Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of murder and placed in pre - trial detention pursuant to an order of ORG of LOC ( “ the GPE ORG ” ) .

DATE and CARDINAL DATE ORG extended the applicant ’s detention pending trial on several occasions . On the latter date it ordered that he remain in detention until DATE . It referred to the seriousness of the charges against him and the absence of any grounds to change that particular preventive measure .

On DATE the ORG convicted the applicant as charged and he was sentenced to imprisonment . It also ordered that he remain in detention until his conviction became final .

On DATE ORG quashed the applicant ’s conviction and sent his case to the first - instance court for fresh examination . Its decision stated that the preventive measure applied to him “ should remain unchanged ” .

In an interlocutory hearing on DATE ORG examined a request by the applicant for release pending trial , subject to him either giving an undertaking not to leave a specified place or the application of a different preventive measure . He argued , in particular , that ORG brief indication in its decision of DATE that the preventive measure applied to him should remain unchanged could not serve as a sufficient legal basis for his continued detention . In this connection , ORG noted that ORG decision , in so far as it had concerned the preventive measure , had been lawful as it had been taken in accordance with the relevant provisions of national law . It further did not consider it possible to release the applicant pending trial on account of the seriousness of charges against him and the fact that he was a foreign national and did not reside within the territory of GPE , with the result that he might abscond if at liberty or put pressure on witnesses . The court thus ordered that his detention be extended until DATE .

On DATE ORG upheld the decision of DATE on appeal . It stated that ORG , in convicting the applicant on DATE , had indicated that he should remain in detention until that judgment became final . It further noted that when quashing the conviction , it itself had stated that the preventive measure applied to the applicant should remain unchanged , and that then , in accordance with LAW of LAW , ORG had extended the applicant ’s detention for DATE . It thus concluded that the applicant ’s pre - trial detention was lawful , wellfounded and based on a court order .

On DATE the ORG further extended the applicant ’s detention until DATE . He requested his release , stating that he had been in custody for a long time and that his health had deteriorated . The court held that there were no grounds to change the preventive measure applied to him . It referred to the seriousness of the charges against him and the fact that he was a foreign national and did not reside within the territory of GPE , with the result that he might abscond or influence witnesses if released .

On DATE ORG ordered that the applicant remain in detention until DATE . He asked the court to change the preventive measure , referring to the poor state of his health and the fact that he had already been kept in detention for a long time . He further argued that he would not abscond , given that his family lived in ORG and owned property nearby . The court stated that because the applicant had been charged with a particularly serious offence , had pleaded not guilty , was a foreign national and was not registered within the territory of GPE , he might seek to evade justice . It also stated that the extension of his detention was necessary , in view of the fact that an expert examination in his case was being carried out in GPE at the time .

On DATE the ORG further extended the applicant ’s detention until DATE . He asked to be released , arguing that he had a child and family in LOC as well as property nearby where he could be registered . He had also already spent a long time in detention and his state of health had deteriorated . The court gave reasons similar to those indicated in its decision of DATE .

On DATE ORG ordered the applicant ’s release , subject to him giving an undertaking not to leave a specified place . The court noted that he had been kept in detention for a long time , and that his wife and child lived in GPE , where the latter went to school . It also took into account the fact that they were NORP nationals , and that there was therefore a possibility , and a place , for the applicant to live in the LOC pending trial . The court further noted that the results of the expert examination carried out in GPE had since been received . It also referred to the fact that the applicant had no previous criminal record , had positive references from his place of residence and place of work and needed medical treatment as his health had deteriorated .

On DATE ORG acquitted the applicant . In the operative part of its judgment it stated that he had a right to “ rehabilitation ” ( реабилитация ) and that it was open to him to claim compensation for pecuniary and non - pecuniary damage .

On DATE ORG upheld the acquittal on appeal .

After his acquittal the applicant instituted civil proceedings against the authorities in LOC under ORG CARDINAL and CARDINAL of the Code of Civil Procedure and LAW . He claimed MONEY ( RUB ) for the pecuniary damage resulting from his unlawful prosecution and detention , and RUB CARDINAL for costs and expenses . He argued , in particular , that as a result of being prosecuted for an offence he had not committed he had been deprived of his liberty , which had caused him and his family suffering . Furthermore , he could not work and his health had deteriorated .

On DATE ORG partly allowed the applicant ’s claim for non - pecuniary damage and awarded him RUB CARDINAL,CARDINAL ( MONEY ) . In its reasoning the court firstly noted that under LAW everyone who has been the victim of arrest or detention in breach of that provision should have the right to compensation . It further noted that by virtue of ORG judgment of CARDINAL DATE the applicant had been acquitted and his right to “ rehabilitation ” had been recognised . On this basis the court found that he had been unlawfully prosecuted , unlawfully detained from DATE to DATE and , subsequently , unlawfully subjected to an undertaking not to leave a specified place . It further stated that , where a person ’s right to rehabilitation had been recognised , the existence of non - pecuniary damage was presumed and it was only the amount to be awarded that had to be established . For these purposes the court took into account the suffering caused to the applicant and the fact that his health had deteriorated . It relied on Articles CARDINAL and CARDINAL of LAW in this regard .

On DATE ORG discontinued the proceedings concerning the applicant ’s claim for costs and expenses , on the grounds that it could not be examined within the civil proceedings but rather should be brought within criminal proceedings .

On DATE ORG upheld the judgment on appeal .

DATE , during the examination of the applicant ’s case , he was on several occasions taken to the temporary detention facility of ORG ( “ the Berdsk IVS ” ) so that he could take part in the proceedings .

The applicant provided the following information concerning his detention in the ORG :

- DATE and CARDINAL and DATE he was held with CARDINAL cellmate in cell no . CARDINAL , which measured QUANTITY and was equipped with CARDINAL beds ;

- DATE he was again held in cell no . CARDINAL , but this time with CARDINAL cellmates ;

- DATE and DATE he was held with CARDINAL cellmates in cell no . CARDINAL , which measured QUANTITY ;

- DATE he was held with CARDINAL cellmates in cell no . CARDINAL , which measured QUANTITY and was equipped with CARDINAL beds ;

- DATE and DATE he was held with CARDINAL cellmate in cell no . CARDINAL , which measured QUANTITY and was equipped with CARDINAL bed ;

- DATE and DATE he was held with CARDINAL cellmates in cell no . CARDINAL , which measured QUANTITY and was equipped with CARDINAL beds ;

- DATE , DATE and DATE , DATE and DATE , CARDINAL and DATE DATE and CARDINAL and DATE , and CARDINAL DATE , the applicant was again held in cell no . CARDINAL with CARDINAL , DATE , DATE , CARDINAL , CARDINAL and CARDINAL cellmates respectively ;

- DATE and DATE the applicant was again held in cell no . CARDINAL , but this time with CARDINAL cellmates .

None of the cells was equipped with a wash basin , which made basic hygiene procedures impossible . Detainees could take a shower only once DATE . There was no partition between the lavatory and the rest of the room , which offered no privacy . The cells were infested with bedbugs and no pest control treatments were ever conducted . As there were no windows , there was no fresh air or daylight . The ventilation system was turned on very rarely , so the cells were stuffy and humid and in DATE it was hard to breathe . The artificial lighting was insufficient , which affected GPE eyesight . The fact that there were no tables and chairs was humiliating as detainees had to eat , prepare for hearings and write complaints and applications while sitting on the floor . Food was served only once a day and the applicant was constantly hungry . Walks outside the cells were irregular and did not last for TIME .

According to the Government , they were unable to provide exact information about the cells the applicant was held in DATE and part of DATE or the number of inmates he was held with , as the relevant documents had been destroyed on the expiry of their storage period .

They did , however , provide the following information concerning the applicant ’s detention in ORG in DATE to DATE :

- DATE he was held with CARDINAL inmates in cell no . CARDINAL , which measured QUANTITY ;

- DATE , DATE and DATE , DATE and DATE and CARDINAL and DATE , and CARDINAL DATE , he was held with CARDINAL inmates in cell no . CARDINAL , which measured QUANTITY ;

- DATE and DATE he was held with CARDINAL cellmates in cell no . CARDINAL , which measured QUANTITY .

The cells did not have windows but were ventilated . They contained no other furniture apart from beds . The number of cellmates exceeded the number of available beds . Each cell had a wall - mounted lavatory , but there was no partition to divide it from the rest of the cell . The cells were cleaned DATE , and pest control treatments were conducted DATE .

