Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Sergiy Goncharenko;Yonko Grozev

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

According to the applicant , in DATE he brought criminal proceedings for libel before ORG , complaining that it had been noted in his employment record that he had been dismissed because he had committed theft . The applicant alleged that , following his numerous complaints to a prosecutor ’s office about the failure to investigate the above case , in DATE the prosecutor ’s office had requested his placement in a psychiatric facility .

According to case - file materials , on DATE the principal of ORG ( PERSON територіальне медичне ORG , hereinafter the “ FAC ” ) received a letter from ORG asking for an opinion on the state of the applicant ’s mental health . The parties did not submit a copy of that letter to the ORG .

PERSON . and PERSON studied the applicant ’s letters at the prosecutor ’s office and decided that the applicant should be examined , since the letters contained evidence of a “ high probability of socially dangerous behaviour ” . The parties did not submit copies of those letters to the ORG either .

On DATE , Ma . , assisted by a team of paramedics and QUANTITY police officers , visited the applicant at home . The applicant stated that he had been visited by QUANTITY persons in total .

The parties differed on the circumstances of this visit . According to the applicant ’s testimonies given before the court in civil proceedings ( see paragraph CARDINAL below ) , he opened the door only after the police had threatened to break it . Once the applicant had opened the door , PERSON . said that they should go to a hospital to examine the applicant there . A police officer , PERSON , was shouting at the applicant and threatening him with criminal prosecution for resisting the police . The applicant replied that he would “ submit to force ” . He was subsequently taken by his arms and put in an ambulance .

The Government submitted that there was no evidence that any pressure had been applied to the applicant . According to Ma . ’s testimonies given in the same court proceedings , the applicant opened the door and let PERSON . and the police officers in . PERSON . introduced himself and had a conversation with the applicant . It was then proposed that the applicant accompany them to a hospital for further examination . The applicant agreed , collected his belongings , closed the door and got into the ambulance . Upon arrival in FAC it was decided that the applicant needed hospitalisation .

On DATE the applicant was examined by a panel of CARDINAL doctors , including PERSON . and PERSON , which confirmed the necessity of his urgent hospitalisation . On DATE the applicant was examined by an assistant of the psychiatric medicine department of ORG in the presence of PERSON . , and was offered hospital treatment . Since he refused , he was further examined by CARDINAL doctors of ORG ( GPE обласна клінічна психоневрологічна лікарня , hereinafter the “ GPE ” ) , who concluded that he should be urgently admitted for treatment because he had written threatening letters to various authorities .

DATE and DATE the applicant was a patient in ORG . He was allegedly examined on DATE , CARDINAL DATE , DATE and CARDINAL DATE by a panel of CARDINAL psychiatrists . Each time it was decided that his treatment had to be continued . On DATE the applicant was examined by a regional medico - social expert commission , which established that he had a second - degree disability .

On DATE the applicant was transferred to ORG ( GPE обласна психіатрична лікарня , the “ ORG ” ) to continue his treatment there . He was discharged from the hospital on DATE .

The applicant also stayed in a hospital DATE and DATE .

In DATE and DATE the applicant requested that the medical establishments where he had stayed in DATE allow him to study his medical file and inform him on what legal basis he had been subjected to psychiatric treatment . According to the applicant , he received an answer only from ORG but the answer was not satisfactory .

On DATE the applicant brought proceedings before the ORG against ORG , complaining of its failure to reply to his request . The case file contains a copy of the applicant ’s complaint dated DATE . There are CARDINAL handwritten notes on it : “ received on DATE ” and “ received on DATE ” . ORG issued a note on the progress of the applicant ’s case stating that the applicant had instituted the proceedings on DATE . In DATE the applicant lodged a similar complaint against ORG .

On DATE the court stayed the proceedings in the case pending examination of the issue of the applicant ’s legal capacity . On DATE the request to recognise the applicant as legally incapacitated was left without consideration , so the proceedings were resumed on DATE .

On DATE the court rejected the applicant ’s claims as unsubstantiated . On DATE ORG of Appeal quashed that decision and remitted the case for fresh consideration .

On DATE the applicant modified his claims . In addition to his initial claims , he complained , inter alia , that his committal to the psychoneurological department of ORG on DATE and his confinement there until DATE had been unlawful . He also complained that he had been unlawfully transferred to ORG and ORG , where he had been confined until DATE . The applicant also claimed damages .

DATE and DATE CARDINAL court hearings took place and CARDINAL hearings were postponed . In particular , on QUANTITY occasions the defendants and/or their representatives failed to appear in court , and CARDINAL hearing did not take place because the court recording equipment was not available .

Following a request by CARDINAL of the defendants , on DATE the court ordered a forensic psychiatric examination of the applicant . On DATE ORG of Appeal quashed that decision and remitted the case for examination on the merits .

NORP In their observations the Government provided a list of scheduled court hearings which had taken place in the applicant ’s case . The case file also contains a note on the progress of the applicant ’s case issued by ORG . Those CARDINAL descriptions of the progress of the proceedings in the applicant ’s case contain some contradictory information .

According to the ORG ’s submissions , DATE and DATE TIME court hearings were scheduled but CARDINAL took place because either the defendants , the applicant or their representatives failed to appear . According to the domestic court record , CARDINAL hearings took place .

On DATE the term of office of the judge in the applicant ’s case expired . The next hearing scheduled for DATE allegedly with a new judge did not take place because the court recording equipment was not available .

DATE and CARDINAL DATE CARDINAL court hearings were scheduled . According to the Government , all of them took place ; according to the domestic court record , QUANTITY of them did not take place because the defendants , the applicant or their representatives failed to appear . The number of such failures to appear was almost equal for both parties .

On DATE the court partially allowed the applicant ’s claims . It summarised his submissions as follows . On DATE Ma . , with the assistance of the police , had the applicant unlawfully committed to a psychoneurological department , where he stayed for DATE . On DATE the applicant was transferred to ORG without his consent ; he stayed there until DATE . He was then transferred to ORG , where he stayed until DATE . The applicant claimed that PERSON . had acted unlawfully , had breached the applicant ’s right to respect for his home , had examined the applicant against his will and had deprived him of his liberty . The applicant further complained that he had been unlawfully confined in all QUANTITY hospitals , and that the principals of those institutions had failed to respond to his requests for information . The applicant claimed CARDINAL NORP hryvnas ( ORG ) in compensation for non - pecuniary damage .

The court further noted that in a court hearing the applicant had submitted that he had not challenged his diagnosis but considered that the ORG actions had been unlawful . He gave his version of the events of DATE ( see paragraph CARDINAL above ) . The applicant also submitted that force had been used against him in ORG ; he had been administered with injections and had been kept behind bars in a locked room . He had been transferred to the GPE and ORG without his consent . Information about his state of health had been provided to his employers and to the relevant prosecutor ’s office . He had been discharged from ORG having been advised not to lodge any official complaints , otherwise he would be hospitalised again . He had not lodged any complaints since he had been “ afraid for his future ” . The applicant stated that he had sustained non - pecuniary damage caused by his involuntary hospitalisation , the administering of unknown medication by means of injection , poor nutrition , fear for his life , unsanitary conditions and a breach of his right to respect for his home .

NORP In court hearings PERSON . , and police officers PERSON . and PERSON testified that no pressure had been brought to bear on the applicant at the time of the visit to his home . Witness PERSON . testified that he did not remember the circumstances of that visit and witness PERSON testified that she had seen “ a doctor entering [ the applicant ’s house ? ] alone , followed TIME by a police officer ” . She had then seen the applicant getting into an ambulance . PERSON . also submitted that the applicant ’s hospitalisation had been in compliance with temporary instructions nos . CARDINAL and CARDINAL “ On procedure for the conduct of preliminary psychiatric examination of citizens ” and “ On procedure for urgent hospitalisation of mentally ill persons ” ( “ Instructions nos . CARDINAL and CARDINAL ” ) appended to Order no . CARDINAL of ORG of the GPE of DATE “ On actions for further improvement of psychiatric assistance ” ( “ Order no . CARDINAL ” ) , in particular , paragraphs CARDINAL , CARDINAL , and CARDINAL of Instruction no . DATE and paragraphs CARDINAL , CARDINAL , DATE and CARDINAL of the Instruction no . DATE ( see relevant domestic law below ) .

