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

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The first applicant was born in DATE and lives in GPE . The second applicant was born in DATE and lives in ORG . The applicants are of GPE origin .

PERSON , a Member of ORG from the right - wing ORG for ORG ( PERSON , hereinafter referred to as ORG ) , announced that a demonstration would take place on CARDINAL DATE in GPE under the slogan “ Live and let live ” . The reason for the demonstration was that riots had broken out between GPE and non - GPE families of the municipality on DATE . Following that incident , CARDINAL people were questioned by the police , and an enhanced police presence was ordered in the municipality , with the constant surveillance of streets inhabited by the GPE community .

In the ORG submission , the police were aware that the presence of a hostile crowd in the municipality could lead to violent acts . The police had been informed through official sources that in addition to the members of ORG , CARDINAL far - right groups , known for their militant behaviour and anti - Roma and racist stance , would also be present at the demonstration . They had also been informed that the demonstrators would seek conflict with the police and the minority community . According to the far - right ORG websites , the demonstration was aimed “ against GPE criminality ” , “ against LOC beating up NORP ” and “ against the GPE criminals unable to respect the rules of living together ” .

Devecser was classified as special zone of risk , ( kiemelten veszélyeztetett ) and QUANTITY police patrol units were dispatched to the municipality to ensure an increased presence and carry out checks as of DATE . QUANTITY police officers were deployed in PERSON to secure the demonstration , including members of ORG . On DATE of the demonstration checks were increased throughout the county , including traffic check points . The GPE police department also asked members of ORG of GPE to inform the GPE population about the upcoming demonstration .

CARDINAL to CARDINAL people were present at the demonstration . Mr ORG announced that the demonstration was about the justified self - protection of NORP . Invoking the crimes committed by members of the NORP community , he demanded the reintroduction of the death penalty and threatened the GPE community that if the criminality continued , PERSON would return to PERSON . He also announced that the GPE were not “ normal ” .

In his speech , PERSON , leader of the CARDINAL ORG ( PERSON ) , mentioned that GPE criminality was omnipresent in the country and wherever this ethnic group appeared , only destruction , devastation and fear came . In his opinion the GPE population wanted to exterminate NORP , which left the latter with the choice of becoming victims or fighting back . Mr PERSON , leader of ORG for a Better Future ( Szebb Jövőért Polgárőr Egyesület ) stated that CARDINAL of NORP were killed DATE by the GPE with the approval of the ORG . In his view there was a destruction of civilians going on in GPE . He called on the demonstrators to sweep out the “ rubbish ” from the country , to revolt and to chase out the treasonous criminal group supressing NORP . He closed his speech by saying that the NORP were entitled to use all means to achieve those goals . Mr PERSON . PERSON . , leader of ORG ) , spoke about the characteristics of a racial war and an ethnic - based conflict . He said that before such conflict escalated , a message should be sent . He mentioned that the GPE minority was genetically encoded to behave in a criminal way and declared that the only way to deal with the GPE was by applying force to “ stamp out this phenomenon that needs to be purged ” . Mr GPE , the leader of ORG ( PERSON ) , called on the Government to end GPE criminality and warned that if NORP ran out of patience , there would be trouble . Finally , PERSON , the vice - president of ORG in GPE , told participants that there would be no mercy and that every criminal act and every prank would be revenged ; if the ORG authorities did not live up to their obligations to protect civilians from GPE criminality , this would be done by the population itself .

Following the speeches , the demonstrators marched down FAC , the neighbourhood of GPE inhabited by the NORP community , chanting “ GPE criminality ” , “ GPE , you will die ” , and “ We will burn your house down and you will die inside ” , “ We will come back when the police are gone ” , and obscene insults . They also called on the police not to protect the GPE residents from the demonstrators and to let them out from their houses . Sporadically , quasimilitary demonstrations of force occurred , involving military - style uniforms , formations , commands and salutes .

Certain demonstrators covered their faces , dismantled the cordon and were equipped with sticks and whips . Those leading the demonstration threw pieces of concrete , stones and plastic bottles into the gardens , encouraged by the crowd following them .

The ORG and the applicants disagreed as to other aspects of the demonstration .

During the march through the GPE neighbourhood , which lasted TIME , both applicants stayed in the gardens of houses in FAC . The first applicant submitted that he had overheard the police stating on their radio that the demonstrators were armed with sticks , stones , whips and metal pipes . Furthermore , CARDINAL of his acquaintances had been injured by a stone thrown into his garden , but the police officer to whom the applicant had reported the incident had not taken any steps . In the second applicant ’s submission , CARDINAL of the demonstrators leading the march had had a list and had pointed out to the crowd the houses that were inhabited by GPE people .

According to the applicants , the police were present during the demonstration but remained passive and did not disperse the demonstration ; nor did they take any steps to establish the criminal responsibility of the demonstrators . The report of the police ’s contact officer noted that the organiser of the demonstrations , Mr G.F. had not been able to keep the events under control and had been unwilling to confront the participants .

According to the Government , the commander of the security forces immediately took action when the participants started to act violently , managed the crowd appropriately and separated hostile demonstrators from others .

On DATE the Minister of the Interior , reacting to a letter from civil society organisations , informed the public that the conduct of the police had been adequate and that CARDINAL people , including CARDINAL demonstrators , had been questioned by the police . Following a statement from CARDINAL injured persons , the police opened criminal proceedings against unknown perpetrators on charges of “ disorderly conduct ” ( garázdaság ) , which was subsequently amended to “ violence against a member of a group ” ( közösség tagja elleni erőszak ) . It appears from the case file that a further criminal investigation was opened into charges of “ violence against a member of a group ” DATE after the incident .

In DATE ORG published a report on the events . The report concluded that the police had failed to assess whether the event had infringed the rights and freedoms of others . Such assessment would have led to the conclusion that the people living in the neighbourhood were forced as a “ captive audience ” to listen to the injurious statements that had been made . According to the report , the demonstration had been used to incite ethnic tensions on the basis of the collective guilt of the ethnic group . It went on to state that by not enforcing the limits of freedom of assembly , the police had caused anomalies in respect of the right to peaceful assembly and the NORP population ’s right to dignity and private life . It also pointed out that certain speeches had been capable of inciting hatred , evidenced by the fact that stones had been thrown at GPE houses following the speeches . The Commissioner found it regretful that the police had failed to identify the perpetrators on the spot , which was inconsistent with their task of preventing and investigating crimes and with the right to dignity , non - discrimination and physical integrity .

Both applicants complained to the GPE police department about the failure of the police to take measures against the demonstrators , thereby endangering their life and limb and their human dignity .

On DATE the police department dismissed the ORG complaint , finding that the conditions for dispersal of the demonstration had not been met , since any illegal or disorderly conduct on the part of the demonstrators had ceased within TIME . The police department held that the demonstration had remained peaceful , since , apart from the throwing of stones , no actual conflict had broken out between the police , the demonstrators and members of the NORP minority . It also found that only a small group of demonstrators had been armed with sticks and whips . As regards the failure of the police to carry out identity checks on demonstrators and to hold suspects for questioning ( előállítás ) , the police department found that such measures would only have aggravated the situation and strengthened the demonstrators’ hostility towards the police .

On appeal , ORG upheld the first - instance administrative decision . Following a request for judicial review lodged by the applicants , it nonetheless overruled the first - instance decision and remitted the case to the county police department .

By its decisions of CARDINAL DATE and DATE the GPE police department dismissed both applicants’ complaints again on identical grounds . The police department found that the demonstration had remained essentially peaceful , because the majority of the participants had not aligned themselves with those committing violent acts . The police department observed that there had been grounds to disperse the demonstration , since some participants had been armed and there had been a reasonable suspicion that some of them had committed the criminal offence of violence against a member of a group . Nonetheless , it concluded that dispersing the demonstration would have carried a high risk since , based on previous experience , those participants intent on violence would probably have turned against the police .

ORG upheld those decisions on appeal on DATE and CARDINAL DATE , respectively , stating that although under LAW no . III of DATE ( “ LAW ” ) the police had been under an obligation to disperse the demonstration , they could refrain from such action if it carried a higher risk than allowing the demonstration to continue . Furthermore , the commander of the operation had been right not to apply measures against certain individuals , since that would have led to a clash between the demonstrators and the police , endangering not only the police themselves , but the local residents too . The second - instance authority acknowledged that the unlawful acts of certain demonstrators had infringed the fundamental rights of the applicants , but concluded that seeking to protect those rights would have caused more harm than good .

