CASE OF LINDSTRAND PARTNERS ADVOKATBYRÅ AB v. SWEDEN

No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for correspondence;Respect for home;Article 8 - Right to respect for private and family life)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johan Hirschfeldt;Luis López Guerra;Pere Pastor Vilanova

From DATE ORG ( Skatteverket ) conducted audits of value - added tax , ORG social security contributions ( arbetsgivaravgifter ) and income tax at the CARDINAL NORP companies ORG , ORG ( “ SNS ” ) and ORG . The audit covered DATE . On DATE ORG applied to ORG ( länsrätten ) in GPE for permission to take coercive measures in respect of SNS under section CARDINAL of GPE ( NORP om särskilda tvångsåtgärder i beskattningsförfarandet , DATE hereafter “ LAW ” ) , in particular the search and seizure of certain documents and other material .

ORG application contained detailed information on what it had been able to establish in regard to the above - mentioned companies during the audits . The ORG stated that it suspected that significant amounts of money had been withheld from NORP taxation through irregular transactions between ORG and a NORP company . According to the ORG , the latter company had been established solely in order to evade taxes on some of the business profits in the above - mentioned NORP companies . While it was considered highly likely that the persons owning or having a decisive influence in the NORP companies , including a Mr Toivo Jurik , were also running the NORP company , it had proved impossible to obtain information on ownership and control of the latter company from the persons involved , who claimed that they had no knowledge of these matters . After Mr Jurik had been shown an extract of the NORP company register , where he was listed as an executive , he had admitted that he and another person involved in the NORP companies had been present at the establishment of the NORP company but that he was listed as an executive only for formal reasons . The other person mentioned had since stated that he would not assist ORG any further in the audit . The Agency therefore considered that it could not continue to investigate the ownership issue and the accuracy of certain business costs unless it obtained access to documents that showed the NORP company ’s relationship to the NORP companies and their owners and leaders as well as the NORP company ’s role in the business activities . In the ORG ’s view , there were no alternative means of review .

Not considering it appropriate to order SNS to provide the required documents , ORG further requested that the application for coercive measures should not be communicated to the company and that it should not be notified of the court ’s decision before the measures had been undertaken , as there was a risk that the documents to be searched and seized could be withheld or destroyed .

As SNS had recently been liquidated and had not had its own business LOC , the requested search should be made at CARDINAL addresses connected to Mr Jurik , who had been responsible for the bookkeeping in all CARDINAL audited companies and was also representing ORG in its contacts with ORG , and therefore could be expected to be in possession of the required documentation . Thus , the search should start at the registered premises of the parent company , ORG ( “ Draupner ” ) , at the address ORG gata CARDINAL , GPE . This was a flat which , in addition to being owned by PERSON and serving as its registered address , was rented by Mr PERSON and used as a pied - à - terre . PERSON was owned by Mr Jurik ’s children but was represented and run by Mr Jurik himself . If the necessary documents were not found at the first address , the search should continue at the office of Mr Jurik at the applicant law firm ( whose name at the time was PERSON ) , at the address GPE CARDINAL , GPE .

By a judgment of DATE ORG granted ORG application and ordered that the judgment was immediately enforceable . Agreeing with ORG , the court considered that there was a substantial risk that documents could be withheld , corrupted or destroyed and that , having regard to Mr Jurik ’s connection with ORG and the CARDINAL addresses in question , there was good reason to assume that the documents relevant to the audit of ORG were to be found at those addresses . While a search and seizure undertaken at a location different from the audited party ’s business LOC involved a particular encroachment on rights of integrity , the court found that , in the case at hand , the importance of the measures outweighed the intrusion caused .

The search of the CARDINAL designated LOC took place on DATE and was conducted by officials of ORG ( kronofogdemyndigheten ) in GPE and several auditors of ORG . The flat was searched first . Present were Mr PERSON , a lawyer of the applicant law firm , representing Mr Jurik ( who was at the time in GPE ) , and DATE towards the end of the search – Mr PERSON , who , as an associate of the law firm , had been the liquidator of ORG and who was also the designated person to be served writs on behalf of PERSON in GPE . According to TIME of the proceedings , drawn up by CARDINAL of the officers of ORG , the persons present were reminded of the possibility to request exemption of documents .

During the search of the flat , material of interest that belonged to PERSON was found . Since PERSON had been involved in transactions connected with the activities of ORG , a decision to audit the company was taken on site by the audit manager of ORG . She also took an interim decision to use coercive measures against PERSON , in accordance with LAW . It was decided to search for and seize material relating to the audit of PERSON both at the flat and at the applicant law firm . In the latter respect , the decision referred to the fact that not only Mr Jurik but also Mr PERSON had offices there .

The need for an immediate decision and enforcement was explained by the substantial risk of corruption of material . The decision referred to sections CARDINAL of LAW and to ORG judgment of DATE .

At the flat CARDINAL files with accounting material , an external hard disk drive and a torn document were seized and the hard disk drive of a computer as well as a ORG memory stick were copied ( mirrored ) . This was specified in a report drawn up and submitted to the parties concerned DATE by ORG .

The LOC of the applicant law firm – that is , the offices of Mr Jurik and Mr PERSON DATE were searched thereafter , again in the presence of PERSON and PERSON . Attending was also a legal representative whom the applicant had appointed . The issue of possible exemption of documents was discussed and the representative was given a list of the officers attending . Cupboards , shelves and computers in the CARDINAL offices were searched and a safe was opened by PERSON , all monitored by the applicant ’s representative . However , no material of relevance was found on the LOC . At the end of the proceedings , the applicant ’s representative requested that the external hard disk drive and the ORG memory stick DATE seized and copied , respectively , at the flat DATE be exempted from the audit .

The applicant and SNS appealed against ORG judgment of DATE . On DATE ORG ( kammarrätten ) in GPE dismissed the applicant ’s appeal and struck out the case in so far as it concerned SNS . In regard to the applicant , it stated that , while the appealed judgment did indeed allow the use of coercive measures on the premises of the applicant law firm , the reason for this was not that the law firm was the subject of the measures but that it could be assumed that documents relevant to the audit of SNS would be found there . In these circumstances , the appellate court concluded that the applicant was not affected by the appealed judgment in such a way that it was entitled to appeal against it . With respect to SNS , the court considered that , as the coercive measures had already been enforced , it did not have a justified interest in having them examined by a second judicial instance .

By a decision of DATE ORG ( Regeringsrätten ) refused the applicant and SNS leave to appeal . On DATE the court dismissed an appeal in the same matter lodged by Mr Jurik , noting that he had not previously been a party to the case and could not therefore join the proceedings at the level of ORG .

ORG interim decision of DATE to use coercive measures against PERSON was referred to ORG , which received it on DATE , the following DATE . The ORG stated as reasons for its decision that PERSON had had transactions connected to ORG , its subsidiary company , that there had been special reasons to search for material at the applicant law firm CARDINAL of PERSON ’s representatives , PERSON and PERSON , had offices there and that the risk of corruption of material was acute in view of the fact that , during the ongoing enforcement , it had become apparent to persons involved which transactions and connected documents were to be examined . PERSON requested that the decision be quashed , referring , inter alia , to attorney - client privilege pertaining to its representatives . By a judgment of CARDINAL DATE the interim decision was confirmed by the court , which found that the seizure of the documents at issue had been justified . The court further considered that there was a substantial risk that the documents would be withheld , corrupted or destroyed if they were returned .

Draupner and PERSON appealed to ORG . On DATE the court struck out PERSON ’s appeal and dismissed that of PERSON . As in the similar case concerning SNS ( see paragraph CARDINAL above ) , the court took into account that the coercive measures had already been enforced and considered therefore that PERSON did not have a justified interest in having them examined by a second judicial instance . In regard to Mr Jurik , it was noted that he had not been a party to the case at the lower court .

On DATE ORG refused PERSON leave to appeal .

Draupner also appealed against ORG decision of DATE to conduct an audit . On DATE ORG dismissed the appeal because , in accordance with LAW , LAW ORG ; CARDINAL:CARDINAL ) , no appeal lay against such a decision . This determination was upheld by ORG on DATE .

On DATE ORG quashed ORG decision to dismiss the appeal and ORG judgment and referred the case back to ORG . The appellate court found that ORG had lacked a legal basis for its decision ; instead of dismissing PERSON ’s appeal , it should have submitted it to ORG for determination .

After a new examination of the case , ORG dismissed the appeal in a decision of DATE , finding that no appeal lay against a decision to conduct a tax audit and that LAW was not applicable to such a decision . In addition , it noted that , while the audit decision itself did not involve any harm to PERSON , possible detriment caused by the audit procedure could be removed or mitigated through a request for the exemption of documents from the audit . Such a request was at the time already under examination by the court ( see paragraphs CARDINAL below ) .

