Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

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

The present case concerns the applicant ’s trial and conviction for attempted murder of PERSON , a businessman and former parliamentarian . A co - defendant , PERSON , was tried and convicted for assisting an offender .

The facts of the case may be summarised as follows .

On DATE a bomb placed under ORG car detonated when the latter started the engine in TIME . PERSON survived without major injuries .

On DATE ORG started an investigation into the matter . When questioned by police officers , PERSON pointed to the applicant ’s ex - husband , ORG , with whom he had major disagreements over business - related issues , as the only possible offender .

On DATE ORG was summoned to the police station . Having acknowledged the existence of disagreements with PERSON , he denied the offence and stated that he had been at home with his son , PERSON , TIME before the incident .

On DATE PERSON was arrested on suspicion of attempted murder . The charges against him were eventually dropped DATE since his involvement in the offence had not been established .

On DATE . , ORG ’s friend who also knew the applicant and the family , was interviewed . He stated , inter alia , that he was aware of ORG ’s problems with ORG and that the applicant had always been against ORG doing business with ORG since she considered the latter a “ scammer ” .

On DATE PERSON , ORG ’s neighbour , was interviewed and described his family as a normal and ordinary one . She mentioned that DATE before , the applicant had complained about PERSON because he owed them some money .

On DATE GPE , the applicant ’s daughter , was interviewed and stated , inter alia , that she had learnt about her GPE divorce DATE previously . The parents had maintained good relations and the family was in contact almost every day . She also stated that , most of the time , the applicant stayed in the apartment where the father lived .

On DATE A.B. , the applicant ’s neighbour , was interviewed . He stated that he had known the members of the family , ORG , the applicant and their CARDINAL children ORG and GPE , since DATE , when they had settled in the building .

On DATE NORP , a friend of the family , was arrested following the discovery of a large quantity of firearms and explosives in his house . Shortly after , Y.W. confessed to ORG attempted murder and stated that he had acted on the applicant ’s orders .

On DATE the applicant was arrested and charged with instigation of attempted murder and property damage .

On an unspecified date the investigation was concluded and the criminal case was referred to the PERSON and Nor - Nork District Court of GPE for trial . The bill of indictment included GPE in the witness call list while it appears that DATE . , PERSON and PERSON were not included in it .

At the trial , ORG retracted his pre - trial statements , claiming that they had been obtained under duress . The applicant denied any involvement in ORG attempted murder , stating that she had divorced ORG in DATE and since then she had lived with their daughter GPE in another apartment while ORG lived with their son , PERSON She also stated that at some point she had been asked to sign some documents in relation to a contract between ORG and ORG since the contract concerned the sale of the house where she used to live , which she did . However , in general she had no connection with ORG and tried not to maintain any contact with him .

At the hearing of DATE the applicant ’s lawyer asked for GPE to be excluded from the witness call list , since the latter was the applicant ’s daughter . This request was granted when GPE expressed her wish to use the testimonial privilege .

On DATE ORG found the applicant guilty as charged and sentenced her cumulatively to DATE imprisonment . ORG was also convicted . ORG found it established that the applicant had ordered ORG murder as the property - related disputes between the latter and ORG had also affected her property rights . In this connection the ORG mainly relied on the trial statements of ORG , GPE ’s spouse , and PERSON , his former colleague and the fact that the applicant was involved in court disputes with ORG , which showed that both she and ORG had a strained relationship with the latter .

On DATE the applicant lodged an appeal against the judgment of ORG . On DATE she lodged a supplement to her appeal claiming , inter alia , that she had no reason to murder PERSON as she had been living separately from ORG since their divorce in DATE and had no interest in his business activities .

In the course of the proceedings before ORG retracted his statements made before ORG and submitted that in reality he had organised the explosion of ORG car upon the applicant ’s request . However , he had no intention of killing PERSON , but was trying to frighten him . The applicant maintained her defence .

On DATE ORG dismissed the applicant ’s appeal and upheld the judgment of CARDINAL DATE as regards her conviction and sentence , while ORG ’s sentence was reduced . In its judgment ORG , inter alia , established that although the applicant had divorced ORG , she had maintained a family - like relationship with him and expressed her annoyance at ORG actions in the presence of different people . In this respect , the judgment of ORG referred to GPE ’s pre - trial statement of DATE , DATE . ’s pre - trial statement of DATE , as well as the pre - trial statements of CARDINAL neighbours , PERSON and PERSON , made on DATE and DATE respectively .

On DATE the applicant lodged an appeal on points of law claiming , inter alia , that ORG had based its conclusions on the pre - trial statements of GPE , PERSON , PERSON and GPE . , which had not been read out and examined either by the PERSON and Nor - Nork District Court of GPE or ORG . Furthermore , she had had no opportunity to question these witnesses .

On DATE ORG declared the applicant ’s appeal inadmissible for lack of merit .