The court found that the visit to the applicant ’s home on DATE when the applicant had been examined and later taken to ORG had been performed in compliance with CARDINAL , CARDINAL , and CARDINAL of Instruction no . DATE and paragraphs CARDINAL , CARDINAL ( b ) , CARDINAL and CARDINAL of Instruction no . CARDINAL . Referring to the “ testimonies of PERSON . , PERSON . and PERSON ” , the court held that the applicant had failed to prove that any force had been used against him . The decision of DATE on the applicant ’s admission to hospital had also been adopted in compliance with paragraphs CARDINAL and CARDINAL of Instruction no . CARDINAL . The subsequent decision of DATE to hospitalise the applicant had also been taken in compliance with paragraph CARDINAL ( b ) of Instruction no . CARDINAL . However , the applicant ’s transfer to ORG on DATE had been in breach of section CARDINAL of ORG , which was in force as of DATE . The applicant ’s requests for access to information had been rejected as a result of a decision to limit his access to his medical file , which he had not challenged . Such information could have been provided to the applicant ’s relatives if he so wished . The court awarded the applicant UAH CARDINAL,CARDINAL to be paid by ORG ( QUANTITY ( ORG ) at the material time ) in compensation for non - pecuniary damage .

The applicant appealed , stating , in particular , that by Order no . CARDINAL of DATE of ORG ( “ Order no . CARDINAL ” ) , Order no . CARDINAL had been declared “ not applicable on the territory of GPE ” .

On DATE ORG upheld the decision of CARDINAL DATE . The court held that the first - instance court had correctly applied the law in force at the material time . The court rejected the applicant ’s arguments about the invalidity of Order no . CARDINAL as unsubstantiated without giving any further details . It did not comment on the validity and/or legal effect of Order no . CARDINAL .

The applicant lodged an appeal on points of law , reiterating his arguments .

On DATE ORG dismissed the applicant ’s appeal on points of law as unsubstantiated .

On DATE the applicant complained to ORG that he had not received a writ of enforcement . In reply , the court informed him that he could receive the writ of enforcement from the court ’s secretariat upon a written request .

It is unclear whether the applicant received the compensation awarded to him .


No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom to impart information)

Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

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

The first applicant is the editor of a local online newspaper in the province of GPE . The other CARDINAL applicants are journalists working for the newspaper .

In the course of their activities , the applicants used radio equipment to access frequencies used by the police or the carabinieri . This enabled them to learn of any communications transmitted in that way , so that they could arrive quickly on the scene when wishing to report on specific incidents .

On DATE the applicants listened in on a conversation during which the ORG carabinieri operations centre decided to send a patrol to a location where , according to anonymous sources , weapons had been stored illegally .

The carabinieri accordingly went to the location mentioned , and the second and third applicants arrived on the scene immediately afterwards .

Having obtained a search warrant , the carabinieri searched the applicants’ car , finding CARDINAL frequency - modulation transmitter / receivers that were capable of intercepting police radio communications .

The carabinieri then went to the CARDINAL ORG editorial office and seized CARDINAL fixed radio receivers , which were tuned to the frequencies used by the carabinieri . Other frequencies used by police operations centres were stored in the GPE memory .

Criminal proceedings were instituted against the first and second applicants for illegally installing equipment designed to intercept communications between law - enforcement agencies’ operations centres and patrols ( Articles CARDINAL , CARDINAL bis and CARDINAL bis of LAW ) . The third applicant was charged with accessing the aforementioned communications ( Articles CARDINAL and CARDINAL bis of LAW ) .

On DATE the ORG acquitted the applicants . It held that the relevant Articles of the Criminal Code were to be interpreted in the light of DATE LAW , which only protected communications of a confidential nature .

ORG observed that the radio device used by the law - enforcement agencies was unable to ensure the confidentiality of the information it transmitted . Accordingly , the interception of the communications in question did not constitute an offence . Moreover , the possession and use of radio receivers were not prohibited as such .

The GPE principal public prosecutor and the GPE public prosecutor appealed . They argued that ORG interpretation was inconsistent with ORG case - law in such matters ( citing in particular judgment no . DATE of DATE ) and that the communications in issue were clearly confidential , bearing in mind the aims of ensuring public safety and protecting public order . In addition , the communications concerned the initial investigations following the commission of an offence . They were therefore subject to a confidentiality requirement pursuant to LAW .

NORP The confidential nature of the communications was also obvious from the fact that the carabinieri used coded language for communications concerning the location and the type of intervention , clearly seeking to ensure that no third parties had knowledge of the information being exchanged . In addition , the radiofrequencies involved had been exclusively assigned to operations centres by ORG .

Furthermore , in order to listen in on the conversations , the applicants had had to purchase special radio equipment , as ordinary equipment could not be used for this purpose . On the other hand , the fact that such devices were freely available on the market did not justify their use for intercepting conversations between law - enforcement officers .

In addition , in accordance with Presidential Decree no . CARDINAL/CARDINAL , as in force at the material time , devices of this kind were intended to be purchased by amateur radio operators but could not be used to intercept police radiofrequencies . Lastly , ORG decree of CARDINAL DATE had expressly prohibited amateur radio operators from intercepting communications which they were not entitled to receive .

In a judgment of CARDINAL DATE ORG found the first and second applicants guilty and sentenced them to DATE and CARDINAL months’ imprisonment . The third applicant was sentenced to CARDINAL months’ imprisonment . ORG suspended the applicants’ sentences .

It observed that LAW , as amended by PERSON no . CARDINAL of DATE , had extended the scope of criminal responsibility to cover all remote data transmission , thus including the interception of conversations between the law - enforcement agencies’ operations centres and patrols .

Such communications were , moreover , clearly confidential . Reiterating all the arguments put forward by the GPE and GPE public prosecutors , particularly regarding the aims of ensuring public safety and protecting public order , ORG held that LAW was also at issue in the present case .

The applicants appealed to ORG . They contended that the communications in question had been transmitted on unencrypted frequencies and thus could not be treated as confidential . Furthermore , they had been acting in a professional capacity as journalists , and their actions were therefore justified under LAW and in terms of freedom of the press .

In a judgment of DATE ORG found against the applicants , upholding ORG position as to the confidential nature of the communications and reiterating that this interpretation was consistent with its own approach in similar cases , particularly in judgments no . CARDINAL of DATE and no . DATE of DATE .

Addressing the applicants’ argument concerning freedom of the press , ORG stated that the right to impart information , which they had relied on , might have prevailed over the public interests protected by criminal law in a case of alleged defamation . However , that right could not take precedence in a case concerning the illegal interception of communications between law - enforcement officers .


CASE OF ZELENCHUK AND TSYTSYURA v. UKRAINE

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Respondent State to take measures of a general character (Article 46-2 - General measures);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The first applicant was born in DATE and lives in PERSON , a city in GPE .

In DATE her mother obtained a share of land in the village of PERSON in the NORP district of the NORP region ( see paragraphs CARDINAL to CARDINAL below concerning the nature of shares of land and their subsequent conversion into plots ) . Following her mother ’s death in DATE , the first applicant inherited that share and obtained a certificate confirming that she had become its new owner on DATE . On DATE the ORG allocated a plot of land to her measuring QUANTITY , zoned for use as an individual smallholding ( особисте селянське господарство , see paragraph CARDINAL below for a description of zoning categories of agricultural land under NORP law ) .

The applicant obtained a property certificate in respect of that land on CARDINAL DATE . She rented out QUANTITY to a company under a lease registered on DATE and due to expire on DATE , and QUANTITY to another company under a DATE lease registered on DATE . According to the applicant , she receives rent in kind , either in grain or sunflower oil , depending on the crops grown on the land in DATE .

