be drawn up , which the applicant had refused to do and had started to walk away . The policemen had then taken her by the arms and started directing her towards the police car . Since the applicant had not demonstrated resistance , PERSON and PERSON had released their hold and subsequently taken statements from the applicant ’s neighbours for the purpose of initiating administrative proceedings against her .

The forensic medical expert who had examined the applicant noted that each of her upper arms bore CARDINAL haematomas . It was concluded that the haematomas could have appeared in the circumstances described by the applicant . The haematomas were described as minor injuries which would not have adverse medical effects for DATE ( “ kas neizraisa īslaicīgus veselības traucējumus uz laiku virs CARDINAL dienām ” ) . The fact that the applicant had actually sought medical treatment for DATE was considered irrelevant , since the expert considered that the nature of her injuries did not warrant such extended treatment .

The QUANTITY eyewitnesses to the events of DATE all agreed that the applicant had ignored the requests of the police and that the policemen had therefore tried to detain her . The applicant had resisted and the officers had twisted her arms behind her back . After the applicant had stopped resisting , she had been released .

The findings of the internal investigation of ORG of DATE disclosed that the policemen PERSON and PERSON had been penalised for their lack of diligence in drawing up a record of the administrative violation allegedly committed by the applicant ( failure to obey the lawful order of a police officer ) . No mention appears to have been made of the alleged use of force against the applicant .

Taking into account the information set out above , the inspector concluded that the applicant had intentionally disobeyed the lawful order of a police officer ( thus committing an administrative offence under NORP legislation ) . As a result , PERSON and PERSON had used special restraint techniques ( “ pielietoja speciālos cīņas paņēmienus ” ) , namely holding the applicant ’s arms behind her back in order to detain her . The applicant had shown resistance while she was being directed towards the police car . Once she had stopped resisting , she had been released and PERSON had informed his supervisor of the events . In consultation with ORG supervisor it had been decided not to bring the applicant to the police station but instead to initiate administrative proceedings against her . Administrative proceedings were initiated on CARDINAL DATE and discontinued on DATE because procedural time - limits had not been observed by the police .

The decision stated that , since the applicant had refused to cooperate with the police and had started to walk away , the policemen had had legitimate grounds for detaining her , as long as they observed the requirements set out in the Law on Police ( see paragraphs CARDINAL and DATE below ) . Nevertheless , PERSON and PERSON had failed to fulfil the requirements of section CARDINAL in fine of the PERSON , which prohibits the use of special restraint techniques against women , other than in exceptional circumstances . As a result , the applicant had sustained minor injuries . Infliction of minor injuries is an offence proscribed by LAW . Under section CARDINAL ) of LAW , infliction of minor injuries is one of the crimes that are prosecuted privately by the victim .

The inspector further noted that ORG and PERSON had not exceeded their official authority in contravention of LAW . It was established that even though the policemen had violated the requirements of LAW in fine of ORG , it had to be taken into account that the applicant herself had disobeyed and resisted the police . Thus , taking into account the “ nature , circumstances and consequences of the ORG actions ” , the inspector concluded that , pursuant to the explanations contained in section PERSON ) of the PERSON on the Coming into ORG and LAW , there had been no substantial harm done to state authority , administrative order or the rights and interests of any person . Accordingly the inspector held that the municipal police had to decide whether ORG and PERSON should be held disciplinarily liable for the violation of LAW in fine of ORG . In conclusion , it was decided to terminate the criminal proceedings for absence of corpus delicti .

The decision was conveyed to the applicant in a letter of DATE . The letter stated :

“ ... You may appeal against the adopted decision to ORG within DATE of receiving the decision . Please also note that section CARDINAL(CARDINAL ) of LAW provides that the offence mentioned in LAW of LAW ( intentional infliction of a minor injury ) is prosecuted privately . In the course of private prosecution criminal proceedings , the prosecutorial functions are carried out by the victim , who must lodge an application with a court . ... ”

The applicant did not appeal against the decision of DATE . She did , however , submit a complaint to ORG stating her intention to initiate a private prosecution under sections CARDINAL and CARDINAL of LAW . The complaint was dated DATE and was marked as having been received at the court on DATE . The applicant indicated that PERSON and PERSON had used special restraint techniques against her in contravention of ORG , as a result of which she had been injured , which had been confirmed by a forensic medical expert . She further pointed out that she had incurred pecuniary and non - pecuniary losses . Accordingly , she claimed damages .

