Remainder inadmissible;No 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)

George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The first , second , third and fourth applicants were born in DATE and DATE respectively . The second and fourth applicants are the first applicant ’s sons and the third applicant is his brother . The first , second and fourth applicants live in GPE , GPE .

New political forces came to power in GPE ( “ the AAR ” ) in DATE , following the so - called “ Rose Revolution ” which occurred in the country in DATE ( see ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , ECHR DATE ) .

On DATE the first applicant , who had previously held the posts of PERSON Deputy Minister of the ORG and President of ORG , was charged , amongst other offences , with abuse of authority and extortion .

On DATE ORG of the ORG initiated proceedings before ORG to confiscate wrongfully and inexplicably acquired property from the applicants under LAW ( CARDINAL ) of LAW ( “ the ORG ” ) and LAW and CARDINAL of LAW ( “ CAP ” ) ; the legislative provisions in question had been adopted on DATE .

NORP The public prosecutor affirmed that he had reasonable grounds to believe that the salaries received by the first applicant in his capacity as Deputy Minister of the ORG DATE and President of ORG DATE could not have sufficed to finance the acquisition of the property , which had occurred during the same time span , by himself , his sons and his brother .

NORP The prosecutor attached to his brief numerous items of evidence ( CARDINAL documents ) which showed that , on the one hand , the first applicant had earned CARDINAL and MONEY ( ORG ) respectively in official salaries when he had occupied the above - mentioned CARDINAL posts in ORG , whilst , on the other hand , the total value of the property that he and the other applicants had acquired corresponded to some EUR CARDINAL ( CARDINAL NORP laris ( GEL ) ) . The latter figure was based on the expert opinions of CARDINAL independent auditors who had conducted an assessment of the disputed property on DATE .

NORP The public prosecutor therefore requested ORG to rule that the items of property concerned , which are listed below , should be confiscated from the applicants and transferred to the ORG .

The first applicant ’s property included :

( a ) a house located at DATE FAC , GPE ;

( b ) a house located at CARDINAL FAC , GPE ;

( c ) the first floor of a house located at TIME , GPE ;

( d ) a share in the capital of FAC , PERSON ;

( e ) a ORG car ;

( f ) a flat located at FAC , PERSON .

The second applicant ’s property included :

( g ) CARDINAL guest houses located at DATE Street , PERSON .

The third applicant ’s property included :

( h ) a house located at CARDINAL FAC , GPE .

The fourth applicant ’s property included :

( i ) a flat located at DATE FAC , GPE ;

( j ) a flat located at CARDINAL - CARDINAL FAC , GPE ;

( k ) a flat located at DATE Abashidze Street , GPE ;

( l ) a house located at CARDINAL General PERSON ;

( m ) a house located at CARDINAL FAC , GPE .

On DATE the ORG accepted the public prosecutor ’s request for an examination on the merits . It transmitted the prosecutor ’s brief together with all the supporting documents to the applicants , inviting them to submit their written replies and attend an oral hearing scheduled for DATE .

As attested by the relevant postal acknowledgements of receipt , ORG subpoenas were duly served at CARDINAL applicants’ home addresses , but only the second applicant , represented by legal counsel , filed written comments on DATE .

The second applicant submitted that the property mentioned at ( b ) above in fact belonged to him and not to the first applicant . To prove it he produced a contract of sale dated DATE , between himself and a certain ORG a document from ORG . He stated that he had purchased the property for ORG CARDINAL,CARDINAL . His father - in - law , with whom the second applicant and his wife lived after they married , had helped him purchase the property . He produced a certificate from the bank stating that his father - in - law had taken out the loan , as well as statements by different witnesses .

The second applicant further explained that the property mentioned at ( f ) above belonged to Mr GPE , who was neither a close relative nor in any way connected with the first applicant . It was therefore not subject to confiscation .

As to the property mentioned at ( g ) above , the second applicant alleged that the first applicant had had no part in purchasing or renovating it and that he , the second applicant , was the sole owner . He had bought the property from a lady for ORG CARDINAL,CARDINAL with the help of his godfather , PERSON , who had allegedly lent him MONEY ( ORG ) to renovate the site .

In sum , the second applicant requested that the properties mentioned at ( b ) and ( f ) and ( g ) above be removed from the confiscation list , and that due consideration be given to the evidence he had presented showing that the property concerned had not been wrongfully acquired .

As the first , third and fourth applicants failed to submit written arguments or appear before ORG on DATE , the latter decided to postpone the hearing until DATE . The relevant subpoenas were again duly served at those applicants’ home addresses , but none of them appeared before the court , either in person or by designating an advocate , on the second occasion either .

ORG opened a hearing on DATE which the first , third and fourth applicants and their lawyers failed to attend , without giving reasons . It was attended by the second applicant ’s lawyer , who additionally pleaded that the property mentioned at ( d ) above also belonged to him , but that he was giving it to the ORG as a gift . In response , ORG changed the name of the defendant in that part of the case and named the second applicant as the owner of the property concerned . The second applicant further explained that in addition to the money his godfather had lent him , he had bought and renovated the property mentioned at ( g ) above with his salary as the director of a company in which he owned CARDINAL of the shares . According to TIME of that company ’s board meeting of DATE , the profit generated by its activities was EUR CARDINAL .

On DATE the ORG gave judgment in the absence of the first , third and fourth applicants , who had been notified twice but had failed to appear without good reason ( LAW ( CARDINAL ) of the ORG ) .

Thus , ORG ordered the confiscation of the property belonging to the first applicant listed under ( a ) , ( c ) and ( e ) , that belonging to the second applicant listed under ( d ) and ( g ) , and that listed under ( i ) to ( m ) belonging to the fourth applicant . It considered in particular that the sums of ORG CARDINAL,CARDINAL and ORG CARDINAL,CARDINAL which the first applicant had earned as Deputy Minister of the ORG and President of ORG respectively could not have sufficed to acquire the property in issue , and that the other applicants did not earn enough either . The salaries the first applicant earned were only enough to provide for the needs of a family of CARDINAL . The court stated that the applicants , in particular the CARDINAL who had failed to appear before the court , had failed to discharge their burden of proof by refuting the public prosecutor ’s claim .

As regards the property mentioned at ( g ) above , ORG concluded that the second applicant had failed to prove the lawful origins of the money he had used to acquire the property , which had been valued by independent auditors who had assessed both the plot of land and the CARDINAL guest houses situated on it at no less than ORG CARDINAL,CARDINAL .

Furthermore , ORG of Ajara considered it established that the property mentioned at ( b ) above belonged to the second applicant and that the property mentioned at ( f ) belonged to a third party . The prosecutor ’s case concerning these QUANTITY properties was thus dismissed : concerning the first property , the court accepted the second applicant ’s arguments as to its lawful origins .

As regards the third applicant ’s property mentioned at ( h ) above , it was established that this was a family home unrelated to the first applicant ’s activities . However , as the property had been refurbished while the first applicant was in public office , making it worth ORG CARDINAL according to an official valuation , the third applicant was ordered to pay the ORG compensation in the amount of ORG CARDINAL .

All CARDINAL applicants , represented by legal counsel , as well as the public prosecutor , appealed against the first - instance court ’s judgment of DATE .

The applicants requested that the confiscation proceedings be suspended pending the termination of the criminal proceedings against the first applicant . They complained that the burden of proof had been shifted onto them in the confiscation proceedings . The first , third and fourth applicants also complained that they had not been given an opportunity to submit their arguments before the first - instance court . The first applicant additionally complained that he had been denied the right to be presumed innocent in the confiscation proceedings .

On DATE the first applicant ’s wife asserted before ORG of GPE that she and her son , the fourth applicant , were the owners of the property mentioned at ( m ) above . She explained that she was a NORP national and had sold the family house in the GPE region , with her ORG consent , to buy the property in GPE , where her NORP relatives would spend DATE .

On DATE a third party , Mr PERSON , applied to ORG of GPE , stating that the decision of ORG concerning the property mentioned at ( a ) above was unlawful because the property had previously belonged to him and was currently the subject of a dispute between himself and the first applicant . On DATE Mr Tchitchinadze sent ORG of GPE a decision of ORG dated DATE recognising him as the owner of the property in question . He requested that his property be removed from the confiscation list submitted by the public prosecutor ( for more details , see GPE v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ) .

At the hearing the CARDINAL applicants’ legal counsel contended that the case concerning the first , third and fourth applicants should be remitted for fresh examination because the CARDINAL men had not been able to participate in the proceedings at first instance . He further complained that the evidence presented by the second applicant had not been given due consideration .

On DATE ORG of GPE set aside the first - instance decision only in so far as it concerned the property mentioned at ( a ) above , the house located at QUANTITY in GPE , acknowledging that the estate was the property of Mr PERSON ( for further details see GPE , cited above , § § DATE ) . For the remainder , it followed the reasoning of ORG , namely that the first applicant ’s income was not sufficient for him and his family members to have acquired the properties in issue , whilst the other applicants’ income was also insufficient . Concerning the arguments of the first applicant ’s wife , ORG of GPE noted that the land register named only the fourth applicant as the owner of the property mentioned at ( m ) above .

On DATE the first applicant lodged a constitutional complaint . He argued that LAW ( CARDINAL ) of LAW ( “ the ORG ” ) and LAW and CARDINAL of LAW ( “ the ORG ” ) , adopted on DATE , were contrary to the following constitutional provisions LAW CARDINAL ( prohibition of discrimination ) , Article CARDINAL ( protection of property ) , Article CARDINAL ( presumption of innocence ) and Article CARDINAL § § CARDINAL and CARDINAL ( no criminal punishment without law and prohibition of retroactive application of criminal law ) of the LAW of GPE .