The second applicant was born in DATE and lives in GPE .

On an unspecified date his mother obtained the right to a share of land in the village of NORP in the LOC of the NORP region . In DATE he inherited it from her . On DATE the ORG allocated QUANTITY of agricultural land to him , zoned for commercial agricultural production ( товарне сілськогосподарське виробництво ) . He obtained a property certificate on DATE .

The land is rented by a limited liability company . Since DATE the second applicant has received rent in the following amounts :

NORP The applicants’ land is subject to legislative restrictions on alienation and change of designated use , which are described in “ Relevant domestic material ” and , as regards their current state , in paragraph CARDINAL below .


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

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant was born in DATE and lives in GPE .

The applicant and her partner began to cohabit in DATE . Their daughter was born in DATE . In DATE the applicant felt that , in her view , the child ’s father was behaving strangely with the child and that the child did not want to stay at home alone with her father . She also started to fear for her own and her child ’s safety as the father was , in her view , violent . In DATE the applicant and her daughter left the child ’s father .

NORP In DATE the child ’s father initiated custody and contact rights proceedings vis - à - vis his daughter .

In DATE ORG ( käräjäoikeus , tingsrätten ) gave an interim decision that the father was to meet his daughter for TIME every other weekend under supervision . This arrangement continued for DATE but was disrupted for some time in DATE . According to the applicant , the child was often restless and talked strangely after the meetings with her father .

On DATE the ORG gave another interim decision according to which the father had a right to meet with his daughter for TIME at a time without supervision .

On DATE ORG held an oral hearing about the custody and contact rights .

On DATE the ORG gave both parents joint custody of the child . She was to live with her mother and to meet her father DATE from DATE and during the holidays , unsupervised . The meetings were , however , temporarily discontinued for the duration of the pre - trial investigation ( see below ) . On DATE ORG upheld ORG decision .

NORP The applicant claimed that after the third unsupervised visit with the father in DATE , her almost DATE daughter ’s behaviour changed radically and she was showing strong symptoms . The child was using vulgar language and was restless and anxious . The child had told her mother about things that her father did to her . She kept repeating these issues and suffered from increasingly bad nightmares . The applicant contacted a child psychiatrist . On DATE she contacted the child welfare authorities in GPE reporting her suspicions of sexual abuse .

On DATE the child welfare authorities reported the matter to the police . They recommended that the meetings with the father be discontinued for the duration of the investigation .

On DATE the pre - trial investigation conducted by ORG commenced . Both parents were questioned . On DATE ORG received an official request for assistance from ORG . At the time the child was DATE and DATE . The ORG replied that children DATE could not be interviewed within the forensic - psychological interview framework as it was not possible to obtain reliable information on possible sexual abuse from children DATE , especially in situations involving custody disputes . Such interviews became effective only in respect of children aged DATE or more .

On DATE a physiological examination was carried out to determine whether the child showed any signs or symptoms of the alleged abuse , but no such external signs were revealed . The pre - trial investigation was concluded on DATE as there was no appearance of any crime .

After having received information about the conclusion of the pretrial investigation , the applicant contacted ORG on DATE and expressed her surprise that no psychological assessment had been conducted in the matter .

In a telephone conversation of CARDINAL DATE the applicant expressed to the social worker her fear that her child continued to be at risk of being subjected to sexual abuse when meeting her father and insisted on another investigation . She was concerned that the pre - trial investigation by the police had not been complete and that the social workers would be responsible if something happened to her child while the meetings with the father were not supervised . The social worker in turn explained to the applicant that the pretrial investigation had not brought to light any somatic signs or symptoms that would suggest sexual abuse of the child . Moreover , concerning the visiting rights , the social worker explained that the decision of CARDINAL DATE by ORG was still in force and that if the applicant was not satisfied with it , she would have to appeal against it in courts of law instead of complaining about it to the child welfare authorities . However , the applicant insisted on making the second report to the child welfare authorities , claiming that she had been threatened with loss of her custody rights if she did not allow the meetings with the father . The father of the child received information about this report from the police .

On DATE the applicant submitted another child welfare report and the second report to the police , insisting on another investigation and stating that she suspected that someone was abusing her child during visits to the child ’s father . She also reported the matter to the social workers in GPE .

On DATE and DATE respectively the applicant took her daughter to an emergency clinic for examination as she had trouble sleeping and was behaving oddly . No somatic signs or symptoms of sexual abuse were found .

ORG started to investigate the matter . As the applicant had taken the child to a doctor on DATE , no new physical examination was carried out . The pre - trial investigation was concluded on DATE as there was no appearance of any crime .

On DATE the applicant lodged a complaint with ORG ( ORG oikeusturvakeskus , PERSON ) about the fact that the child had not been heard at all during the pre - trial investigation in DATE . The case was transferred ex officio to the regional ORG ( lääninhallitus , länsstyrelsen ) .

On DATE the applicant also lodged a complaint with ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) , asking him to investigate why the police did not hear her child during the pre - trial investigation .

On DATE ORG decided not to take any measures as the police investigation was still pending before ORG ( see paragraph CARDINAL above ) . He did not have competence to give orders to the police concerning the investigation of the matter as he could not examine the actions of private individuals .

On DATE the regional ORG found that there was no minimum age for hearing a child and that the DATE agelimit for child psychiatric interviews was only a recommendation . The child had only been DATE and DATE at the time of the first police investigation . No new physical examination had been carried out during the second pre - trial investigation as such an examination had been carried out on CARDINAL and DATE . The ORG decided to take no action in the applicant ’s case .

On an unspecified date , the father of the child asked the police to investigate whether the applicant had defamed him as she had given false information about him to the social worker on DATE , claiming that the child was in danger of being sexually abused by her father during their upcoming meetings ( see paragraph CARDINAL above ) . He claimed that these allegations were not true and that the applicant ’s motive for such accusations was that she wanted to have sole custody of the child and hamper the meetings between the father and the child .

On DATE ORG pressed charges against the applicant for having insisted on DATE that the child was in danger of being sexually abused by her father after the police had already investigated the matter and , on DATE , found no appearance of any crime .

On DATE the ORG convicted the applicant of defamation and sentenced her to CARDINAL day - fines , amounting to MONEY ( ORG ) . She was ordered to pay the father LAW in nonpecuniary compensation and his costs and expenses amounting to ORG CARDINAL,CARDINAL.CARDINAL . The court ’s reasoning was the following :

“ The insinuation made by ORG and referred to in the charges can not be understood to refer to any other person than [ the father of the child ] and it was made in a situation in which GPE knew about the decision of ORG to stop investigating the suspected sexual abuse of a child , which investigation had been initiated solely on the basis of the information submitted by her . According to the decision , the investigation did not reveal any such evidence on the basis of which the threshold of “ reason to suspect ” would have been attained . The decision refers to the somatic examination of the child , requested by the police and conducted on DATE by a specialist in paediatrics at which GPE was also present . According to the medical certificate , the girl ’s somatic status was normal and there were no external signs of sexual abuse .

From the medical certificate of DATE , which was admitted as written evidence , it appears that the meetings between the father and the child had been supervised until DATE and that thereafter until the filing of the police report on CARDINAL DATE and the freezing of the meetings , there had been unsupervised DATE meetings CARDINAL times , lasting TIME each . [ The father of the child ] stated that out of these few meetings CARDINAL meeting had taken place in an amusement park , which was not disputed by PERSON stated that the sexually - coloured talk of the child had started already during the supervised visits . At that time the child was DATE .

On the sole basis of the meeting circumstances and the medical examination , GPE could not have had strong grounds to consider that her insinuation of the crime was true , even if the child had said what she was alleged to have said . Nor could the child ’s other , more general symptoms have given sufficient confirmation of her insinuation .

When assessing whether one is guilty of defamation , it is irrelevant that the act has been committed by pursuing an earlier report to child welfare authorities and that it has been made to a public official who is bound by confidentiality . Even in a child welfare report one must not give untruthful and smearing information or insinuations about others . GPE must have understood that the insinuation was of such a kind that in any event it would come to the knowledge of [ the child ’s father ] and that its content , being almost of the worst kind , was bound to cause him suffering .