Detainees were each provided with bedding , towels , crockery and cutlery . Shaving items were made available upon request at least twice DATE . Detainees were taken for a DATE walk of a minimum of TIME in a yard measuring QUANTITY . Hot meals were provided CARDINAL times a day .

On DATE a group of police officers of ORG accompanied by an officer of ORG entered the ORG cell to inspect it .

According to the applicant , the police officers ordered him and his cellmates to stay crouched down with their hands on the back of their heads and started checking their personal belongings and sleeping places . CARDINAL of the officers threw a pillow on the floor and the applicant moved to pick it up . An officer tried to then kick him in the head , but as he tried to cover himself with his arms , he kicked him in the arm . The officers insulted and threatened him .

On DATE the applicant complained about the above incident to the ORG prosecutor ’s office and ORG of LOC .

On DATE an investigator of the ORG prosecutor ’s office refused to institute a criminal investigation into the incident . The decision stated , in particular , that according to the statements given by the police officers and the head of ORG , no physical force had been used against the applicant . PERSON , who according to the applicant had remained in the cell and had witnessed the incident , submitted that when the police officers had started the inspection he had left the cell and waited in the corridor . He had heard the applicant arguing with the police officers . When he had re - entered the cell after the inspection , the applicant had told him about the incident and had said that he would be making a complaint . However , ORG had not seen him be kicked in the arm . His statement was confirmed by ORG . , an officer of ORG who was on duty on DATE , who stated that ORG had been outside the cell during the inspection . The investigator concluded that there was no evidence that an offence had been committed . The decision stated that it could be appealed against to a higher prosecutor or a court .

The PERSON prosecutor ’s office informed the applicant of the decision by letter on DATE . According to the applicant , he was not informed of the decision .

Nevertheless , the applicant complained about the decision to a higher prosecutor .

On DATE the prosecutor of ORG dismissed the complaint and upheld the decision .

The applicant did not appeal against the refusal to institute criminal proceedings to a court .


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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The facts , as submitted by the parties , are similar to those in ORG “ DATE ” and Others v. GPE ( nos . CARDINAL and CARDINAL , § CARDINAL , CARDINAL DATE ) .

The applicants or their close relatives participated in demonstrations and were injured or killed by gunfire during the events of DATE in GPE , ORG and PERSON which led to the fall of the communist regime .

In DATE the military prosecutor ’s offices from several cities opened criminal investigations into the use of violence against the demonstrators , including the applicants’ injury or their close relatives’ death during these events . The main criminal investigation was recorded in file no . CARDINAL ( current no . CARDINAL/P/CARDINAL ) . In a number of cases the prosecutor decided DATE not to open an investigation or to discontinue the proceedings . These cases were further examined in the main criminal investigation file irrespective of a formal decision ordering re - opening , applicants being questioned by the prosecutor and raising civil claims , according to the circumstances of each case .

The most important procedural steps were described in Association “ DATE ” and Others ( cited above , § § CARDINAL ) , and also in GPE and Others v. GPE ( nos . CARDINAL and CARDINAL others , § § CARDINAL , DATE ) . Subsequent relevant domestic decisions are shown below .

On DATE the military prosecutor ’s office closed the main investigation , finding that the complaints were partly statute - barred , partly subject to an amnesty , and partly ill - founded . It also found that some of the occurrences could not be classified as offences and some were res judicatae ( see GPE - Loredana Orășanu and Others v. GPE [ Committee ] , no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .

The decision of DATE was annulled by a ORG decision of DATE , confirmed by ORG and ORG on DATE . It was noted that the investigation in file no . CARDINAL/P/CARDINAL was incomplete and that the facts could not be established based on the evidence gathered up to that date .

On DATE the military prosecutor ordered the initiation in rem of a criminal investigation for the offence of crimes against humanity in respect of the same circumstances of fact . Up to DATE further steps were taken in gathering information from domestic authorities , the prosecutor ’s office contacting CARDINAL civil parties , questioning members of the political party which took over the presidency at the time of events , planning the hearing of military officers and other participants in the events , verifying the activity of the relevant military units and the audio / video recordings broadcast by radio and television .

At the date of the latest information available to ORG ( submitted by the parties on DATE and CARDINAL DATE ) , the criminal investigation was still ongoing .


Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

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

summarised as follows .

NORP The applicant stated that she entered GPE in DATE , when she was DATE , to join her father , who already lived there . It is not known when her mother and siblings arrived .

The applicant was registered with ORG ( folkeregisteret ) as from DATE . On DATE she was granted a permanent residence permit .

The applicant went to school and studied to be a datamathematician .

In DATE , when the applicant was DATE , her parents arranged her marriage to F , a NORP national , in GPE .

In DATE , F entered GPE on a tourist visa . After DATE , he returned to GPE . During DATE they visited each other in GPE and GPE .

On DATE , the applicant gave birth in GPE to their son , M , a NORP national .

On DATE , the applicant gave birth in GPE to their daughter , I , a NORP national .

The applicant maintained that F was violent and that in DATE , when she had been in GPE to attend her brother ’s wedding , she and the children had been locked up for DATE by ORG and his family , in order to keep her in GPE . She had managed to escape , but F had found them and kidnapped PERSON With assistance from ORG , the applicant and I had returned to GPE . After some time , F had agreed that M be returned to the applicant in GPE . Thereafter the applicant did not return to GPE and the spouses had no contact . They divorced in DATE or DATE . In DATE the applicant was granted sole custody of M and I.

NORP In GPE the applicant lived with her children , her mother and a brother .

NORP On DATE she was convicted of social security fraud and given a DATE suspended sentence .

On DATE the applicant was detained and charged with , inter alia , murder .

On DATE , she was convicted by ORG ( retten i GPE ) of murder , attempted aggravated robbery and arson under Articles CARDINAL , FAC in conjunction with CARDINAL , and CARDINAL of LAW . She was sentenced to life imprisonment .

ORG found it established , among other things , that the applicant had had a relationship with a NORP man who later married N , for which reason the applicant , who was DATE at the time , planned to murder PERSON With the help of her CARDINAL-year - old nephew and his DATE friend , they watched the spouses’ apartment and , when they were certain that N was alone , they entered , masked , armed with a meat tenderiser and carrying petrol . Then they searched in vain for valuables , poured petrol over N and set her alight . She burned to death , and the apartment burned out , thereby also endangering the lives of the other inhabitants of the residential building .

By the same judgment , the applicant was expelled from GPE with a life - long ban on returning . Before ORG , ORG ) gave a statement about the applicant ’s situation , including , inter alia , that she had stayed legally in GPE for DATE , that she spoke LANGUAGE , LANGUAGE , NORP , PERSON , GPE and NORP , and that her mother and CARDINAL siblings lived in GPE . Moreover , since the children ’s residence permits were dependent on the applicant living in GPE , expulsion might have consequences for them .

Before ORG , the applicant stated that most of her family in GPE had obtained NORP nationality . Her father , who had died in DATE , had been married before , and she had CARDINAL - siblings in GPE from that marriage . Her mother went often to GPE and owned a house there . Her children , at that time aged DATE , had been placed with her sister and her husband since the applicant ’s arrest . She was afraid that their father , F , would kidnap them and take them to GPE . He had obtained a NORP passport . The children spoke NORP , and M also spoke a little PERSON in order to be able to talk to his maternal grandmother .

In respect of the expulsion order ORG stated :

“ [ The applicant ] who is DATE , entered GPE ... when she was DATE . She has had all her upbringing , schooling and education in this country . Her mother and most of her siblings live in GPE and are NORP citizens . Moreover , her children , who are DATE , live in GPE . However , [ the applicant ] has maintained what must be considered a real attachment to GPE and NORP culture . With her mother she speaks only PERSON , and her family is integrated as a central part of her network . She has previously been to GPE , where she has CARDINAL - sisters , and her mother often goes to GPE , where she owns a house . Against this background , and having regard to the fact that [ the applicant ] is punished with life imprisonment for attempted aggravated robbery , murder and arson , and since the above - stated about the risk of double punishment and persecution and considerations for the applicant ’s children can not lead to another decision , expulsion will not breach LAW or GPE ’s international obligations otherwise , see section DATE , subsection CARDINAL , of LAW . Against this background there are CARDINAL votes in favour of granting the expulsion request with a lifelong ban on returning by virtue of section DATE , subsection CARDINAL , in conjunction with section CARDINAL , no . CARDINAL and section DATE , subsection CARDINAL , no . CARDINAL . ”

The applicant appealed against the judgment to ORG of Eastern GPE ( PERSON ) before which she explained , among other things , that her children had visited her in prison once or DATE . F had requested custody of the children and that case was pending before ORG . He had attempted , in vain , to obtain a residence permit in GPE .