The applicants sought judicial review of those decisions , arguing that under LAW the police were under an obligation to disperse non - peaceful demonstrations irrespective of the proportionality of such a measure .

In its judgments delivered on DATE and DATE ORG dismissed the applicants’ claims . It found that although the non - peaceful character of a demonstration could serve as grounds for its dispersal , this was only so if the demonstration as a whole had ceased to be peaceful . Sporadic acts of violence , as in the present case , could not serve as legitimate grounds for dispersal . The court also considered that the police had a margin of discretion when deciding on the dispersal of a demonstration . As regards the applicants’ claim that the police should have taken law - enforcement measures against certain individuals , the court pointed out that such actions would have led to clashes between the demonstrators and the police . The court therefore concluded that even if there had been grounds to terminate the demonstration or to apply law - enforcement measures against certain individuals , the police had been justified in not having done so . It added that , in any event , the potential infringement of the applicants’ fundamental rights had been caused not by the alleged inactivity of the police , but by the conduct of the demonstrators .

The applicants lodged a petition for review with the GPE . In its judgments of DATE and DATE the PERSON reiterated that under LAW no . III of DATE the dispersal of demonstrations was a possibility rather than an obligation for the police and restrictions on the fundamental rights of others did not in themselves justify the restriction of the right of assembly . Furthermore , dispersal could only be used as a last resort , if the demonstration was likely to entail serious consequences . Relying on the report by the Commissioner for Fundamental Rights , the GPE considered that despite certain violent actions , the demonstration had on the whole remained peaceful . The court went on to find that the police had been under an obligation to respect the principle of proportionality and had been right to conclude that dispersing the march could have caused more serious prejudice to the GPE community than allowing the demonstration to continue in a controlled manner .

As regards the lack of individual measures , the GPE found that an operational unit of the police ( csapaterő ) had been deployed to maintain order , and that such a measure had not allowed for police officers to single out and act against individual demonstrators .

The PERSON also rejected the applicants’ argument that the police had done nothing to protect them and other members of the GPE minority . It found it established that the police had used a cordon to contain the demonstrators and had ensured the subsequent prosecution of perpetrators by logging events , and taking video footage and photographs .

The applicants , together with ORG , lodged a criminal complaint concerning the speeches delivered at the demonstration and the attacks to which the ORG had been subjected . The case was subsequently joined to a criminal complaint lodged by third persons concerning the same issue . On DATE the GPE police department opened an investigation into charges of violence against members of a group under LAW . The police department opened a separate investigation , LAW CARDINAL point ( b ) of LAW ( incitement against a group ) , into the issue of the speeches delivered during the demonstration .

The investigation into incitement against a group was discontinued by the police department on DATE . The police department considered that although the content of the speeches had been injurious to the NORP minority and was morally reprehensible , it could not be classified as a crime . In particular , the speeches had not been meant to trigger unconsidered , instinctive , harmful and hostile reactions . By the same decision , the police department informed the applicants that it had asked the prosecutor ’s office to press charges against an individual for violence against member of a group .

Following a complaint lodged by the applicants , ORG upheld the decision to discontinue the investigation . It held that the legally protected interest in the criminalisation of incitement against a group was public morale . Thus the applicants were not victims of the alleged criminal act and had no standing to lodge a complaint against the decision to discontinue the investigation . However , the county prosecution office re - examined the decision on its own motion . It held that the speeches delivered in PERSON contained abusive , demeaning statements concerning the GPE minority and might have contained statements that evoked hatred , but that they had not provoked active hatred and had not called on the audience to take violent action against the local GPE .

As regards the investigation into the offence of violence against a member of a group , the police established that QUANTITY persons had taken part in violent acts , in particular the throwing of stones . CARDINAL of the alleged perpetrators could not be identified , while ORG pressed charges against the fourth person , Mr GPE He was found guilty as charged on DATE by ORG and sentenced to CARDINAL months’ imprisonment , suspended for DATE . On appeal the ORG upheld Mr ORG ’s conviction but amended his sentence to DATE and CARDINAL months’ imprisonment , suspended for DATE .

The applicants , together with a third person , also lodged a criminal complaint against unknown perpetrators for breach of discipline in the line of duty , under LAW . Those proceedings were discontinued on DATE by a decision of ORG of ORG , which held that the criminal offence could only be committed by soldiers in military service , but not by police officers .


CASE OF MESUT YURTSEVER AND OTHERS v. TURKEY

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to receive ideas;Freedom to receive information);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

NORP Mr PERSON ( application no . CARDINAL/CARDINAL )

The applicant was born in DATE . When his application was lodged he was being held in the F - type prison in Bolu .

On DATE , while the applicant was being held in anther prison – the F - type prison in DATE that prison ’s education board decided not to deliver the CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE editions of the ORG DATE newspaper to the applicant or to other prisoners . They based their decision on section QUANTITY of Law No . DATE on LAW ( “ Law No . CARDINAL ” ) , which provides that no publication containing information , articles , photographs and comments which are obscene or liable to jeopardise prison security should be delivered to convicted prisoners . The board argued that the non - delivered publications were in the NORP language , that the prison had no staff able to understand NORP , that , furthermore , there were several dialects of that language and that it had therefore been impossible to have the publications in question translated . They consequently considered it impossible to ascertain whether those publications fulfilled the conditions laid down in the section of the relevant law .

On DATE , ruling on the basis of the case file , the NORP post - sentencing judge dismissed that appeal . He adjudicated in the light of ORG opinion that in order to assess the conformity with section QUANTITY of Law No . DATE of publications in a language other than the official language , a translation of those publications was required , that there was no legal provision requiring the prison to finance the translation costs , that such expenses had not been covered by the appellant and that consequently , the appeal had to be dismissed .

On DATE the applicant applied to have that decision set aside , submitting that the prison administration had suspended the delivery to the prison of the ORG newspaper , which in his submission was widely distributed outside the prison , on the ground that it had no staff who understood NORP . He requested the setting aside of the post - sentencing judge ’s decision declaring the measure consistent with the law , because in his view that measure would prevent the newspaper from being distributed inside the prison , as had previously been normal practice .

On DATE ORG , ruling on the basis of the case file and having taken cognisance of ORG opinion , concluded that the impugned decision was not incompatible in procedural or legal terms , and dismissed the application .

The applicants were born in DATE , CARDINAL , DATE and DATE respectively . When their application was lodged they were held in the F - type prison in LANGUAGE .

On DATE the NORP prison education board , drawing on section CARDINAL of Law No . DATE , decided not to deliver to the applicants the CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE editions of the ORG DATE newspaper on the grounds that they were in the NORP language and that the prison had no staff capable of translating that language .

On DATE , ruling on the basis of ORG opinion that the education board ’s decision had been justified , the NORP post - sentencing judge dismissed that appeal .

On DATE Mr PERSON and PERSON and on DATE Mr Yurtsever and PERSON , applied to have that decision set aside .

On DATE ORG , ruling on the basis of the case file and having taken cognisance of ORG opinion , dismissed that application on the grounds that the impugned decision had been unobjectionable in procedural and legal terms .

The applicants were born in DATE . When their application was lodged they were held in the F - type prison in DATE .

On DATE the prison education board decided not to deliver the CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE editions of the ORG DATE newspaper to the applicants . They based their decision on section QUANTITY of Law No . DATE . ORG emphasised that the publications were in NORP and that the prison had no staff who understood NORP , so that , in the ORG ’s view , it was impossible to have books , newspapers and magazines in that language translated and , consequently , to ascertain whether such publications fulfilled the conditions laid down in the section of the relevant law .

On DATE the applicants appealed against that decision . In a letter sent DATE to the Tekirdağ post - sentencing judge , PERSON submitted , inter alia , that no seizure order had been made in respect of the editions of the DATE newspaper in question and that it had been absurd to request the translation of the newspaper since it had been on sale nationwide and was subject to statutory review . Moreover , he contended that the decision appealed against was unlawful .