On DATE a single judge of ORG issued a decision concerning the applicant ’s complaint . The judge held that the limitation period of DATE had expired and criminal proceedings could therefore not be instituted . He noted that he had received the applicant ’s complaint on DATE , that is to say after the expiry of the statutory time - limit . Furthermore , the decision noted that the applicant had failed to specify which paragraph of CARDINAL formed the legal basis of her complaint , and had not substantiated in any way her claim under section CARDINAL .

The applicant appealed . On DATE a single judge of ORG dismissed her appeal . The decision noted that DATE on which ORG and PERSON could have been charged by the way of private prosecution had been DATE . Since the applicant had lodged her complaint on DATE , it would have been physically impossible to initiate proceedings on DATE because of the large number of procedural steps that would have had to be taken ( for example , a copy of the complaint would have had to be sent to the accused , the accused would have had to be informed about their rights , the applicant would have had to be informed about the time and the place of the hearing , and the accused and other persons would have had to be called to the hearing ) . The judge further noted that the police ’s decision not to initiate criminal proceedings was made on DATE , yet the applicant had waited for DATE before lodging a request to initiate private prosecution proceedings . The decision had also explained that a refusal to initiate criminal proceedings did not preclude the applicant from lodging a civil claim in order to obtain compensation for the harm allegedly done . Finally it was remarked that the judge of the first - instance court had correctly held that the applicant had failed to specify which of the CARDINAL paragraphs of CARDINAL of LAW formed the legal basis of her complaint . Under LAW , the judge of the first - instance court had a duty to establish whether the legal categorisation of the alleged crime was correct , since the accused had a right to know the exact content of the accusations against them . The decision of ORG was final and not subject to further appeal .


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicant was born in DATE and lives in GPE .

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

The applicant is the mother of CARDINAL children , NORP , PERSON and PERSON , who were born in DATE , DATE and DATE respectively .

At the material time the applicant was living with the children ’s father , was suffering from depression and was undergoing a pharmacological treatment .

In DATE the social services informed ORG ( hereafter “ the court ” ) that the children had been hospitalised several times following the accidental ingestion of medication , and emergency proceedings were commenced before the court . By decision of CARDINAL DATE the court ordered the children ’s removal from their family and their placement in an institution , and instructed the social services to draw up a support project for the children .

On DATE the applicant and the children ’s father were heard by the court . They admitted that owing to the applicant ’s state of health and the side - effects of the medication she was taking to treat her depression they had had difficulties looking after the children . They affirmed , however , that they could take proper care of the children with the help of the social services and the children ’s grandfather . The applicant pointed out that she was undergoing treatment and that the side - effects initially caused by the medication had ceased . Both parents requested that the social services put in place a support project so that the children could return home .

On DATE the psychiatrist submitted her report on the applicant . The report stated that the latter was undergoing pharmacological treatment , that she was willing to have psychotherapy and to accept the assistance of the social services and that she had a very strong emotional bond with her children .

On DATE ORG ( the “ GIL ” ) submitted its report , pointing out that despite the family difficulties , the parents had reacted positively , had taken part in the meetings and were prepared to accept the support of the social services . Consequently , the ORG proposed returning the children to their parents and introducing a family support project .

NORP By decision of DATE the court , having regard to the expert reports and the fact that the paternal grandfather was available to help his son and the applicant to look after their children , ordered the children ’s return to their parents .

On DATE , however , the GPE reunion with their children was interrupted and the children were once again removed from the family home on the grounds that the applicant had been hospitalised owing to an aggravation of her illness , that the father had left the family home and that the grandfather had fallen ill . The court established visiting rights for both parents as follows : for the applicant , TIME , and for the children ’s father , TIME .

In DATE the prosecutor requested the opening of a procedure for declaring the children available for adoption .