By judgment of DATE , ORG confirmed the conviction but reduced the sentence to DATE imprisonment . Adhering to the reasons set out by ORG , it upheld the expulsion order .

Leave to appeal to ORG ( Højesteret ) was refused on DATE .

On DATE , the applicant married a NORP citizen .

By judgment of DATE , ORG request for custody of M and I was refused . From that judgment it appeared that the applicant had consented to her children being officially placed with her sister and her husband . The children were well - adjusted . They had not seen F for DATE . In the period from DATE to DATE he had not contacted them at all . They wanted to live with their mother , together with their aunt and uncle ( with whom they lived ) . They did not want to live with their father in GPE . Even if the father had the possibility to move to GPE , they did not want to live with him . They did not want contact with him .

NORP The relevant provisions of LAW ( udlændingeloven ) relating to expulsion were recently set out in detail in GPE v. GPE , no . GPE , § § DATE , DATE .

DATE of the LAW sets out that release on parole may take place at the expiry of CARDINAL of the term of imprisonment , or in special circumstances , take place earlier , provided that the prisoner has served CARDINAL of the sentence , and this constitutes a period of DATE . If a sentence of life imprisonment has been imposed , leave on parole can only take place after the prisoner has served DATE ( Article CARDINAL ) .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)

The applicants were born in DATE , DATE , DATE , DATE and DATE respectively . The ORG has not been informed of their current place of residence .

The first and second applicants , a married couple , arrived in GPE in DATE . Their CARDINAL children , the remaining applicants , were born in that country . All members of the family were granted permanent resident permits . In DATE the first applicant bought a flat in GPE , where the family lived .

On DATE the head of ORG issued an order withdrawing the first applicant ’s residence permit , ordering his expulsion and imposing a DATE ban on his reentering GPE , on the ground that his presence in the country represented a “ serious threat to national security ” . Factual grounds justifying the order were not indicated ; it was merely noted that it was based on “ proposal no . BCARDINAL ” .

NORP That proposal , drawn up by ORG on DATE and initially classified , was declassified on CARDINAL DATE and has been submitted by ORG . It stated that , according to intelligence data , the first applicant was the leader of an international terrorist group , working towards the aiding and financing of NORP extremist and separatist organisations . It also stated that he was being searched on the territory of GPE and that his actions lowered the prestige and the interests of ORG . The document claimed , in addition , that the first applicant had been implicated in extortion , drug trafficking , smuggling , money laundering and other criminal activities . No evidence was provided to substantiate those claims , even though the document referred to some specific facts . It was stated , for example , that in DATE the applicant and another person had attempted to smuggle into GPE a “ highly toxic substance ” , and that , also in DATE , he had threatened the seller of an expensive property in GPE forcing him to choose as a buyer a person close to the applicant .

On DATE the first applicant applied for judicial review of the expulsion order . He disputed the allegation that he represented “ a serious threat to national security ” . He pointed out that his family was living in GPE and that his children had been born in the country , and claimed that the proposed separation of his family was “ unjustified ” .

During the ensuing proceedings the applicant and his representative were shown proposal no . BCARDINAL and they presented evidence seeking to disprove some of the allegations it contained . In particular , the first applicant presented certificates issued by the NORP and the NORP authorities stating that he had no convictions in the CARDINAL countries and explained that in DATE he had travelled to GPE , where , as he claimed , he would have been arrested had he indeed been searched by the authorities of that country . In addition , in his written submissions the first applicant ’s representative pointed out that the allegations made in the proposal were not substantiated by any evidence , and that they could not justify a conclusion that the applicant represented a threat to national security . In his oral pleadings he pointed out once again that the first applicant had “ created his family ” in GPE .

In a final judgment of DATE ORG dismissed the application for judicial review . After summarizing the claims made in proposal no . BCARDINAL , it held briefly that it was bound by them . Thus , in its view

“ it should be concluded that the presence and the activity of the [ first applicant ] amount to a serious threat to national security and to the international prestige of GPE . ”

NORP In a decision of CARDINAL DATE the head of ORG ordered the first applicant ’s detention pending expulsion . That decision was quashed in a judgment of ORG of DATE . In another decision dated CARDINAL DATE the head of ORG ordered once again the applicant ’s detention . That decision was quashed as well , in a judgment of ORG of DATE . The first applicant effectively remained in detention from DATE to the date of his expulsion , DATE .

The other applicants remained for DATE in GPE , but left in DATE .


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

On DATE the applicant sustained injuries in a traffic accident caused by the vehicles owned by the PERSON and ORG , both ORG / socially - owned companies ( the debtors ) .

On DATE and DATE ORG in GPE rendered CARDINAL separate judgments ordering the debtors to pay the applicant certain sums as compensation for the sustained damages .

Due to the NORP failure to fulfil their obligations from these decisions , the applicant submitted enforcement requests . On DATE and DATE , respectively , ORG in GPE issued enforcement orders to that effect . The enforcement proceedings are still pending and the above decisions remain unenforced .


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

DATE the applicants took part in the clean - up operation at the GPE nuclear disaster site . They were subsequently registered disabled and became entitled to various social benefits and compensation paid on a regular basis .

Considering these benefits insufficient , the applicants together with other CARDINAL people , sued ORG for additional compensation corresponding to non - pecuniary damage suffered as a result of their participation in the operation .

NORP On different dates in DATE and DATE the ORG ( “ the ORG ” ) allowed their claims in part and awarded each claimant , including the applicants , compensation ranging MONEY ( RUB ) and RUB CARDINAL for nonpecuniary damage .

No appeals were lodged against these judgments within the statutory DATE time - limit . The judgments became final but have never been executed .

NORP On different dates ORG granted the defendant authority ’s request to extend the time - limit for appeal on the grounds that the authorities had not received a copy of the judgment in due course . Subsequently the regional ORG quashed the judgments delivered in the applicants’ favour on the grounds that they had been based on retrospective application of the law .


Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Peer Lorenzen

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently detained in FAC in GPE , GPE of GPE .

NORP The applicant entered GPE in DATE . From DATE onwards he had a relationship with A. , another NORP national living in GPE . The couple ’s relationship was marked by conflict , and the applicant repeatedly threatened and also committed major assaults against NORP Numerous criminal proceedings were instituted but subsequently closed because ORG withdrew her accusation or refused to institute criminal proceedings .

On DATE the applicant was however found guilty by the appeal court of the GPE of ORG Basel - Stadt , “ the appeal court ” ) of endangering A. ’s life by pushing her into the LOC and of raping her . He was sentenced to CARDINAL months’ imprisonment , of which DATE suspended for DATE . It was planned that the applicant would serve the prison sentence from DATE .

On DATE ORG of ORG ordered the expulsion of the applicant from NORP territory . It is unknown whether that decision became final .

On DATE the criminal court of the GPE of ORG ( ORG Basel - Stadt , “ the criminal court ” ) sentenced the applicant for threatening behaviour towards DATE imprisonment . Since the applicant was sentenced during the probation period under the former conviction of DATE , the criminal court decided that the previously suspended CARDINAL months’ imprisonment was to be enforced as well .

The applicant was sentenced on the basis of the following event . On CARDINAL DATE , during an appointment with his psychiatrist , who had been treating him since DATE , the applicant had declared that he was planning to take revenge on his ex - girlfriend , PERSON , whom he considered to be the cause of all his problems . He had stated that he would find her , rape her and kill her , and that he did not care if he were sentenced again . As later stated by the psychiatrist , this was not the first time that the applicant had expressed feelings of revenge against A. This time , however the psychiatrist had had the impression that the applicant was very determined to accomplish those acts , especially because at the end of the session the applicant had thanked him “ for everything ” and refused to make another appointment . Fearing for A. ’s life , the psychiatrist had therefore sought authorisation from ORG of the GPE of ORG to be released from his duty of professional confidentiality , and subsequently informed the police . The same day the police informed A. about the applicant ’s threats . Anxious about what could happen to her , she made a criminal complaint against the applicant for threatening behaviour .