PERSON sent a letter on DATE to the Tekirdağ postsentencing judge alleging that the ban on delivery of publications in NORP to the prison had been lifted DATE previously and that the prison authorities’ argument to the effect that there had been no staff who understood NORP was implausible . He also stated that the inmates of other NORP - type prisons had been authorised to receive such publications , so that the prison authorities’ practice had to be deemed arbitrary .

On DATE the NORP post - sentencing judge dismissed the appeal on the basis of the case file . He adjudicated in the light of ORG opinion that in order to assess the conformity with section QUANTITY of the relevant law of publications in a language other than the official language a translation of those publications was required , that there was no legal provision requiring the prison to finance the translation costs , that such expenses had not been covered by the appellant and that consequently , the appeal had to be dismissed .

On DATE the applicants appealed against that decision . PERSON requested the lifting of the prohibition in issue . Mr PERSON submitted that the newspaper in question had been distributed under the supervision of the Prosecutor responsible for the press and that the lack of any judicial proceedings or seizure order in respect of the newspaper demonstrated that it was unobjectionable . He therefore considered that access should be permitted to the publication .

On DATE , ruling on the basis of the case file and having taken cognisance of ORG opinion , ORG , drawing on the case file and having taken cognisance of ORG opinion , dismissed that application on the grounds that the impugned decision had been unobjectionable in procedural and legal terms .

The applicants were born in DATE and DATE respectively . When their application was lodged they were being held in the F - type prison in DATE .

On DATE the prison education board , drawing on section QUANTITY of LAW . DATE , decided not to deliver the CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE editions of the ORG DATE newspaper to the applicants . ORG explained that the publications were in the NORP language , that the prison had no staff who understood NORP , that , furthermore , there were several dialects of that language , that it had therefore been impossible to have the publications in question translated , and that consequently there was no way of ascertaining whether those publications fulfilled the conditions laid down in the relevant section of PERSON No . DATE .

On DATE the applicants appealed against that decision . Mr Abo sent a letter on DATE to the Tekirdağ post - sentencing judge complaining that he had been denied access to the editions in question , adding that the prison authorities’ decision had been geared to banning the DATE newspaper and was unlawful .

In a letter of CARDINAL DATE Mr GPE informed the NORP postsentencing judge he had been unjustifiably deprived of the ORG newspaper since DATE . He requested that the newspaper be delivered to him in the standard manner in future .

On DATE , ruling on the basis of the case file , the NORP post - sentencing judge dismissed PERSON GPE ’s appeal on the ground that the impugned decision had been unobjectionable in procedural and legal terms . He adjudicated in the light of ORG opinion to the effect that in order to assess the conformity with section QUANTITY of the relevant law of publications in a language other than the official language , a translation of those publications was required , that there was no legal provision requiring the prison to finance the translation costs , that such expenses had not been covered by the appellant and that the measure adopted by the prison authorities had consequently been justified .

On DATE Mr Oğurtan wrote to ORG to complain that he was no longer in receipt of the ORG newspaper and that his appeal to the post - sentencing judge on that matter had been unsuccessful . He requested that the practice in question , which he described as undemocratic , be discontinued and that the newspaper in question be delivered to him in the standard manner .

On DATE Mr Abo wrote to ORG . He submitted that ORG was a newspaper which was subject to the same kind of review as all other organs of the press . The lack of any judicial proceedings or of a ban against that DATE newspaper was sufficient on its own to demonstrate that it raised no problems and that he should therefore have access to it . He consequently requested the setting aside of the postsentencing judge ’s decision and its replacement by a decision to resume deliveries of the newspaper to him .

On DATE ORG , ruling on the basis of the case file and having taken cognisance of ORG opinion , found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the request .

The applicants were born in DATE and DATE respectively . When their application was lodged they were being held in the prison F - type in DATE .

On DATE the NORP prison education board decided not to deliver to the applicants the CARDINAL , DATE , DATE , DATE , DATE and DATE editions of the ORG DATE newspaper on the grounds that they were in the NORP language and that the prison had no staff capable of translating that language .

On DATE Mr Kaya wrote to the NORP post - sentencing judge to challenge that decision and to request the delivery of the newspaper in question .

On DATE the applicants lodged an appeal against the impugned decision .

On DATE , ruling on the basis of the case file , the NORP post - sentencing judge dismissed that appeal on the grounds that the impugned decision had been unobjectionable in procedural and legal terms . He adjudicated in the light of ORG opinion that in order to assess the conformity with section QUANTITY of the relevant law of publications in a language other than the official language , a translation of those publications was required , that there was no legal provision requiring the prison to finance the translation costs , that such expenses had not been covered by the appellants and that the measure adopted by the prison authorities had consequently been justified .

On DATE and DATE respectively Mr PERSON and Mr PERSON appealed against that decision . In a letter to ORG in NORP , Mr Kaya pointed out that the refusal to deliver the ORG newspaper to him was arbitrary and requested delivery of the latter , which he said was published in accordance with the relevant legislation .

On DATE ORG , ruling on the basis of the case file and having taken cognisance of ORG opinion , found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the appeal .

NORP On DATE the NORP prison education board decided not to deliver the CARDINAL , DATE , DATE , DATE and DATE editions of the ORG DATE newspaper to the applicants on the grounds that they were in the LANGUAGE language and that the prison had no staff capable of translating that language .

On DATE , ruling on the basis of the case file , the NORP post - sentencing judge dismissed that appeal , finding that the impugned decision had been unobjectionable in procedural and legal terms . He adjudicated in the light of ORG opinion that in order to assess the conformity with section QUANTITY of Law No . DATE of publications in a language other than the official language , a translation of those publications was required , that there was no legal provision requiring the prison to finance the translation costs , that such expenses had not been covered by the appellants and that the measure adopted by the prison authorities had consequently been justified .

On DATE and DATE respectively , Mr PERSON and Mr PERSON appealed against that decision . Mr Günay sent a letter to ORG complaining that the post - sentencing judge had joined forces with the prison authorities to impede his right to receive information and had therefore infringed that right , as enshrined in the Convention . He submitted that the newspaper in question was published in conformity with the relevant legislation and that it was therefore unnecessary to translate it , because if its content had been unlawful it would have been subject to a seizure order . He added that the right to read a newspaper in NORP , his mother tongue , was a natural right .

The applicant was born in DATE . When his applications were lodged he was held in the F - type prison in DATE .

On DATE the NORP prison education board decided not to deliver to the applicant the CARDINAL , DATE , DATE and DATE editions of the ORG DATE newspaper on the grounds that it did not understand their content and could not have them translated , also having regard to a decision given on DATE by the NORP post - sentencing judge .

On DATE the applicant appealed against that decision .

On DATE , ruling on the basis of the case file , the NORP post - sentencing judge dismissed that appeal , finding that the impugned decision had been unobjectionable in procedural and legal terms . He adjudicated in the light of ORG opinion to the effect that in order to assess the conformity with section QUANTITY of Law no . DATE of publications in a language other than the official language , a translation of those publications was required , that there was no legal provision requiring the prison to finance the translation costs , that such expenses had not been covered by the appellant and that the education board ’s decision had consequently been justified .

On DATE ORG , ruling on the basis of the case file and having taken cognisance of ORG opinion , found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the applicant ’s appeal .

On DATE , referring to a decision given by the NORP post - sentencing judge on DATE , the NORP prison education board decided not to hand over to the applicants the CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE and CARDINAL DATE editions of the ORG DATE newspaper on the grounds that it could not understand their content or have them translated .

On DATE ORG , ruling on the basis of the case file and having taken cognisance of ORG opinion , found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the latter appeal .

The applicants were born in DATE , DATE and DATE respectively . When their application was lodged they were being held in the F - type prison in LANGUAGE .

On DATE the NORP prison education board decided not to deliver DATE , DATE , DATE , DATE and DATE editions of the ORG DATE newspaper to the applicants on the grounds that they were in the LANGUAGE language and that the prison had no staff capable of translating that language . ORG also had regard to the fact that the Tekirdağ postsentencing judge had adjudicated on other editions of that newspaper on DATE , as had ORG on DATE .