In his constitutional complaint the first applicant mostly reiterated the arguments that he had previously submitted before ORG of GPE . In particular , he complained that the confiscation of his property and that of his family members amounted to a criminal punishment being imposed on him in the absence of a final conviction establishing his guilt , and that he should not have been made to bear the burden of proving his innocence , that is , the lawfulness of the disputed property . He also complained that the confiscation of the property in such circumstances was in breach of his right to be presumed innocent of the corruption charges . The first applicant also stated that he and his family had acquired the property in question well before the amendments of CARDINAL DATE were enacted and that , consequently , the retroactive extension of those provisions to their situation was unconstitutional . For those reasons , he argued that the confiscation procedure provided for by the impugned provisions of the ORG and ORG had been arbitrary and amounted to a violation of the constitutional guarantee of protection of his private property .

By a judgment of CARDINAL DATE ORG , after having heard the parties’ arguments and evidence from a number of legal experts and witnesses , dismissed the first applicant ’s complaint as ill - founded on the basis of the following reasoning .

First , drawing an analogy with LAW No . CARDINAL to the Convention , ORG stated that the NORP constitutional provision protecting the right to property ( LAW ) likewise did not exclude the possibility of deprivation of property if such a measure was lawful , pursued a public interest and satisfied the proportionality test . The court then went on to emphasise that only lawfully obtained property enjoyed full constitutional protection ; in the first applicant ’s case there had been a legitimate suspicion as to the lawful origins of the property , a suspicion which he and his family members had been unable to refute in the course of the relevant judicial proceedings .

The Constitutional Court further stated that the administrative confiscation proceedings provided for in LAW ( CARDINAL ) of the ORG and LAW and CARDINAL of the ORG , could in no way be equated with criminal proceedings , as no determination of a criminal charge was at stake ; on the contrary , such proceedings were a classic example of a civil dispute between the ORG , represented by the public prosecutor , and private individuals . Given the “ civil ” nature of the proceedings in question , it was acceptable that the burden of proof in the proceedings should be shifted onto the respondent , the second applicant . Referring to its own comparative legal research and the ORG ’s judgments in the cases of PERSON GPE ( CARDINAL DATE , § § DATE , Series A no . CARDINAL ) and ORG v. GPE ( DATE , § § DATE , Series A no . CARDINAL ) , ORG added that such civil mechanisms , involving the forfeiture of the proceeds of crime or otherwise unlawfully obtained or unexplained property , were not unknown in a number of NORP democracies , including GPE , GPE and GPE .

As to the issue of the alleged retroactivity of the application of the amendment of CARDINAL DATE introducing the administrative confiscation procedure , and the second applicant ’s presumption of innocence , ORG ruled that since the proceedings in question had been “ civil ” and not “ criminal ” , the above - mentioned criminal - law guarantees could not apply . Furthermore , the amendment of CARDINAL DATE had not introduced any new concept but rather had regulated anew , in a more efficient manner , the existing measures aimed at the prevention and eradication of corruption in the public service . In particular , ORG referred to LAW , which had required all public officials not only to declare their own property and that of their family and close relatives , but also to show that the declared property had been acquired lawfully .

ORG concluded that the amendments of CARDINAL DATE undoubtedly served the public interest of intensifying the fight against corruption and that the test of proportionality had also been duly satisfied during the confiscation proceedings , which had been conducted fairly before the domestic courts .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

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

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

According to the applicant , on DATE at TIME the applicant and PERSON were walking down the street in their town . A white Lada car drove up to them and stopped . CARDINAL persons in plain clothes got out , CARDINAL of whom was a local police lieutenant , PERSON . While Ts . was talking to the applicant and PERSON , CARDINAL more vehicles – an ORG and a ORG DATE drove up . CARDINAL men in plain clothes got out of the cars . They pushed the applicant into CARDINAL of the cars . PERSON broke free and escaped .

The individuals who had arrested the applicant took him to an office on the third floor of the police station , where they punched and kicked him and insulted him , shouting that “ all Ingush should be crushed ” . From time to time they put a black plastic bag over his head to suffocate him . They took off his shoes and beat him on his heels . When the applicant lost consciousness , they poured cold water over him to revive him . They then took him to another office on the first floor .

There the policemen planted a grenade in the pocket of his jacket . They searched him and “ found ” the grenade . The applicant was then interviewed by the investigator . During the questioning , he told the investigator about the arrest ( abduction ) and the planting of the grenade .

According to the ORG , on DATE at TIME the police officers asked the applicant to go with them to the police station . The applicant refused , shouting obscenities . His reaction made the officers suspect that he might be in possession of a weapon which he could use against them . They made the decision to use force to arrest the applicant , and when he resisted they restrained him , using a combative technique . The police officers then took the applicant to the police station , where he was subjected to a medical examination due to his inebriated state . The medical report prepared on DATE indicated that the applicant did not have any injuries .

On DATE the investigator questioned the police officers who had carried out the applicant ’s arrest . Police captain PERSON submitted that the decision to arrest the applicant had been taken on the basis of “ operative ” information received on DATE that the applicant was in possession of firearms and ammunition and that he was the leader of a group of young people of Ingush ethnic origin who disturbed peace in the town and provoked tension between PERSON and Ossetian population . He stated that the policemen had stopped the applicant in the street , and had then put him in the car and taken him to the police station , where they had searched him and found a grenade . Lieutenant PERSON . confirmed PERSON ’s statement as regards the applicant ’s arrest .

On DATE police captain NORP instituted criminal proceedings against the applicant on the charge of illegally possessing a grenade . At TIME the applicant signed an undertaking not to leave town and was released pending investigation .

On DATE the applicant ’s parents retained a lawyer to represent him . The lawyer filmed the applicant ’s injuries using her mobile phone .

On DATE forensic medical expert GPE . examined the applicant . The applicant submitted that on DATE a group of persons unknown to him had “ beaten him up ” . They had kicked him , had beaten him with a stick and had throttled him . The medical expert documented the following injuries : “ a bruise near the upper edge of the right shoulder blade measuring CARDINAL by QUANTITY ... [ ; ] similar bruises on the rear surface of the chest at the level of DATE ribs measuring CARDINAL by QUANTITY and on the rear surface of the chest at the level of DATE ribs measuring CARDINAL by QUANTITY ; [ bruises ] near DATE vertebrae measuring CARDINAL by QUANTITY ” . The expert concluded that the bruises resulted from the impact of blunt solid objects , possibly at the time and in the circumstances indicated by the applicant .

On DATE the prosecutor ’s office discontinued the criminal investigation against the applicant on the charge of illegally possessing a grenade and advised him of his right to “ rehabilitation ” . The prosecutor found as follows :

“ The investigative actions were conducted in violation of [ the rules of criminal procedure ] and the proceedings should be discontinued in view of the following :

The case file contains no information as regards the reasons for the [ applicant ’s ] arrest ;

[ The applicant ] was not searched at the place of his arrest ... ; instead , the search was carried out at [ the police station ] ;

In contravention of [ the rules of criminal procedure ] , ... the taking of the [ applicant ’s ] fingerprints was not documented ... ;

The case file contains no evidentiary material as regards the examination of the grenade or the detection and recovery of the fingerprints ; accordingly the findings set out in the forensic dactyloscopic expert report must be regarded as inadmissible evidence ... . ”

On DATE the deputy municipal prosecutor opened a criminal investigation into the applicant ’s unlawful arrest and detention at the police station . On DATE the applicant was given victim status in respect of the crime and questioned as to the events of CARDINAL DATE .

The criminal investigation into the applicant ’s allegations about his illtreatment in police custody was discontinued on several occasions . The decisions in this regard were taken on DATE , CARDINAL DATE and DATE , and CARDINAL DATE .

On DATE the decision of CARDINAL DATE was quashed and the case was re - opened . The acting head of the regional investigative committee held that the earlier investigation had been perfunctory and ordered further investigation .

On DATE the deputy regional prosecutor studied the evidence in the applicant ’s case file and identified the following defects in the investigation : ( CARDINAL ) the investigating authorities had failed to complete all the necessary actions in order to clarify the facts in connection with the alleged ill - treatment ; ( CARDINAL ) no findings had been made as regards the existence of the applicant ’s injuries ; ( CARDINAL ) the contradictions in the statements made by the forensic medical expert and the applicant had not been reconciled ; ( CARDINAL ) the investigating authorities had failed to question the forensic medical expert and the forensic expert who conducted a dactyloscopic examination ; ( CARDINAL ) the investigating authorities had failed to establish whether the police had conducted an internal inquiry in response to the applicant ’s allegations of ill - treatment ; ( CARDINAL ) the investigating authorities had not conducted a faceto - face confrontation between the police officers and the applicant in order to reconcile the contradictions in their statements ; ( CARDINAL ) the investigating authorities had failed to identify the persons who had been present at the police station when the applicant was searched .

It appears that the criminal investigation is still ongoing at the present time .

According to the Government , on DATE the ORG found the applicant guilty of robbery and sentenced him to DATE imprisonment . On DATE the applicant was released on parole .


CASE OF SIMON PRICE v. THE UNITED KINGDOM

No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms) read in the light of Article 6 - (Art. 6) Right to a fair trial (Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses)

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

The applicant was born in DATE and is currently detained in HMP Long Lartin .