On DATE the parents were heard by the court . The applicant submitted that she was undergoing treatment , that the children ’s father was available to look after them and that they had therefore not been abandoned . The father emphasised that even if he was working he could take proper care of the children with his father ’s help , and that he had recruited a home help .

NORP In DATE the court ordered an expert assessment of the applicant ’s and the children ’s father ’s capacity for exercising their parental role . On DATE the expert submitted his report , which concluded :

- that the father displayed no psychiatric illness and that despite his fragile personality he was capable of shouldering his responsibilities ;

- that the applicant suffered from a “ borderline personality disorder which interfered , to a limited extent , with her ability to shoulder responsibilities linked to her role as a mother ” ;

- that the children were hyperactive , largely as a result of the family ’s difficulties .

In his conclusions , the expert pointed out that both parents were willing to accept any intervention required to improve their relationship with their children , and he made the following proposals : extending the children ’s placement in public care , introducing a programme of bringing the parents and the children together , and intensifying encounters . He also suggested that the situation of the family should be reassessed DATE .

By decision of DATE , however , the court declared the children available for adoption , and the meetings between the parents and the children were discontinued .

In its reasoning , the court stated that no reassessment of the family ’s situation was necessary in the present case . It highlighted the GPE difficulties in exercising their parental role , as indicated by the expert , and referred to the statements of the Director of the institution to the effect that the applicant had “ serious mental disorders ” , the father “ was unable to show affection and spent his time arguing with the welfare assistants ” and the parents “ were incapable of providing their children with the care and treatment which they needed ” . Having regard to those facts , the court declared the children available for adoption .

The applicant and the children ’s father appealed against that decision and requested a stay of execution . They submitted :

– that the court had erroneously declared the children available for adoption in the absence of any “ abandonment ” , a precondition for such a declaration under LAW . CARDINAL of DATE ;

– that the declaration of availability for adoption should only be used in the last resort and that in the present case it was unnecessary because their family difficulties , which stemmed , in particular , from the applicant ’s illness , were temporary and could be overcome with the welfare assistants’ support .

Finally , they emphasised that the court had not taken into account the DATE expert report ordering the establishment of a programme of support and gradual reunion of the children with their parents .

In DATE the court ordered that each child be placed in a different foster family .

By decision of CARDINAL DATE ORG dismissed the applicant ’s appeal and upheld the declaration of availability for adoption .

ORG observed that the competent authorities had expended the requisite efforts to provide support to the parents and prepare the children ’s return to their family . However , the project had failed , which showed the GPE incapacity for exercising their parental role and belied the temporary nature of the situation . With reference to the social services’ findings , ORG emphasised that the failure of the project had had negative consequences for the children and that the declaration was geared to protecting their interest in being fostered in a family capable of properly caring for them , which their family of origin was incapable of doing owing to the mother ’s state of health and the father ’s difficulties . ORG noted that there had been some positive developments in the situation , such as the mother ’s realisation of her health problems and her determination to undergo treatment , as well as the father ’s efforts to find resources in order to look after his children and the availability of the grandfather to help out . However , ORG held that those factors were insufficient to assess the CARDINAL GPE capacities for exercising their parental responsibilities . Having regard to those factors , and with an eye to safeguarding the children ’s interests , ORG also confirmed their availability for adoption .

The applicant and the children ’s father lodged an appeal on points of law . By judgment deposited in the registry on DATE , ORG dismissed the applicant ’s appeal on the grounds that :

– ORG had correctly assessed the existence of a situation of psychological abandonment of the children and the irreversibility of the GPE incapacity for exercising their role , having regard to the failure of the first support project put in place by the social services ;

– the declaration of availability for adoption had duly taken into account the children ’s interest in being fostered by a family capable of looking after them effectively .

NORP In DATE the applicant requested ORG to cancel the declaration of the children ’s availability for adoption ( on the basis of section CARDINAL of Law No . CARDINAL of DATE ) . In support of her request , the applicant presented various medical documents attesting that her state of health had improved in the meantime , in order to prove that the conditions set out in LAW . CARDINAL of DATE for issuing a declaration of availability for adoption has since lapsed .

By a decision of CARDINAL DATE ORG dismissed the applicant ’s request .

The outcome of the adoption procedure concerning the children is unknown .