On DATE , ruling on the basis of the case file , the NORP post - sentencing judge dismissed that appeal , finding that the impugned decision had been unobjectionable in procedural and legal terms . He adjudicated in the light of ORG opinion to the effect that in order to assess the conformity with section QUANTITY of the PERSON no . DATE of publications in a language other than the official language , a translation of those publications was required , that the prison authorities had no budget for that purpose , that there was no legal provision requiring the prison to finance the translation costs , that such expenses had not been covered by the appellants and that the education board ’s decision had consequently been justified .

Mr Günay appealed against that decision by the post - sentencing judge on DATE , and PERSON and PERSON followed suit on DATE .

The applicant was born in DATE . When his applications were lodged he was being held in the F - type prison in DATE .

On DATE the prison education board decided not to deliver the CARDINAL , DATE , DATE , DATE , DATE and DATE and DATE editions of the ORG DATE newspaper to the applicant , pursuant to section QUANTITY of LAW . CARDINAL , on the grounds that that the publications were in NORP and that the prison had no staff who understood that language , making it impossible to secure a translation in order to ascertain whether the content of the newspapers complied with the aforementioned legislative provision .

On DATE the applicant appealed against that decision , submitting , inter alia , that the editions of the newspaper in question had not been the subject of any judicial seizure order and therefore ought to have been delivered to him . He further submitted that he had been in receipt of the newspaper for DATE without any problem before being deprived of it , and that the decision taken by the prison authorities had been unlawful . He consequently requested that the impugned decision be set aside and he be allowed to receive the newspaper in question .

On DATE , ruling on the basis of the case file , the NORP post - sentencing judge dismissed that appeal , finding that the impugned decision had been unobjectionable in procedural and legal terms . He adjudicated in the light of ORG opinion to the effect that in order to assess the conformity with section QUANTITY of the relevant law of publications in a language other than the official language , a translation of those publications was required , that there was no legal provision requiring the prison to finance the translation costs , that such expenses had not been covered by the appellant and that the measure adopted by the prison authorities had consequently been justified .

On DATE the applicant appealed against that decision . He submitted that the newspaper in question had been published in accordance with the law , that it had been subject to review by the Prosecutor responsible for the press before distribution and that , in the absence of any judicial proceedings or seizure order against it , the newspaper could not be deemed problematic . He consequently requested access to the impugned editions of the newspaper .

DATE . On DATE the prison education board decided not to deliver the CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE editions of the ORG DATE newspaper to the applicant , pursuant to section QUANTITY of Law No . DATE , on the grounds that that the publications were in NORP and that the prison had no staff who understand that language , making it impossible to secure a translation in order to ascertain whether the content of the newspapers complied with the aforementioned legislative provision .

On DATE the applicant appealed against that decision . He sent a letter dated DATE to the NORP post - sentencing judge stating that the impugned newspaper had not been the subject of any seizure order , and that it was both pointless and unlawful to demand a translation of its content when it had already been subject to statutory review .

On DATE the applicant appealed against that decision , submitting , inter alia , that the newspaper in question had been subject to review by the Prosecutor responsible for the press before distribution . The absence of any judicial proceedings or seizure order against it proved that the newspaper did not raise any problems .

On DATE CARDINALthe prison education board decided not to deliver the CARDINAL , DATE , DATE , DATE and DATE and CARDINAL and DATE editions of the ORG DATE newspaper to the applicant , pursuant to section QUANTITY of LAW . CARDINAL , on the grounds that that the publications were in NORP and that the prison had no staff who understand that language , making it impossible to secure a translation in order to ascertain whether the content of the newspapers complied with the aforementioned legislative provision .

The applicant appealed against that decision .

On DATE , ruling on the basis of the case file , the NORP post - sentencing judge dismissed that appeal , finding that the impugned decision had been unobjectionable in procedural and legal terms . He adjudicated in the light of ORG opinion to the effect that in order to assess the conformity with section QUANTITY of the PERSON no . DATE of publications in a language other than the official language , a translation of those publications was required , that the prison authorities had no budget for that purpose , that there was no legal provision requiring the prison to finance the translation costs , that such expenses had not been covered by the appellant and that the education board ’s decision had consequently been justified .

DATE . On DATE the applicant appealed against the postsentencing judge ’s decision . He submitted , inter alia , that the newspaper in question had been published in accordance with a procedure prescribed by law and that if the newspaper had been in an unlawful situation the Prosecutor responsible for the press would have taken the necessary action . The applicant submitted that the newspaper had not been the subject of any ban or seizure order . Consequently , he requested that he be given access to the publication .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in the village of PERSON , GPE .

On DATE the NORP ORG of the Interior ( " the ROVD " ) ordered a test purchase of drugs from the applicant , as he was suspected of drug trafficking .

On the same date undercover police officer PERSON called the applicant and indicated that he wished to buy CARDINAL doses of opium . The applicant agreed to procure it . At TIME he met CARDINAL undercover police agents in the street and sold them CARDINAL sachets of opium .

At TIME , police officers PERSON and PERSON arrested the applicant near his flat in the presence of his partner PERSON and her sister PERSON police officers took him to the ROVD station . From the arrest record it follows that the applicant was advised of his right to be assisted by counsel , but decided not to use this possibility .

According to the applicant , during TIME he spent in detention police officers PERSON and PERSON put pressure on him to confess . They repeatedly beat him up , damaging his kidneys and causing other injuries . Regardless of this , he did not admit his involvement in drug trafficking .

Thereafter the applicant was taken to the office of police officer PERSON , who , in the presence of attesting witnesses , examined his hands with a view to finding traces of drugs . Allegedly , the police officers also removed and examined money from the applicant ’s pocket .

At TIME the applicant was transferred to a temporary detention facility . A paramedic on duty examined him upon arrival there and made the following entry in the medical record :

“ [ The applicant ] complains of back pain . [ He makes ] no complaints in connection with the scratch noted on his right knee . [ The applicant ] said that scratch had been inflicted during his arrest ... ”

At TIME police officers PERSON and PERSON carried out a search of the applicant ’s flat and found a resinous substance which was subsequently determined to be opium . It does not appear that the applicant brought any proceedings to contest the lawfulness of the search .

At the detention facility the applicant repeatedly complained of pain in his lower back . On an unspecified date a paramedic of the emergency services examined the applicant in this connection , having diagnosed soft tissue bruising of the lower back ( see paragraph CARDINAL below ) .

DATE he complained on a few occasions of lower back pain . It appears that detention facility paramedics measured his body temperature , blood pressure and gave him injections of painkillers .

On DATE the applicant asked the PERSON town prosecutor ’s office ( “ the prosecutor ’s office ” ) to institute criminal proceedings in connection with the alleged ill - treatment of DATE .

On DATE the prosecutor ’s office refused this request as unfounded .

The applicant appealed against that decision in court and before a higher prosecutor .

It appears that on DATE the applicant was taken to the emergency services of a hospital , where surgeon PERSON . performed an X - ray examination of the applicant ’s kidneys and some other tests in relation to his alleged back pain . The examination did not reveal any anomalies in his condition .

On DATE a higher prosecutor quashed the decision of CARDINAL DATE and remitted the case for additional preliminary inquiry . It stated :

“ ... The examination of the case file shows that the investigation was perfunctory and the decision not to institute criminal proceedings was premature .

In the course of the additional [ preliminary inquiry ] the investigator should question [ police officer ] PERSON , and [ the sister of the applicant ’s partner ] B. , order a medical examination of [ the applicant ] and take other steps required to carry out the necessary check at the end of which [ he ] should take a decision in accordance with the law ... ”

On DATE the NORP ORG rejected the applicant ’s appeal against the decision of DATE , as it had already been quashed by a higher prosecutor .

On DATE the prosecutor ’s office issued a new decision not to institute criminal proceedings . That decision was challenged in court and before a higher prosecutor .

It appears that on DATE a supervising prosecutor quashed it and ordered an additional preliminary inquiry into the applicant ’s complaints , having noted that the investigative authorities should examine the detention facility paramedics who provided the applicant with first aid .

On DATE the NORP ORG rejected the applicant ’s appeal against the decision of DATE , as it had already been quashed .

The investigating authorities questioned PERSON and PERSON , eyewitnesses to the applicant ’s arrest , PERSON and PERSON , the police officers who had allegedly illtreated him and detention facility paramedic GPE .