During the proceedings before the criminal court , the applicant denied that he had threatened to kill A. He stated that his psychiatrist had misunderstood him and that he had effectively said that he was going to kill himself . Partly contradicting himself , the applicant also claimed that he “ had not meant seriously ” what he had said . In defence of the applicant , his representative further submitted that the applicant had made those statements to his psychiatrist , who was acting under professional confidentiality . He could not have anticipated that his psychiatrist was going to inform the police , and he had therefore not acted with the intention to threaten his ex - girlfriend .

In its judgment of CARDINAL DATE the criminal court however found that the applicant had fulfilled all the elements of threatening behaviour as established in LAW ( “ the SCC ” , see paragraph CARDINAL below ) . On the one hand , it was not necessary for the applicant to have made the threat directly to A ; it was sufficient that she had become aware of it . On the other hand , the criminal court held that the applicant could have anticipated , in the light of the seriousness of his threats and his general behaviour during the session with the psychiatrist , that his psychiatrist would take action to prevent him from carrying them out ; even more so as his psychiatrist knew his former criminal record and had been treating him for DATE . The criminal court found that it must have been clear to the applicant that his psychiatrist , especially as a doctor , would give more weigh to the health of a third person than to his duty of professional confidentiality . Furthermore , at a later time , when the applicant ’s sister informed him that the police were looking for him , he had immediately known the reason for it . He had hence anticipated his psychiatrist ’s acts and acted with the intention of threatening his ex - girlfriend . He therefore fulfilled all the elements of threatening behaviour according to LAW .

The applicant appealed against this decision . He claimed in particular that he had not acted with the intention of threatening PERSON could not have anticipated that his psychiatrist would be released from his duty of professional confidentiality and would subsequently inform the police , who would in their turn inform PERSON had therefore not fulfilled the subjective elements of threatening behaviour as established in LAW .

On DATE the appeal court endorsed the decision of the criminal court . It established that during questioning the applicant had never stated that he was relying on the psychiatrist ’s duty of professional confidentiality . He had only disputed that he had ever said that he was planning to rape and kill A. The appeal court further held that from the applicant ’s decisive behaviour on DATE in not making another appointment and saying goodbye to his psychiatrist in a dramatic manner , it could even be concluded that he wanted his psychiatrist to do something . Even if the applicant had wished to provoke his psychiatrist into taking action other than seeking an intervention by the police , the psychiatrist would have been obliged to be released from the duty of professional confidentiality in any event , and A. would have come to know about the threats anyway . The appeal court therefore concluded that the applicant had intended to threaten GPE and that he was guilty under LAW SCC .

On an appeal by the applicant , ORG upheld the appeal court ’s decision on DATE . It reasoned that in the given circumstances the applicant could have predicted that the psychiatrist would give more weight to ORG ’s life higher than to his duty of professional confidentiality . In behaving as he did that day the applicant had at least regarded this as possible and accepted that the threats would come to be known by NORP The applicant had therefore been correctly sentenced .

Articles CARDINAL , CARDINAL § CARDINAL and CARDINAL of the SCC , as in force at the relevant time , read as follows :

“ CARDINAL . Unless the law expressly provides otherwise , a person is only liable to prosecution for a felony or misdemeanour if he commits it wilfully .

A person commits a felony or misdemeanour wilfully if he carries out the act in the knowledge of what he is doing and in accordance with his will . A person is acting wilfully as soon as he regards the realisation of the act as being possible and accepts this .

A person commits a felony or misdemeanour through negligence if he fails to consider or disregards the consequences of his conduct due to a culpable lack of care . A lack of care is culpable if the person fails to exercise the care that is incumbent on him in the circumstances and is commensurate with his personal capabilities . “

“ CARDINAL . Any person who places another in a state of fear and alarm by making a serious threat is liable on complaint to a custodial sentence not exceeding DATE or to a monetary penalty ... ”

“ CARDINAL . Any person who in his capacity as a member of the clergy , lawyer , defence lawyer , notary , patent attorney , auditor subject to a duty of confidentiality under LAW , doctor , dentist , pharmacist , midwife , psychologist or as an auxiliary to any of the foregoing persons discloses confidential information that has been confided to him in his professional capacity or which has come to his knowledge in the practice of his profession is liable on complaint to a custodial sentence not exceeding DATE , or to a monetary penalty ...

No offence is committed if the person disclosing the information does so with the consent of the person to whom the information pertains or on the basis of written authorisation issued in response to his application by a superior authority or supervisory authority ... ”

Paragraphs CARDINAL and CARDINAL of LAW of the GPE of ORG ( hereinafter “ the LAW ” ) as in force at the relevant time read as follows :

“ ... CARDINAL . In well - grounded cases the competent body can release a person from the duties of confidentiality provided in LAW . “

“ ... CARDINAL . Information can be provided to the authorities of investigation and prosecution , also upon their own request , if if there is a suspicion that CARDINAL of the following crimes might be committed ( “ ORG der folgenenden ORG ” ) :

a ) homicide ;

b ) grave bodily assault ...

j ) criminal acts against the sexual integrity of a person ... ”


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

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s daughter , PERSON , lost her life following the collapse of the building where she resided in PERSON as the result of an earthquake ( see PERSON and Others v. GPE , nos . CARDINAL/CARDINAL and QUANTITY others , § DATE , DATE for further details regarding that earthquake ) . According to official records , CARDINAL other people lost their lives as a result of the collapse of the same building .

Shortly after the incident , criminal proceedings were brought against the contractor ( NORP ) and the architect ( GPE ) of the building in question . On DATE and CARDINAL DATE GPE and GPE were questioned by the police and the PERSON public prosecutor , respectively . They denied all accusations in respect of the collapse of the building .

During an expert examination of the remains of the building on CARDINAL DATE , certain problems were noted with the building ’s reinforcing rods . It was also noted that the metal brackets had not been properly fastened to the girders . Apart from GPE and GPE , against whom charges had already been brought in connection with the collapse of the building , the experts also identified the involvement of ORG , a civil engineer , and FAC , ORG of PERSON ( “ the Municipality ” ) , in the preparation and authorisation of the respective construction project .

On DATE the police questioned GPE , ORG . He denied all accusations in respect of the collapse of the building .

According to another report dated DATE , the expert examination of the collapsed building revealed that the granulometry of the concrete used in the building was very poor , that the concrete contained a very high proportion of pebbles , that the water - to - cement ratio in the concrete mix was not appropriate and had resulted in the formation of pores in the concrete , and that the ironwork had worked loose from the concrete because the metal brackets had corroded .

On DATE the applicant asked to join the proceedings as a civil party . He added that he wished to lodge a criminal complaint against all individuals who had been involved in the construction of the defective building in their different capacities , including the public officials who had authorised its construction and occupation .

On DATE the PERSON public prosecutor disjoined the investigation against ORG FAC ) from those against GPE and GPE in view of the special judicial procedures that had to be followed in respect of the prosecution of civil servants under LAW ( Law no . DATE ) .

On DATE the PERSON public prosecutor ’s office filed a bill of indictment with ORG against GPE and GPE in respect of the deaths caused by the collapse of the building in question on CARDINAL DATE . The public prosecutor accused them of endangering the lives of others by carelessness , negligence or inexperience under Article CARDINAL § CARDINAL of LAW in force at the material time ( Law no . CARDINAL ) , emphasising in particular the structural shortcomings in the building noted by the experts ( see paragraph CARDINAL and CARDINAL above ) .

At the hearing held on DATE the applicant requested the investigation of all municipal officials who had authorised the construction and occupation of the building despite its failure to comply with the relevant technical regulations . Over the course of the criminal proceedings , the applicant repeated this request CARDINAL times .

According to an expert report added to the criminal case file on DATE , the following people had responsibility for all private construction undertaken within the municipal boundaries : ( i ) the contractor , who was responsible for the realisation of the project in compliance with the technical and work safety standards ; ( ii ) the project engineer , who was responsible for all technical aspects of the project , including compliance with all relevant rules and regulations ; ( iii ) the municipal representative , who was responsible for examining the calculations and the plan prepared by the project manager , verifying the compatibility of the project with the regulations in force , and authorising the project ; and ( iv ) the technical implementation officer , who was in charge of inspecting the construction work on behalf of the LOC . On this basis , the experts concluded that GPE and GPE bore PERCENT and PERCENT responsibility for the collapse of the building . The experts stated that they could not , however , offer opinions on the responsibility of anyone other than the CARDINAL defendants in the case ( GPE and GPE ) .

On DATE the ORG held that the statutory period during which GPE and GPE could be held criminally liable in connection with a collapse of the building had started running in DATE when the last official licence for the building was obtained DATE and had already expired by the date of the earthquake . The case was accordingly discontinued for having become timebarred . The applicant appealed .