On DATE the applicant lodged an application with the Constitutional Court challenging the compatibility with the LAW of certain provisions of LAW ( hereafter , the ORG ) allowing ORG not to indicate reasons when declaring inadmissible an appeal on points of law .

On DATE the ORG granted the application by finding such provisions of the ORG incompatible with the LAW .

On DATE the applicant , based on the above decision of ORG , requested ORG to reopen the proceedings and to re - examine her appeal on points of law of DATE .

By decision of CARDINAL DATE ORG reopened the proceedings , re - examined the applicant ’s appeal on points of law and declared it inadmissible for lack of merit . In doing so , ORG , inter alia , indicated that ORG conclusion concerning the applicant ’s guilt was correct as it was based , among other things , on the witness statements of GPE and A.A.


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

André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary

The applicant was born in DATE and lives in GPE .

The applicant is a lawyer at FAC . He acted for ORG in criminal proceedings on a charge of criminal conspiracy for the preparation of an act of terrorism constituting one of the offences provided for in LAW .

In DATE the domestic security and intelligence agency ( Direction de la surveillance du territoire – the “ DST ” ) sent an intelligence report to the GPE public prosecutor ’s office stating that in GPE the NORP police had dismantled a network of NORP terrorists who were likely to be preparing attacks on NORP territory . In this context , one GPE , who was a suspect in criminal proceedings in GPE , was arrested in GPE on DATE . The NORP authorities were apprised of this arrest on DATE .

On DATE the investigating judges in charge of the case , in the “ anti - terrorism ” judicial investigation division of the GPE tribunal de grande instance , issued an international letter of request to the NORP military authorities for the purpose of questioning GPE

From DATE , CARDINAL of the investigating judges , PERSON , accompanied by members of the ORG , went to GPE for the execution of the letter of request .

During the questioning PERSON was allegedly tortured .

On DATE , after the file had been received in reply to the letter of request , the investigating judges issued an international arrest warrant . S.A. was extradited and remanded in custody on DATE .

By a decision of DATE the investigating judge committed ORG and CARDINAL other persons to stand trial before ORG on charges of participating in a criminal conspiracy for the preparation of an act of terrorism . Prior to that decision there had been no applications to the investigation division for the annulment of any investigative acts , neither by the lawyer previously assigned to ORG , nor by the prosecutor or the investigating judges ... Therefore , under LAW , the parties were no longer entitled to raise grounds of nullity in respect of procedural acts or evidence , “ except where they could not have been aware of [ those grounds ] ” .

Before ORG the applicant requested in his written pleadings that documents that had been obtained , according to him , through torture by the NORP secret services , be excluded from the file : the written “ confession ” of GPE , the report by the NORP secret services dated DATE and the interview records of DATE and CARDINAL , DATE , DATE and CARDINAL May CARDINAL . He alleged that there had been “ complicity on the part of the NORP investigating judges in the use of torture against GPE in GPE by military personnel of the secret service ” ( see , for details of these pleadings , their reproduction by ORG , paragraph CARDINAL below ) .

In a judgment of DATE the court excluded the documents obtained through the international letter of request and sentenced ORG to DATE imprisonment . It took the view , in the light of statements by ORG , a member of the NORP section of ORG and the Secretary of ORG , called by ORG as witnesses , and who were unanimous as to the almost systematic use of torture by the NORP security bodies ( since a military decree of DATE ) , that it was “ likely that the statements made by ORG in GPE , to ORG , had been given under torture , and that his confession had thus been obtained by this method ” . The court continued as follows :

“ Moreover , in his report on his mission to GPE for the execution of his international letter of request of DATE ... , PERSON , investigating judge ( First Vice - President ) in charge of the investigation , specified that at the first working meeting with NORP intelligence officials , he was told that ORG had already been questioned on DATE and CARDINAL May TIME and that ‘ his interviews were continuing on the basis of the list of questions contained in the international letter of request and additional questions which he [ PERSON ] wanted to be put , particularly in the light of the answers already recorded’ .

However , the judge stressed that he had ‘ not been allowed to participate in the questioning of ORG but only to follow it in real time’ . On CARDINAL and CARDINAL May the questioning thus continued under the same conditions as the day before .

For his part , GPE emphasised that his entire interrogation had taken place without the NORP investigating judge being present .

When presented to that judge on DATE he indicated that he was ‘ ORG , that he ‘ wished to see a doctor PERSON , and that he was ‘ worried about his wife and daughter’ . He subsequently described his conditions of detention in GPE and the torture to which he had been subjected during the interrogation .

As a result , the NORP investigating judge was not able to exercise any real control over the conditions in which GPE was interrogated in GPE , even though he was being held in the ‘ GPE Section’ , which was known to be a very harsh section , according to witnesses , in which many cases of torture had been reported .

It is therefore almost certain that the admissions or ‘ confession’ of S.A. were obtained under torture and must be excluded as evidence against him and his co - defendants .