On DATE the prosecutor ’s office rejected the applicant ’s request to institute criminal proceedings , having held as follows :

“ On DATE [ the prosecutor ’s office ] received file no . CARDINAL pr . CARDINAL related to [ the applicant ’s ] complaint of ill - treatment by police officer PERSON

[ The applicant ] stated that PERSON ... applied physical and psychological pressure on him .

When questioned , PERSON stated that in DATE the police had received information about [ the applicant ’s ] involvement in opium trafficking . On DATE PERSON ordered a test purchase ... [ Following the test purchase ] he and PERSON arrested [ the applicant ] and took him to the ROVD station . During [ the applicant ’s ] arrest , his transportation and the subsequent investigation no one used physical or psychological force on him . [ The applicant ] did not complain about his health and did not ask for an ambulance . All of the investigative actions were performed in the presence of attesting witnesses .

ORG also submitted that on DATE he and PERSON carried out a search of [ the applicant ’s ] flat . The search was performed in the presence of [ the applicant ’s ] neighbours , attesting witnesses and the owner of the flat . During the search the police found vessels which [ contained ] traces of drugs and opium [ The page is missing ] ....

When questioned , [ the applicant ] stated that on DATE he , accompanied by PERSON and PERSON , went out of the entrance to the block of flats . He had car keys , [ his ] driving licence , car [ registration ] documents and MONEY in his pocket . After a short conversation with an acquaintance , he was knocked down by CARDINAL men who handcuffed him . CARDINAL of these men introduced himself as police officer PERSON In the presence of PERSON and PERSON that officer took the car keys , driving licence and car [ registration ] documents from [ the applicant ] . At TIME [ the applicant ] was taken to the ROVD station . He was taken to an office where PERSON and PERSON began to hit him [ on the ] lower back with a plastic bottle filled with water . They forced him to confess to drug trafficking . Thereafter he was taken to PERSON ’s office , where in the presence of attesting witnesses a police officer took MONEY from his pocket . A special examination showed that [ both the applicant ’s ] hands and the banknotes had fluorescent marks [ on them ] . [ The applicant ] refused to give a statement in the presence of PERSON and PERSON During [ the applicant ’s ] detention he asked for an ambulance CARDINAL times . A detention facility doctor gave him injections of painkillers [ DATE ] for DATE . On DATE he was examined by a hospital doctor . [ The applicant ] asked to be present at the search of his flat . However , this request was rejected by the police ...

When questioned , PERSON explained that her sister PERSON was the applicant ’s partner and lived with him and their daughter in a flat which belonged to B ... On the day of [ the applicant ’s ] arrest she , PERSON and [ the applicant ] had gone to a garage . On their way there while the applicant was walking behind them , CARDINAL young men knocked him down . The men introduced themselves as police officers . She did not see the police officers taking [ the applicant ’s ] belongings from his pockets . She had never seen those officers before . They did not put any pressure on her .

When questioned , [ detention facility paramedic GPE . ] , stated that [ the applicant ] was brought to the detention facility at TIME and examined there by [ him ] . From the medical records it was clear that [ the applicant ] had complained of lower back pain but only the scratch on his knee was noted , received , from his own description during the arrest . [ The applicant ] complained of chest pain . No other visible injuries were detected . Later he complained about pain in the area of the right shoulder , pain in the chest , in the area of ninth and tenth ribs . On DATE he was brought for examination in emergency services of a hospital , where [ the applicant ] made a X - ray scan and ultrasound examination of his kidneys . No pathologies in his condition were detected .

When questioned , PERSON submitted that on DATE at TIME she , her sister PERSON and [ the applicant ] had gone to a garage . On their way there while the applicant was walking behind them , CARDINAL young men knocked him down . The men introduced themselves as police officers . She did not see the police officers taking [ the applicant ’s ] belongings from his pockets . The police officers did not use force against [ the applicant ] during his arrest . They did not put any pressure on her .

Having regard to the above , it was established in the course of the inquiry that ... there is no evidence that PERSON and PERSON committed the alleged criminal offence ... ”

The applicant appealed and argued that the decision of DATE had been based on incomplete information and that the assessment of the available evidence had been wrong .

On DATE the NORP ORG dismissed the applicant ’s appeal against the decision of DATE and upheld it in full . The court noted that :

“ ... - from the explanations given by [ the investigator in charge of the case ] it follows that he ... interviewed paramedic PERSON . ... who had examined [ the applicant ] on DATE ... and she explained that there were no injuries on [ the applicant ’s body ] , but [ the applicant ] complained about the pain in the back , which was why it was unnecessary for the investigator also to interview the doctors of the emergency services . In the copies of documents there were statements of paramedic GPE . ... as well as statements of doctor PERSON . of the emergency services who examined [ the applicant ] on DATE making complaints only about the pain in the back and not about anything else ;

- from the explanation of [ the investigator ] it also follows that he interviewed [ the applicant ’s partner PERSON ] who did not communicate any information that on DATE during [ the applicant ’s ] arrest in her presence the police officers used physical force in respect of [ the applicant ] ...

On the basis of the above , the court concludes that the investigator ’s decision ... was well - grounded and lawful ... ”

The applicant appealed , having argued that the first instance court had taken the decision in his absence and that its legal and factual conclusions contradicted the case file materials .

On DATE the Rostov ORG examined the applicant ’s appeal and quashed the decision of the lower court and remitted the case to ORG for a fresh examination at first instance . It held that :

“ ... in breach of LAW GPE ( “ CCrP ” ) , the court did not duly examine the investigator ’s decision not to institute criminal proceedings .

Thus , the [ lower ] court did not take into account [ the fact ] that the investigative authorities had disregarded the prosecutor ’s recommendations of DATE and had not questioned the doctors of the emergency services who provided [ the applicant ] with medical assistance .

Moreover , the court did not assess the thoroughness of the investigation . The court did not take into account certain contradictions in the ORG statements .

In particular , detention facility paramedic GPE . stated that [ the applicant ] had repeatedly complained of chest and back pains . In connection with this he was provided with first aid by paramedics . On DATE [ the applicant ] was taken to the city hospital . X - ray and ultrasound examinations showed no signs that the applicant had a medical condition . However [ surgeon PERSON . ] noted that no ultrasound examination had been performed because police officers took the applicant out of the hospital . [ ORG . ] also submitted that [ the applicant ] had undergone a blood test and a urine test .

The [ lower ] court did not take into account [ the fact ] that the investigator ’s conclusion that there was an absence of any evidence of the [ applicant ’s ] ill - treatment was unfounded . From the case file it is evident that DATE a detention facility doctor and paramedics provided [ the applicant ] with first aid .

The [ lower ] court did not notice that the investigating authorities had failed to establish the cause of [ the applicant ’s ] health problems and to check whether [ the applicant ] had had kidney disease before his arrest . This indicates the superficial character of the investigation .

The court can not accept the [ lower ] court ’s references to [ the applicant ] ’s conviction because [ the applicant ’s ] allegations of ill - treatment were not examined on the merits in the proceedings against him ... ”

On an unspecified date a higher prosecutor , acting in parallel to the then pending court proceedings , quashed the decision of CARDINAL DATE as unlawful and remitted the case to the prosecutor ’s office for an additional investigation , having required to interview the paramedic who had provided the applicant with medical aid in prison .

On DATE the NORP ORG left the applicant ’s complaint about the decision of DATE without examination , noting that that decision had already been quashed by the higher prosecutor .

Apparently in response to the prosecutor ’s previous recommendations ( see paragraph CARDINAL above ) , the investigating authorities performed some additional investigating measures , in particular , they questioned PERSON as well as paramedics Ya . and PERSON who had provided the applicant with medical aid in prison , doctor PERSON . of the emergency services of the hospital and again questioned police officer PERSON , who had carried out investigating actions in respect of the applicant on DATE .

On DATE the applicant ’s partner PERSON was interviewed by an investigator of ORG office and gave the following statement :

“ With [ the applicant ] I resided together as of the time of his release from prison after he had served his [ previous ] sentence for extortion . During the time we lived together [ the applicant ] complained about the pain in kidneys and pain in the area of ribs . I can not remember the side . From [ his ] words I learned that during his detention [ the applicant ] had been severely beaten , as a result of which they broke his rib and contused the kidneys . With these complaints , as long as I remember , he never applied for aid in medical institutions . More than once , including in my presence , in pharmacies he used to buy medicine to relieve the mentioned pain . He also complained about pain in the area of the liver .