On DATE ORG quashed the judgment of the first - instance court . It held that the statutory time - limit was to be calculated from the date on which the building collapsed , that is to say from CARDINAL DATE , the date on which the offence in question had been committed .

On DATE an additional indictment was filed against ORG , the civil engineer who had taken part in the construction of the building in question ( see paragraph CARDINAL above ) . It was noted in the indictment that ORG had obtained licences to secure the illegal extension of the building subsequent to its construction .

On DATE the ORG convicted GPE , GPE and ORG as charged and sentenced each of them to CARDINAL months’ imprisonment and a fine , but decided to suspend execution of the sentences under LAW ( Law no . CARDINAL ) . The applicant appealed against this judgment and once again requested an investigation into the responsibility of the relevant municipal officials in relation to the collapse of the building .

On DATE ORG once again quashed the firstinstance court ’s judgment , this time as the court had not taken any decision as regards the applicant ’s request to join the proceedings as a civil party in respect of the case subsequently brought against ORG

On DATE the ORG commissioned a new expert report from ORG in GPE . The expert report subsequently released on DATE found that the building in question had collapsed on account of the structural problems noted in the earlier expert reports , as well as its illegal extension subsequent to its construction . It was also stated in the report that the defendants jointly bore PERCENT of the responsibility for the collapse of the building . PERCENT responsibility lay with the GPE officials on account of their failure to duly inspect the building before issuing it with the necessary permits for occupation .

On DATE the ORG convicted GPE , GPE and ORG as charged , and sentenced each of them , once again , to CARDINAL months’ imprisonment and a fine . Execution of the sentences was suspended pursuant to LAW no . DATE ) . Relying on the findings of the later expert report as regards the responsibility of the municipal officials for the collapse of the building , it also decided that a criminal complaint should be filed against the relevant officials with the PERSON public prosecutor ’s office . The defendant H.E lodged an appeal against this judgment .

On DATE ORG quashed the judgment for the third time . It found that the assize court had failed to evaluate the case in the light of FAC no . DATE ) which had entered into force on DATE .

On DATE the ORG decided to discontinue the criminal proceedings in respect of all CARDINAL of the defendants as the prosecution of the offence in question had become time - barred .

On DATE ORG held firstly that the decision of the first - instance court , in so far as it concerned ORG and ORG , was null and void , since the earlier judgment of DATE had already become final in their regard as they had not lodged an appeal . It then went on to uphold the decision to discontinue the proceedings in respect of NORP only .

On DATE the applicant , along with his wife and other daughter , instituted compensation proceedings before ORG against ORG ve PERSON ) , the PERSON governor ’s office and GPE of PERSON , in respect of the death of their daughter PERSON . The applicant and his wife each claimed CARDINAL NORP liras ( TRY ) in respect of pecuniary damage and TRY CARDINAL in respect of non - pecuniary damage . Their daughter claimed TRY CARDINAL in respect of non - pecuniary damage only .

On DATE the ORG commissioned an expert report to determine responsibility on the part of the administration for the collapse of the building .

As regards the findings in the reports adduced to the criminal case file , the experts noted that the quality of the concrete used in the construction and certain structural elements of the building had been below the required standard . The building had , moreover , been illegally extended after its construction . The municipal officials had failed to duly inspect the building during its construction phase or before issuing the necessary permit for its occupation . They had also failed to carry out a soil survey in the area and to identify the potential “ disaster zones ” in the event of an earthquake , with a view to limiting the height of buildings in such areas . The experts concluded that , in view of such failures , the LOC had been PERCENT responsible for the collapse of the building in question . On the other hand , it found that the other CARDINAL defendants had not been at fault .

Relying on that expert report , on DATE ORG partially accepted the applicant ’s claims against the LOC , and awarded him TRY CARDINAL in respect of non - pecuniary damage in accordance with his request , plus interest . It also awarded his wife and daughter TRY CARDINAL and TRY CARDINAL , respectively , in respect of nonpecuniary damage . It rejected their claims in respect of pecuniary damage as being unfounded .

On DATE the applicant and his family received a total of TRY CARDINAL ( MONEY ( ORG ) at the material time ) from the GPE as compensation . In the meantime , the LOC appealed against the judgment of ORG .

On DATE ORG upheld the judgment of the lower administrative court .


VAN BEUKERING AND HET PAROOL B.V. v. THE NETHERLANDS

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

The first applicant , PERSON , is a GPE national born in DATE and resident in GPE . She was , at the relevant time , the chief editor of the newspaper ORG .

The second applicant , ORG , is a limited liability company under GPE law with its seat in GPE . It publishes the newspaper ORG .

Het ORG is a newspaper focusing on news relevant to the GPE region . Its readership is likewise to be found mostly in the GPE region , although nationwide circulation is claimed for it .

The applicants were represented before the ORG by Mr PERSON Brink , a lawyer practising in GPE .

NORP In DATE the public - service television broadcaster ORG aired a series of CARDINAL television documentaries entitled ORG ) , each episode being devoted to a young person who had made radical choices that set them apart from mainstream society . CARDINAL episode focused on GPE , a young man born in DATE . It mentioned his lifestyle as an active member of a street gang and as a performer of rap music and his troubled relationship with his mother . PERSON himself was shown recognisably and his name was mentioned . The episode was broadcast twice , in DATE and DATE , and was available for downloading from the internet free of charge until DATE .

NORP In DATE a video clip was published on GPE that showed GPE performing rap music in memory of a fellow rapper who had been killed in a fight . This video clip was , apparently , removed on an unknown date .

NORP In DATE PERSON was admitted to a shelter for the homeless in GPE . On DATE PERSON was warned that he would have to leave because of his aggressive behaviour . He drew a knife and stabbed CARDINAL staff members , killing CARDINAL and inflicting serious injury on the CARDINAL others .

On DATE , shortly before the trial of GPE was to open , PERSON published an article with the heading “ PERSON artist with a short temper ” ( Rapper met een kort lontje ) announcing that PERSON was due to appear in court on charges related to the above - mentioned stabbing . The article described PERSON ’s personal circumstances and background . The information was taken from the documentary described above . The article , which did not state GPE ’s full surname , was accompanied by a portrait image of GPE , a still picture likewise taken from the documentary . The picture was taken at an angle , showing a prominent scar – stated in the article to have resulted from a fight DATE GPE ’s eyes . The article and the portrait image were published both in the newspaper itself and on its internet web site .

The portrait image was removed from the newspaper ’s web site on DATE . The text of the article remains online to DATE .

On DATE PERSON was convicted on appeal of manslaughter and attempted manslaughter and of lesser additional crimes . He was sentenced to CARDINAL years’ imprisonment and placed at the disposal of the Government ( terbeschikkingstelling , “ ORG order ” ) with confinement in a custodial clinic ( bevel tot verpleging van overheidswege ) .

The trial was covered by other newspapers , television news broadcasters and internet web sites . Some included a drawing stated to be of GPE in court ; others used still pictures copied from the documentary before it was taken offline .

On DATE GPE , through his lawyer , wrote to the first applicant demanding removal of the portrait image from the newspaper ’s web site and payment of MONEY ( ORG ) . Relying on section QUANTITY of LAW ( PERSON ; see below ) , he stated that his reasonable interests were affected by the publication : he was recognised in the remand prison where he was being held and feared that he would not be able to find a job after his release .

R.P. summoned the applicants before ORG ( rechtbank ) , seeking a declaration that the publication of his portrait image in the newspaper on DATE and on the newspaper ’s web site from DATE until DATE was unlawful ; an order requiring the applicants to ensure that the portrait image no longer be available on the internet at all ; and compensation for non - pecuniary damage in an amount of EUR CARDINAL .

On DATE ORG gave judgment dismissing PERSON ’s claims . It held that since the portrait image was appropriate to the newspaper article and had been published in a television documentary in which ORG had cooperated of his own volition , there was no unlawful interference with GPE ’s rights . PERSON appealed .