Ignorance of legal provisions does not eliminatebasis for considering that ORG ’s act could be regarded as manifestly excusable due to a mistake .

On the basis of the grounds expressed above , ORG considers that GPE did not have any such reasons to make an insinuation towards [ the father of the child ] that she would have had a reasoned ground to do so without defaming him . ”

By letter dated CARDINAL DATE the applicant appealed against the judgment of ORG to ORG ( hovioikeus , hovrätten ) . She claimed only to have voiced her previous concern as the child was not heard at all during the concluded pre - trial investigation . Her concerns were not directed at the father but at the fact that a danger to the child ’s health still existed . It had been the child welfare authorities who had qualified these concerns as relating to sexual abuse . Sexual abuse did not always leave physical marks which could be revealed by medical examination but it was a grave procedural mistake not to interview the child during the pre - trial investigation . She considered this mistake to be so substantial that the danger to her child ’s health still existed despite the outcome of the investigation . She also referred to the case PERSON v. GPE , no . CARDINAL , DATE .

On DATE , after having held an oral hearing , ORG upheld the ORG judgment . The court found the following :

“ On the basis of the oral hearing held , ORG has no reason to assess the evidence differently than ORG . The acts committed by GPE [ ... ] fulfil the constituent elements of defamation , criminalised by LAW , section CARDINAL , of LAW . The fact that the insinuation was made to a public official who is bound by confidentiality is not relevant when assessing the constituent elements , as appears from the ORG precedent CARDINAL . GPE [ ... ] did not have sufficiently strong grounds to hold the information true in a situation where [ she ] knew that the pre - trial investigation into [ the child ’s father ] had terminated . Although child protection considerations have to be taken into account , a conviction in these circumstances is not in contradiction with freedom of expression which is protected as a fundamental and human right . PERSON has considered that she is free from criminal liability under LAW , section CARDINAL , of the Penal Code due to a mistake as to the unlawfulness of her act as she had mistakenly regarded her act as lawful because of a reason similar to erroneous advice given by public officials . The pretrial investigation had , however , been started solely on the basis of information given by GPE and this investigation was already terminated , GPE being aware of it , before the commission of the present act . Therefore there are no grounds to apply the provision concerning mistake as to the unlawfulness of the act . Nor is there any reason to change ORG judgment as far as the conviction is concerned . ”

NORP By letter dated DATE the applicant appealed to ORG ( korkein oikeus , högsta domstolen ) , reiterating the grounds of appeal already presented before ORG .

On DATE ORG refused the applicant leave to appeal .

On DATE the father of the child requested the GPE ORG to order that the child live with him .

On DATE the GPE ORG ordered that the child was to live with her father in PERSON . This decision was upheld by ORG on DATE . On CARDINAL DATE ORG refused the applicant leave to appeal .

The applicant has complained to the ORG about these proceedings in a separate application ( see application no . CARDINAL M.P. and PERSON GPE ) which was declared inadmissible on DATE .

On an unspecified date the applicant asked ORG ( sisäasiainministeriö , inrikesministeriet ) to investigate whether the decision not to hear the child was acceptable . On DATE ORG transferred the matter to ORG Poliisihallitus , Polisstyrelsen ) .

On DATE ORG found that police conduct in the matter had been appropriate . The police had conducted an adequate pre - trial investigation without leaving any issues unclarified .


Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

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

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

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

Google Inc. is a corporation registered in GPE and with its principal place of business there . It provides an Internet blog - publishing service via ORG , a platform that allows any Internet user in any part of the world to create an independent blog free of charge . It includes design tools to help users create layouts for their blogs and , if they do not have their own web address , enables them to host their blogs on ORG web addresses .

Blogger.com operates a “ Content Policy ” which sets out restrictions on what users can do using the service . This makes clear that content such as child pornography , or promoting race hatred , is prohibited . The policy is explained in the following terms :

“ Blogger is a free service for communication , self - expression and freedom of speech . We believe that Blogger increases the availability of information , encourages healthy debate and makes possible new connections between people .

We respect our users’ ownership of and responsibility for the content they choose to share . It is our belief that censoring this content is contrary to a service that bases itself on freedom of expression .

In order to uphold these values , we need to curb abuses that threaten our ability to provide this service and the freedom of expression it encourages . As a result , there are some boundaries on the type of content that can be hosted with Blogger . The boundaries we have defined are those that both comply with legal requirements and that serve to enhance the service as a whole . ”

In addition , ORG operates a “ Report Abuse ” feature . There are CARDINAL grounds for reporting abuse , including “ LAW ” . If the user selects LAW , a second screen is displayed which makes it clear that the ORG service is operated in accordance with GPE law , and that defamatory material will only be taken down if it has been found to be libellous ( i.e. unlawful ) by a court . According to ORG , the reason for this policy is that , given the volume of content uploaded by users of the ORG service , it is usually not practicable for it to remove content without first receiving a court ’s determination that the content is , in fact , libellous . ORG is not in a position to adjudicate such disputes itself .

On DATE a piece appeared on the “ GPE NORP ” blog , a blog hosted on the PERSON website . It contained a photograph of the applicant and the following text :

“ PERSON a NORP council candidate with a TIME shadow has resigned from the party after calling GPE girls ‘ PERSON .

GPE who on his ORG page describes himself as an ‘ ambitious NORP Muslim’ is bizarrely studying law so one would have thought this PERSON prat with Star Trek Spock ears might have engaged the odd brain cell before making these offensive remarks . ”

A number of anonymous comments were subsequently posted in response to the publication . CARDINAL of the approximately CARDINAL comments are set out , as originally posted , in the following paragraphs .

Comment A :

“ I know Mr GPE very well and am surprised that it has taken this long for all this to come out , PERSON is a known drug dealer in thanet and has been taken to court for theft from his employers tescos in GPE . His whole family are criminals his mother PERSON has several convictions for theft and shoplifting and got sentenced at ORG crown court


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

On DATE a classmate of the applicant , Mr T.T. ( hereinafter “ T.T. ” ) , was stabbed several times in a secondary school playground . The applicant , aged DATE at the material time , was present at the scene . There were no eyewitnesses to the incident .

According to the applicant ’s version of the events , on the above date and at the material time , she met with ORG in the school playground . They were discussing ORG ’s need for a certain sum of money when CARDINAL young men – strangers to the applicant – appeared and CARDINAL of them immediately attacked PERSON of the CARDINAL attackers held LOC down on the ground and both men stabbed him several times with CARDINAL different knives . The applicant claimed that ORG had owed them money . CARDINAL witness ( “ the witness ” ) stated that at the material time she had seen CARDINAL young men fitting the description given by the applicant climb into the school playground swearing and leave after a while .

According to the official version of the events based on ORG ’s statements , the applicant and ORG met in the school playground following the former ’s promise to lend ORG a certain sum of money . In the course of the conversation , ORG kneeled with his back to the applicant . At that moment , the applicant hit him on the head . ORG fell to the ground and the applicant stabbed him with a knife from behind . While ORG remained conscious , the applicant held him down with one hand and continued stabbing him with the other . ORG was facing the ground during the entire incident and could not see whether the applicant was using a knife . ORG managed to escape from the applicant and ran QUANTITY before falling unconscious on the school ’s basketball court , where he was eventually found . Later he was transported to a hospital where , after emergency surgery , his life was saved .

On DATE the applicant was arrested in view of ORG ’s statement given to the investigating authorities . She was subsequently remanded in custody on charges of attempted aggravated murder .

On DATE a forensic expert report of ORG ( “ the first ORG report ” ) confirmed that multiple wounds had been inflicted upon the victim with “ a sharp object , possibly a knife ” . A forensic chemical examination report no . PERSON produced by ORG ( “ the second ORG report ” ) found particles of grey cotton fibre on the applicant ’s jacket that by their colour , structure , and type were similar to the grey cotton fibre contained in the textile of the victim ’s jacket .