DATE and DATE the applicant was tried before a judge and jury in ORG at Snaresbrook for various offences relating to an attempt , together with other unknown persons , to import cocaine worth ORG CARDINAL into GPE from GPE via ports in the GPE and GPE .

Pursuant to Her ORG policy , notes of recordings of trials are destroyed after DATE . Although the present application was lodged with the ORG in DATE , consideration of the applicant ’s complaints was adjourned pending judgment in PERSON and PERSON v. the GPE [ ORG ] , ORG . CARDINAL and ORG Consequently , by the date ORG received notice of the application , transcripts of the applicant ’s criminal trial had for the most part been destroyed .

NORP However , from the information available , the circumstances of the trial which give rise to the present application may be summarised as follows .

On DATE a ship called the “ PERSON ” entered the port of GPE . Part of the cargo was a single container which contained palletised drums of molasses from GPE , GPE . The following day the container was searched by customs officials and certain drums – purportedly containing molasses – were found to contain QUANTITY of high purity cocaine worth GBP CARDINAL . The officials refilled the drums with dummy contents and the ship continued to GPE where the container was offloaded . The applicant was arrested and interviewed on DATE , shortly after contacting ORG and ORG to make enquiries about the container . He was charged , inter alia , with assisting in the commission outside GPE of an offence punishable under the law of GPE ( the export of drugs from that country ) , contrary to section CARDINAL of ORG DATE , and with the attempted importation of drugs to GPE .

There were allegations that the applicant had been involved in “ jury fixing ” in a previous , unrelated trial . Therefore , before the trial the prosecution applied to the court for the following security measures :

the assignment of a security team to chaperone the jury at all times ;

the identification of the jury by number and not by name ;

the verification by police of the identity of anyone wishing to enter the courtroom ’s public gallery ;

the search of members of the public entering the building ;

the retention of all NORP mobile telephones during the trial ;

the erection of protective screens to shield the jury and the applicant from the public gallery ; and

the covering of the glass panels in the doors to the court room to prevent people seeing into the room .

The defence were informed of the application and given the opportunity to oppose it . They initially did so on the basis that the protective screens , taken together with the other security measures , would lend a sinister feel to proceedings which would be likely to prejudice the applicant in the eyes of the jury . However , at the conclusion of argument the defence indicated that they were prepared to withdraw their objections provided that the whole of the public gallery was covered rather than just part of it , as had been originally suggested . The trial judge therefore made the order requested .

The defence subsequently attempted to withdraw that concession on the basis that the physical appearance of the screens was more imposing than had been anticipated . They again suggested that the whole trial could be heard in camera but this proposal was rejected by the trial judge , who did not consider that the screens could in any way impinge upon the fairness of the trial .

It was accepted by the prosecution and the defence that the main issue in the case was whether or not the applicant had intended to import drugs into GPE .

It was the prosecution ’s case that the applicant had purchased the cocaine in GPE under the assumed name of “ PERSON ” , the manager of a company called Premier PERSON , and that he had intended to import the cocaine into GPE . The shipment containing the cocaine had been the last of CARDINAL shipments procured by Premier PERSON from GPE . The previous CARDINAL shipments had been delivered via GPE to various locations in GPE , including to an address belonging to an acquaintance of the applicant . There was evidence of telephone calls between the applicant and his acquaintance , which coincided with the deliveries , as well as payments by the acquaintance to the applicant ’s account in GPE . It was suggested by the prosecution that the previous CARDINAL shipments had been practice runs for the fourth shipment , which contained the cocaine . Although there was CARDINAL witness in GPE who stated that the drums containing the cocaine were to be offloaded in GPE and transported to the GPE ( see paragraph CARDINAL below ) , the prosecution argued that this had been an attempt by the applicant to set up a defence should he be caught .

VO , who was based in GPE , was the customs broker for Premier LOC shipping agents .

VO was responsible for issuing each shipment with an agricultural import licence to confirm that the shipment complied with ORG quotas . He was also responsible for guaranteeing the payment of duty on each shipment .

He made CARDINAL separate statements DATE and DATE . He also supplied the prosecuting authorities with the original files relating to all CARDINAL shipments from GPE . This included all documents relating to the first CARDINAL shipments , for which he had arranged carriage to GPE , and correspondence from PERSON asking him to arrange transport for the fourth shipment to GPE .

Having provided the statements and documentary evidence , ORG refused to give live evidence at the applicant ’s trial . ORG ’s explanation for refusing to attend court was recounted in the evidence of ORG , a GPE customs official who had been present when ORG was interviewed in GPE . According to ORG ( who gave evidence at trial ) , ORG believed that , in accordance with NORP practice , having spoken to investigators on CARDINAL separate occasions , he had done enough .

The prosecution made several attempts to convince ORG to appear as a witness before the trial began . In particular , they wrote to him emphasising the importance of his evidence , making it clear that all expenses would be met and inconvenience kept to a minimum , and informing him that if he did not attend his previous assistance might be wasted . They also tried to reach him through his employer but were told that he was on leave and could not be contacted .

Despite knowing of LOC ’s reluctance to attend for DATE before the trial , the prosecution opened their case referring to his evidence . DATE into the trial , when it became clear that LOC would not testify , the trial judge directed the prosecution to contact him again . In a letter to LOC , the prosecution offered various options to him , including giving evidence via live video link from his home in GPE . Meanwhile , the defence also wrote to him seeking clarification on apparent inconsistencies in his account . All of these efforts were ignored .

Leave was then given for ORG ’s statements to be read to the jury pursuant to section CARDINAL of LAW DATE .

When interviewed , ORG provided information about the logistical arrangements for the routing of the fourth shipment to GPE . He stated that :

“ It was clear for [ sic ] all the files that the destination of the load was GPE . Premier PERSON had already applied for an import licence for GPE for the job relating to the container and sent it to us . The transport operation ultimately did not take place because I did not receive an original bill of lading ; that meant it was physically impossible for me to take delivery of the container . ”

He also gave evidence of his previous dealings with “ PERSON ” . He explained that , whilst they had never met in person , he and PERSON had done business in DATE and DATE , at the time of the importation of CARDINAL of the earlier CARDINAL shipments , both of which had been destined for GPE .

VO ’s statements referred to a telephone call he had received from a woman at Premier PERSON , who told him that the contents of the container were not to be imported to GPE but instead sold to a NORP company . He had asked her for written instructions and details of the NORP firm , but none was ever given .

A GPE customs officer , GPE , referred in his evidence at trial to a conversation between the NORP shipping agents and a woman from Premier PERSON who he believed was called “ N ” . This would appear to be the same telephone call referred to by LOC ( see paragraph CARDINAL above ) . However , in CARDINAL of his statements VO indicated that he did not know of anyone called “ N ” in connection with the case .

The applicant claimed that ORG could only have obtained this information by the interception of the telephone call . He further claimed that , as a consequence , the “ discrepancy ” between the evidence of ORG could not be further investigated as the prosecution indicated that there was a danger that the prohibition on the disclosure of intercept evidence ( including telephone intercept evidence ) might be compromised ( see sections CARDINAL and CARDINAL of ORG ( “ RIPA ” ) at paragraphs CARDINAL below ) . However , the Government have submitted a transcript of ORG evidence which demonstrates that the prosecution did not object to any question based on the prohibitions in ORG .

DATE prior to ORG giving evidence a discussion had taken place between the trial judge and counsel in the absence of the jury . The discussion touched on issues of intercept evidence and on the “ N ” call . In the course of the discussion , the defence argued that , since they could not seek disclosure of intercept evidence , when any such issue arose the prosecution should be obliged to satisfy themselves that there was nothing in the material to which they had or could have access which would either undermine their case or assist the defence case . The prosecution neither confirmed nor denied that any interception had taken place , or that they had or had not sought any intercept material . However , they confirmed that they had revisited their duty of disclosure and had nothing further to add . The trial judge subsequently declined to make any ruling on the issue .

The prosecution led evidence that “ PERSON ” was a false identity assumed by the applicant in the context of business carried out on behalf of Premier PERSON . In particular , they submitted evidence from ORG that there was no record of any person by that name . There were also CARDINAL witnesses from GPE who identified the applicant as PERSON and faxes in the name of PERSON sent from the applicant ’s address .

NORP The prosecution relied on various pieces of logistical evidence which supported their contention that , as with the previous CARDINAL shipments , the true destination of the fourth shipment was GPE . This included details of bank transactions , the issuing of shipping licences and other similar communications between Premier PERSON and VO , and the fact that PERSON had pushed for early delivery of the shipment to GPE . The paperwork relating to the fourth shipment was consistent with that relating to the previous CARDINAL shipments .

Finally , the prosecution invited the jury to draw adverse inferences as to the applicant ’s guilt based on his failure to disclose facts material to his defence when first interviewed . These “ material facts ” included his apparent belief that he was importing cannabis into the GPE and his allegation that LOC was a party to the conspiracy ( see paragraph CARDINAL below ) .

The applicant ’s initial defence was that he believed that he was arranging a shipment of sugar but had been duped by business associates into arranging the importation of drugs . However , during the trial it came to light that he was fabricating evidence to concoct this defence . Consequently , the applicant admitted that this defence was untrue . Thereafter , he advanced a new defence , which was that he had been involved in a conspiracy to traffic cannabis from GPE to the GPE ( via GPE ) and that LOC had been party to this conspiracy . He continued to deny the main count on the indictment , which concerned the attempted importation of drugs to GPE . However , on DATE he pleaded guilty to the separate offence under LAW of ORG DATE ( see paragraph CARDINAL above ) .