On DATE ORG rejected PERSON ’s further appeal , agreeing with the lower court ’s assessment .

By a letter dated DATE , DATE of the search of the flat and the law office , and received by ORG on DATE , the applicant requested that those parts of the material seized and copied at the flat that could concern the law firm be exempted from the audit . It mentioned , in particular , the external hard disk drive and the ORG memory stick . Noting that both SNS and PERSON were clients of the law firm , the applicant argued that the material it sought to have exempted was protected by attorney - client privilege .

By a decision of CARDINAL DATE ORG dismissed the request , finding that the applicant lacked legal standing in the matter . It noted that the material had been seized from PERSON and was therefore not under the applicant ’s right of disposition .

The applicant appealed to ORG , demanding that all seized and copied material except for the files with accounting material be exempted . It also requested that an oral hearing be held on the question of its legal standing in the matter . Mr Jurik joined the applicant ’s appeal .

On DATE ORG refused the request for an oral hearing , finding it unnecessary .

By a judgment of CARDINAL DATE ORG rejected the applicant ’s appeal and agreed with the lower court that the applicant did not have legal standing concerning the requested exemption of documents , as the coercive measures had not been directed against the law firm . Mr Jurik ’s appeal was dismissed , as he had not been a party to the case at the lower court .

The applicant made a further appeal , stating , among other things , that ORG original interim decision of DATE concerning PERSON and ORG judgment of DATE confirming that decision had been directed against the law firm because they allowed a search in the firm ’s offices . Moreover , the coercive measures employed had led to the seizure of material which allegedly belonged to the applicant and could contain information covered by attorney - client privilege . In the latter respect , the applicant claimed that the external hard disk drive and the ORG memory stick had been used by its associate lawyer PERSON in his work for the firm .

On DATE ORG refused the applicant leave to appeal .

In the decision of ORG of DATE not to hold an oral hearing ( see paragraph CARDINAL above ) CARDINAL judges participated , CARDINAL of whom was a co - opted member ( adjungerad ledamot ) . She was also a civil servant at ORG , albeit formally on leave of absence while temporarily serving with the court . ORG being the opposing party , the applicant challenged her impartiality and called for her disqualification from the case .

On DATE ORG , sitting in a different formation , rejected the objection , noting that the co - opted member was on leave from her post at ORG .

By a judgment of CARDINAL DATE ORG , which had regard to GPE case - law , rejected the applicant ’s appeal , declaring that the objection had not been justified . It considered that the issue of objective impartiality had to be examined in light of the individual character of the case at hand . In this respect , it noted that the co - opted member ’s tasks at ORG had concerned activities of a different type than those relevant in the case and had been performed in a different part of the country . Furthermore , she was CARDINAL of CARDINAL judges participating in the decision in question , which had concerned a request for an oral hearing . She had not participated in the judgment on the merits of the case .

Draupner , represented by PERSON , requested that all material seized or copied during the audit be exempted , in particular because it contained information protected by attorney - client privilege pertaining to the applicant law firm and its clients .

On DATE ORG rejected the request . It stated that PERSON was the subject of a tax audit and that all electronic or paper documents linked to the company ’s business found on its premises should be considered as belonging to it and being eligible for examination in the audit . The court noted that the company register listed Mr Jurik as a board member and signatory of PERSON . Furthermore , the available evidence in the case showed that he was the representative of the company and that the flat where the search and seizure had taken place constituted the company ’s business LOC . As the documents at issue had been found at that flat , they should be considered to belong to PERSON , concern its business and , as a rule , be included in the audit . While the coercive measures used could not therefore be considered to have contravened LAW or the LAW , the question remained whether there were reasons to exempt some or all of the material . Noting that the burden of proof rested with the audited party , the court considered that the company had not demonstrated that the documents were covered by any of the exemptions under LAW .

Upon PERSON ’s appeal , ORG , on CARDINAL DATE , decided to quash ORG judgment and refer the case back to that court . The appellate court found that the lower court had not examined the contents of all the documents , which was a requirement for the assessment of the question of exemption .

ORG then directed PERSON to specify its request in greater detail , which the company did . By a judgment of CARDINAL DATE the court rejected the company ’s requests for an oral hearing and an inspection of the flat but granted that a few seized documents be exempted from examination by ORG , as they were considered to be Mr Jurik ’s private documents . It further considered that deleted files , which were readable only after reconstruction , could not be the object of a seizure under LAW and could therefore neither be exempted nor used by ORG .

Draupner and ORG appealed . PERSON agreed that CARDINAL of the CARDINAL files seized on DATE could be handed over to ORG for examination , following which the request for exemption concerned the remaining material seized and copied on DATE . ORG requested that it be allowed to examine deleted and reconstructed data files .

On DATE ORG rejected PERSON ’s appeal , but granted that of ORG . PERSON ’s procedural requests for an oral hearing and an inspection were rejected , but the court held a preparatory meeting with the parties to determine the continued proceedings in the case , notably the method for examining the disputed material . The court found that , due to the extremely extensive data material CARDINAL files and DATE , it was impossible to examine each and every data file , and ORG was therefore instructed to list the documents and files it considered as part of its examination after which PERSON would have an opportunity to lodge a new request for exemption . The appellate court agreed with ORG assessments that the material , including the hard disk drive and the ORG memory stick , had been seized on ORG ’s business premises , that there was , accordingly , a presumption that it was included in the audit and eligible for ORG examination and that the burden of proof for exemptions rested with the company , even though a modest level of evidence was sufficient . With regard to Draupner’

After ORG had listed the documents and files it wished to examine , PERSON made a new application for exemption of documents which was partially approved by ORG on DATE in regard to some documents which were considered to be of a private nature . However , none of the documents for which exemption had been requested were found to have such content that attorney - client privilege applied .

On DATE ORG upheld the lower court ’s judgment . On CARDINAL DATE ORG ( now ORG förvaltningsdomstolen ) refused PERSON leave to appeal .

The applicant and PERSON made a complaint to ORG ( PERSON ) against the handling of the case by ORG , ORG and ORG and assessments made by these instances . On DATE the ORG found no reason to take action .

The applicant also petitioned for a re - opening of ORG decision of DATE not to grant leave to appeal in the case concerning the applicant ’s request for exemption of documents . This petition was rejected by ORG on DATE .

The audits concerning ORG and PERSON were eventually discontinued and no taxation decisions were taken on the basis of the audits . All documents were returned to PERSON . Like ORG , PERSON has since been liquidated .


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)

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

The applicant was born in DATE and lives in GPE .

In DATE the applicant ’s mother passed away . At the time of her death , her estate consisted of an apartment , a car , and cash savings of CARDINAL NORP litai ( ORG , MONEY ( ORG ) ) . In her will she left CARDINAL of the apartment to the applicant ’s niece and the remaining property to the applicant and his sister in equal parts . On DATE the applicant renounced his part of the inheritance ( see paragraph CARDINAL below ) .

In DATE V.L. brought a claim against the applicant before ORG . PERSON submitted that the applicant owed her LTL CARDINAL ( approximately ORG CARDINAL,CARDINAL ) in maintenance payments for their son which he had not paid because he had been insolvent . PERSON argued that by renouncing his part of the inheritance the applicant had violated her rights as a creditor because the inherited property could have been used to cover the applicant ’s debt . V.L. therefore invoked LAW of LAW ( see paragraph CARDINAL below ) and asked the court to annul the renouncement as being contrary to the interests of the applicant ’s creditors . She also asked the court to recognise that the applicant had de facto accepted the inheritance because he had been using his mother ’s estate since her death ( see paragraph CARDINAL below ) .

NORP In DATE a similar claim under LAW was brought by PERSON She submitted that the applicant had been under an obligation to pay her maintenance and that he owed her LTL CARDINAL ( approximately ORG CARDINAL,CARDINAL ) . PERSON asked the court to annul the applicant ’s renouncement of the inheritance and to recognise that he had de facto accepted it . In DATE ORG decided to examine ORG and ORG claims together .

ORG held an oral hearing on DATE in which the applicant and both claimants were present . The applicant argued that he had renounced his part of the inheritance for the benefit of his sister who had paid all the expenses of their mother ’s funeral . The applicant also submitted that his sister and niece had accepted the entire inheritance and that he had not used any of the property belonging to his late mother ’s estate .