On an unspecified date an initial forensic medical expert report no . DATE by ORG ( “ the first ORG report ” ) concluded that ORG ’s wounds had been inflicted with a sharp object and that taken together , they had been life - threatening . The expert attached particular importance to CARDINAL wounds to the chest which had perforated ORG ’s lungs . CARDINAL DATE the same forensic expert carried out an additional examination and issued report no . CARDINAL/CARDINAL ( “ the second ORG report ” ) at the applicant ’s request . The second report specified that CARDINAL wounds had perforated ORG ’s lungs and re - confirmed that “ all the wounds had been inflicted with some sharp object / objects and , taken together , were life - threatening . ” Concerning the question of whether the injuries were inflicted on the victim with CARDINAL or several weapons , the ORG expert stated :

“ In order to answer that question it is necessary to convene a panel of forensicmedical experts , and additionally to have the clothes as well as the object / objects possibly used to inflict the injuries presented , if available . ”

The expert testified during the proceedings before the first - instance court that the discrepancy between the first and the second ORG reports concerning the number of wounds inflicted on the victim had been caused by the poor quality of the photocopied material relied on during the first ORG expert examination . The expert confirmed that the second ORG report was therefore more accurate and CARDINAL , rather than CARDINAL , wounds had perforated ORG ’s lungs . The exact figure depicting the total number of wounds was not explicitly specified either by the experts or by the domestic courts .

On DATE the ORG found the applicant guilty as charged and sentenced her to DATE imprisonment , of which DATE were suspended on probation . Dismissing altogether the applicant ’s version of the events and relying on ORG ’s statements , the first and second ORG reports , the first and the second ORG reports and other evidence in the case , the court found that the applicant had stabbed T.T. “ with a knife . ” The knife was never recovered . Amongst certain other items of evidence , ORG also referred , in its judgment , to statements of several witnesses , schoolmates of the applicant , according to which the latter was known for having been carrying a knife with her at school on a regular basis .

The applicant appealed , reiterating that the victim had been stabbed by CARDINAL young men with CARDINAL knives and that she could not possibly have inflicted the wounds alone . She argued that the witness statement supporting her version of the events had been rejected arbitrarily . During the trial at ORG , in accordance with LAW ( see paragraph CARDINAL below ) , the defence adduced in evidence CARDINAL alternative forensic reports , both issued on DATE , and argued that their results supported the applicant ’s version of the events , including the use of CARDINAL knives , and conclusively excluded the applicant ’s guilt .

The first report , of a comprehensive alternative forensic expert examination , was prepared by a panel of experts at a private forensic science centre . The descriptive part of the report no . CARDINAL/k , which reflected results of an examination carried out between DATE and DATE ( “ the first alternative forensic report ” ) , was based on the following material : the judgment of the first - instance court , ORG ’s statements , the applicant ’s statements , the first ORG report and ORG ’s medical file .

The applicant ’s lawyer presented the panel of experts with the following questions :

“ CARDINAL . Based on the [ existing evidence and the victim ’s statements ] ... was the victim capable of showing resistance to PERSON or otherwise defending himself ... ?

Considering the existing material , what type of pain and responsive reactions ( self - defence , etc . ) would the [ victim ] have had at the time the first injury was inflicted on him ?

In view of the [ victim ’s ] statements and considering the mechanism used to inflict the injuries described in the [ forensic reports ] , how plausible is it that PERSON GPE inflicted them on the [ victim ] by holding his shoulder with one hand while the latter was initially kneeling and then crawling on the ground face - down ?

In view of the convicted PERSON statement , how possible is it that the [ victim ’s ] injuries described in the [ forensic reports ] , given the mechanism used to inflict them , were inflicted by CARDINAL different persons if CARDINAL of them had been holding [ the victim ] ? ”

excerpts from the applicant ’s criminal case file with the following concluding paragraph :

“ Given that the [ first - instance ] court accepted the [ victim ’s ] statements and dismissed the statements given by the convicted PERSON and [ the witness ] , that the statements given by the [ victim ] and the convicted PERSON essentially contradict each other , that there is no eyewitness in the case except for [ the witness ] , as well as the fact that the weapon of the crime is missing , the lawyer commissioned the alternative expert examination to determine the truth regarding the case and in order to receive answers to his questions . ”

This was followed by a more detailed account and an assessment of the matter .

After examining all the material at hand , the experts came to the following conclusions in response to the questions posed by the applicant :

“ CARDINAL . ... Before losing consciousness , ORG was able to carry out various active measures ( self - defence , punching , running , etc . ) .

... [ considering the nature of the injuries ] ORG would have experienced a sharp , strong pain at the moment of their infliction which would have triggered adequate self - defensive or other movements .

Considering the statement given by ORG ... the location of the wounds ... and the anatomical - physiological differences between the sexes ... it is hard to imagine how PERSON GPE could have inflicted the wounds on ORG in the conditions described by the latter .

Considering the nature and location of ORG ’s wounds , it is entirely possible that they were inflicted in the conditions described by PERSON ( by CARDINAL individuals , CARDINAL holding ORG and both stabbing him with knives ) . ”

The applicant ’s lawyer commissioned a second forensic expert report from ORG concerning the instrument of the crime and other technical aspects of the incident . The report no . CARDINAL-e-CARDINAL , which reflected results of an examination carried out between DATE and DATE ( “ the second alternative forensic report ” ) , was based on the following material : the statements of ORG , the statements of the applicant , the first ORG report , the second ORG report , ORG ’s medical file and the first - instance court judgment .

NORP The lawyer presented the panel of experts with the following questions :

“ CARDINAL . In view of the [ forensic ] expert reports presented , were the injuries to [ the victim ’s ] body and [ through his ] clothes inflicted with CARDINAL or several objects ( knives ) ?

How possible is it that PERSON inflicted the wounds as described in ORG statement , by holding his shoulder with one hand while he was initially kneeling and then crawling on the ground face - down , in view of the mechanism used to inflict the wounds [ described in the forensic and forensic medical reports ] ?

How possible is it that the ... wounds were inflicted by CARDINAL different individuals and accordingly with CARDINAL different knives , in accordance with the statement given by PERSON ? ”

Having provided a reconstruction of the incident by means of sketches and having analysed the case materials , the experts reached the following conclusions :

“ CARDINAL . The wounds were inflicted on ORG ’s body and [ through his ] clothes not with CARDINAL but with CARDINAL sharp objects , possibly knives , of different sizes , CARDINAL and QUANTITY wide [ respectively ] .

PERSON could not have inflicted the wounds as described in ORG ’s statement , by holding his shoulder with one hand while he was initially kneeling and then crawling on the ground face - down , in view of the mechanism used to inflict the wounds [ described in the forensic and forensic medical reports ] and bearing in mind the limited access to the areas of impact .

... it is possible ... that the ... wounds were inflicted by CARDINAL different individuals ( and accordingly with CARDINAL different knives ) , as described in PERSON statement . ”

On DATE ORG upheld the conviction . Concerning the applicant ’s argument that the witness statement confirmed her version of the events , the court reasoned that although the witness had stated that she had seen CARDINAL men climb in and out of the school playground , she had also said that that was a common sight at that school . Accordingly , the court found it impossible to establish that those persons had been implicated in ORG ’s stabbing .