The applicant relied heavily on the evidence of CARDINAL of the shipping agents in GPE , ORG , who recalled a conversation in which the applicant told him that the drums which were later found to contain drugs were to be unloaded at GPE .

The applicant accepted that import licences for the fourth shipment had been made out for GPE but claimed that this had been a mistake by customs . Those licences had been returned by Premier PERSON using registered delivery and replaced with the appropriate licences for the GPE .

The trial judge ’s summing - up contained the following directions to the jury .

On the measures taken to ensure the safety of the jury , the trial judge said :

“ Let me remind you of what I said at the beginning of the case about the special security measures taken during the trial . These precautions exist to protect both you , you the jury , and the defendant from any outside interference . Perhaps , as I said at an early stage when we started , it may be that I am being overly cautious , but make no mistake about it at all , none of these measures are to be regarded as any reflection whatsoever on the defendant and they are entirely irrelevant to the issue as to whether he is ‘ guilty’ or ‘ not guilty’ and we all know that something can appear sinister , which on investigation turns out to be completely innocent . We had , perhaps , an example of it during the case , when someone feared that their spouse was being followed , the matter was fully investigated and although rightly reported to me , it was , in fact , completely innocent . It just demonstrates how careful we must be and assumptions can often be wrong . ”

In relation to the reading of LOC ’s statements , the trial judge directed the jury :

“ [ ORG you know the general rule in the courts is that unless evidence is agreed it has to be given orally from the witness box , unless there is an admission , or there is an agreement on both sides .

Well there is no agreement as to the accuracy of what [ VO ] says . On the contrary , the prosecution have been allowed to adduce the evidence ; the defence do not accept a word of it - they say that he is on it and that he has acted in a thoroughly dishonest way . ”

He then considered the practical difficulties that arose in relation to LOC ’s evidence :

“ [ ORG he did not come to court , his evidence does have certain limitations and I want to draw them to your attention .

First of all , when someone ’s statement is read out , you do not have the opportunity of seeing him in the witness - box , seeing him in the flesh and sometimes when you do see a witness in the flesh you do get a much clearer idea of whether that evidence is honest and accurate .

Secondly , his evidence has not been tested by the defence under cross - examination and , therefore , you have not had the opportunity of seeing how the evidence survived that form of challenge or test . So you must , therefore , consider the evidence of [ VO ] in the light of those limitations and you should only act upon it if , having taken those matters into account , you are , nevertheless , sure that it is reliable . ”

The trial judge gave a similar warning as to the limitations of LOC ’s evidence in the absence of cross - examination just before he summarised LOC ’s evidence .

After this , and having reviewed the efforts made to oblige ORG to attend court , the trial judge stated :

“ What I seek to emphasise , in fairness to the defendant is that when you assess the evidence of [ VO ] , you look at all the circumstances , throw it all into the melting pot , all the warnings that I have given you , take it all into account and then decide the weight you can properly attach to it ; it is a matter for you . ”

Whilst they were considering their verdict , the jury asked for DATE but was refused DATE copies of the transcripts of LOC ’s statements . Instead , the trial judge re - read the relevant part of his summing - up summarising those statements . Having done so , he also reminded the jury of the criticism which had been made of the statements by the defence and of his previous warnings to them .

NORP The applicant was convicted unanimously by the jury on DATE . He appealed against his conviction to ORG .

The application for leave to appeal was initially considered and rejected by a single judge of ORG .

The applicant then renewed his application to the full court , which dismissed the appeal on DATE .

There were CARDINAL grounds of appeal before ORG which are relevant to the present application .

First , it was argued that the admission of VO ’s statements had violated LAW and , in particular , that the trial judge would never have allowed the statements to be read had he been aware that ORG evidence regarding the “ N ” telephone call would cast doubt on ORG ’s reliability .

Secondly , the applicant argued that the prosecution had failed to comply with their duty of disclosure under LAW in respect of the telephone conversation involving LOC and “ N ” , since this had been important exculpatory evidence .

Thirdly , the applicant maintained that either evidence of the interception of the telephone conversation should have been disclosed to the trial judge or the trial should have been abandoned .

Fourthly , again relying on LAW , the applicant argued that the security measures in place to protect the jury had violated his right to a fair trial . In support of this fourth ground , he relied on a witness statement prepared by a journalist who had tried to cover the trial . In the statement the journalist indicated that when she first tried to enter the courtroom , she was told by a court official that the trial had finished . However , after remonstrating with the official she was allowed to enter . Once inside , the proceedings were inaudible on account of the screens sealing the public gallery . When she asked if anyone else had complained about the arrangements , she was told that she was the first person to try to attend the trial . Furthermore , she had been told that she could not report anything because there were reporting restrictions in place . Finally , the journalist stated that although she had attended major criminal trials throughout GPE , she had never encountered such measures , and she considered that as a result the applicant ’s trial was to all intents and purposes a secret trial .

In respect of LOC ’s non - attendance at trial , ORG acknowledged that the prosecution ’s failure to mention this fact until late in the proceedings was a cause for concern . However , it considered that the dispute over whether ORG knew “ N ” was a “ very slender foundation indeed ” for any suggestion that his evidence was so unreliable that it ought not to have been allowed to be read .

The court also noted the advantages that the applicant had obtained through ORG ’s absence :

“ It meant that , in so far as he [ VO ] gave evidence inconsistent with that of the applicant , he was not in court to make that contention good . While the statement by him that the container was intended for GPE was damaging to the applicant ’s case , the applicant had the evidence that was available before the jury to the effect that he had identified particular pallets that were to come out of the container at GPE [ the evidence of the NORP shipping agent ORG ] . It was of assistance to the applicant to have the evidence of [ VO ] about the instructions that the cargo had been sold to a NORP company . ”

The court was therefore not satisfied that there would have been any positive advantage to the defence in calling LOC and thus concluded that there was no arguable basis for criticising the admission of his statements .

The court then turned to the ground of appeal concerning the prosecution ’s duty of disclosure . It did not consider that the facts were such as to afford any basis for suggesting that the prosecution had failed either to comply with their duty of disclosure or to follow the Attorney General ’s guidelines on the matter ( see paragraph CARDINAL below ) . In fact , even taking this ground together with the absence of LOC , ORG declared it impossible to find any arguable basis for believing that the prosecution had not fulfilled its duty to ensure that any questions which arose would be examined properly and in accordance with the relevant duties .

Finally , as far as the security measures were concerned , the court began by noting a concession by counsel for the applicant that this ground alone , even if successful , could not compromise the safety of the applicant ’s conviction . The court recounted the history of the pre - trial proceedings and noted that the essence of the complaint was largely based on the security screens . The court acknowledged that the security measures clearly caused difficulties but had not been raised by the journalist or anyone else at the time . Ultimately , however , the court concluded that the issue had been dealt with “ fully and fairly ” by the trial judge .


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

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in DATE and is currently detained at ORG , PERSON .

On DATE the applicant was arrested by the police on suspicion of having murdered his former partner .

On DATE he was charged before ORG , as a ORG , with inter alia , wilful homicide . He was remanded in custody thereafter .

It appears from the acts of the proceedings that from the applicant ’s arraignment until DATE , the applicant filed CARDINAL requests for bail which were all rejected after the relevant submissions were made , including oral hearings . Apart from the hearings related to the bail applications and other specific requests , CARDINAL hearings were held where scores of witnesses gave evidence and another QUANTITY hearings were held where nothing happened and the case was adjourned .

In the meantime on DATE the applicant instituted constitutional redress proceedings before ORG ( FAC ) in its constitutional competence . He complained of a violation of LAW in so far as he had been detained for DATE since his arrest .

By a judgment of DATE ORG ( First Hall ) rejected the applicant ’s claims . By a judgment of DATE ORG rejected the applicant ’s appeal and confirmed the appealed judgment .

After the applicant had been held in custody for the maximum period of detention allowed by law , he became entitled to bail in accordance with Article CARDINAL(CARDINAL)(a)(iii ) of LAW ( see relevant domestic law ) .

Consequently , following his request of CARDINAL DATE , by a decree of CARDINAL DATE , ORG granted the applicant bail subject to the following conditions : that he appears for all the scheduled hearings in the criminal proceedings ; that he does not go abroad or abscond ; that he does not contact or approach , directly nor indirectly , witnesses for the prosecution ; that he does not commit a crime of a voluntary nature while released on bail ; that he present himself at FAC DATE TIME ; that he be home not later than TIME and that he does not leave home before TIME ; that he inform the Police of any change of address by not TIME of such a change ; that he deposit by way of security the amount of MONEY ( ORG ) in the court registry ; and that he undertake a personal guarantee of LAW . In the event of any bail condition being breached , the entire amount of ORG CARDINAL,CARDINAL would be forfeited in favour of the ORG .

On DATE the Attorney General appealed against the decision of CARDINAL DATE , as he considered the conditions too lenient and that they would not serve as a sufficient deterrent against absconding or interfering with the proper administration of justice . He requested the court to set a higher deposit reflecting the nature of the crimes with which the applicant was accused and to amend the conditions by disallowing the applicant to be in locality NORP where the victim and her family resided .