On DATE the ORG partly upheld ORG and ORG claims . It held that the applicant had acted in bad faith by renouncing the inheritance while being insolvent and owing money to the claimants . Accordingly , the court annulled the renouncement on the grounds that it violated the interests of the applicant ’s creditors ( see paragraph CARDINAL below ) . However , the court held that there was insufficient evidence to find that the applicant had de facto accepted the inheritance and dismissed that part of the claim .

The applicant appealed against that judgment . ORG also appealed but ORG refused to accept her appeal for examination because of formal deficiencies – PERSON had asked to be completely exempted from paying court fees on the grounds that she was disabled and had a low income , but domestic law allowed only for partial exemptions ( see paragraph CARDINAL below ) . PERSON was given DATE to correct the deficiencies in her appeal . On DATE ORG held that PERSON had not submitted a corrected appeal within that time - limit so it considered that she had not appealed ( see paragraph CARDINAL below ) . However , on DATE ORG referred both the applicant ’s and PERSON ’s appeals to ORG .

On DATE the applicant received notice from ORG that the civil case and both his and ORG appeals had been referred to ORG , and he was asked to submit a reply to PERSON ’s appeal within DATE . However , a copy of ORG appeal was not enclosed . The applicant sent a letter to ORG requesting a copy of the appeal . He received it on DATE and submitted a reply on DATE .

Subsequently the applicant asked ORG to proceed with the examination of the case in his absence – the applicant stated that he had presented all his arguments in his appeal and in his reply to PERSON ’s appeal and had nothing else to add . On DATE ORG held an oral hearing from which the applicant and PERSON were absent but where ORG lawyer was present .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal and upheld PERSON ’s appeal . The court upheld the findings of the first - instance judgment that the applicant had acted in bad faith by renouncing the inheritance while being insolvent and owing money to his creditors ( see paragraph CARDINAL above ) . ORG also found that since his mother ’s death the applicant had been using the car previously owned by her and on that basis the court concluded that the applicant had de facto accepted the inheritance ( see paragraph CARDINAL below ) .

The applicant submitted an appeal on points of law but on DATE ORG refused to examine it as raising no important legal questions .

In DATE PERSON brought a new claim against the applicant and his sister . PERSON submitted that although the court in previous proceedings had acknowledged that the applicant had de facto accepted the inheritance ( see paragraph CARDINAL above ) , the applicant had not formally completed that acceptance and his sister had remained the official heir to their mother ’s estate . PERSON asked the court to annul the applicant ’s sister ’s rights to CARDINAL of the inheritance and to recognise the applicant ’s rights to that property .

On DATE ORG dismissed PERSON ’s claim . The court found that the total value of the applicant ’s mother ’s estate ( the car and the savings ) had been LTL CARDINAL ( approximately ORG CARDINAL,CARDINAL ) , and that the applicant ’s sister had spent LTL CARDINAL,CARDINAL ( approximately ORG CARDINAL ) on their mother ’s funeral . In line with domestic law , an heir had the right to cover funeral expenses from a deceased person ’s estate before formally accepting the inheritance ( see paragraph CARDINAL below ) . On that basis , ORG held that the applicant ’s sister had not inherited any property which could have been used to cover the applicant ’s debt to ORG , and thus there were no legal grounds to satisfy ORG claim . That judgment was not appealed against and became final .

In DATE the applicant submitted a complaint to ORG concerning the judge of ORG who had examined the civil case ( see paragraph CARDINAL above ) . He complained that the judge had acted in abuse of office by referring PERSON ’s appeal to ORG because that appeal had not been submitted in accordance with procedural rules ( see paragraph CARDINAL above ) . On DATE dismissed the applicant ’s complaint . It held that although the judge had been “ insufficiently attentive ” and had referred ORG appeal to ORG by mistake , that mistake had not been so grave as to constitute abuse of office .

In DATE the applicant petitioned ORG to investigate the actions of the judges of ORG and ORG . On DATE the prosecutor ’s office denied the applicant ’s request on the grounds that no crime appeared to have been committed . The prosecutor ’s decision was subsequently upheld by the courts .


CASE OF BOTNARI v. THE REPUBLIC OF MOLDOVA

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 is currently detained in GPE .

On DATE the applicant was arrested by police office and charged with fraud and forgery of official documents . She was placed in the detention centre of ORG ( “ the NORP ” ) .

According to the applicant , she was held there in an underground cell which offered substandard conditions of detention .

The applicant further submitted that she was transferred to Prison no . CARDINAL , where she was detained in a cell with QUANTITY other inmates and was subjected to passive smoking . She was not provided with bedding and was not able to sleep normally . The cell was infested with vermin and the food was of a very poor quality .

According to the ORG , the applicant was transferred from the detention facility of ORG no . CARDINAL on DATE . On DATE she was released from detention and was placed under house arrest . On DATE , after having been declared a wanted person , the applicant was again arrested and again placed in detention in Prison no . CARDINAL . On DATE she was released from prison and was placed under house arrest . On DATE the applicant was again placed in detention in Prison no . CARDINAL . On DATE ORG found the applicant guilty as charged and sentenced her to DATE and CARDINAL months’ imprisonment . The case was pending before ORG at the time of the parties’ observations .

According to the ORG , during her detention in Prison no . CARDINAL after DATE the applicant was held in cells CARDINAL . CARDINAL and CARDINAL , each designed to hold CARDINAL detainees and measuring QUANTITY m , and in cell no . CARDINAL designed to hold CARDINAL detainees and measuring QUANTITY m. Cell no . CARDINAL was lit by a CARDINAL-W bulb and had a window , as well as a tap and a toilet separated from the rest of the cell by a partition . All the cells were regularly disinfected .

On DATE the applicant was diagnosed with non - Hodgkin lymphoma ( “ NHL ” – a type of blood cancer ) . This disease affected her spleen , bone marrow and lymph nodes . She was also diagnosed with chronic hepatitis .

According to the applicant , while being detained in the detention facility of the ORG , her medical treatment was interrupted and the PERSON administration refused to transfer her to a hospital . After she had been transferred to Prison no . CARDINAL , she was not provided the medical assistance required for her condition .

According to the applicant , while in detention , her state of health deteriorated . In both detention facilities there was no specialist oncologist and chemotherapy was unavailable . The applicant undertook her last chemotherapy session in a specialist civilian hospital in DATE while under house arrest . Following an enquiry lodged in DATE by the applicant ’s lawyer about the medical care received by the applicant while in detention , ORG replied on DATE that she had been registered as an oncology patient since DATE and had been provided with medical treatment in line with her diagnosis .

According to CARDINAL extracts from the applicant ’s medical records dated DATE and DATE and signed by the head and the deputy head of the medical unit of Prison no . CARDINAL , the applicant was in need of specific medical treatment from ORG and her medical condition was qualified as being of medium seriousness .

The Government submitted that from DATE to CARDINAL DATE the applicant had refused on several occasions to be hospitalised either in the prison hospital ( Prison no . CARDINAL ) or in the medical section of Prison no . CARDINAL . On CARDINAL occasions the applicant had refused to undergo inpatient treatment at ORG , which was a specialist civilian hospital . The applicant had been examined on several occasions by a therapist and a haematologist and given medical treatment . DATE , ORG concluded a service contract , with a budget amounting to CARDINAL NORP lei ( MDL – approximately QUANTITY ( EUR ) ) , with ORG . Accordingly , specific types of treatment such as chemotherapy and radiotherapy were available .


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

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

He suffers from progressive spinal muscular atrophy and needs TIME assistance with all his DATE activities .

In DATE the Pensions and ORG of GPE ( “ the Institute ” ) awarded the applicant an assistance and attendance allowance ( hereinafter “ the allowance ” ) of PERCENT of the reference amount .

On CARDINAL DATE the applicant ’s general practitioner applied for an increase in the allowance due to the applicant ’s worsening condition , referring in particular to the deterioration of the applicant ’s respiratory functions . In the application the general practitioner indicated that the applicant needed TIME assistance by a family member or a lay care assistant , along with permanent professional assistance . At that time the applicant organised his care by hiring students to assist him in his DATE activities and to provide the necessary aid . He also relied significantly on the assistance of his family members .

On DATE the first - instance disability commission of ORG ( “ the commission ” ) reported that the applicant did not need permanent , professional , medical assistance . The commission was composed of PERSON , an internal medicine specialist , and ORG , an occupational medicine specialist . It gave its opinion on the basis of an examination of the medical documentation provided by the applicant , specifically opinions of a doctor of internal medicine , a pulmonologist and a clinical neurologist . They also examined the applicant .

On DATE , the GPE unit of ORG , relying on the opinion of the commission , dismissed the request for an increase in the allowance .