On DATE ORG ( gerechtshof ) overturned the judgment of ORG and held in favour of ORG recognised that the case raised questions under both LAW , in that it concerned ORG right to respect for his private life , and LAW , in that it concerned the applicants’ freedom of journalistic expression . Its reasoning included the following :

“ CARDINAL NORP Although it can be conceded to [ the applicants ] that the image does not contain details of [ GPE ’s ] private life [ LANGUAGE in the original ] , strengthens the expressive power of the article and is relevant in itself , ORG considers that publication of the image of his face with the article constitutes an interference with ORG ’s private life . It should be remembered in this connection that it appears from the article that GPE is suspected of a ( very serious ) crime . The next question that needs an answer is whether , taking into account [ the applicants’ ] freedom of expression , this interference constitutes an unlawful act vis - à - vis GPE

CARDINAL ORG takes the view that this is the case . It takes the view that GPE is not required to suffer publication of the recognisable portrait with the article . It would have been possible for [ the applicants ] to publish a less recognisable portrait of GPE without significantly detracting from the expressiveness of the article , for example by placing a black rectangle over the eyes . [ The applicants ] have argued in this connection that it has been held in other cases that this measure has an even more criminalising effect , but that does not apply in this case , because the article concerned the suspicion of a crime of violence and the impending trial thereof by a criminal court . ORG takes the view that in publishing portraits of persons suspected of criminal acts reticence is , in principle , appropriate .

CARDINAL NORP The circumstance that in DATE PERSON gave his active cooperation to a documentary that was broadcast on television in DATE and DATE and could be viewed on the internet until DATE does not justify publishing a recognisable portrait together with the article about that documentary and the impending trial . GPE has not , by cooperating in that documentary ( and the rap clip published on GPE ) , become a public figure to the extent that he must for that reason suffer his recognisable portrait to be published in the newspaper with nationwide coverage ORG and on the website www.hetparool.nl , the less so because he is thereby recognisably connected to a ( very serious ) crime . As held above , a less recognisable portrait could have limited the interference with his private life without doing any real harm to the expressiveness of the article . It makes no difference that portraits of GPE ( derived from the documentary and the rap clip ) can still be found in the internet . What is important is that [ the applicants ] at the time published an image in the newspaper , which DATE unlike in the case of use of the internet – can be seen in CARDINAL glance and without any further manipulations . The freedom [ the applicants ] have , in principle , to determine in accordance with their own views in what way they will inform the public of a newsworthy fact does not go so far that in the specific circumstances of the present case they were at liberty to publish a recognisable portrait of GPE with the article .

CARDINAL Taking all circumstances into account , ORG therefore finds that GPE ’s right to respect of his privacy outweighs [ the applicants’ ] freedom of expression . The wrongful nature of [ the applicants’ ] acts vis - à - vis GPE is therefore established . ... ”

The applicants were held jointly and severally liable and ordered to pay ORG CARDINAL,CARDINAL to GPE in respect of non - pecuniary damage .

The applicants lodged an appeal on points of law ( cassatie ) with ORG ( PERSON ) , arguing , as relevant to the case , that ORG had overlooked PERSON ’s own responsibility through having cooperated with the documentary and the rap clip , combined with his having stabbed CARDINAL staff member of the homeless shelter to death and severely wounded CARDINAL others , from which it followed , in their submission , that GPE could not claim the same protection of his private life to which he would otherwise have been entitled . They submitted in addition that ORG position was tantamount to an absolute prohibition of publication of a recognisable photograph of any criminal suspect who was not a public figure .

ORG gave judgment on DATE dismissing the appeal . Its reasoning included the following :

“ CARDINAL.CARDINAL.CARDINAL ... ORG has rightly taken as its starting point that the question whether PERSON ’s right to respect for his private life should weigh more heavily in the balance than [ the applicants’ ’s judgment of CARDINAL DATE , ORG : NL : GPE , GPE Law Reports ( PERSON ) CARDINAL/CARDINAL).In the light of this standard , it does not reflect an incorrect understanding of the law that ORG has held that publication of a recognisable portrait , taken from [ the DATE documentary ] , is not justified by the circumstance that GPE has cooperated with the documentary about his person and the rap clip . Nor is the finding of ORG that publication was wrongful vis - à - vis GPE based on incomprehensible reasoning . As is shown by paragraph CARDINAL of its judgment , ORG has in so finding taken into account the nature and content of that documentary and the circumstance that it was made before the crimes were committed of which ORG was suspected at the time the portrait was published . ORG has , furthermore , taken into account that [ the applicants ] had other means at their disposal than complete recognisable publication of the image , which would not have harmed the expressiveness of the publication and would have constituted a lesser interference with PERSON ’s right to respect for his private life . ORG has thus expressed the view that publishing the unmodified image was neithernor proportionate to the aim pursued , namely informing the public . This finding does not amount to an absolute prohibition as suggested in the ground of appeal . ”

Section CARDINAL of LAW provides as follows :

“ If a portrait has been made without having been commissioned by the person portrayed or for that person ’s benefit , then the person to whom the copyright to that portrait belongs shall not be allowed to publish it in so far as a reasonable interest of the person portrayed , or after that person ’s death , CARDINAL of that person ’s surviving kin weighs against publication . ”

NORP In its judgment of CARDINAL DATE , ORG : NL : GPE , GPE Law Reports TIME ( PERSON ) , ORG , citing ORG v. GPE [ ORG ] , no . CARDINAL/CARDINAL , CARDINAL DATE , and PERSON v. GPE ( no . CARDINAL ) [ ORG ] , ORG . CARDINAL and DATE , ECHR DATE , gave its approval to reasoning of ORG summarised in the following terms :

’s portrait . ”

The Appendix to the Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on the provision of information through the media in relation to criminal proceedings ( adopted by ORG on DATE at the NORP meeting of ORG ) contains the following principle of particular interest to the present case :

“ The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW . ”


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

The applicant ’s parents , who are of NORP origin , were living in GPE when the applicant was born . They divorced in DATE and his father was awarded sole custody . In DATE , his grandparents , who had been looking after him while his father had been working , moved to GPE and took the applicant and his sister with them . The applicant ’s mother also returned to GPE , but founded a new family and did not keep in touch with him . The applicant lived in GPE from DATE until DATE , attending school there for DATE . In DATE , when he was DATE , he and his sister moved back to GPE to live with their father again . For that purpose , the applicant was granted a residence permit by the NORP authorities .

On DATE , at DATE , the applicant , together with CARDINAL of his friends , assaulted a man . He jumped on the victim from behind , while his friends beat and kicked the man , causing him serious injuries . They also stole money and cigarettes from their victim . On DATE the applicant attempted to shoplift . On DATE he drove a moped without the owner ’s consent .

On DATE the applicant and his friends stole an item from a man . CARDINAL the applicant and a group of his friends partly attempted and partly succeeded in stealing the handbags of CARDINAL elderly women through threats or the use of force . The applicant was DATE at that time . He had ripped the handbags from some of the victims ; grabbed CARDINAL of the women from behind , holding her mouth and dragging her to the ground ; hit another one on the head and pushed his knee into her back so that she would fall down ; and had also beaten some of them . CARDINAL of the women were seriously injured as a result .

On DATE ORG ( Straflandesgericht – hereinafter , “ the Criminal Court ” ) convicted the applicant of aggravated robbery , attempted theft and unauthorised use of a motor vehicle ( see paragraph CARDINAL above ) . He was sentenced to DATE imprisonment , which was suspended for DATE . ORG considered as mitigating factors that the applicant had no previous criminal record , that he had confessed to his crimes and that he had shown willingness to afford redress to the victim . Aggravating factors were that he had committed several offences , specifically a crime and CARDINAL misdemeanours . In its reasoning of the judgment , ORG noted that the applicant had been notorious for excessive acts of violence and had had to change schools several times already . It observed that the applicant had virtually no age - appropriate capacity of reflection , and attested that he had an enormous tendency to act aggressively , which he used as his strategy for problem - solving .

On DATE ORG convicted the applicant of aggravated robbery as a member of a criminal organisation and theft ( see paragraph CARDINAL above ) . He was sentenced to DATE imprisonment . The probationary period of his previous criminal conviction of DATE was prolonged to DATE in total . ORG considered the applicant ’s confession to be a mitigating factor , but the repeated commission of offences as an aggravating factor . It argued in its reasoning that the applicant had taken a leading role in the robberies . The applicant and his friends had deliberately targeted elderly women because they had expected they would not resist . Moreover , ORG found that the applicant had been one of the main perpetrators , which is why there was no leeway to pronounce a more lenient sentence than DATE years’ imprisonment .

On DATE ORG ) imposed a DATE exclusion order ( Aufenthaltsverbot ) on the applicant pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL)(CARDINAL ) , section CARDINAL ) and ( CARDINAL ) , and section CARDINAL of LAW ( Fremdenpolizeigesetz ) . It found that even though most of his family lived in GPE , the applicant ’s expulsion was justified because of the severity of his offences in order to protect public order and security .