On DATE the applicant objected to the Attorney General ’s appeal , noting that he had remained in detention precisely because he could not fulfil the conditions imposed . At the same time he filed an application requesting the court to reduce the amount to be deposited by him . He explained that since he had been detained for DATE he was unemployed , and thus he could not pay the relevant amount . He submitted CARDINAL documents showing that he received unemployment benefits in the sums of ORG CARDINAL,CARDINAL.CARDINAL and ORG CARDINAL,CARDINAL.CARDINAL in DATE and DATE respectively and offered to explain his financial situation ( if necessary with further documentary evidence ) during an oral hearing . It appears from the acts of the proceedings that he then submitted tax assessment forms of DATE .

By a decision of DATE ORG , having examined the documents submitted by the applicant , rejected the Attorney General ’s request to increase the deposit but added the condition that the applicant could not be in the vicinity of locality NORP It also rejected the applicant ’s request considering that ORG had correctly applied its discretion .

On DATE the applicant filed another application requesting the court to reduce the amount of the deposit . He complained that although he had been in detention for DATE , and was entitled to bail , he had nevertheless remained in detention since he ( and his family ) could not afford to pay such an excessive amount by way of deposit . He further noted that the main witnesses had already been heard in the committal proceedings .

On DATE the Attorney General objected to the applicant ’s new request , noting that the applicant was not reliable , and that his inability to pay the deposit showed that he would be unable to pay the personal guarantee if he were to breach his conditions . Moreover , the family of the victim , particularly her daughter , lived in fear of the applicant .

By a decree of DATE , having seen the request and the reply submitted by the Attorney General , the court rejected the applicant ’s request .

On DATE the applicant filed another application requesting the court to reduce the amount that he had to deposit . He noted that he had remained in detention for DATE since the decree granting him bail due to his inability to pay . The Attorney General objected in view of the seriousness of the crime .

On DATE the court again rejected the applicant ’s request ; it noted that its previous decisions had determined the deposit in order to strike the requisite balance between , on the one hand , the seriousness of the crime and the potential punishment , and , on the other hand , the obligation of the accused to fulfil the imposed conditions .

On DATE the applicant filed yet another application requesting that the amount of deposit be reduced . He noted that he had been in detention for DATE since the decree granting him bail , and yet he was still not in a position to benefit from such bail - to which he was entitled by law - since he could not pay the deposit imposed . The Attorney General objected considering that the amount imposed was adequate in view of the severity of the crime and the circumstances of the case . On DATE the applicant filed a note reiterating his request .

By a decree of CARDINAL DATE the court , having considered the parties submissions , as well as its decree of DATE , was of the view that it should not alter the considerations made in the latter decision . It , thus , rejected the applicant ’s request .

On DATE the applicant requested the court to accept his mother PERSON ( and other relatives ) as surety in lieu of the deposit . He referred to a property the relatives had inherited which they were willing to put forward as a guarantee instead of the deposit . The Attorney General requested that the applicant submit relevant evidence of the inheritance and the value of the property and that the court hear relevant witnesses in this connection , before making his final submissions . He further highlighted that a public deed would be required for the purposes of the relevant hypothec .

On DATE the applicant submitted all the relevant documents concerning the property at issue which was valued at ORG CARDINAL .

On DATE the court accepted that the applicant ’s mother stand as surety by means of a hypothec on the above - mentioned property which she owned together with other relatives . Such property was to serve as a guarantee for the applicant observing the conditions imposed ; in the event of a breach of any of those conditions , the property would be forfeited in favour of the Government of GPE .

Subsequently on DATE the applicant having signed a personal guarantee of ORG CARDINAL,CARDINAL and his mother having effected the relevant hypothec as guarantee , the applicant was released from custody after DATE of pre - trial detention .

In the meantime the committal proceedings and hearing of witnesses continued throughout this time ; further witnesses were heard during CARDINAL hearings and another QUANTITY hearings were adjourned . On DATE the prosecuting authority had declared that it did not have further evidence to produce .

In the meantime on DATE the applicant instituted a new set of constitutional redress proceedings , complaining of a violation of LAW in connection with the “ exorbitant sum ” requested ( in particular reference to the sum set as deposit ) which did not allow him to effectively enjoy bail .

By a judgment of DATE ORG ( FAC ) in its constitutional competence rejected the applicant ’s claims .

It held that when a court accepted that an applicant had to be granted bail , that court had to establish the proper conditions which the applicant had to satisfy to be released and yet appear for court proceedings . If the guarantees included the deposit of a sum of money , such pecuniary condition had to be considered by reference to the person of the accused and his means as well as his relation with the person who would act as his surety . The court referred to the ORG ’s judgment of ORG v. GPE ( no . CARDINAL , § CARDINAL , DATE ) where it had been held that the accused whom the judicial authorities declared themselves prepared to release on bail must faithfully furnish sufficient information , that can be checked if need be , about the amount of bail to be fixed . The court noted that the applicant did not satisfy this obligation . It was his duty to provide the courts with information on his income , savings and list his assets . Nevertheless , the applicant had only provided copies of self - assessment forms for purposes of income tax for DATE . According to the court , if an applicant argued that the deposit was too high , he had to show the court what he could afford by providing a list of his assets and property , even if this meant that he had to conduct researches in ORG , and provide the relevant documentation . In its view an applicant had to show not only that he did not have the necessary means to deposit the sum requested but also that he was in an objective impossibility of finding the necessary means . He further had to show that he was unable to find persons who offered to act as surety . It was only when all this was shown that an applicant would have satisfied his duty to furnish sufficient information , thus enabling the court to make an objective assessment .

In the court ’s view , in the present case , bearing in mind the seriousness of the crime and the potential punishment , the applicant had not brought enough evidence before the courts of criminal justice to substantiate his claim that those courts had imposed excessive conditions ( including that referring to the amount of deposit ) . It further noted that ORG [ in the first round of proceedings ] had not been convinced that there would be no tampering with evidence . Indeed even though the collection of evidence had come to an end , one had to guarantee that the evidence remained intact and thus relevant guarantees were necessary .

The applicant appealed .

By a judgment of DATE , ORG rejected the applicant ’s appeal and confirmed the judgment of the first court .

The Constitutional Court referred to its judgment in the case The Police v. PERSON and ORG , of DATE , where it had held that there must be proportionality between the amount to be deposited by the applicant for his release on bail and his financial circumstances . The level of bail set out should not be too high and it should ensure the presence of the accused at the various stages of the criminal proceedings . It also made reference to the ORG ’s judgment in PERSON v. GPE ( [ ORG ] , no . CARDINAL , § MONEY , ECHR DATE ) as well as ORG judgment PERSON v. Attorney General , of DATE , where it had been held that in establishing the amount to be deposited as security , the court must also consider other circumstances such as the seriousness of the offence and the danger to society .

ORG held that the onus of proving that the amount of deposit was too high for the applicant when considering his financial means lay with the applicant himself . An applicant must provide information to the court on his financial situation and on the real possibility of finding a surety able to guarantee the observance of the conditions imposed . In the present case , ORG held that the latter option had not been contemplated by the applicant and it was only after various requests to have the amount reduced that he eventually proposed his mother to act as a surety . It noted that although the applicant ’s mother did not own the tenement she had used for the purposes of the guarantee , it was already in her possession for a period of time before the last application for the reduction of the amount was filed . Thus , the applicant could not argue that he could not have taken this course of action before . Although the applicant relied on the ORG ’s judgment of ORG ( cited above ) , where a violation had been found on the basis that it took DATE for the NORP authorities to adjust the conditions for bail , ORG held that ( even if this were the case ) , the applicant – who was legally represented had not explored all avenues to satisfy the courts with an adequate guarantee for the observance of the conditions of bail . No explanation as to why he only obtained a guarantee in the form of a surety at a subsequent stage was provided by the applicant .

Noting that the applicant had stated that at times he worked as a bus driver and as a horse trainer , apart from other activities , ORG distinguished the applicant ’s case from that of a person who was living on relief payments . The fact that the applicant had at times worked and had a salary or wage made the need to provide information to the court on his means more relevant .

On the fixing of the amount of the deposit , ORG referred to LAW ( see relevant domestic law below ) which provided the factors to be considered for this purpose . Under NORP law these included the seriousness of the offence and the applicable punishment . ORG considered that although the law also referred to the financial situation of the person accused , this factor was not to be taken in isolation – it was for the court fixing the amount of deposit to consider all the factors taken together and not separately . In the present case bearing in mind those factors , the amount of deposit of ORG CARDINAL,CARDINAL was justified especially since the law provided for the opportunity to provide a surety – a course of action subsequently undertaken by the applicant .

In ORG view the criminal courts’ concern that the applicant did not give the necessary guarantees that there would not be any tampering with evidence , subsisted throughout the whole criminal proceedings .

By a decision of DATE the applicant was found guilty of breaching his bail conditions and his bail was revoked . Further bail requests were lodged and rejected until DATE when a bill of indictment was issued against the applicant . From DATE until his indictment some QUANTITY hearings were held where nothing happened and the case was adjourned .

On DATE ORG was informed that a plea bargain had been concluded between the applicant and the prosecution .

On DATE , following the applicant ’s admission to all the charges against him , ORG pronounced a guilty verdict and sentenced the applicant to DATE imprisonment and to the payment of court experts’ fees .


Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and is detained in FAC . He was represented before ORG , a lawyer practising in GPE .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The first applicant , PERSON , was born in DATE and lives in GPE , GPE . The second applicant , PERSON , was born in DATE and lives in GPE . The third applicant , Mr PERSON , was born in DATE and lives in GPE , GPE Region .