On DATE the applicant lodged an appeal .

On DATE the second - instance disability commission ( “ the second - instance commission ” ) of the ORG examined the applicant ’s file and again reported that he did not need permanent professional assistance and that he could be cared for by a combination of care assistants without specific medical knowledge and by members of his family . The second - instance commission was composed of PERSON , an occupational medicine specialist , and PERSON , a specialist neuropsychiatrist .

On DATE the ORG , referring to the conclusions of the second - instance commission , dismissed the applicant ’s appeal . The ORG further referred to the DATE Decision on Assistance and Attendance Allowance for Beneficiaries Suffering from a Severe Disability ( see paragraph CARDINAL below ) , according to which beneficiaries were only entitled to a higher allowance if they were in need of CARDINAL assistance by family members and further professional medical assistance .

On DATE the applicant instituted court proceedings against ORG , requesting the appointment of an independent expert to examine his medical file .

On DATE ORG heard the applicant ’s testimony and reviewed the case file . Subsequently it dismissed the applicant ’s claim . The court rejected the applicant ’s request for the input of an independent expert , concluding that the opinions of the first- and second - instance disability commissions of ORG together with other evidence sufficed to establish that the applicant did not need professional assistance . The relevant part of the decision read as follows :

“ The court therefore fully accepts the opinions of the first- and second - instance disability commissions that the [ applicant ] did not require permanent professional care because the opinions of the disability commissions were in accordance with the other evidence adduced ( the general practitioner ’s request and the reports submitted by specialists ) . ”

On DATE the applicant lodged an appeal , challenging the conclusions of the court that he did not need professional assistance , and complaining that the court had failed to appoint an independent medical expert . The applicant highlighted that the court itself lacked the expertise to assess on its own the kind of assistance he was provided with and the kind he needed .

On DATE the Higher Labour and ORG dismissed the applicant ’s appeal . It found that the first - instance court had based its decision on the opinions of the disability commissions of the ORG which had been composed of experts capable of assessing whether the applicant needed professional assistance . The relevant part of the decision reads as follows :

“ The appeal is unfounded in claiming that the [ first - instance court ] had concluded , without outside reference , despite the fact that it had no medical knowledge , that the care received by the [ applicant ] had been adequate . The court based its decision on the above cited opinions of the disability commission that had been assembled for the purposes of the pre - judicial proceedings . The [ applicant ] was examined by the first - instance disability commission ; in giving their opinions both commissions also took into consideration the medical records submitted by his general practitioner . ”

On DATE the applicant lodged an application for leave to appeal on points of law . He , inter alia , challenged the position of the lower courts that there had been no need to appoint an independent medical expert as being contrary to the established case - law of ORG . According to ORG the opinions of ORG could not be considered independent in proceedings instituted against the decisions of the ORG and thus should not be used as evidence in these proceedings ( see paragraph CARDINAL below ) .

On CARDINAL DATE ORG dismissed the applicant ’s application , holding that the challenged decisions had not departed from the established case - law .

On DATE the applicant lodged a constitutional complaint .

On DATE ORG dismissed the applicant ’s constitutional complaint with reference to section DATE of LAW ( see paragraph CARDINAL below ) .


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in PERSON .

The applicant was employed as the head of a municipal kindergarten in PERSON .

On DATE she was informed by the local office of ORG that , as a person of equivalent status to a civil servant , she was under investigation on suspicion of fraudulent management of accounts , abuse of office and forgery of documents . In DATE she was informed of additional suspicions against her concerning further acts of abuse of office , forgery of documents and misappropriation of property .

NORP In DATE the applicant submitted a request to the pre - trial judge to terminate the criminal investigation on the grounds that it had been excessively long . The judge refused the request , noting that the investigation had been completed DATE and the case was ready for trial .

On DATE the case was referred for judicial examination . On CARDINAL DATE ORG ( hereinafter “ the first - instance court ” ) found the applicant guilty on several of the charges against her . She was sentenced to a fine of CARDINAL NORP litai ( ORG , MONEY ( ORG ) ) and a prohibition on working for the civil service for DATE and DATE .

The judgment was amended on appeal : on DATE ORG ( hereinafter “ the appellate court ” ) upheld the applicant ’s conviction on some of the charges and acquitted her on several others . Her sentence was reduced to a fine of LTL CARDINAL ( ORG CARDINAL ) and a prohibition on working for the civil service for DATE and DATE . Soon afterwards the applicant was dismissed from her job by GPE in line with the decision of the appellate court .

By a final judgment of CARDINAL DATE ORG upheld the reasoning of the appellate court but changed the applicant ’s sentence . ORG found that when determining the length of the applicant ’s prohibition on working for the civil service , it was necessary to take into account the fact that she had been suspended from her post during the criminal investigation ( see paragraphs CARDINAL below ) . As a result , the period of prohibition was reduced to DATE and DATE .

NORP Immediately after the launch of the criminal investigation against the applicant ( see paragraph CARDINAL above ) , on DATE the first - instance court granted the prosecutor ’s request to have the applicant suspended from her job as the head of DATE for DATE . The court held that there were grounds to believe that the applicant , as a person of equivalent status to a civil servant , might use her official position to hinder the investigation by , for example , destroying or fabricating evidence , or attempting to influence the witnesses in the case , who were her subordinates .

The applicant appealed against the decision , arguing that she could not be equated to a civil servant because she worked under an employment contract with GPE . She further argued that all the important documents had already been collected from DATE and all the relevant witnesses had been questioned , so there was no possibility for her to interfere with the investigation . The applicant also submitted that she had no prior convictions and had never been subject to any disciplinary action at work and that her employer ’s evaluation of her had always been positive ; thus there were no grounds to believe that she would use her official position to hinder the investigation . Lastly , the applicant submitted that her job in the kindergarten was her only source of income and therefore the suspension would cause significant difficulties for her and her young daughter , whom the applicant was raising alone . However , the appellate court dismissed the applicant ’s appeal and upheld the reasoning of the first - instance court .

Subsequently the first - instance court granted the prosecutor ’s requests to extend the applicant ’s suspension from her post by further periods of DATE on essentially the same grounds . The applicant appealed against all the decisions , raising the same arguments as before , but her appeals were dismissed by the appellate court ( on CARDINAL DATE , DATE , CARDINAL DATE , DATE and DATE ) . On DATE the appellate court noted , inter alia , that the applicant was only suspended from holding a specific post in a particular kindergarten , so the suspension did not affect her ability to take a different job and thus obtain a source of income .

On each of the above - mentioned occasions the decision of the first - instance court was taken following a written procedure , while the appellate court held oral hearings ( see paragraphs CARDINAL and CARDINAL below ) . Neither the applicant nor her representative was present at any of these hearings . The prosecutor was present at the hearing of DATE .

After the criminal case was referred for judicial examination ( see paragraph CARDINAL above ) , in DATE the first - instance court held an oral hearing in which it extended the applicant ’s suspension from her post by DATE on the same grounds as before . The applicant and her representative were present at the hearing . The applicant ’s appeal was subsequently dismissed by the appellate court .

On DATE the first - instance court in an oral hearing at which the applicant and her representative were present , terminated the applicant ’s suspension from her post . The court found that almost all the witnesses had been questioned , so there were no grounds to believe that the applicant might attempt to influence them or otherwise hinder the investigation . The applicant returned to her job as the head of DATE .

However , on DATE the appellate court overturned the decision of the first - instance court , finding that the investigation had not been completed yet , so there was still a risk that the applicant may hinder it . Since the appellate court was not authorised by law to adopt a new decision extending the suspension , the prosecutor submitted a new request for an extension to the first - instance court . During this period the applicant continued working as the head of the kindergarten .

On DATE the first - instance court , in an oral hearing at which the applicant and her representative were present , renewed the applicant ’s suspension from her post for DATE . However , on CARDINAL DATE the appellate court allowed an appeal by the applicant against this decision and quashed the above extension ordered by the first - instance court . The applicant returned to her job and remained the head of the kindergarten until her dismissal in DATE ( see paragraph CARDINAL above ) .

On DATE the applicant submitted a complaint to the Inspector of ORG concerning several articles in the LOC rytas newspaper . The publications commented on the criminal case against the applicant and presented statements from her subordinates criticising her competence and personality . The applicant complained that these articles had been defamatory and insulting . She also complained about a comment posted by a user on the website of the NORP rytas newspaper which insulted the applicant and her young daughter on the grounds that the applicant was a single mother .