ORG dismissed the CARDINAL alternative forensic reports commissioned by the defence . Regarding the first alternative forensic report , the court stated the following :

“ The court can not accept the findings of the [ first alternative forensic report ] given that it is drafted in violation of a number of procedural norms . In particular , information as to which specific materials were presented [ to the experts ] and relied on when reaching the conclusions is missing ; the research part of the forensic report contains a legal assessment of the [ first - instance court ] judgment and of a number of pieces of evidence , whereas under LAW an expert examination is not to be carried out to determine legal matters . Furthermore , the concluding part of the expert examination [ report ] is presumptive , speculative and based on probability which , in the first place , is beyond the expert ’s competence as provided for in Articles CARDINAL [ and ] CARDINAL of LAW , [ and ] no evidentiary value may be attributed to speculative findings , in accordance with LAW ( CARDINAL ) [ of the LAW ] . ”

As regards the second alternative forensic report , the court noted the following :

“ The court can not accept the findings of the [ second alternative forensic report ] as they are also speculative . Furthermore , the report relies on the conclusions of the medical and forensic expert examinations [ medical documentation , the PERSON report and the second ORG report ] which themselves do not categorically determine the nature of the object used to inflict the injuries on the victim , and even more so the number [ of such injuries ] . Without referring to a concrete scientific study , the [ report ] analyses and rejects the victim ’s statement and relies on the statement of the accused . ”

The appellate court also reasoned that the applicant ’s argument that CARDINAL unidentified men had beaten the victim while stabbing him was not confirmed in view of the absence of any physical signs of beating in the relevant forensic medical report . In the subsequent part of the judgment ORG referred to the first and the second ORG reports and the second ORG report , among other evidence , while upholding the judgment of the first - instance court .

On DATE ORG of GPE dismissed an appeal on points of law lodged by the applicant as inadmissible . Without responding to the applicant ’s arguments that the lower ORG dismissal of the alternative forensic reports had been erroneous and arbitrary , and that the main argument of the defence had been left without an appropriate answer , the court reproduced the relevant provision of LAW , holding that “ the case [ was ] not important for the development of the law and coherent judicial practice , the [ contested ] decision [ did ] not differ from ORG existing practice in such matters , and the appellate court [ had ] not committed any major procedural flaws during its examination which could have significantly affected its outcome . ”

On DATE the applicant , aged DATE at the time , was remanded in custody and placed in a cell together with adult female inmates in FAC no . CARDINAL for Women and Juveniles ( “ prison no . CARDINAL ” ) . According to the case file , the applicant did not complain about the material conditions of her detention in that cell .

On DATE the Minister of ORG issued an order for the creation of a separate section for juvenile female offenders within prison no . CARDINAL , and instructed the relevant authority to separate the inmates accordingly .

On DATE the applicant was moved to the newly created juvenile section of prison no . CARDINAL . She was alone in a cell for DATE and subsequently shared the cell with CARDINAL other juveniles . The applicant complained about the material conditions of detention in that cell during the proceedings concerning the deferral of her sentence ( see paragraphs CARDINAL below ) .

On DATE the Public Defender of GPE visited the applicant in prison . In letters dated DATE and DATE addressed to the Minister of Corrections and ORG , ORG expressed his concerns about the conditions of the applicant ’s detention in prison no . CARDINAL . According to him , the cell in which the applicant was detained with CARDINAL other juveniles measured CARDINAL , the water tap was out of order , causing humidity in the cell , and the ventilation did not function properly , which led to an unpleasant odour . According to a press release issued by ORG on DATE , the tap in the applicant ’s cell was fixed shortly afterwards .

On DATE the applicant instituted proceedings requesting the deferral of her sentence pending the construction of a separate detention facility for juvenile female offenders . She argued that , in the absence of a separate facility , her detention in the adult prison , even if in a separate section for juveniles , as such amounted to a breach of LAW . She further complained that the cell where she was serving her sentence was too small , the water tap was out of order causing humidity , the ventilation did not function properly , and that she was deprived of the opportunity to have DATE walks , contrary to LAW .

On DATE the ORG rejected the deferral request as manifestly ill - founded . It reasoned that domestic legislation did not provide for deferral of a sentence pending the construction of a separate detention facility for juveniles and that the complaints concerning the alleged violation of the applicant ’s rights under LAW had not been substantiated . The applicant appealed .

On DATE ORG rejected the appeal as manifestly ill - founded in a final decision . It reasoned that such a deferral was not guaranteed by the domestic legislation . As regards the applicant ’s allegation that her rights under LAW had been violated , the court found the complaint unsubstantiated and contrary to the material available before it . It based its finding on the applicant ’s own admission before the court that she had been afforded the possibility of unlimited daily walks but sometimes chose not to use her exercise time , as she preferred not to share the space with other inmates , that she was free to take showers even if taking turns with other juvenile inmates , and that she was able to see the psychologist present in the prison without any problems .

According to the applicant , she completed her secondary education while in detention , and was admitted to a university after passing the requisite admission exam .

On DATE the applicant was released on probation .


Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in Split . He was represented before the ORG by Mr PERSON , an advocate practising in PERSON .

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

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

By decisions of CARDINAL DATE and CARDINAL DATE the ORG ( a ) declared that CARDINAL plots of land in Split in the applicant ’s possession had been nationalised and become socially - owned already on CARDINAL DATE with the entry into force of the GPE ’s Act Designating the Construction Land in LOC and Urban Areas ( see paragraphs CARDINAL below ) , and ( b ) dispossessed the applicant of the land at issue with a view to constructing a block of flats and an elementary school on them .

By a decision of CARDINAL DATE the ORG expropriated the house owned by the applicant which was built on CARDINAL of the plots in question .

On DATE the GPE offered the applicant as compensation permanent usage ( trajno korištenje ) of another plot of land for the construction of a house . The applicant refused the offer and instituted non - contentious proceedings with ORG ( PERSON ORG ) with a view to obtaining compensation for his nationalised and expropriated property under LAW .

On DATE LAW ( hereafter “ the DATE LAW ” , see paragraph CARDINAL below ) entered into force . Shortly afterwards , the case was transferred to the administrative authorities , in particular to the regional office of the state administration in GPE ( ORG državne uprave u ORG - dalmatinskoj županiji , hereinafter “ the ORG ” ) .

On DATE the tax authorities carried out an onsite inspection of the nationalised land and assessed its value at CARDINAL,CARDINAL,CARDINAL.CARDINAL NORP kunas ( HRK ) .

On DATE the applicant requested a total amount of HRK CARDINAL for the land and the house .

On DATE the applicant amended his request , asking for HRK CARDINAL,CARDINAL.CARDINAL.CARDINAL in total .

On DATE the tax authorities carried out another onsite inspection and assessed the value of the nationalised land at HRK CARDINAL . On DATE the tax authorities assessed the value of the expropriated house at HRK CARDINAL,CARDINAL.CARDINAL .

At the hearing of DATE the applicant contested the findings of the tax authorities and undertook to submit proof of the current market value of the appropriated property .

The applicant engaged a court expert , PERSON , to carry out the property valuation . On DATE Mr NORP drew up a report establishing the market value of the nationalised land at HRK CARDINAL,CARDINAL,CARDINAL.CARDINAL . The applicant submitted the report to ORG on DATE .

On DATE the applicant increased his request for compensation , arguing that the value of the nationalised land had meanwhile risen to HRK CARDINAL . He relied on the rise of land prices in DATE and DATE caused by the construction of the Split ring - road .

By a decision of DATE ORG awarded the applicant compensation in the overall amount of HRK CARDINAL,CARDINAL,CARDINAL.CARDINAL . Specifically , it relied on PERSON expert opinion of DATE ( see paragraph CARDINAL above ) and awarded HRK CARDINAL,CARDINAL,CARDINAL.CARDINAL for the nationalised land . It further awarded HRK CARDINAL for the expropriated house , relying on valuation by the tax authorities of DATE . Lastly , it awarded HRK CARDINAL for the construction improvements and agricultural crops , relying on an older valuation by the tax authorities . The relevant part of that decision reads as follows :

“ The market value is the price which an immovable property can obtain on the market , dependent on supply and demand at the time of its determination .

According to the ... valuation by the tax authorities of DATE , the immovable property ’s value is HRK CARDINAL per square metre ... according to the DATE valuation , it is HRK CARDINAL per square metre .

According to the valuation submitted by [ the applicant ] , carried out by the court expert for civil engineering and property valuation , Mr. PERSON , in DATE , the immovable property ’s value is ORG QUANTITY ( HRK CARDINAL ) .