On DATE a public demonstration entitled the “ DATE of CARDINAL ” was held in central GPE to protest against the allegedly rigged presidential elections . The event had been approved by the city authorities in the form of a march followed by a meeting at FAC which had to end at TIME Numerous clashes between the police and protesters occurred when the marchers arrived at FAC . At TIME the police declared the early closure of the meeting and began to disperse the participants . It took them TIME to clear the protestors away from the square .

On DATE the GPE city department of ORG opened criminal proceedings to investigate the suspected mass disorders and violent acts against the police ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ) . On CARDINAL DATE the file was remitted to the headquarters of ORG for further investigation . On CARDINAL DATE the investigation was also launched into the criminal offence of organising mass disorders ( Article CARDINAL § CARDINAL of LAW ) . The CARDINAL criminal cases were joined on DATE .

All applicants took part in the demonstration of CARDINAL DATE at FAC . They were arrested on later dates indicated below and charged with participation in mass disorders ; the second and the third applicants were also charged with having committed violent acts against the police officers . They were detained and tried on these charges , and the second and the third applicants have been convicted as charged , while Mr PERSON had been exempted of liability under LAW .

The complaints to be examined in the present case concern various aspects of the applicants’ pre - trial detention .

From DATE to DATE the applicant studied culture and history at ORG in GPE while working part - time as a videooperator for a newspaper “ LOC ” . On DATE he dropped out of the university .

On DATE the applicant received an assignment from the newspaper to attend the “ DATE of CARDINAL ” on DATE and to take video footage of the event .

NORP The applicant claimed that on DATE he arrived at FAC , filmed the event and did not take part in any disorders or clashes with the police .

On CARDINAL DATE the applicant submitted the footage to the newspaper and it was published on its website .

Until DATE the applicant continued working and living at his usual address . On the latter date he was detained and charged under LAW ( participation in mass disorders ) . He was accused of having breached public order during the demonstration on DATE , in particular , of having turned over portable toilet cabins and having piled them on the road to build a barrier obstructing the riot police .

On DATE ORG of GPE ordered the applicant ’s pre - trial detention until DATE on the grounds of the gravity of the charges and for the following reasons :

“ Having regard to the circumstances of the offence under investigation , the personality of the accused , the information objectively put forward by the investigating authority , the court concludes that [ the applicant ] , if at liberty , after being charged with a grave criminal offence will prefer , out of fear of sanctions , to abscond the investigation and trial , [ or ] may act in person or through proxy with the aim of avoiding criminal liability , continue [ his ] criminal activity , destruct the evidence and otherwise obstruct the investigation .

Operational - search activities are now underway , aimed at establishing [ the applicant ’s ] possible connections with other active participants of the mass disorders which took place at FAC in GPE and the adjacent territory , therefore , if at liberty , [ he ] may co - ordinate his position with unidentified accomplices whose identities are still being established by the investigation .

... selecting in respect of [ the applicant ] another , milder , preventive measure is not possible because it can not rule out the very possibility for the suspect to obstruct the investigation of the criminal case , and to abscond from the bodies of criminal prosecution and trial .

No factual information excluding the detention of [ the applicant ] on health grounds has been submitted to the court ... ”

On DATE ORG upheld the detention order of DATE .

On DATE ORG of GPE examined a request for an extension of the applicant ’s pre - trial detention . The applicant requested to select another preventive measure pending trial . He offered a bail of MONEY ( RUB ) , or CARDINAL personal guarantee signed by his professors and colleagues . His request for an alternative preventive measure was supported by CARDINAL petitions signed by CARDINAL journalists and editors of newspapers , periodicals and on - line media : “ ORG ” , “ Esquire ” , “ GPE ” , “ LOC ” , “ Afisha ” and “ Grani.ru ” . The applicant also requested release on health grounds .

On DATE the court granted an extension of the applicant ’s pre - trial detention until DATE , having noted that the applicant was likely to abscond , to continue his criminal activity , to threaten witnesses , or to otherwise obstruct the course of justice .

On DATE ORG upheld the extension order of DATE .

On DATE ORG granted an extension of the applicant ’s pre - trial detention until DATE , essentially on the same grounds as before .

On DATE the applicant ’s criminal case was transferred to the ORG of GPE for the determination of the criminal charges .

On DATE the latter court granted another extension of the applicant ’s detention until DATE . This decision concerned CARDINAL defendants and read in so far as relevant as follows :

“ ... the court concludes that the preventive measure in respect of [ all defendants ] ... is to remain unchanged because the reasons taken into account when these measures were chosen have not ceased to exist and have not changed ...

... [ the defendants ] are accused of [ grave crimes punishable by prison sentences ] ...

Having regard to all information about the personality of [ the defendants ] and the nature of the crimes imputed to each of them , the court still has sufficient grounds to believe that the said defendants , if at liberty , may flee the trial or otherwise obstruct the course of justice , [ motivated by ] the gravity of the charges .

... no other measures of restraint would secure the aims and goals of the judicial proceedings . ”

On DATE the ORG granted another extension of detention in respect of CARDINAL defendants , including the applicant . It ordered their detention until DATE on the grounds of the gravity of charges . It held , in particular , as follows :

“ [ The defendants ] are charged with a criminal offence provided for by LAW , which belongs to the category of grave crimes punishable by a prison sentence of DATE . Furthermore , [ some defendants ] are charged with a criminal offence provided for by LAW , also punishable by a prison sentence of DATE .

Despite the defendants being registered as having permanent residence addresses in GPE , the analysis of the overall information about [ the GPE ] personalities , and the nature of the offences imputable to them , give the court sufficient grounds to consider that the defendants , if the preventive measure is changed to another one unconnected with the deprivation of liberty , may flee the trial or otherwise obstruct the course of justice , [ motivated by ] the gravity of the charges ... the reasons taken into account when these measures were chosen have not ceased to exist and have not changed ... ”

On DATE ORG passed LAW which concerned persons charged with offences punishable with prison sentences of DATE .

On DATE the applicant requested the termination of the criminal proceedings against him by operation of LAW . On DATE the ORG granted the request and released him from detention .

At the time of arrest he applicant was unemployed and lived with his parents . On CARDINAL DATE he took part in the demonstration at FAC . According to the applicant , at CARDINAL point a stampede occurred and he was accidentally pushed through the police cordon and was arrested without any resistance on his part . On DATE he was charged with noncompliance with a lawful order by a police officer , an offence under LAW of LAW , and he was released , having committed to attend the court hearing of the administrative case on CARDINAL DATE .

On DATE the applicant was convicted of non - compliance with a lawful order by a police officer , an offence under LAW . He was sentenced to a CARDINAL detention .

On DATE the applicant was detained on suspicion of having participated in mass disorders on DATE . He was charged with the offences provided for by Articles CARDINAL § CARDINAL of LAW ( participation in mass disorders ) and CARDINAL § CARDINAL ( violence against a public official ) . He was accused , in particular , of having attempted to break through the police cordon and of having pulled a police officer on the hands and wrists towards the crowd . On DATE ORG authorised the applicant ’s CARDINAL detention .

On DATE ORG examined and granted the request to detain the applicant pending criminal investigation . It dismissed the applicant ’s request for an alternative preventive measure , including a RUB CARDINAL,CARDINAL bail , a personal guarantee or a house arrest , and ordered the applicant ’s detention on remand until DATE for the following reasons :

“ Assessing the circumstance under investigation , the submitted materials and the indicated information in their integrity , as well as the personality of [ the applicant ] , who is suspected of having committed criminal offences characterised as grave , punishable by DATE of deprivation of liberty , give sufficient reasons to believe that the applicant is likely to abscond , to continue his criminal activity , to destruct evidence , or to otherwise obstruct the investigation of the criminal case .

... selecting another , milder , preventive measure is not possible because it can not rule out the very possibility that the suspect will abscond from the bodies of criminal prosecution and trial , or obstruct the investigation of the criminal case . ”

On DATE the applicant filed an appeal , which was dismissed by ORG on DATE .

On DATE ORG examined a request for an extension of the applicant ’s pre - trial detention . The applicant objected , having reiterated his request for an alternative preventive measure . On DATE the court extended the applicant ’s pre - trial detention until DATE , having noted that there remained sufficient reasons to believe that the applicant was likely to abscond , to continue his criminal activity , to threaten witnesses , or to otherwise obstruct the course of justice .

On DATE ORG granted another extension of the applicant ’s detention , until DATE , essentially on the same grounds and having noted that the circumstances which had justified the detention order had not changed . This extension order was upheld by ORG on DATE .

On DATE ORG granted another extension of the applicant ’s detention , until DATE , essentially on the same grounds as before and having noted that the circumstances which had justified the detention order had not changed . This extension order was upheld by ORG on DATE .

On DATE ORG examined a fresh request for the extension of the applicant ’s detention and granted it until DATE . It held , in particular , as follows :

“ The materials presented [ by the investigator ] reveal that the grounds for choosing the preventive measure in respect of [ the applicant ] were not only the gravity of the charges but also the information about the personality of [ the applicant ] who could abscond the investigation and trial , threaten witnesses or otherwise obstruct the proceedings in the case , if released .

The aforementioned grounds ...

This term is reasonable , [ it ] is justified by the objective circumstances , it is not in conflict with the term of the pre - trial investigation , also extended on the same grounds .

In accordance with ORG [ case - law ] , the proportionality of the preventive measure to the [ gravity of the ] charges imputed to [ the applicant ] show that in this case the public interests , in particular those related to the criminal investigation , override the importance of the principle of respect of individual liberty . ”

On DATE ORG acting as appeal instance upheld the same court ’s extension order of DATE .