On DATE the Inspector of ORG partly satisfied the applicant ’s complaint . The ORG found that the comment on the website of NORP rytas was insulting to the applicant and her daughter and ordered the newspaper to remove it from the website . With respect to the articles in LOC rytas , the Inspector held that the applicant was a public figure and therefore had to accept a greater level of media attention and criticism . The Inspector also found that the statements about the applicant in the articles in question reflected the opinions of the interviewed individuals , so the newspaper could not be held accountable for their factual accuracy .

The ORG ’s decision indicated that it could be appealed to the court within DATE . The applicant did not appeal .


No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The first applicant was born in DATE and the second applicant in DATE . They live in GPE .

NORP The applicants’ son GPE was a student in GPE . At the relevant time he was DATE . On CARDINAL DATE he and some of his friends were celebrating the end of examinations in one of the clubs in GPE . GPE left the club at TIME on DATE with his friend GPE They were walking together to the university campus . GPE wanted to take a shortcut and go through the border guards area . GPE did not agree and she took the normal road and continued alone . The applicants’ son took the shortcut and while crossing the border guards area , he was apprehended by the border patrol , who called the police . Soon afterwards CARDINAL police officers GPE and PERSON arrived and at TIME took the ORG son to the police station in GPE .

According to the police officers , ORG was under the influence of alcohol . However , his state did not qualify him to be taken to the soberingup centre . They did not make him undergo a breath test . They were not sure with what offence he could be charged , if any , and therefore they ordered him to appear at the police station at TIME and let him go . It was TIME and the temperature outside was below zero centigrade .

At TIME the ORG son telephoned his sister FAC He requested her to come with her car and collect him from a bus station in PERSON . When she got there she telephoned her brother who then asked her to come to GPE , QUANTITY away . According to ORG statement her brother sounded frightened on the phone . While she was driving to ORG called again and told her to go back home because he would manage to come back by himself .

On DATE at TIME the second applicant called her son . She asked him whether he was on the campus and he apparently confirmed . She asked him some more questions but he did not reply although the telephone call was still ongoing . According to the second applicant she was not sure whether she was speaking to her son or someone else .

The applicants then went to the campus to check whether their son was indeed there but he was not . They contacted all hospitals in GPE , the sobering - up centre and all police stations , including the LOC police station No . CARDINAL where their son was interrogated TIME . They were informed however that their son had been neither arrested nor had his identity been checked .

In CARDINAL of the hospitals they were informed that the previous night CARDINAL unidentified men had been brought there . CARDINAL of them was then taken by the police to the police station No . CARDINAL . The applicants went to the police station again where they were told that no men of unknown identity had been there the previous night .

The applicants then officially reported their son as missing and started to look for him on their own .

Only on DATE they were informed by the police station No . CARDINAL that their son had been brought there on TIME DATE and released because there were no grounds to keep him there .

According to the minutes taken by the police officers on TIME DATE , the applicants’ son was drunk ; he mumbled and was unsteady on his legs . The officers had problems communicating with him .

NORP The applicants’ son never returned to the campus . He was found dead on DATE in a meadow , QUANTITY from the exit road towards GPE . His body was frozen .

The body was on its back with the legs crossed . In the photographs taken on location , hospital shoe covers can be seen in the victim ’s jacket pockets . These objects were later not found or examined .

A.W. , who found the body on DATE , informed the police immediately . CARDINAL police officers , GPE and PERSON , the same who had interviewed the applicants’ son on TIME DATE , were sent to the scene .

On DATE the body was shown to the applicants who recognised it as the body of their son . The first applicant noted that in the pockets of his sons’ clothes there was no mobile phone .

On DATE an investigation into the circumstances of the applicants’ son ’s death was opened by ORG .

On DATE a post - mortem examination of the applicants’ son ’s body was carried out . Dr GPE , who participated in the post - mortem examination , found that there were chafes on the applicants’ son ’s palms , face and abdomen . The back side of his legs was covered with bright green algae . The doctor found that the reason for ORG death was hypothermia . She also found that he had been under the influence of alcohol at the moment of his death . The blood alcohol level was CARDINAL per mille .

According to the applicants the expert opinion prepared by Dr GPE raised many doubts and was partly contradictory . PERSON described their son ’s vermiform appendix although he had his appendix removed as a child . No samples of the algae which covered ORG legs were collected for examination . The expert pointed out some characteristics of ORG inner organs which could indicate that ORG died suddenly , which was in contradiction to her conclusion that he died of hypothermia . Also the position in which the body was found contradicted the conclusion that the applicants’ son died of hypothermia . He was found lying on his back with his legs crossed whereas , according to the expert opinion , a person who falls down from exhaustion should lie face down . Furthermore , the expert did not determine the date of ORG death . According to her later depositions , she had not received any such order from the prosecutor .

The expert took liver samples , but as it turned out later it was impossible to examine them because they had been improperly secured .

In the course of the post - mortem examination fingernail scrapings were secured for further examination . However , the samples were never examined .

As emerges from TIME of the post - mortem examination , when GPE ’s body was being undressed before the examination , a mobile phone fell out of his pocket . As noted above , the applicants checked their son ’s clothes before the post - mortem examination and the mobile phone was not there .

On DATE the applicants’ lawyer requested the prosecutor to examine the blood samples from ORG body and clothes taken when his body was found .

On CARDINAL DATE the prosecutor granted the request and ordered that the samples be examined by ORG . However , the decision on the merits was given by the prosecutor without the results of the relevant examination .

On DATE ORG discontinued the investigation finding that the applicants’ son died of hypothermia without involvement of any third persons . The prosecutor based his decision on various evidence including the post - mortem examination , the expert opinion referred to above , as well as depositions made by several witnesses heard in the course of the investigation .

On DATE the applicants’ lawyer appealed against the prosecutor ’s decision . His references to the numerous shortcomings of the investigation covered CARDINAL pages .

On DATE ORG quashed the challenged decision and remitted the case to the prosecutor for reexamination . The court agreed with the applicants that the circumstances of their son ’s death had not been sufficiently established .

First of all , the court recognised that the decision discontinuing the investigation was given without the results of the examination of the secured blood sample , which had been previously ordered by the prosecutor ( see paragraph CARDINAL above ) .

Subsequently , the court found that in the opinion following the analysis of the applicants’ son ’s blood , there were some inaccuracies which needed further clarification ; the toxicological examination allegedly showed presence of phenetylamine in the secured blood sample . However in another part of the opinion it was stated that the presence of this substance was not confirmed and its amount was not determined “ for lack of pattern ” .

The court also referred to the examination of samples of ORG ’s liver which was ordered on DATE but not carried out . According to the medical expert appointed by the court , the examination could not be carried out because ORG did not have the relevant reagents whereas as emerges from TIME of the interview with a medical expert from ORG , the examination was impossible because of the way the samples had been secured .

The court further pointed out that in the first phase of the investigation , an examination of biological and dactyloscopic traces on GPE ’s mobile phone and CARDINAL cigarette lighters found in his clothes was ordered by the prosecutor . The criminological laboratory in GPE stated that they were unable to carry out the examination and stressed that it should be carried out in a specialised biological laboratory in LOC in GPE or GPE . The prosecutor however did not request the institutions indicated for the examination .

The court also stressed the inaccuracies in the medical expert opinion prepared by dr M.R. It further pointed out that the prosecutor had failed to refer to the merits of the opinion and to indicate which part of it and what reasons constituted the basis for his decision . The court also ordered the prosecutor to examine further the part of the expert opinion which concerned the position in which ORG body was found .

Finally the court referred to the ORG statements as regards further evidence which should be examined . The applicants requested that dactyloscopic traces be taken from the police van in which their son was transported . They also considered that traces on the ground where their son ’s body had ORG lawyer ’s appeal was examined DATE after ORG body was found .

Following the court ’s decision , the case was remitted to ORG . The prosecutor heard GPE , a specialist from ORG , who had carried out a toxicological examination of GPE ’s urine and blood . She said that she only examined the samples to check whether there was amphetamine in the blood . She did not check the presence of phenetylamine .

The prosecutor further requested ORG to carry out an examination of the secured liver samples . The University replied however that examination of the samples was impossible given the way the samples had been secured .

The prosecutor also heard the medical expert ORG who admitted that she had mistakenly described ORG ’s vermiform appendix .

On DATE ORG , having reexamined the case , again discontinued the proceedings for the same reasons as the previous time .

According to the relevant provisions of LAW , no further appeal is available for the applicants if the investigation was discontinued for the second time . However , on DATE the applicants requested ORG to resume the investigation . Their request was transferred to ORG who , having reexamined the case - file found a number of shortcomings in the discontinued proceedings and , on DATE , ordered that the investigation be resumed . The prosecutor relied on Article CARDINAL of the Code of Criminal Proceedings according to which discontinued investigation may be resumed de novo at any time by the prosecutor provided that it would not be conducted against a person who had been a suspect in the previously discontinued proceedings .