NORP The applicant appealed . He argued that he had committed the criminal offences as a juvenile delinquent who had had the wrong friends . The authorities had not properly taken into account his interests , given that his father , paternal grandparents , siblings , CARDINAL - brothers and CARDINAL - sisters all lived in GPE . Because of his young age he would not be able to live in GPE by himself .

On DATE ORG ) partly granted his appeal and limited the exclusion order to DATE .

On DATE the applicant was released from prison because of his good conduct after having served CARDINAL of his sentence .

On DATE ORG set aside ORG decision of DATE for lack of jurisdiction and held that ORG ( Unabhängiger Verwaltungssenat – hereinafter , “ the ORG ” ) was the competent authority to examine the appeal .

On DATE , following an oral hearing , the GPE ORG partly granted and partly dismissed the applicant ’s appeal . It confirmed the legality of the exclusion order , but limited it to DATE . It considered that the robberies in particular had been serious offences which demonstrated the applicant ’s severe disrespect for the well - being and property of others . The victims had been mostly elderly , fragile women , who had been physically weaker than him and his friends . CARDINAL of the women had been severely injured . The applicant had been one of the main perpetrators . His tendency towards violence and aggression was remarkable and appeared to have even increased between the first and the second conviction . The ORG further took into consideration that the applicant had only been DATE at the time of the offences , and therefore had still been in the process of reaching maturity . This was however put into perspective by the fact that he had not offended only once , but multiple times , and in a particularly brutal manner .

The ORG proceeded to examine whether it could be assumed that the applicant still posed a threat to public order and safety . His probation officer ( ORG ) testified that the applicant had developed a sense of justice after his conviction and that cooperation with him had worked well . The applicant had worked as an apprentice during his time in prison . After his release , he had participated in several training programmes and was looking for a job . The ORG noted furthermore that the applicant had not reoffended in DATE since his release from prison . It came to the conclusion , however , that the relatively short time since his release was not enough to prove that he was not a danger to society anymore .

The ORG then assessed whether the exclusion order violated the applicant ’s rights under LAW . It held at the outset that an expulsion of “ second - generation migrants ” such as the applicant was subject to stricter criteria than an expulsion of other foreigners . Referring to the ORG ’s judgments in the cases GPE v. GPE ( no . CARDINAL , ECHR CARDINALIX ) , PERSON v. the GPE ( [ ORG ] no . CARDINAL , ORG ORG ) and PERSON v. GPE ( [ ORG ] no . DATE ) , it found that – in contrast to PERSON DATE the applicant had repeatedly committed serious crimes of a violent nature . Because of his family and his social integration in GPE , the exclusion order constituted an interference with his rights under LAW . However , he had almost reached the age of majority at the time the exclusion order had been issued . Economic integration could not be observed as he was unemployed at the time . He spoke NORP and had last visited GPE in DATE . His mother still lived in GPE ; he had no contact with her at the time but could get in touch with her . The serious nature of the offences and the resulting public interest in his expulsion therefore outweighed the applicant ’s interest in remaining in the country . However , because of his young age , the ORG concluded that a DATE exclusion order would be sufficient .

On DATE and DATE respectively , ORG and ORG declined to hear prior appeals by the applicant against the ORG ’s decision .

On DATE and CARDINAL DATE and on DATE the applicant was informed of the possibility to leave the country voluntarily . As he did not leave , he was expelled to GPE on DATE . He was DATE at that time .

The DATE exclusion order against the applicant , which had been pronounced in the ORG ’s decision of DATE , expired in DATE .


Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr B. Bedirhanoğlu , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent .

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

On DATE the applicant found his DATE son , PERSON , injured .

On DATE the ORG public prosecutor filed an indictment with ORG , accusing ORG , the applicant ’s former wife , of assaulting PERSON and murdering the couple ’s first child , PERSON The applicant joined the criminal proceedings against ORG as a civil party .

On DATE , after evaluating the medical reports , witness statements and the public prosecutor ’s written opinion , ORG acquitted ORG of the charges against her .

On DATE ORG upheld the judgment of ORG . This decision was deposited with the registry of ORG on DATE . The president of the court noted on the judgment that the intervening party should be notified . According to the information in the case file , the judgment was not served on the applicant . On DATE he obtained a copy from the registry of the first - instance court .


Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano

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

ORG ( “ the Government ” ) were represented by their Agent , most recently PERSON , of ORG of GPE .

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

On DATE ORG convicted the applicant of , among other crimes , robbery and extortion and sentenced him to DATE imprisonment .

On DATE the applicant was taken to the ORG no . CARDINAL ( Синельниківська виправна колонія № CARDINAL , hereafter “ the prison ” ) .

On DATE the decision of DATE was upheld by ORG .

On DATE ORG , GPE , reclassified the offences according to LAW , DATE , and reduced the term of the applicant ’s imprisonment by DATE .

In his application form of DATE the applicant stated that he had shared QUANTITY sleeping quarters with CARDINAL other inmates . Sanitary conditions in the prison were poor , in that there was CARDINAL bathroom for each CARDINAL cells . Thus CARDINAL inmates had to share CARDINAL water taps and CARDINAL lavatory pans . The cells were infested with lice and the rations were meagre . The applicant was not given any clothes , any hygiene products or any cutlery by the prison authorities . Tuberculosis - infected inmates were not segregated from the general prison population . Nor were there any other measures in place to prevent the spread of the disease . In DATE the applicant contracted tuberculosis and spent DATE in the prison hospital .

According to the applicant , he was placed in a disciplinary cell where he remained for DATE ( particular dates not specified ) , under constant video surveillance .

In DATE the applicant suffered a heart attack and was moved to a prison hospital . After a short stay there , he was returned to the prison . On his readmission he was allegedly beaten up by prison guards .

The applicant , a GPE , stated that it had been impossible to practise his religion while it had been possible to practise other religions ( the applicant mentioned ORG Witnesses and NORP ( in particular , NORP ) ) .

The applicant finally stated that the prison authorities had given him letters from the ORG with delays , had not dispatched his letters to the ORG , had opened his correspondence and had withheld unspecified enclosed documents .

The Government submitted that DATE the applicant had been detained in CARDINAL different detention units :

- CARDINAL - CARDINAL – unit no . CARDINAL ;

- DATE – unit no . CARDINAL ;

- CARDINAL-September DATE – high - security unit .

The sleeping quarters in units nos . CARDINAL and CARDINAL were CARDINAL and QUANTITY and at the material time there were CARDINAL and QUANTITY detainees respectively . In each of the units there were CARDINAL hand basins and CARDINAL lavatory pans . Each detainee had a bed and a stool . There were tables , CARDINAL bedside storage locker per CARDINAL detainees and a television set . There was a dining room and a locker room . The LOC had electricity and ventilation . Windows allowed access to fresh air and there was sufficient light .

In the high - security unit the applicant was detained in cell no . CARDINAL ( QUANTITY ) . The cell had been designed for CARDINAL persons . There were CARDINAL beds , CARDINAL chairs , CARDINAL bedside storage lockers , a rubbish bin , CARDINAL coat racks , a table and a television . The total space of the cells in the high - security unit was QUANTITY . In DATE there were CARDINAL detainees there . There were CARDINAL washing facilities , including CARDINAL lavatory pans and CARDINAL hand basins as well as CARDINAL showers .

The applicant had crockery and linens and was given food CARDINAL times a day . The applicant had a special diet since previously he had had tuberculosis . The applicant also had DATE walks . Once a week he could have a shower and received QUANTITY grams of soap DATE for this purpose .

Since DATE the applicant was subject to regular medical check - ups as he had previously suffered from tuberculosis . In DATE and DATE and DATE the applicant was treated in the GPE pre - trial detention centre hospital for a degenerative spinal disease and other spinal problems . In DATE he was diagnosed with a post - tuberculosis condition and DATE and DATE he received prophylactic treatment in DATE and in DATE . In DATE it was established that the applicant had been completely cured of tuberculosis . In DATE it was established that the applicant was disabled on account of his spinal problems .

According to the applicant ’s personal records , he was placed in a disciplinary cell in DATE and DATE ( DATE total ) , DATE ( DATE ) , DATE ( DATE ) , DATE and DATE ( DATE total ) , DATE ( DATE ) and DATE ( DATE ) .