On DATE the applicant ’s criminal case was transferred to ORG for the determination of the criminal charges .

On DATE the latter court extended the pre - trial detention of all CARDINAL defendants , including the applicant , until DATE ( see paragraph CARDINAL above ) . This decision was upheld by ORG on DATE .

On DATE the ORG granted another extension of detention in respect of CARDINAL defendants , including the applicant , until DATE ( see paragraph CARDINAL above ) . This extension order was upheld by ORG on DATE .

On DATE the ORG found the applicant guilty as charged . He was sentenced to DATE of imprisonment . The applicant ’s pre - trial detention was counted towards the prison term .

On DATE ORG upheld the first - instance judgment .

In DATE the applicant was released after having served his prison term .

At the time of his arrest the applicant was a student , working parttime . On DATE he took part in the demonstration at FAC , and after that date until DATE he continued living at his usual address and pursued his usual activities .

On DATE the applicant ’s flat was searched and his travel passport was seized . The applicant was arrested on suspicion of having participated in mass disorders and of having used violence against the police during the demonstration of CARDINAL DATE . He was charged with the offences provided for by Articles CARDINAL § CARDINAL of LAW ( participation in mass disorders ) and CARDINAL § CARDINAL ( violence against a public official ) . He was accused , in particular , of having snatched a police officer ’s uniform and pulling him away to prevent him from arresting another protestor .

On DATE ORG ordered the applicant ’s pre - trial detention until DATE , having dismissed the applicant ’s request for an alternative preventive measure , such as house arrest . The court reasoned as follows :

“ In assessing the circumstances of the offence under investigation , the personality of the accused , who is suspected of having committed criminal offences CARDINAL of which is characterised as grave and the other – of medium gravity , the court concludes that [ the applicant ] , if at liberty , after being charged with a grave criminal offence , will prefer , out of fear of sanctions , to abscond the investigation and trial , [ or ] may act in person or through proxy with the aim of avoiding criminal liability , continue [ his ] criminal activity , destruct the evidence and otherwise obstruct the investigation .

The aforementioned circumstances are corroborated by the operational - search materials submitted to the investigator and the court under the procedure provided for by law .

Taking into account that ... [ the applicant ] has been [ previously ] charged with an administrative offence ... and that [ he ] has a travel passport and thus has no obstacles to travelling abroad ... the house arrest may not be granted . ”

DATE . On DATE ORG upheld the detention order of DATE .

On DATE ORG extended the applicant ’s pre - trial detention until DATE , on the grounds that the circumstances that had justified the detention – the gravity of charges and the risk of obstructing the course of justice – had not changed .

On DATE ORG upheld the detention order of CARDINAL DATE .

On DATE ORG granted an extension of the applicant ’s pre - trial detention on the following grounds :

“ The investigator ’s request indicates that ... during the investigation [ the applicant ] was making contradictory statements thus obstructing the investigation of the criminal case . Moreover , during the investigation it was found out that [ the applicant ] has acquaintances outside GPE and LOC . Therefore , if [ he ] is subjected to a preventive measure other than detention in custody he may flee the investigation and trial .

... the victim and eye - witnesses have indicated [ the applicant ] as the perpetrator ...

[ He ] is charged with criminal offences one of which is of medium gravity and another is a grave one , punishable by DATE of deprivation of liberty .

These circumstances are substantiated , real , corroborated by the information about the defendant ’s personality , including [ the information ] obtained through operational - search activities . ”

On DATE ORG granted a new extension of the applicant ’s detention , until DATE . In its reasoning it stressed the complexity of the case , reiterated the grounds given in the previous orders and noted that the circumstances which had justified the detention order had not changed . ORG upheld the extension order on DATE .

On DATE the indictment was issued to the applicant , with the final charges defined under Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW .

On DATE ORG examined a fresh request for the extension of the applicant ’s detention and granted it , until DATE . The court justified this extension as follows :

“ The extension of the [ applicant ’s ] pre - trial detention is necessary because of the need to allow him and his counsel sufficient time for access to the investigation case file , which has not been finished .

... the [ applicant ’s ] partners in crime have not all been identified and have not been arrested , he knows the personal details of the victims and the witnesses accusing him of being the perpetrator . Taking into account the total of the aforementioned circumstances , the court considers that [ the applicant ] is likely to flee the investigation and trial , to continue his criminal activity , to put pressure on the victims and witnesses , to induce them to give false evidence , to destruct evidence or to otherwise obstruct the course of justice in the criminal case . ”

On DATE ORG acting as appeal instance upheld the same court ’s detention order of DATE .

On DATE the ORG granted another extension of detention in respect of CARDINAL defendants , including the applicant . It ordered their detention until DATE on the following grounds :

“ The reasons taken into account by the court for selecting the preventive measure ... have not changed [ and ] have not lost their relevance to date .

The ORG takes into account the nature , the gravity and the factual circumstances of the offence imputable to the defendants , the existence of the unidentified perpetrators of the mass disorders , as a real ground for the GPE possible unlawful conduct .

Considering the foregoing , it is obvious that the defendants [ M. , ] , [ the applicant ] and [ PERSON ] , if at liberty , may abscond or otherwise obstruct the course of criminal procedure ”

On DATE the ORG found the applicant guilty as charged . He was sentenced to DATE of imprisonment . The applicant ’s pre - trial detention counted towards the prison sentence .

The applicant is currently serving the remainder of the prison term .

From DATE to CARDINAL DATE the first applicant was detained in remand prison GPE , consecutively in CARDINAL different cells . In each cell the applicant had QUANTITY of personal space and an individual bed at all times ; he had TIME of daily outdoor exercise .

According to the Government , the applicant underwent a medical examination on his admission to IZ-CARDINAL/CARDINAL ; on his request he received medical assistance on DATE , CARDINAL DATE and CARDINAL DATE and on DATE he had a specialist consultation with an ophthalmologist .

On DATE the applicant was transferred to ORG . According to the Government , the cell allowed the applicant QUANTITY of personal space and he had an individual bed at all times ; the toilet was separated by a solid partition from the rest of the cell in order to ensure the necessary privacy ; the cells were treated for disinfection and pest - control once DATE and whenever necessary ; the applicant was entitled to TIME outdoor exercise per day ; the cell was cleaned and the beddings were changed once a week ; the cells were equipped with forced ventilation and could be aired through the hinged window pane . The artificial light was provided at QUANTITY by day and at QUANTITY by night . The glazed windows let in daylight .

On DATE and DATE the public commission for the monitoring of detention facilities visited GPE . The applicant made no complaints about the conditions of his detention .


Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

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


CASE OF MITRINOVSKI 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);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE .

On DATE a CARDINAL - judge panel of ORG , presided over by the applicant ( including Judges PERSON and GPE ) , decided , in second instance , to grant an appeal of a detainee . The panel accepted a proposed bail and replaced an order for detention on remand with an order for house arrest ( Ксж.бр. CARDINAL/CARDINAL ) . On DATE ORG challenged this decision by means of a request for the protection of legality ( барање за заштита на законитоста ) . He sought that ORG declared that decision unlawful and that it be remitted for fresh consideration .

On DATE a CARDINAL - judge panel of ORG , presided over by Judge PERSON , the President of ORG at the time , held a session at which the public prosecutor ’s request was examined . ORG accepted the prosecutor ’s amended request ( преиначено ) and stated inter alia that :

“ ORG finds that ORG , which decided the appeal ... against the decision ... in which ORG had dismissed a request for termination of pre - trial detention ( предлог за укинување на мерката притвор ) as unsubstantiated , had no statutory ground to decide the complaints on the merits , but , on the contrary , it was bound by law to establish that the appeal ... was inadmissible ... ”

On DATE the criminal division of ORG composed of CARDINAL judges of that court , including Judge PERSON ( see section CARDINAL(CARDINAL ) of the Rules of ORG , paragraph CARDINAL below ) , held a session at which they discussed the case Ксж.бр. CARDINAL/CARDINAL . Following an examination of the record of the deliberations of ORG regarding the decision of DATE ( see paragraph CARDINAL above ) , the criminal division of ORG concluded that CARDINAL judges had disclosed professional misconduct . The relevant part of the record of that session reads as follows :

“ ... the criminal division of ORG unanimously found ( едногласно се донесе заклучок ) that there had been professional misconduct by CARDINAL judges of ORG who had adjudicated in the case Ксж.бр. CARDINAL/CARDINAL .

The President of ORG , ORG then closed the session of the criminal division . ”

In submissions of the same date , Judge PERSON , as an ex officio member of ORG ( “ the ORG ” , see PERSON to the LAW , paragraph CARDINAL below ) , requested that the ORG establish professional misconduct in respect of the applicant and Judge PERSON This request was submitted pursuant to sections CARDINAL and CARDINAL of LAW DATE ( “ the LAW ” , see paragraph CARDINAL below ) according to which a member of the ORG or the president of the higher court can seek that professional misconduct proceedings were launched regarding a judge . As stated in the request , there were reasonable grounds to believe that the applicant and Judge PERSON had exercised the office of judge in an unprofessional and unconscientious manner given that they had voted in favour of the decision of DATE in the criminal case Ксж.бр. CARDINAL/CARDINAL , which had been in violation of LAW . In support , he submitted copies of the decisions of CARDINAL and DATE ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE the plenary of the ORG , including Judge PERSON , discussed Judge PERSON ’s request for determination of professional misconduct on the part of the applicant and accepted it as timely , complete and admissible . It also set up a Commission for determination of professional misconduct by the applicant ( “ the Commission ” ) , composed of CARDINAL of its members , including the President of the ORG ( see section CARDINAL of the LAW , paragraph CARDINAL below ) . The composition of the Commission did not include Judge PERSON

NORP On DATE the Commission communicated Judge PERSON request and the supporting evidence to the applicant . On DATE the applicant responded in writing and provided evidence in support ( see section CARDINAL of the LAW , paragraph CARDINAL below ) . Judge PERSON resigned in the meantime . After the Commission had obtained the material in the case Ксж.бр. CARDINAL/CARDINAL , on DATE it submitted a report to the ( plenary of the ) ORG as to whether Judge PERSON ’s request was justified .