The prosecutor recalled that in the decision of CARDINAL DATE ORG had indicated to a number of shortcomings ( see paragraphs CARDINAL above ) and ordered that further steps be undertaken in the proceedings . Having analysed the case - file the prosecutor concluded that the court ’s orders had been performed in an insufficient way or had not been performed at all . The relevant part of his decision read as follows :

“ .... it was found in the Białystok hospitals that in the time when GPE was missing , he was not admitted to any of them . The prosecutor did not hear the employees of the first - aid station and ordered that the police do it on his behalf . In consequence the records of the hearings are superficial and still do not explain the circumstances of your [ the applicants ] conversation with CARDINAL of the employees , Ms. PERSON It is important because this person was supposed to inform that on DATE in the morning a young unidentified man had been brought to the hospital and subsequently taken by the police . If the prosecutor investigated into these events he should explore it in the most detailed way possible . The prosecutor also tried to have samples of liver examined requesting opinion of PERSON of ORG although at that time he already knew that the examination had not been possible because the samples had been improperly secured .

The prosecutor , in spite of the court ’s order , failed to have ORG ’s blood samples , secured fingerprint and biological traces examined .

The decision discontinuing the investigation must be found premature ...

The case concerns death of a young man and its circumstances have not been sufficiently cleared . It is still unknown in what way and why GPE was on a meadow in a place unknown to him , far from the police station which he had left at TIME on DATE .

It was also found that the last telephone call which ORG answered was at TIME and it was a conversation with PERSON [ the first applicant ] but the information where GPE telephone logged in at that time is missing . This should be completed as soon as possible . ”

The prosecutor further considered that it was crucial to find out what were the weather conditions on DATE , in particular the air temperature and the snow precipitations . He also ordered that the state of GPE ’s alcohol intoxication be examined on the basis of so called “ prospective examination ” ; the alcohol level in his blood was established only for the moment of his death . The prosecutor ordered therefore detailed hearing of all persons with whom ORG spent DATE of CARDINAL DATE as regards the amount and kind of alcohol drunk on DATE , amount and kind of meals he had , whether he had been tired , etc . The prosecutor considered that all these circumstances were crucial taking into consideration the version according to which ORG died of hypothermia . He also indicated a professor in GPE , a specialist in cases of hypothermia death and found out that the professor had been contacted by the prosecutor ’s office and had agreed to prepare the opinion requested however , for unknown reasons , the prosecutor decided not to request this evidence .

On DATE ORG resumed the investigation .

She requested an opinion of a forensic expert from ORG indicated by ORG on DATE . The expert GPE confirmed that ORG had died because of hypothermia . He further submitted that death of hypothermia usually happens in low temperatures but also when the temperature is above zero centigrade , between CARDINAL and CARDINAL . Air humidity and alcohol were other factors which influence the risk of death . The expert further excluded the possibility of establishing for how long GPE had been exposed to low temperatures finding that each person reacted differently to low temperatures and that additional factors such as weather conditions and air humidity could influence the result of such examination . As regards the presence of phenetylamine in GPE ’s blood the expert submitted that given many possible sources of this substance , such as various kinds of food , excessive physical effort , etc . , it was impossible to determine its origin in this particular case .

As regards ORG ’s blood samples the prosecutor found that their examination was impossible because too much time had passed from DATE on which they were secured .

As regards the indication to hear all persons with whom GPE celebrated his final exams on CARDINAL DATE the prosecutor established that on DATE at TIME and several friends had had been drinking alcohol at the student home . At TIME they all went to the city centre where they had a meal and subsequently went to a club where they were dancing and drinking beer . The details regarding the amount and kind of drinks and food that they had had were not established .

The prosecutor further referred to the data of a meteorological station in GPE and listed the average air temperature on DATE between DATE and DATE as well as average snow precipitations on DATE .

On DATE ORG discontinued the investigation . She concluded that due to evidence difficulties it was impossible to reproduce the course of events after GPE had left the police station . She further stated on the basis of the above - mentioned evidence , in particular the expert opinion , that CARDINAL persons had been involved in GPE ’s death .

On DATE the applicants appealed . In particular , they submitted that in the course of the investigation it was not clarified for what reasons and where from ORG had had hospital shoe covers in his pocket . They further submitted that ORG clothes were covered in mud ; its origin was likewise not cleared ; ORG had been found on the meadow covered with a thick layer of snow and therefore his clothes should normally not bear traces of mud . They again referred to the position in which the body had been found considering that a person who falls down because of exhaustion should have been found with his face down . They also pointed to the fact that in the challenged decision the prosecutor had considered that the examination of blood samples was impossible because of the lapse of time whereas previously , the prosecutor had refused to examine the blood samples and DNA test finding that these were immaterial for the present case .

On DATE ORG upheld the challenged decision . As regards the arguments raised in the applicants’ appeal , the court considered that they were a “ chain of suppositions leading the applicants to a conclusion that third persons were involved in M.O.s ’s death ” . Having referred to , in particular , the forensic expert evidence who confirmed that ORG had died of hypothermia , the court accepted the prosecutor ’s findings that no involvement of third persons in GPE ’s death could be discerned .

On DATE the investigation opened on DATE was severed and the part of it which concerned the alleged failure to perform their duties by the police officers GPE and PERSON was transferred to ORG .

On DATE ORG discontinued the investigation finding that no offence of abuse of power or failure to perform their duties had been committed by the police officers . The Prosecutor examined , among other things , whether the ORG son had been under the influence of alcohol at the time of his arrest . She found that according to the handwritten note made by the police officers GPE “ mumbled and was unsteady on his legs but he had documents on him , knew where he was and what was going on , the contact with him was logical . He assured that he would not drink more alcohol and come back straight to the university campus ” . She further found that according to the depositions of witnesses , ORG had been under the influence of alcohol but he was not drunk to such an extent which would require taking him to the sobering - up centre or which would raise suspicions that he might have problems getting home on his own . The Prosecutor further examined why the police officers who spoke with the applicants’ son on the critical night had not realised until DATE that the missing person they were looking for and GPE whom they had checked at TIME on DATE was the same person . She found that GPE ’s personal data had been established on the basis of his personal number ( ORG ) via telephone and entered into a handwritten note by CARDINAL of the police officers . ORG presence at the police station had not been saved in the police computer system , because at that time there was no access to the ORG system ( System of Police Information ) . The Prosecutor admitted that the above circumstances spoke for deficiencies in the communication within the police station in question , she found however that no prohibited behavior could be attributed to the police officers .

NORP The applicants’ lawyer appealed against this decision .


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)

The applicant was born in DATE and lives in PERSON .

He was employed by ORG , a company based in PERSON ( hereinafter “ the debtor ” ) .

Since the debtor had failed to fulfil its obligations toward its employees , the applicant brought CARDINAL separate civil claims , seeking payment of salary arrears and various social security contributions .

On DATE and DATE , respectively , ORG ( PERSON ) in PERSON rendered decisions ordering the debtor to pay the applicant certain sums . Both decisions became final on CARDINAL DATE .

Due to the debtor ’s failure to fulfil its obligations from these decisions , the applicant submitted an enforcement request . On CARDINAL DATE ORG ( PERSON ) in Požega issued an enforcement order to that effect .

On DATE ORG in Užice rendered a decision in the third set of civil proceedings brought by the applicant ordering the debtor to pay him an additional sum from the outstanding debt . On DATE this decision became final .

Due to the debtor ’s failure to fulfil its obligations from this decision , the applicant submitted an enforcement request . On DATE ORG in Požega issued an enforcement order to that effect .

On DATE ORG ( NORP sud ) in PERSON opened insolvency proceedings in respect of the debtor . As a result , all of the ongoing enforcement proceedings against the debtor were terminated .

NORP The applicant duly reported his claim based on the above - mentioned court decisions to the insolvency administration .

On DATE the court accepted the applicant ’s claim .

The insolvency proceedings in respect of the debtor are still ongoing .

The debtor , which operated as a socially - owned company , was privatised on DATE .

On DATE the privatisation was annulled because the buyer in question had failed to fulfil his contractual obligations .

Following the annulment of the debtor ’s privatisation the ORG owned PERCENT of shares in the company .

On DATE the ORG sold its shares to a private company .