As the valuation of the court expert Mr. PERSON is newer and does not significantly differ from the valuation [ by the tax authorities ] ... there were no reasons for dismissing the [ Mr NORP ’s ] valuation as it represents the price of construction land in that location . ”

The applicant lodged an appeal against the above decision before ORG ( ORG pravosuđa PERSON , hereinafter “ the NORP ” ) , arguing , inter alia , that under section CARDINAL of LAW ( see paragraph CARDINAL below ) the compensation should have been calculated on the basis of the market value at the time when the decision on compensation was adopted . He submitted a number of items of evidence , such as newspaper articles and decisions on compensation in other cases , pointing out that the market value had risen during DATE and DATE .

On DATE the Ministry dismissed the applicant ’s appeal in the part concerning the compensation for the nationalised land . At the same time it quashed the first - instance decision in the remaining part ( including the compensation for the expropriated house ) and remitted the case . The relevant part of that decision reads as follows :

“ The level of compensation for the undeveloped construction land [ the applicant ] was dispossessed of was correctly determined . The first - instance authority accepted the expert opinion of PERSON of DATE , and not the earlier valuations by the tax authorities ...

The argument raised in the appeal ... that the compensation was set ... too low is unfounded .

Namely , in proceedings involving dispossession compensation is fixed by applying provisions of LAW on market value compensation . However , [ in such cases ] the market value compensation must be determined with regard to the state of the immovable property and the modes of its usage at the time of deprivation . [ The applicant ’s data on the higher price of construction land ] concern construction land with the entire necessary infrastructure , whereas the land in question did not have the entire infrastructure at the time of deprivation [ i.e. dispossession in DATE ] . Therefore , the current market value of the land in the same [ location ] in Split ( PERSON ) can not be used for comparison , as the state of immovable property in question in DATE and DATE differs significantly in terms of infrastructure . In addition , the construction of roads and the ring - road in DATE and DATE contributed significantly to the rise of the price of construction land , but has no significance for the level of compensation correctly established in DATE . Therefore , the expert opinion can not be deemed too old with regard to the date of the adoption of the first - instance decision ... as it sets the price in CARDINAL as well ...

However , [ the applicant ’s ] appeal is well - founded in part concerning the compensation for the house , the construction improvements and the agricultural crops . ... [ Valuations ] by the tax authorities [ in respect of that property ] do not include any reasoning and it is unclear on the basis of which criteria this part of the compensation has been determined .

Therefore , such findings can not serve as a starting point for fixing the compensation for that property ... ”

The applicant then brought an action for judicial review in ORG PERSON ) against the ORG ’s decision , maintaining that the amount of compensation for the nationalised land had not been established in accordance with the relevant legislation ( see paragraph CARDINAL above ) . He requested HRK CARDINAL for the land in question .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s action , endorsing the reasoning given by ORG . The relevant part of that judgment reads as follows :

“ It is undisputed that in the present case the compensation for the immovable property ... the plaintiff was dispossessed of must be determined in accordance with [ section CARDINAL of the DATE LAW ] given that he was dispossessed of [ that ] property by the final decisions ... of GPE of DATE and DATE and because ... a final decision on compensation has not been rendered [ before the entry into force of the DATE LAW ] .

When compensation ... is being determined by applying section CARDINAL of the [ DATE ] LAW it must be fixed with regard to the state of the immovable property and the modes of its usage at the time of deprivation and the market value [ of such property ] ... at the time the compensation was being determined ( section CARDINAL of the [ DATE ] LAW ) .

In determining level of compensation the administrative authorities assessed all the relevant circumstances , in particular the state of the immovable property at the time of deprivation ( construction land without any infrastructure ) [ and ] market supply and demand of the land of the same or similar characteristics ... at the time of assessing its value . ...

[ Therefore , ] by fixing the compensation for the immovable property the plaintiff had been dispossessed of at HRK CARDINAL,CARDINAL,CARDINAL.CARDINAL the first- and the second - instance administrative authority correctly applied section CARDINAL of the [ DATE ] LAW . ”

The applicant then lodged an appeal on points of law ( revizija ) with ORG ( PERSON ) against that judgment , reiterating his previous arguments .

By a judgment of DATE ORG dismissed the applicant ’s appeal on points of law , endorsing the reasoning of ORG and ORG . The relevant part of that judgment reads as follows :

“ As regards the plaintiff ’s arguments that the compensation was not determined in accordance with the market value [ of the land ] at the time of adoption of the first - instance decision ... ORG was correct to agree with the findings of the first- and the second - instance [ administrative authority ] whereby those arguments had been dismissed as unfounded .

In so doing sufficient reasons were given , the evidence submitted by the plaintiff was examined and it was established that the data submitted [ by the plaintiff ] concern the immovable property which significantly differ ( in terms of infrastructure ) from that he had been dispossessed of . For that reason it was not possible to compare the state and the current market value of that immovable property with the state of the immovable property the plaintiff had been dispossessed of in DATE . ”

By a decision of CARDINAL DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s subsequent constitutional complaint .

Federal Act Designating the Construction Land in GPE and LOC

The relevant provisions of LAW ( Zakon o određivanju građevinskog zemljišta u gradovima i naseljima gradskog karaktera , ORG of ORG nos . CARDINAL and CARDINAL ) , which entered into force on DATE , read as follows :

Section CARDINAL

“ The construction land as defined in ORG and LAW [ located ] in towns and urban areas shall become [ land ] in social ownership under the conditions set out in this LAW .

Former owners of the construction land shall have the right to a fair compensation in accordance with LAW . ”

Section CARDINAL(CARDINAL )

“ The construction land in towns and urban areas shall be specified by ... legislation [ enacted by the constituent republics of the SFRY ] .

Section CARDINAL(CARDINAL )

“ Former owner of undeveloped construction land shall have the right to use it until DATE he or she has , on the basis of the decision by the relevant authority , to surrender it to its [ new ] user . ”

GPE ’s Act Designating the Construction Land in Towns and Urban Areas

By LAW in Towns and GPE ( Zakon o određivanju građevinskog zemljišta u gradovima i naseljima gradskog karaktera , ORG of GPE no . CARDINAL ) , which entered into force on DATE , GPE fulfilled its obligation stemming from section CARDINAL(CARDINAL ) of the above federal legislation ( see the preceding paragraph ) and specified construction land in NORP towns and urban areas , including the town of PERSON , which had been nationalised by the operation of law ( ex lege ) .

Construction Land Act

The relevant provision of LAW ( Zakon o građevinskom zemljištu , ORG no . CARDINAL with subsequent amendments ) , which was in force between CARDINAL DATE and DATE , at the material time read as follows :

Section CARDINAL(CARDINAL )

“ The former owner of the construction land which became land in social ownership shall have the right to a fair compensation which shall be determined in the manner and in the procedure prescribed by LAW ”

Section CARDINAL(CARDINAL )

“ The decision to take the construction land from the possession of its former owner or its user , as well as to award that land for use [ to a new user ] in accordance with this Act shall be made by [ the municipality ] after having conducted the proceedings provided in this LAW . ”


No violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Iran);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran)

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

The applicant was born in DATE and lives in GPE . He grew up in GPE and entered GPE in DATE .

The applicant applied for asylum under the name of GPE on DATE , stating that he had entered GPE illegally DATE . He was questioned twice , on DATE and CARDINAL DATE , by the NORP authorities responsible for asylum and migration ( until DATE the authority was called the ORG für Migration , but it was renamed with effect from DATE as the Staatssekretariat für Migration , DATE hereafter “ the asylum authorities ” ) . An interpreter was present at both hearings and the record was translated for the applicant prior to his signing it . A member of a non - governmental organisation was present at the second hearing as a neutral witness , in order to guarantee the fairness of the hearing . He had the opportunity to add comments at the end of the record of the hearing about any irregularities , but he made no such observations .