I do n’t know if [ the applicant ] talked about [ this ] to anyone . Because he failed to apply for medical aid , the broken rib recovered incorrectly . ”

On DATE the prosecutor ’s office refused to open a criminal case . This decision reiterated the findings of the decision of QUANTITY DATE and added as follows :

“ When questioned , ORG . explained that he worked as a surgeon in the emergency services of the hospital and ... that ... [ the applicant ] applied to him with complaints about the pain in the lower back . He examined [ the applicant ] and made him undergo the blood and urine tests , failing to detect any anomalies ... It was expected also to make an ultrasound test of kidneys , buy the convoy and [ the applicant ] left the building ...

When questioned , PERSON stated that she had been working for the ROVD since DATE . She was on duty when she received information about [ the applicant ’s ] arrest by police officers PERSON and PERSON She carried out initial investigating actions in his regard and examined his hands for traces of drugs . [ The applicant ] made no complaints about his state of health . He had no visible injuries . She ordered PERSON and PERSON to perform an urgent search in [ the applicant ’s ] flat . Neither she , nor other police officers acted unlawfully towards the applicant .

When further questioned on DATE , PERSON stated that she had been living with [ the applicant ] since his release from prison . During their cohabitation [ the applicant ] had complained of lower back , chest and stomach pains . She knew from what [ the applicant ] had said that he had been beaten in prison . He had never consulted a doctor on account of his health problems . He used painkillers to cope with these pains and never applied to [ medical institutions ] for [ medical ] aid .

When questioned , [ paramedic Ya . of the emergency services ] noted that she attended the ROVD ’s temporary detention facility upon the [ applicant ’s ] request on account of his lower back pain . No hematomas or bruises were noted on his lower back . Since [ the applicant ] had no bodily injuries as well as signs of any diseases , she made a preliminary diagnosis – a bruise of soft tissue in the lower back area . To confirm the diagnosis it was necessary to have [ the applicant ] examined by a surgeon and , if necessary , by other doctors . She did not remember whether [ the applicant ] complained of ill - treatment or not .

Similar statements were given by [ paramedic PERSON . of the emergency services ] ...

When questioned [ the applicant ’s acquaintance T. ] stated that on DATE on his way to a [ bus stop ] he met [ the applicant ] and his partner , who were going to a garage . They had a conversation for a minute . During that conversation he did not give [ the applicant anything ] or take anything from [ the applicant ] . Thereafter , on the way to the bus stop he was stopped by CARDINAL police officers who checked his documents . He did not see [ the applicant ’s ] arrest . DATE he learned about [ the applicant ’s ] arrest on suspicion of drug trafficking ...

Having regard to the above , the investigator concludes that [ the applicant ’s ] allegations of ill - treatment were made in an attempt to escape criminal liability for his offence ...

In the light of the above considerations , and taking into account Articles CARDINAL and CARDINAL of the ORG , the investigator orders the refusal of [ the applicant ’s ] request that criminal proceedings against [ the police officers ] be instituted . There is no evidence of the crimes provided by ORG CARDINAL § CARDINAL [ abuse of power ] and CARDINAL § CARDINAL [ falsification of a criminal case file ] of LAW of GPE having taken place ... ”

The applicant did not appeal against the decision of DATE .

On CARDINAL DATE the applicant obtained , for the purposes of the present case , the following statement from his partner PERSON The statement is made in relation to the earlier statement of PERSON ( see paragraphs CARDINAL and DATE ) and reads as follows :

“ Before [ the prosecutor ’s office ] [ I ] gave false statements about [ the applicant ] . He never had kidney disease or complained of lower back pain . He had never bought medicine to cope with the pain . I gave those false statements because I thought that [ the applicant ] would evict me from my flat . I was also unhappy because I had to pay for our flat while he was in detention . ”

NORP Throughout the proceedings before the trial court the applicant denied his involvement in drug trafficking , claiming that the criminal case against him had been falsified by police officers .

According to the applicant , during the trial court hearings he was unable to cross - examine CARDINAL of the witnesses against him . He also stated that ORG did not ensure the attendance of a witness on his behalf .

On DATE the NORP ORG convicted the applicant of drug trafficking and sentenced him to DATE and DATE of imprisonment .

NORP The applicant appealed against the judgment , having argued that the criminal case against had been falsified by the police . In his appeal brief he did not state his complaints about the alleged inability to cross - examine some of the witnesses and call a witness on his behalf .

On DATE the Rostov ORG examined and rejected the applicant ’s arguments , having upheld his conviction and the sentence in full .

On DATE the Presidium of the Rostov ORG upheld the judgments of the lower courts , having re - characterised the applicant ’s crime as an attempt to sell drugs and reduced his sentence to DATE and DATE of imprisonment .


A.M.B. AND OTHERS v. SPAIN - [English Translation] by European Roma Rights Centre "ERRC"

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

PERSON , is a NORP national who was born in DATE and lives in GPE . She is represented before ORG Cañón , a lawyer practicing in GPE . ORG ( " the Government " ) is represented by its agent , PERSON , ORG Attorney , Head of ORG .

NORP The applicant , a NORP national , and her CARDINAL minor children , have been living since DATE in a dwelling belonging to ORG ( hereinafter ORG ) , an organization of ORG . She is unemployed ( without benefits ) and receives the minimum integration income of MONEY ( ORG ) DATE , plus CARDINAL ORG per child as alimony . This financial allocation is granted by the GPE region to meet the basic needs of families who may be at risk of social exclusion .

NORP The applicant claims to have asked the Administration several times since DATE to obtain accommodation for herself and for her children , without ever getting a response . The disputed flat being uninhabited , they settled there irregularly , the office of the census of the municipality of GPE having officially registered them at this address since DATE .

By a decision on CARDINAL DATE , the director of ORG discovered the illegal occupation of the building and ordered the building to be returned to the ORG within DATE , without offering alternative housing to the applicant .

For their failing to vacate the home within the prescribed time , on CARDINAL DATE , the legal services of ORG applied to ORG for authorization to proceed with the expulsion .

On DATE , the applicant , represented by a public defender , objected to the measure by pointing out her and her children ’s precarious situation of social exclusion , as well as their GPE ethnicity .

By a decision on DATE , ORG No . CARDINAL of GPE ordered the expulsion , all while indicating that it would be appropriate to “ adopt the necessary measures for the best protection of minors who would be found in the building ” without specifying what these measures would be . Regarding the particular situation of the applicant , the judge noted that their situation was not distinguishable or distinct from that of many other families waiting for housing and that the illegal occupation could not find a justification .

The applicant appealed and requested the suspension of the expulsion order until the appeal was decided , the NORP law finding that the appeal is not suspensive to this effect . The judge found that the appeal was filed but did not rule on the application for suspension .

On DATE , ORG notified the applicant that the execution of the expulsion was scheduled for DATE at CARDINAL .

On DATE , the applicant lodged an application for interim measures on the basis of LAW .

On DATE , the examination of the request of the application of LAW was postponed until the reception of certain information from the Government concerning the treatment of fundamental rights of the applicant and her kids . In particular , the Government was asked to specify what alternative accommodation solutions the applicant and her children would be offered in case of expulsion to prevent the alleged violation of LAW and within what time frame .

NORP In light of the received information , on DATE , the functioning president of the Section to which the request was assigned decided to inform the NORP government , pursuant to the previously cited provision , not to continue with the expulsion of the applicant and her children from the home that they occupied . He decided in addition to communicate the request to the Government .

Furthermore , the president in office decided that the identity of the applicant would not be disclosed ( Article CARDINAL § CARDINAL of ORG ) .

On DATE , ORG informed the applicant that , unless the home was vacated , her illegal occupation would result in the rejection of any application for housing on her part for DATE from the date of the removal .

In a judgment of DATE , ORG of GPE dismissed the applicant ’s appeal against the decision of DATE . The ORG noted that none of the constitutional rights relied upon by the applicant authorized the illegal occupation of the apartment , even if they were in a situation of need . In fact , it was up to them to apply to the official bodies responsible for social protection .