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

NORP The applicant , the publishing house ORG ( автономная некоммерческая организация « Издательский дом “ LAW ” PERSON ) , is a NORP non - profit organisation . It was represented before the ORG by PERSON V. PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

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

NORP The applicant is the publisher of GPE Guberniya , a regional DATE . The applicant and the newspaper are CARDINAL distinct legal persons . In DATE CARDINAL officials sued the newspaper for defamation over an article about their encounters with the law . On DATE the ORG found the article ’s allegations false and ordered the newspaper to issue a retraction but refused damages for emotional distress . On DATE ORG affirmed the judgment .

According to ORG company register , in DATE the applicant was liquidated .


CASE OF ŠANTARE AND LABAZNIKOVS v. LATVIA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

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

On an unspecified date ORG ( “ the KNAB ” ) received information concerning allegedly unlawful activities of officials of ORG . Aiming to verify that information , the ORG launched operational proceedings ( operatīvā izstrāde ) . In the context of those proceedings the second applicant , who at that time was the owner of a chain of pharmacies in GPE , was summoned to the ORG to give statements about the activities of certain ORG officials supervising pharmaceutical matters in GPE .

According to the document ( uzziņa ) prepared by ORG on DATE and addressed to the ORG , on DATE an operational measure – the interception of the second applicant ’s telephone conversations DATE had been authorised until CARDINAL DATE . The document was based on “ ORG register of special proceedings ( lietvedība ) relating to classified State secrets for DATE , Volume CARDINAL , entry no CARDINAL of DATE ” .

Upon being summoned by the ORG , on DATE the second applicant went to its offices , where he was questioned by CARDINAL investigators , PERSON and J. Initially , he refused to cooperate and instead asked J. questions about his duties .

On DATE the second applicant arranged a meeting with J. away from the ORG ’s offices . On the ORG ’s behalf , the meeting was organised as an undercover operation under section CARDINAL ) of the Law on Operational Activities , and prior authorisation from a specially authorised prosecutor of ORG was obtained .

On CARDINAL and DATE CARDINAL meetings took place between the second applicant and J. During the second meeting , which was video and audio recorded by PERSON , the second applicant offered J. a bribe in the amount of CARDINAL NORP lati ( ORG ) and DATE payments of ORG CARDINAL in return for the cessation of any investigative activities concerning his business and the ORG officials connected with it . During the meeting the second applicant paid PERSON CARDINAL as a first instalment .

Meanwhile , the second applicant called the first applicant , who was a board member of the company he owned . He asked her to withdraw cash from the company ’s account . He explained that the money would be spent on “ protection ” . Their phone conversations were intercepted and recorded .

DATE , the second applicant arranged another meeting , during which he gave the investigator ORG CARDINAL . On DATE he was arrested by ORG officers .

After the second applicant ’s meeting with J. , on CARDINAL DATE the ORG instituted criminal proceedings for bribery . The second applicant was charged as a suspect . The charging decision was sent to ORG so that the prosecution could commence .

On DATE a prosecutor of ORG questioned the second applicant . The second applicant pleaded guilty and stated that the payments had been intended to prevent further investigation into his business activities .

In a letter of CARDINAL DATE the ORG informed the supervising prosecutor at ORG that the second applicant ’s phone had been tapped in accordance with section CARDINAL(CARDINAL ) of the Law on Operational Activities “ upon the authorisation of a judge of the ORG ” . The ORG asked for the recordings to be included in the criminal case file .

On DATE ORG brought a charge of aiding and abetting against the first applicant , and a charge of bribery against the second applicant .

On DATE both applicants were questioned by a prosecutor of ORG . The first applicant pleaded guilty .

On DATE , having studied the material in the criminal case file , the representative of the first applicant asked the prosecutor to disclose a document attesting to the lawfulness of the interception of the telephone conversations between both applicants . On DATE the supervising prosecutor dismissed that request , arguing that the decision to authorise interception of the telephone conversations of the applicant and other persons had been adopted under PERSON ) of the Law on Operational Activities , and therefore was not a procedural document . Moreover , the document had been classified as a ORG secret . The prosecutor also argued that the existence of such authorisation had been confirmed by the ORG , and that there were no grounds to question the validity of that confirmation . The first applicant did not appeal against that reply to a more senior prosecutor .

On DATE the criminal case concerning both applicants was referred to a court .

It appears that on DATE the representative of the first applicant sent a complaint about the activities of ORG officials in relation to the phone tapping to ORG . The prosecutor in charge replied that the phone tapping had been authorised by a judge of ORG , and that the ORG had not infringed any provisions of LAW . The prosecutor also stated that the information obtained as a result of the operational activities was open to assessment in the course of the criminal proceedings . The first applicant did not appeal against that reply to the Prosecutor General .

On DATE the FAC , acting as a first - instance court and presided over by Judge PERSON , acquitted the first applicant . The court found the second applicant guilty and gave him a suspended sentence of CARDINAL years’ imprisonment . He pleaded guilty during the hearing , therefore the court proceeded without assessing the evidence .

On DATE the prosecutor submitted an appeal contesting the acquittal of the first applicant , and asked for an immediate custodial sentence to be imposed in relation to the second applicant . He asked the appellate court to give a new judgment in respect of the parts of the original judgment which were contested . The second applicant submitted an appeal concerning the severity of his sentence .

DATE ORG , acting as an appellate court , held several hearings during which the second applicant pleaded guilty . The representative of the first applicant submitted that the case file did not contain any information pertaining to the authorisation of the interception of phone conversations , which had been the main evidence against her . During the hearing , the prosecutor confirmed orally that judicial authorisation had been obtained .

On DATE the appellate court adopted a judgment which upheld the prosecutor ’s appeal and quashed the disputed parts of the lower court ’s judgment . The appellate court found the first applicant guilty , giving her a suspended sentence of DATE imprisonment . It also revoked the suspension of the second applicant ’s prison sentence and he was taken directly to prison from the courtroom . The appellate court stated , inter alia , “ the court recognises all the evidence in the criminal case as admissible , on the grounds that the factual information has been obtained and established ( nostiprinātas ) in line with procedure and in accordance with the order set out by law ... ” .

In an appeal on points of law the first applicant argued that the tapped phone conversations should not have been admitted as evidence , as they had been obtained without proper authorisation . The second applicant submitted , inter alia , that the appellate court had not assessed the lawfulness of the phone tapping and had ignored the fact that the criminal case had contained no reference to any authorisation to carry out the above activity as prescribed by LAW of LAW . In this regard , he also submitted that the appellate court had consequently failed to observe that interference in a person ’s private life should be in accordance with the law , as required by LAW .

On DATE the ORG of ORG dismissed the appeal on points of law in open court . In response to the Article CARDINAL complaint , the ORG stated that the phone had been tapped “ in accordance with section CARDINAL of the Law on Operational Activities , and not as a special investigative measure under LAW of LAW ” .

Meanwhile , during a judges’ conference on DATE , the Minister of ORG stated in her opening speech :

“ DATE I would say that I , like the majority of you sitting in this hall , am powerless against the actions of our colleagues , which neither society nor I personally understand ” .

A DATE news report on DATE mentioned that the minister had admitted to journalists that she had been referring to the judgment adopted by Judge PERSON in her speech ( see paragraph CARDINAL above ) :

“ Yes , I am not authorised to comment on particular cases where the adjudication is still pending , but I consider that I have the right to express an opinion on behalf of other judges who carry out their work honestly . ”


CASE OF GEROVSKA POPČEVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE ORG , chaired at the time by LAW , who subsequently ( DATE ) became the Minister of ORG , asked ORG ( “ the ORG ” ) to review ( предлог за проверка ) a civil case ( no . PERSON . GPE ) which the applicant had adjudicated at first instance as president of a CARDINAL - judge panel . The case concerned compensation proceedings against the ORG .

On DATE ORG of ORG convened to draw up an opinion stating that there were grounds for instituting professional misconduct proceedings in respect of the applicant regarding civil case no . IV P.br . GPE . According to the record of that meeting , the opinion had been requested by Judge PERSON , who was the President of ORG at that time . The record did not list the members of ORG of ORG that adopted the opinion . According to the applicant , Judge PERSON was a member of ORG that adopted the opinion .

On DATE the ORG asked the plenary of ORG , under section CARDINAL of ORG of DATE ( “ the DATE LAW , see paragraph DATE below ) , to draw up a report on the issue of whether the applicant ’s dismissal from the office of judge would be justified .

On DATE the ORG , composed in accordance with LAW ( see paragraph CARDINAL below ) , instituted ( поведува постапка ) professional misconduct proceedings in respect of the applicant due to misapplication of procedural and substantive law in civil case no . IV P.br . GPE . It referred to the request submitted by ORG and further relied , inter alia , on the opinion of ORG of ORG . The applicant responded in writing .