During the hearings the applicant stated that he had attended a number of demonstrations in connection with the presidential election in DATE . He had been arrested during one such demonstration on DATE in CARDINAL He was subsequently placed in prison , where he was severely tortured every day . After DATE in prison , he was scheduled to appear in court on DATE . He was placed in a bus with CARDINAL other people but managed to escape during a disturbance caused by CARDINAL of the other detainees when disembarking from the bus . He then managed to hide with his relatives . After his escape , the authorities had sent a court summons to his home and , when he had failed to appear , the court had sentenced him in absentia to CARDINAL months’ imprisonment . He managed to leave the country on DATE with the help of a smuggler . In support of his account , the applicant submitted copies of his identity card , a court summons of CARDINAL DATE and a judgment of DATE . He explained that the judgment had been sent to his home and that a neighbour had given it to him prior to his departure .

On DATE the asylum authorities rejected his asylum application and ordered him to leave GPE , finding that his account was not credible as it was contradictory and , in relation to key aspects , not sufficiently substantiated . Despite repeated questions , the applicant had been unable to describe what he had experienced during his imprisonment in a detailed and differentiated manner . He had also contradicted himself regarding his transportation from the prison to court and his escape . Neither his alleged arrest in connection with his participation in a demonstration nor his subsequent detention and escape therefrom had been credible . The documents submitted by the applicant could not lead to a different result as they could easily be bought in GPE and falsified . Moreover , the alleged conduct of the NORP authorities in sending a court summons to the applicant ’s home after his escape , rather than going there to arrest him on the spot , was not credible , nor was his submission that the judgment of CARDINAL DATE had been sent to his home and given to a neighbour prior to his departure .

As the applicant did not appeal , the decision became final .

On DATE the applicant , through a lawyer , lodged an application for his asylum application to be reconsidered . He was by that time using the identity of A. and stated that he had entered GPE legally under that name in DATE based on a visa to visit his sister , who lived there . In substance , he stated that his relationship with his father had broken down entirely and that as a result he risked being arrested upon his return because his father had ties to the secret service . Moreover , he had been baptised as a NORP on DATE . Emphasising that GPE applied the death penalty for apostasy , he alleged that he was at risk of illtreatment on account of his conversion . He submitted a copy of his baptism certificate , issued by a NORP church , a NORP house church , to support his account .

On DATE the asylum authorities , who treated the applicant ’s request as a second asylum application , questioned the applicant in person . An interpreter was present and the record was translated for the applicant prior to his signing it . A member of a non - governmental organisation was present as a neutral witness in order to guarantee the fairness of the hearing . He had the opportunity to add comments at the end of the record of the hearing if he witnessed any irregularities , but did not make any such observations .

During the hearing , the applicant stated that he had first had contact with a NORP church in GPE in DATE and then with the NORP church from DATE . The members of the latter had gradually become his family . CARDINAL of them had invited him home once or DATE to familiarise him with the Bible . He had regularly attended church services and after DATE had been baptised in that church . For him , being a NORP meant believing in PERSON and spreading his message . He stated that he continued to study the Bible and recited parts of it . The principle of honesty enshrined in NORP was particularly important to him . Even if he were unable to manifest his belief in the future , he would always retain the truthfulness of his faith , which nobody could take away from him . He submitted statements that he had attended different churches to support his account . The applicant did not make any submissions regarding the risk allegedly caused by the broken relationship with his father and the latter ’s ties to the secret service .

On DATE the asylum authorities rejected the applicant ’s application . They considered that his conversion to NORP did not in and of itself expose him to a real risk of ill - treatment . Such a risk could exist if he proselytised or attracted public attention in another way . Based on his statement , they considered that he did not intend to practise his faith in such a manner . There were no indications that the NORP authorities were even aware of his conversion . They also doubted that the applicant ’s conversion was genuine and lasting , noting , in particular , that it had occurred after the applicant ’s first asylum application had been rejected , that the baptism had taken place in a house church rather than a church recognised by the ORG , and that the applicant did not base his conversion on the key aspects of NORP , but on the personal relationships he had formed with members of his church community .

On DATE the applicant , represented by a lawyer , appealed against that decision . He pointed out that there had been an increased number of arrests of members of NORP house churches since DATE and argued that his conversion to NORP in and of itself exposed him to a real risk of ill - treatment . A NORP convert faced a much greater risk of ill - treatment than those born into the NORP religion . His conversion to NORP was genuine and lasting . He had first had contact with a NORP church in GPE in DATE and was serious in practising his faith , as evidenced by the documents he had submitted .

On DATE ORG dismissed the applicant ’s appeal as manifestly ill - founded . It expressed doubts as to whether his conversion had been genuine or was lasting , but found that this did not have to be determined . It considered that a person could only face a real risk of ill - treatment upon return to GPE if that person ’s NORP faith had been manifested in GPE in such a way as to make it visible to the outside and if it could be assumed that his or her family and acquaintances in GPE would learn about that active manifestation of faith , even if it was short of proselytising . If close family members were “ fanatic ” NORP , they might denounce the conversion to the secret service . In addition , conversion to NORP might be seen as treason . Where a conversion had taken place abroad , there had to be both an assessment of whether it was genuine and the extent to which it had become publicly known . Even assuming that the applicant ’s conversion had been genuine and was lasting , the court considered that he did not manifest his NORP faith in the manner described . There were no indications that the NORP authorities had even become aware of his conversion .

On DATE the applicant , through a lawyer , lodged an application for temporary admission under section CARDINAL of LAW . He relied on the risks presented by the NORP authorities and non - state actors on account of his conversion and active membership of a NORP community in GPE , as well as his participation in a demonstration in GPE in DATE against human rights violations and the persecution of NORP by the NORP authorities . In that connection , he had signed a letter of protest addressed by the organisers to ORG , which were thus aware of his conversion . To support his account he submitted photographs , letters of support from various persons and several reports .

On DATE the asylum authorities rejected his application , which they had treated as a further asylum application . They noted that the applicant had previously been through CARDINAL sets of asylum proceedings and that the alleged risk of ill - treatment on account of his conversion to NORP had already been examined . It was not necessary to examine the matter again as the applicant had not put forward any arguments that could give rise to an assessment that was different from that of ORG in its judgment of DATE .

It was true that the NORP authorities took an interest in the activities of their citizens abroad , but such monitoring was focused on people who stood out from the large number of NORP critical of the ORG and who were perceived as a serious threat by the authorities because of their political or religious activities . Whether a person “ stood out ” was not so much a question of visibility and the possibility of identifying the person concerned , but was rather CARDINAL of public exposure . The personality of the individuals concerned , the form of their appearances in public and the content of their public statements were relevant parameters in that regard . The asylum authorities considered that mere participation in a demonstration against ORG , without the applicant acting in a particular manner or holding a special function , was not sufficient for him to be perceived as a concrete threat by the NORP authorities . They also noted that there were no indications that the authorities had taken any measures against him .

The NORP authorities were aware that NORP citizens at times attempted to rely on conversion to NORP abroad in order to obtain refugee status in NORP countries . Such circumstances would be taken into account by the NORP authorities but would not , upon someone ’s return , lead to ill - treatment within the meaning of the refugee definition . Moreover , it was possible to practise religions other than NORP in GPE in a discreet and private manner . Citing the criteria contained in ORG judgment of DATE , ORG did not contest , per se , the fact that the applicant was part of a NORP circle in GPE . There were , however , no indications that he was involved in a leading function or was particularly exposed in other ways in connection with his NORP faith . His participation in a demonstration and the signing of a letter of protest to ORG did not lead to a different conclusion . He was only an ordinary member of a NORP organisation and there was , therefore , no concrete risk that the NORP authorities had become aware of his conversion . The asylum authorities concluded that the applicant did not meet the requirements of the refugee definition or those for temporary admission .

On DATE the applicant lodged an appeal against that decision , in substance repeating his earlier submissions . On CARDINAL DATE ORG dismissed the appeal as manifestly illfounded , fully endorsing the asylum authorities’ reasoning .

On DATE ORG set a deadline for the applicant ’s voluntary departure , which passed on DATE .