Relying on Articles CARDINAL ( prohibition of degrading treatment ) and CARDINAL ( right to private and family life ) , the applicant lodged an amparo appeal with ORG , which is to date .

The relevant provisions of the LAW are as follows :

« Everyone has the right to life and to physical and moral integrity ( ... ) ORG

« The home is inviolable . ( ... ) ORG


Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The applicants , PERSON and PERSON , and CARDINAL of their children were born in DATE , DATE , DATE , DATE , DATE and DATE respectively and live in GPE . Their eldest daughter , who was also an applicant , was born in DATE and subsequently died on DATE after the application had been lodged .

The applicants are of GPE origin and were born in GPE , where they spent the greater part of their lives . They explained that they decided to leave their country for GPE because of the discrimination and illtreatment they had suffered on account of their origin in every sphere : access to the employment market , medical care , schooling difficulties and so forth .

The eldest daughter of the first CARDINAL applicants had been physically and mentally disabled since birth and had suffered from epilepsy .

After failing to obtain a more secure situation for themselves in GPE , in DATE the applicants travelled to GPE , where they lodged an application for asylum . Their application was rejected by a final decision on DATE .

The applicants stated that in the meantime they had returned to GPE , and then to GPE , in DATE owing to the precariousness of their situation in GPE and their inability to provide for their essential needs .

In DATE , as their situation had not changed , the applicants decided to go to GPE , where they lodged an asylum application on DATE .

During their interview with the “ GPE ” department of ORG on DATE the applicants gave an account of their movements to date and expressed their fears in the event of a return to GPE . The first applicant stated that he had chosen to seek asylum in GPE because he had been told that he could obtain better treatment for his disabled daughter there . He said that he was suffering from psychological problems . The second applicant said that GPE had been the choice of the smuggler . When asked about her health , she replied that she was CARDINAL months’ pregnant . She also mentioned their eldest daughter ’s health problems .

The applicants maintained that they had explained the reasons why they refused to return to GPE , where they had been living in extremely precarious conditions . They submitted that they had not been asked to provide any evidence of having left the territory of GPE ( “ GPE ” ) or regarding the family NORP state of health .

On DATE the NORP authorities sent GPE requests to take the applicants back on the grounds that the latter had been unable to prove that they had left the territory of ORG since their stay in GPE .

On DATE , relying on LAW ( ORG ) No CARDINAL/CARDINAL of DATE establishing the criteria and mechanisms for determining the Member ORG responsible for examining an asylum application lodged in one of GPE by a thirdcountry national ( “ the Dublin II Regulation ” ) , GPE refused to take charge of the applicants on the grounds that the couple were considered to have disappeared since DATE because they had not collected the notice of final refusal of their asylum application dated DATE and this corroborated their statements to ORG according to which they had left LOC in DATE and re - entered it in DATE , thus leaving for a period of DATE .

On CARDINAL DATE the NORP authorities asked the NORP authorities to reconsider their position given that there was no conclusive evidence that the family had left the territory of the Member GPE for DATE since their stay in GPE and the applicants were clearly aware of the rejection of their asylum application in GPE .

On DATE GPE accepted the request to take the family back pursuant to LAW CARDINAL(CARDINAL)(e ) of the Dublin II Regulation .

On CARDINAL DATE ORG issued decisions refusing the applicants leave to remain and ordering them to leave the country for GPE on the grounds that under LAW CARDINAL(CARDINAL)(e ) of the Dublin II Regulation Belgium was not responsible for examining the asylum application and that GPE had agreed to take charge of the family . The decisions indicated among other things that the family , who were originally from GPE , “ had not furnished evidence of their stay ” in GPE after staying in GPE nor any certificates regarding any medical treatment or care in respect of the pregnancy , or concerning the child or the father . Considering that GPE was a country which respected human rights , had democratic institutions , had ratified the LAW and LAW on the Status of Refugees , and was bound to implement the directives of ORG on asylum and that if a return were to raise a problem under LAW , the family could always lodge an application with the ORG for interim measures , ORG considered that the NORP authorities did not have to use the sovereignty clause provided for in Article CARDINAL(CARDINAL ) of the Dublin II Regulation .

Accordingly , the applicants were ordered to leave the country within DATE and to report to the NORP authorities at the border crossing . On DATE the applicants were issued with laissez - passer .

On DATE the applicants , through their legal representative , contacted ORG for the purposes of providing it with evidence that they had left the territory of ORG for DATE ( gynaecologist ’s certificates , the second applicant ’s health card and proof of enrolment at school of CARDINAL of their children ) .

On DATE execution of the orders to leave the country were extended until DATE on account of the fact that the second applicant was soon due to give birth .

On DATE the applicants lodged an application with ORG for the decisions refusing them residence permits and ordering them to leave the country to be set aside and for a stay of execution . They argued that the decisions , with the reasons given therein , had not provided them with the examination required by LAW taken together with LAW ( ORG v. GPE and GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR DATE ) of their fears regarding a return to GPE and of their health problems . Firstly , the reasoning was erroneous and incomplete ( error as to their nationality , identifying them as PERSON instead of NORP , failure to mention their return to GPE and their GPE origin ) . Secondly , they could not be blamed for having failed to provide , during their GPE interview , documents certifying their health problems and their movements to date or for not having substantiated their fears regarding a transfer to GPE . Like all GPE asylum - seekers at that time , when they had attended those interviews they had not been assisted by a lawyer or informed of the documents that they should bring and no document had been requested of them . As they had expressed their fears , the NORP authorities should have asked the appropriate questions and requested the relevant documents in order to ensure that their return did not infringe their fundamental rights . The applicants also argued that GPE should not have been determined as the ORG responsible for examining their asylum applications . Under LAW , the obligations regarding the determination of the ORG responsible ceased where the third - country national had left the territory of the Member GPE for DATE . That was precisely the position the applicants had been in on account of their return to GPE from DATE as certified by the documents subsequently sent to ORG ( see paragraph CARDINAL above ) . Lastly , they submitted that the NORP authorities should have used the sovereignty clause or the humanitarian clause both on account of their special vulnerability and of the notoriously difficult situation of the GPE minority in GPE and of the conditions for the reception of asylum - seekers in GPE .

The hearing before ORG took place on DATE .

On DATE the applicants unsuccessfully sought a further extension of the order to leave the country pending the outcome of the proceedings before ORG .

On DATE the applicants lodged an application with the ORG for interim measures suspending their transfer to GPE pending the outcome of the proceedings before ORG .

On DATE the ORG refused to indicate an interim measure .

In a judgment of CARDINAL DATE ORG ruled on the application to have the decisions refusing residence permits and ordering the applicants to leave the country set aside and for a stay of execution .

ORG dismissed the ground of appeal regarding the conditions of reception in GPE and based on the risk alleged by the applicants of being exposed to treatment contrary to LAW . It found as follows :

“ ... the ORG can not but observe that the applicants have failed to show that they encountered difficulties in their dealings with the NORP authorities regarding access to health care for their child or their conditions of reception as asylum - seekers . They have not adduced so much as a shred of evidence regarding the circumstances of the ill - treatment they have allegedly suffered and have merely asserted in their application , without substantiating this with the slightest evidence that could corroborate the facts , “ that they found themselves in an extremely precarious situation at the time of lodging their application for asylum and that their only refuge was a night hostel that they had to leave the next morning ” . Moreover , although their daughter ’s disability had been specified in the “ GPE form ” , the parties have not made any allegation whatsoever before ORG of encountering particular difficulties in the reception of asylum - seekers as organised by the relevant NORP authorities . ”

ORG also criticised the applicants for failing to produce in full the NGO reports that they had cited in support of their application , which had prevented it from checking whether the extracts produced did actually concern GPE .

ORG set the decisions aside , however , on the ground that ORG had not established the legal basis on which it considered that GPE was the ORG responsible for examining the applicants’ asylum application .

On DATE ORG lodged an appeal on points of law with the PERSON d’État against ORG judgment . It disputed ORG analysis of the applicable legal basis .

In an order of CARDINAL DATE the ORG d’État declared the appeal admissible . In a judgment of CARDINAL DATE it rejected it for lack of current interest on the grounds that the operative provisions of ORG judgment were no longer a source of complaint for the applicants because they had returned to GPE and had left the territory of the Member GPE for DATE with the result that GPE was relieved of any obligation in the process of determining which Member ORG was responsible for their asylum application .