On DATE , the plenary of the ORG , including Judge PERSON , initiated professional misconduct proceedings against the applicant and temporarily suspended him from the office of judge . In the decision , the ORG relied on sections CARDINAL and CARDINAL of the LAW ( see paragraph CARDINAL below ) . The relevant parts of this decision read as follows :

“ The ORG , on the basis of ( Judge PERSON ) request ... set up ( the Commission ) ... After the Commission had taken actions pursuant to sections CARDINAL and CARDINAL of ( the LAW ) , it submitted , under section CARDINAL of ( the LAW ) , to the ORG a report as to whether the request was justified .

The ORG ... discussed the request and the ORG ’s proposal and decided to initiate professional misconduct proceedings ... ”

On DATE the Commission held , pursuant to section CARDINAL of the LAW ( see paragraph CARDINAL below ) , a hearing . As noted in the record of the hearing , it was attended by the applicant and his legal representative , as well as by Judge PERSON as complainant . Judge PERSON inter alia that :

“ ... I submitted the request ( for determination of unprofessional and unconscientious exercise of the office of judge regarding the applicant ) for the following reasons : ( the applicant ) , as the chairman of the panel and a judge rapporteur ( in the case Ксж.бр. CARDINAL/CARDINAL ) and judge ORG , as a member of that panel , contrary to ( LAW ) ... had unlawfully decided on the merits ... they had no statutory ground to decide on the merits of the complaints raised in the appeal , but they were bound by law to reject the appeal as inadmissible . For these reasons , I consider that in this case ... there are grounds [ to be established that there was ] unprofessional and unconscientious exercise of the office of judge ...

I must underline that I submitted this request to the ORG in view of the conclusion of the criminal division of ORG of DATE [ see paragraph CARDINAL above ] ... ”

After the applicant had presented his arguments verbally , the President of the ORG put several questions to him . The applicant ’s lawyer and judge PERSON did not put any questions notwithstanding that they were provided with such an opportunity . Then , the applicant and judge PERSON made concluding remarks . The record of the hearing indicated that under LAW ( see paragraph CARDINAL below ) , the Commission would draw up a report , which would be communicated to the ORG for consideration . The record of the hearing was signed by the applicant , judge PERSON , as the complainant , and the members of ORG ( see section CARDINAL of the Act , paragraph CARDINAL below ) . As evident from the available material , the Commission submitted such a report in which it proposed that the ORG dismiss the applicant for professional misconduct .

On DATE the plenary of the ORG , which included judge ORG dismissed the applicant from the office of judge for professional misconduct . The relevant parts of the decision read as follows :

“ The ORG finds that ORG had no statutory ground to examine and decide on the merits of the complaints raised in the appeal [ in the criminal case Ксж.бр. CARDINAL/CARDINAL ] , but it was bound by law to establish that the accused ’s appeal submitted by his lawyer had been inadmissible . Accordingly , it decided in violation to ( LAW ) .

Such a decision is unlawful and contrary to [ relevant provisions of LAW ] ...

When establishing unprofessional and unconscientious exercise of the office of judge [ by the applicant ] , the ORG relied , as a legal ground , on the judgment of ORG [ see paragraph CARDINAL above ] and the conclusion of the criminal division of ORG of DATE [ see paragraph CARDINAL above ] . The ( criminal ) division explicitly established that ( the applicant ) , as chairman of the panel and a judge rapporteur , ... had been unprofessional and decided contrary to [ the relevant provisions of LAW ] ... ”

The applicant appealed against that decision before the second - instance body , namely an Appeal Panel formed within ORG on an ad hoc basis in each case separately and composed , as specified in CARDINAL of the LAW ( see paragraph CARDINAL below ) , of CARDINAL judges , of whom CARDINAL were to be ORG judges , CARDINAL ORG judges and CARDINAL judges of the court of the applicant . He also sought withdrawal of judge PERSON and all ORG judges . In support he stated that there was a conflict of interest , as judge PERSON had sought his dismissal and had later voted for it as an ex officio member of the ORG . The position he held was such that he could influence other judges of that court .

On DATE ORG dismissed the appeal and confirmed the ORG ’s decision dismissing him from the office of judge . It also refused his request for the withdrawal of judges . It found that it was the plenary of ORG , and not ORG , which had competence to decide on the applicant ’s request for the withdrawal of the President of ORG . Relying on LAW it further rejected as inadmissible the applicant ’s request for the withdrawal of all the judges of a court .


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

The applicant company was established in DATE and has its registered office in GPE . It is the operator of CARDINAL private television channels and the broadcaster of a television programme , ORG . The present case concerns a commentary ( glosa ) delivered during a television programme broadcast on DATE after the crash of the plane in which the late President of GPE , PERSON , had been travelling .

The commentary ’s title was “ Compassion in Accordance with LAW ” ; the commentary contained the following :

“ The crash of a NORP plane carrying the presidential couple on board is a true human tragedy . The whole of GPE is in mourning and politicians are more or less expressing their condolences . That is required by diplomatic protocol . Thus , NORP russophile politicians too shed a tear , albeit a forced one , over the death of the russophobe , PERSON . Even ordinary citizens , not bound by any protocol , are expressing their sorrow . NORP , homosexuals , liberals , feminists and leftoriented intellectuals are bitterly sorry for the death of a man who represented an extreme NORP conservativism , and who was a symbol of a country where people who are not white heterosexual NORP were born as a punishment . I am sorry , but I do not pity NORP . I envy them . ”

Following the broadcast of the above - mentioned commentary , ORG ( Rada pre vysielanie a retransmisiu ) commenced administrative proceedings against the applicant company , pursuant to section CARDINAL(CARDINAL)(a ) of ORG no . CARDINAL/CARDINAL Coll . , as amended - “ the LAW ” ) , on DATE .

On DATE ORG found that the applicant company had breached its obligations under LAW in that the manner of processing and presenting the content of the commentary had interfered with the dignity of the late NORP President , PERSON . It fined the applicant company MONEY ( ORG ) .

ORG assessed the conflict between the applicant company ’s freedom of expression and the protection of the human dignity of the late President . On the one hand , it acknowledged the aim of the commentator to express his opinion and his subjective stance on the social and political event through criticism , sarcasm and irony , which were inherent to journalistic expression . On the other hand , where ORG found difficulties was in particular the content of the last CARDINAL sentences of the commentary ( “ I am sorry , but I do not pity the NORP . I envy them ” ) . ORG concluded that the manner in which the commentator had presented his opinion – that is to say his lack of regret for the NORP President ’s death DATE had contravened the duty to respect his human dignity . According to ORG , the degree of sarcasm and irony in the broadcast commentary had been so high that its content and the manner in which the author ’s opinion had been presented had been substandard and had dishonoured the late President .

ORG noted that Mr PERSON , as President , was sufficiently recognisable as an “ individual ” , which was a prerequisite for the applicability of the protection of the dignity , human rights and fundamental freedoms of “ others ” under section CARDINAL(CARDINAL)(a ) of LAW . It concluded that by broadcasting the aforesaid commentary the applicant company had committed an administrative offence ( správny delikt ) – in particular a breach of its duties under the said provision – and that imposing a fine on it in that respect was in order . It considered such a measure to be necessary in a NORP society , as it served a legitimate aim – that is to say the protection of the right to human dignity .

On DATE ORG upheld ORG decision . It rejected the applicant company ’s argument that ORG had sanctioned it for voicing its political opinion . Rather , ORG confirmed ORG conclusion about the defamatory character of the commentary in question and the interference with the late President ’s human dignity .

The applicant company lodged a complaint before the Constitutional Court challenging the decisions of ORG and ORG under Articles CARDINAL § CARDINAL and CARDINAL of the Convention and Articles CARDINAL ( freedom of expression ) and CARDINAL ( right to judicial protection ) of the LAW .

It alleged that the decisions in question had been arbitrary , unfair and insufficiently reasoned and that their respective authors had breached its freedom of expression by sanctioning it for voicing its opinion regarding the late President as a politician .

On DATE ORG rejected the applicant company ’s complaint . It considered , inter alia , that the above - mentioned authorities had duly explained their conclusions , without having overly strayed from a reasonable interpretation of the applicable rules and established practice . ORG noted that the impugned commentary had expressed not only sarcasm and criticism of the late President ’s policy but also a positive attitude towards his death . This very fact had interfered with his right to respect for his human dignity , which led ORG to conclude that the domestic authorities’ decisions had not been arbitrary .

As to the applicant company ’s complaint under LAW ( and LAW ) , ORG held that a general court could not bear “ secondary liability ” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of procedural rules . Given that it had rejected the complaint concerning the alleged violation of procedural rules , it also had to reject the complaint relating to an alleged violation of a substantive provision .