In DATE CARDINAL members of the ORG ( all judges ) were appointed in accordance with Amendment XXVIII of the Constitution ( see paragraph CARDINAL below ) . V.G. , a member of the ORG , was nominated as the complainant ( овластен предлагач ) , as set out in LAW ( “ the CARDINAL Act ” , see paragraph CARDINAL below ) , in the applicant ’s case .

On DATE the plenary of ORG , chaired by Judge PERSON , drew up an opinion regarding the applicant ’s case . The relevant part of the opinion , signed by Judge PERSON , reads as follows :

“ The plenary of ORG ... unanimously endorses the complete [ text of ] the opinion of ORG and finds that there are grounds for dismissing ( the applicant ) for professional misconduct . ”

On DATE a hearing was held before ORG for determination of professional misconduct by a judge ( GPE за утврдување нестручно и несовесно вршење на судиската функција , hereinafter “ the Commission ” ) , set up under LAW of LAW ( see paragraph CARDINAL below ) . PERSON was not a member of ORG . Both the applicant , who was represented by legal counsel , and ORG submitted their arguments verbally . ORG also took into account the opinions of ORG and the plenary of ORG . On DATE it drew up a report , which it communicated to the ORG .

On DATE the plenary of the ORG , which included only CARDINAL of its members , namely CARDINAL judges elected by their peers , as well as the then Minister of ORG and Judge PERSON , who were ex officio members of the ORG ( see PERSON to the LAW , paragraph CARDINAL below ) , dismissed the applicant from the office of judge for professional misconduct . The ORG found that she had wrongly applied procedural and material law in civil case no . PERSON . GPE , which she had decided out of the established order in which cases should have been dealt with . The dismissal decision referred to the request submitted by ORG and further was based on evidence adduced at the hearing before the Commission , including the opinions of ORG and the plenary of ORG .

The applicant challenged that decision at second instance , namely before an appeal panel formed within ORG ( “ the Appeal Panel ” ) . Such panels were set up on an ad hoc basis in each separate case . As specified in section DATE CARDINAL Act ( see paragraph CARDINAL below ) , ORG was composed of CARDINAL judges , of whom CARDINAL were ORG judges , CARDINAL ORG judges and CARDINAL judges from the court of the applicant . On CARDINAL DATE ORG dismissed the applicant ’s appeal and upheld the ORG ’s decision . ORG included Judge PERSON , who had adjudicated in another case allegedly related to case no . PERSON . GPE . According to the applicant , her request for the withdrawal of Judge PERSON , a copy of which was not produced , was to no avail .

On DATE ORG rejected ( отфрла ) a constitutional appeal in which the applicant claimed that her dismissal had violated her freedom of conscience , freedom of thought and freedom of public expression . As regards the dismissal , ORG found that it had no jurisdiction to review the lawfulness of the ORG ’s decision . As to whether the applicant ’s dismissal affected her freedom of expression , the court held that a distinction had to be made between exercising the office of judge and that particular freedom . It ruled that the office of judge entailed the right and duty to adjudicate in accordance with the law , and that that right and duty did not form part of the rights and freedoms on which it had competence to decide under LAW ( У.бр.CARDINAL/CARDINAL ) .

The applicant submitted copies of several articles published DATE in the DATE newspapers ORG and GPE .

An article published on DATE quoted a report by ORG stating that the law had been wrongly applied in civil case no . IV P.br . GPE .

An article of DATE stated that ORG had confirmed that the applicant should be dismissed from office . It reported Judge PERSON as saying that the ORG in its new composition should follow their recommendations . In this connection , the article quoted Judge PERSON as saying :

“ We only gave a reminder that responsibility should be established ( треба да се сноси одговорност ) . ”

An article of DATE stated :

“ GPE , the President of the [ ORG , asked ( the ORG ) to dismiss ( the applicant ) for professional misconduct . ”

An article dated DATE published in the DATE newspaper ORG quoted Judge PERSON as saying , inter alia :

“ We will submit an opinion as to whether ( the applicant ) should be dismissed once the responsibility of other institutions has been established . For ORG , that there has been professional misconduct [ on the part of the applicant ] is beyond any doubt ( не е спорна нестручноста и несовесноста на судијката во случајов ) . ORG has already established that . ”


Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

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

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

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

On DATE ORG državno tužilaštvo ) issued an indictment against the applicant on suspicion that he had committed a war crime against civilians .

On DATE ORG ( PERSON ) in GPE ordered his detention .

On DATE the applicant was arrested . The same day he appealed against the detention order , which appeal was received at ORG on DATE at the latest .

On DATE the applicant complained to ORG that , inter alia , he had received no decision upon his appeal against the detention order .

On DATE ORG ( Apelacioni sud ) in GPE dismissed the applicant ’s appeal in this regard .

On DATE the applicant lodged a constitutional appeal . He submitted , inter alia , that ORG had failed to rule on his appeal against the detention order within TIME , contrary to the relevant domestic provisions in that regard ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE ORG acquitted the applicant and he was released . On an unspecified date thereafter the ORG decision would appear to have been quashed , but no order was given for the applicant to be re - detained .

On DATE ORG found a violation of LAW . In particular , the Constitutional Court established that ORG had not immediately transmitted the applicant ’s case - file to ORG for a ruling on his appeal against the detention order . Notably , on CARDINAL DATE ORG had sent the applicant ’s case - file to ORG , which had received it on DATE . DATE the case - file had been returned to ORG because certain documents had been served improperly on some of the co - accused in the same set of criminal proceedings . On DATE ORG had transmitted the documents to ORG , which court had received them on DATE and DATE had ruled on the applicant ’s appeal . The decision of ORG was served on the applicant on DATE .

NORP On DATE ORG acquitted the applicant , which judgment was upheld by ORG on DATE .

On DATE the applicant lodged a compensation claim , pursuant to the relevant provisions of the Criminal Procedure Code DATE ( see paragraph CARDINAL below ) , seeking both pecuniary and non - pecuniary damage for unlawful detention . The claim would appear to be currently pending before the first - instance court .

DATE lays down detailed rules as regards detention . In particular , paragraph CARDINAL provides that a detainee has the right to lodge an appeal against a detention order , on which the court shall rule within TIME .

Article CARDINAL provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the LAW , after all other effective legal remedies have been exhausted .

The LAW entered into force on DATE .

Section CARDINAL of LAW provided that a constitutional appeal could be lodged against an individual decision of a State body , an administrative body , a local self - government body or a legal person exercising public authority , for violations of human rights and freedoms guaranteed by LAW , after all other effective legal remedies had been exhausted .

Sections CARDINAL provided additional details as regards the processing of constitutional appeals . Section CARDINAL provided that if the impugned decision had lost its force ( prestalo pravno dejstvo ) by the time ORG ruled on the constitutional appeal , ORG would only find a violation if it considered that a human right or freedom was breached .

None of the sections provided for a possibility for ORG to award damages .

This Act entered into force in DATE .

At the relevant time LAW provided , inter alia , for an obligation of the courts to conduct the proceedings without delay , and to keep the duration of detention to the shortest time needed .

Article CARDINAL § CARDINAL provided for a duty of all the bodies involved in criminal proceedings to act with particular urgency if the accused was in detention .

Article CARDINAL provided , inter alia , that a detainee could appeal against a detention order within TIME . The appeal , the detention order and other relevant documents were to be immediately forwarded to the panel of judges , which was to rule on the appeal within TIME .

Articles CARDINAL , CARDINAL § CARDINAL and CARDINAL of this LAW correspond , in substance , to sections DATE , CARDINAL § CARDINAL and CARDINAL of LAW DATE .

Articles CARDINAL - CARDINAL set out details as regards compensation for , inter alia , unlawful detention . Article CARDINAL , in particular , provides that an individual is entitled to compensation if he or she was in detention and was subsequently acquitted by means of a final judgment .

This Code entered into force on DATE , repealing the DATE Code , except for LAW , which ORG is not relevant in the present case .

Sections CARDINAL , CARDINAL and CARDINAL of LAW , taken together , provide , inter alia , that anyone who has suffered fear , physical pain or mental anguish as a consequence of a breach of his reputation , personal integrity , liberty or other personal rights ( prava ličnosti ) shall be entitled to seek injunctive relief , sue for financial compensation and request other forms of redress “ which might be capable ” of affording adequate non - pecuniary satisfaction .

Section CARDINAL provides , inter alia , that a legal entity ( pravno lice ) , which includes the ORG , shall be liable for any damage caused by CARDINAL of its bodies to a “ third person ” in the course of performing its functions or in relation thereto .