In the meantime , on DATE , the applicants had lodged an application for leave to remain on medical grounds under section CARDINALter of PERSON Settlement and LAW of DATE ( “ the Aliens Act ” ) on behalf of their eldest daughter . They referred to the extreme precariousness of their position and the discrimination they had suffered as ORG and GPE . Citing several international reports in support of their submissions , they argued that for that reason they had no guarantee that they would be able to obtain the necessary treatment for their daughter ’s health condition . They sought temporary leave to remain pending the outcome of the asylum proceedings they had instituted in GPE .

On DATE ORG declared their application inadmissible on the grounds that the medical certificate of DATE ( see paragraph CARDINAL below ) , produced in support of their application to have their residence status regularised , certified the existence of a medical problem and stipulated the treatment considered necessary but , contrary to the requirements of section CARDINALter § CARDINAL , CARDINAL of LAW , did not specify the degree of seriousness of the condition .

The applicants indicated in their observations in reply that they had learnt of the existence of that decision during the proceedings before the ORG .

On DATE the Federal agency for the reception of asylum - seekers ( “ QUANTITY ” ) assigned the applicants a reception facility as their mandatory place of registration , namely , GPE asylum - seekers’ reception centre .

NORP The social worker from the centre took down the following account by the applicants of the conditions of their reception in GPE :

“ The family decided to leave GPE because they had no means of subsistence . They were living in a night shelter which they had to leave in DATE . They and the children were out on the streets from TIME They had to use a pushchair as a wheelchair for PERSON , who is disabled . They had no information of any kind apart from the status of asylum - seeker which had been given to them on their arrival . No doctor , no social worker , no lawyer , no interpreter . They had absolutely no means of communication . They had no idea what they should do or what to expect . PERSON was not receiving any medical treatment of any kind . When her health deteriorated and she had to be taken to hospital , it was the mother ’s sister who drove her to the emergency ward at the hospital and acted as interpreter . Once at the hospital the little girl had [ epileptic ] fits and her hair fell out . That was what decided the family to return to GPE ” .

The eldest daughter was examined on DATE by a neuropsychiatrist at ORG and a medical certificate was drawn up on DATE certifying the child ’s disabilities .

In that certificate , which was sent to ORG on DATE , the doctor noted that the child had “ cerebral palsy with epilepsy ” , suffered from “ severe axial and peripheral hypotonia ” , that she could not sit up unassisted and soiled her underwear , that she could not talk and appeared not to understand others . He also noted that the child was taking medicines and that she required physiotherapy and appropriate equipment ( orthopaedic braces , seat - brace ) . Those medical findings were confirmed by a neurological examination carried out on DATE .

NORP The eldest daughter was admitted to hospital on CARDINAL and DATE for her epileptic fits and a neurological report drawn up .

After the second applicant gave birth on DATE the family were assigned a new reception centre on CARDINAL DATE in an open centre suitable for families , in PERSON in the province of GPE .

On DATE , when the order extending execution of the order to leave the country expired , and as they could no longer benefit from material assistance for refugees , the applicants were removed from the Saint - Trond reception centre .

The applicants travelled to GPE , where voluntary associations indicated a public square in the municipality of GPE , in the centre of the GPE - Capital administrative district , where other homeless GPE families were also staying . They stayed there from DATE to CARDINAL DATE .

On DATE , through their legal representative , the applicants asked the LANGUAGE - speaking community ’s ORG to the Rights of the Child to intervene urgently with the national authorities responsible for the reception of asylum - seekers .

On DATE ORG sent a letter to ORG of GPE requesting that accommodation be found urgently .

A signed statement by ORG dated DATE indicated that he also contacted the municipality of NORP in an attempt to find urgent accommodation for the family . According to ORG , the municipal authorities stated that they did not have power to make a decision and that it was for the federal authorities to decide , and GPE declared that it did not have power on account of the decision taken by ORG regarding GPE ’s responsibility for processing the asylum request ( see paragraph CARDINAL above ) . PERSON also stated that the application to ORG ( see paragraph CARDINAL above ) was not of suspensive effect , which was why the reception centre had applied the rules terminating the right to material assistance .

On DATE , following the intervention of ORG , the Secretary of ORG ’s office for ORG and the Fight against Poverty instructed GPE to designate a reception centre as a matter of urgency .

After spending DATE at the transit centre of the WoluweSaintPierre municipality , also in the GPE - Capital administrative district , on DATE the applicants were assigned a new reception centre as a mandatory place of registration : the PERSON reception centre for asylum - seekers in the province of GPE QUANTITY from GPE .

The Government maintained that the applicants had failed to register at the centre . The applicants , for their part , stated that they had gone there by train and a special bus but had been sent back to GPE to GPE ’s ORG on the grounds that their “ annex CARDINAL [ order to leave the country ] was invalid . ”

When they got back to GPE on DATE the applicants got off the train at FAC , where they remained without any means of subsistence and with no accommodation despite the very cold weather for DATE until their return to GPE was organised via a charitable organisation as part of the GPE return programme . The applicants left GPE for GPE on DATE .

In the meantime , on CARDINAL DATE , the applicants’ mandatory place of residence had been changed to code CARDINAL “ no - show ” ( see paragraph CARDINAL below ) and on DATE the ORG names were deleted from the waiting register .

After their return to GPE their eldest daughter ’s health deteriorated , forcing the applicants to leave the room they had rented on account of the insalubrious conditions . They went to stay with a relative in ORG and then to the suburbs in GPE .

NORP The applicants’ eldest daughter was admitted to hospital on DATE suffering from a lung infection . She died on DATE .

In a letter to their lawyer of CARDINAL DATE the applicants stated that they had been attacked by NORP on a number of occasions : among other incidents , some men had driven by in a car and broken the windows of their home by throwing stones , and had uttered threats , complaining of their links with the “ NORP ” and ordering them to leave GPE . The first applicant had attempted to defend himself and been beaten up twice by his attackers .


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens

The applicants were born in DATE and DATE respectively and live in GPE .

The applicants were cadets in military schools . Based on classified investigation reports , they were expelled from their schools . None of the applicants had access to these classified reports . They all filed actions against ORG with ORG to have annulment of the impugned decisions .

Relying on the classified investigation reports , ORG rejected the ORG requests and their subsequent requests for rectification on different dates shown in detail in the attached list .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicants were prosecuted in GPE for various crimes . They were arrested and detained pending investigation and trial . Their detention was ordered and extended by the courts . The detention orders were essentially based on the gravity of the charges , the primary grounds being the risk of the applicants’ absconding and interfering with the course of justice . The detention and extension orders used stereotyped formulae , without addressing specific facts or considering alternative preventive measures .

The first applicant was born in DATE and lived , prior to his arrest , in GPE , GPE . In DATE the applicant was arrested in GPE . On DATE he was extradited to GPE and was placed in pre - trial detention until DATE when he was released on bail . On DATE the ORG of PERSON convicted him of fraud .

The second applicant was born in DATE and lived , prior to his arrest , in GPE . On DATE the applicant was arrested on suspicion of fraud . On DATE the court remanded him in custody . On DATE ORG convicted the applicant of fraud .

The third applicant was born in DATE and lived , prior to his arrest , in GPE . The applicant was arrested on DATE . On DATE the court held to place him in pre - trial detention . On DATE ORG convicted the applicant of trespass , battery , robbery and sexual assault .


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

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicants , whose names are listed in the appendix , are NORP nationals and and at the time of lodging their applications they were serving their prison sentences in various establishments .

The names and dates of birth of the applicants , as well as the names of their representatives , and the dates of introduction of the applications appear in the appendix .

All of the applicants were found guilty of breaching prison order by decisions of the respective disciplinary boards of prisons in which they were held . Pursuant to the ORG on the administration of penitentiary institutions and the execution of sentences , the applicants were sentenced respectively CARDINAL days’ solitary confinement on the orders of the respective ORG ( referred hereafter as “ the board ” ) .

Their objections were subsequently rejected by ORG and ORG , on the basis of the case file , without hearing the applicants or their lawyers , pursuant to PERSON no . DATE on ORG , dated DATE .