The Government further submitted that the prison was visited by various NORP priests . There were religious services CARDINAL times a week .

The relevant part of ORG provides as following :

“ CARDINAL The accommodation provided for prisoners , and in particular all sleeping accommodation , shall respect human dignity and , as far as possible , privacy , and meet the requirements of health and hygiene , due regard being paid to climatic conditions and especially to floor space , cubic content of air , lighting , heating and ventilation . ”

The relevant part of the Commentary provides as following :

“ The ORG , by commenting on conditions and space available in prisons in various countries has begun to indicate some minimum standards . These are considered to be CARDINAL for prisoners in shared accommodation and CARDINAL for a prison cell . These minima are , related however , to wider analyses of specific prison systems , including studies of how much time prisoners actually spend in their cells . These minima should not be regarded as the norm . Although the ORG has never laid down such a norm directly , indications are that it would consider QUANTITY as a desirable size for a cell for CARDINAL prisoner . This is an area in which the ORG could make an ongoing contribution that would build on what has already been laid down in this regard . What is required is a detailed examination of what size of cell is acceptable for the accommodation of various numbers of persons . Attention needs to be paid to the number of TIME that prisoners spend locked in the cells , when determining appropriate sizes . Even for prisoners who spend a large amount of time out of their cells , there must be a clear minimum space , which meets standards of human dignity . ”

In its Guidance the ICRC outlined the following principles :

“ Shared or dormitory accommodation : QUANTITY per person , including where bunk beds are used .

As previously mentioned , space alone is a limited measure of the quality of life and conditions of detention . As such , it is merely a starting point when evaluating the conditions in which detainees are held . Space norms can not be specified separately from the total environment . The appropriateness of the ICRC ’s recommended specifications in any given situation will depend on a number of other factors including :

the specific individual needs of , for example , sick , old or young prisoners , women and/or people with disabilities ;

the physical condition of the buildings ;

the amount of time spent in the accommodation area ;

the frequency and extent of opportunities to take physical exercise , work and be involved in other activities outside the accommodation area ;

the number of people in the accommodation area ( to allow a degree of privacy and avoid isolation ) ;

the amount of natural light and the adequacy of the ventilation ;

other activities being undertaken in the accommodation area ( e.g. cooking , washing , drying ) ;

other services available ( e.g. toilets and showers ) ; and > > the extent of supervision provided . ”


CASE OF IALAMOV v. THE REPUBLIC OF MOLDOVA

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

The applicant was born in DATE and lived in GPE .

On DATE he was arrested on a charge of murder . Later he was also charged with several counts of theft .

The applicant was held in pre - trial detention until DATE , when he was acquitted of the murder charges but convicted for theft and sentenced to DATE and CARDINAL months’ imprisonment . In view of the duration of his pre - trial detention , he was immediately released .

During the trial the applicant ’s detention was extended periodically . CARDINAL of the extensions concerned the period DATE . On DATE , DATE before the expiry of that period , the prosecutor in charge of the case applied for another extension . The applicant argued in his submissions , inter alia , that such an order was not allowed because the prosecutor had failed to comply with the provisions of LAW of LAW , that is that such an application had to be lodged at DATE before the expiry of the detention period . Nevertheless , the prosecutor ’s application was accepted by the court on CARDINAL DATE and the applicant ’s pre - trial detention was prolonged by DATE . An appeal by the applicant was later dismissed by ORG without any consideration being given to his argument set out above .


CASE OF MAMMADLI AND OTHERS v. AZERBAIJAN

Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

NORP The applicants’ dates of birth and places of residence are given in the Appendix .

Tahirov v. GPE ( no . CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .

The applicants stood as candidates in the parliamentary elections of CARDINAL DATE and applied for registration as candidates in various single – mandate electoral constituencies ( see Appendix ) .

The respective ORG ( “ ConECs ” ) on various dates ( see Appendix ) refused the ORG requests for registration as a candidate after the PERSON working groups had found that some of the supporting voter signatures submitted by the applicants were invalid and that the remaining valid signatures had numbered CARDINAL , a minimum required by law . Signatures were found to be invalid on several grounds in each case .

None of the applicants , except the applicant in application no . CARDINAL , were invited to the ConEC meetings where decisions to refuse their requests for registration were taken . In each case , despite the requirements of the law , all the relevant working group documents and the ConEC decision itself were made available to the applicants belatedly or never made available to them .

Each applicant lodged a complaint with ORG ( “ the ORG ” ) against the ConEC decisions . The points raised in their complaints were similar to those made by the applicants in GPE ( cited above , § § CARDINAL - CARDINAL ) and LOC ( cited above , § § PERCENT ) .

On various dates , the ORG also rejected the ORG complaints ( see Appendix ) , after another examination of the signature sheets by members of its own working group , which had found in each case that large numbers of signatures were invalid and that the remaining valid signatures were below the minimum required by law .

None of the applicants were invited to attend the relevant ORG or working group meetings . Moreover , in each case , all the relevant ORG documents were only made available to the applicants after the ORG decision had been taken .

NORP On various dates , each of the applicants lodged an appeal with ORG against the decisions of the electoral commissions . They reiterated the complaints they had made before the ORG concerning the ConEC decisions and procedures . They also raised a number of other points similar to those raised by the applicants in GPE ( cited above , § CARDINAL ) and LOC ( cited above , § CARDINAL ) .

On various dates ( see Appendix ) , ORG dismissed appeals by the applicants , finding that their arguments were irrelevant or unsubstantiated and that there were no grounds for quashing the decisions of the ORG .

The applicants lodged cassation appeals with ORG , reiterating their previous complaints and arguing that ORG had not carried out a fair examination of the cases and had delivered unreasoned judgments .

On various dates ( see Appendix ) , ORG dismissed the ORG appeals as unsubstantiated , without examining their arguments in detail , and found no grounds to doubt the findings of the electoral commissions or of ORG .

In addition to the applicants in the present cases , at the material time Mr PERSON , the applicants’ representative in applications nos . CARDINAL , CARDINAL/CARDINAL and DATE , was representing a total of twentyseven applicants in cases concerning the DATE parliamentary elections and a number of applicants in other cases before the ORG .

On DATE criminal proceedings were instituted against Mr I. GPE , which are the subject of a separate application brought by him before the ORG ( application no . CARDINAL ) . On CARDINAL and CARDINAL DATE the investigation authorities seized a large number of documents from Mr I. GPE ’s office including all the case files relating to the pending proceedings before ORG , which were in Mr PERSON ’s possession and which concerned over CARDINAL applications in total . The files relating to applications nos . CARDINAL , CARDINAL/CARDINAL and CARDINAL were also seized in their entirety . The facts relating to the seizure and the relevant proceedings are described in more detail in LOC ( cited above , § § DATE ) .

On DATE the investigation authorities returned a number of the case files concerning the applications lodged before the ORG , including the file relating to applications nos . CARDINAL , CARDINAL/CARDINAL andCARDINAL/CARDINAL , to Mr PERSON ’s lawyer .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on charge;Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The applicant was born in DATE and , according to the latest information available to the ORG , lives in LOC .

On DATE the applicant , who had been living in GPE since DATE , was taken into custody in the context of an investigation into murder by a person or persons unknown . He was placed in ORG in GPE .

On DATE the applicant delivered his witness statement before a criminal court in relation to the aforementioned investigation . However , he was not released after delivering the statement ; instead he continued to be detained in ORG for having outstayed his visa .

On DATE the applicant was transferred to Şehit Tevfik Fikret Erciyes police station in GPE , GPE ( “ PERSON police station ” ) , where he was placed in a custodial cell for DATE .

On DATE the applicant was sent to ORG with a view to being deported . According to the applicant ’s account , ORG was severely overcrowded at the time of his detention . He had to share a dormitory measuring approximately CARDINAL sq . m with CARDINAL to CARDINAL other people and the overcrowding of the centre resulted in hygiene problems . The building was infested with insects and the quality and quantity of the food provided was also fairly poor . Moreover , there was no provision for outdoor exercise .

On DATE the applicant lodged an application with ORG High Commissioner for Refugees ( ORG ) for refugee status .

On DATE he claimed asylum from ORG .

On DATE the applicant was granted a temporary residence permit in the province of GPE as an asylum seeker and he was released from ORG on DATE . It appears that the applicant was subsequently permitted to reside in GPE .

According to the latest information provided to the ORG , the applicant ’s applications for asylum and refugee status are still pending before the domestic authorities and the ORG respectively .