Accordingly , ORG handwritten statement , his interview records from GPE and the report prepared by the NORP secret services must be removed from the case file . ”

S.A. appealed against the judgment . The applicant lodged with ORG his pleadings in defence of GPE , extending to CARDINAL pages , at paragraph CARDINAL of which he again sought the exclusion of the documents obtained under torture . To that end , he relied on Articles CARDINAL and CARDINAL of the LAW , as well as ORG and CARDINAL of LAW DATE , and referred to the reports of non - governmental organisations concerning the practice of torture in GPE and to the evidence taken at first instance . In particular , he wrote as follows :

“ PERSON CARDINAL : ‘ it was thus blindly that the investigating judges did not want to try and avoid the torture to which Mr. [ S.A. ] was subjected in the hands of the NORP secret services in GPE

Page CARDINAL : ‘ the NORP investigating judges allowed the NORP secret services to torture [ GPE ] without intervening , and it can even be shown that they promoted torture – this amounts to a judicial outsourcing of torture.’

DATE , paragraph entitled : ‘ Complicity of the NORP investigating judges in the use of the torture against Mr. [ S.A. ] in GPE by military personnel of the secret services’ .

DATE : ‘ The investigating judges , who had felt from the beginning of the proceedings that they should be brought against Mr. [ S.A. ] , allowed torture to be used against him by military personnel of the NORP secret services ... They chose to accept the outsourcing of torture.’

Page CARDINAL : ‘ the international letter of request issued by the NORP investigating judges provides the NORP secret service officers with the answers to be obtained from the questions to be asked : it encourages torture.’ ”

In a judgment of CARDINAL DATE ORG upheld ORG conviction and sentenced him to DATE imprisonment , after excluding the documents in question : “ the defendant ’s statements , as they had been obtained in GPE , were included in documents whose lawfulness in terms of NORP procedural rules and the Convention could not be guaranteed ” . It rejected the applicant ’s submissions “ relating to complicity in acts of torture committed by the investigating judges and the criticisms about the conduct of the judicial investigation ” as being “ prejudicial to the dignity of the investigating judges and without any basis or moderation ” . The judgment of ORG indicated that its president had asked the applicant “ to moderate his remarks concerning the allegations of complicity on the part of the investigating judges in the use of the torture against ORG see p. CARDINAL et seq . of the pleadings ) ” .

In a letter of CARDINAL DATE the Chairman of ORG informed the public prosecutor at ORG , who had sent him a copy of the pleadings , that he did not intend to act upon this matter .

In a formal referral to the disciplinary body dated DATE , pursuant to LAW of CARDINAL DATE concerning the organisation of the legal profession ... the public prosecutor asked that body to bring disciplinary proceedings against the applicant for disregarding the essential principles of honour , tactfulness and moderation governing the legal profession . He indicated the passages in the applicant ’s pleadings which , in his view , had seriously impugned the honour of the investigating judges , namely the statements on pages CARDINAL , DATE and DATE to DATE ( see paragraph CARDINAL above ) . He pointed out that the criminal immunity for words spoken in court as provided for in section CARDINAL of the LAW DATE on the freedom of the press ( “ the DATE Act ” , ... ) was not applicable in disciplinary matters .

In a decision of DATE ORG of ORG dismissed all the charges against the applicant . It considered that his objective had been to ensure the removal from the case file of the documents which emanated from the NORP authorities . It observed in this regard that although the practice of torture by the NORP secret services was notorious , the investigating judges had failed to issue an international arrest warrant immediately but had , on the contrary , waited until DATE to issue a letter of request to the NORP military authorities , and “ that letter was , according to ORG lawyers , executed with astonishing speed ” . It thus found that “ it was on this basis and in support of the request for the exclusion from the case file of the documents from the NORP authorities that [ the applicant ] called into question , in the terms for which he is reproached , the conduct of the investigating judges ” . ORG further found that the applicant should benefit from judicial immunity in so far as the impugned remarks were not unrelated to the case . Relying on the case - law of ORG on this point ... , and on the protection under LAW lawyer ’s freedom of speech in court ( referring to the judgment in GPE v. GPE , no . CARDINAL , ORG CARDINAL-II ) , it pointed out that the applicant ’s impugned remarks did not constitute personal attacks on the judges , but sought to call into question the manner in which they had conducted the proceedings , and that the remarks were “ obviously not unrelated to the facts of the case ” . The disciplinary body finally pointed out that the applicant was justified in believing that the argument as to the procedural conduct of the investigating judges had not been without influence on the first - instance decision to exclude the NORP statements from the case file and that he had been justified in using these arguments before ORG , irrespective of their vitriol , whereas the raising of this issue in the court below had not even led to any reaction on the part of the prosecution .

On DATE ORG appealed against that decision .

In a judgment of DATE the ORG quashed the decision of ORG and issued the applicant with a reprimand accompanied by disqualification from professional bodies for DATE . ORG observed that the immunity of the courtroom could not be invoked in disciplinary matters . Stressing that lawyers’ freedom of expression was not absolute , it took the view that the remarks at issue were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of ORG statements during his interrogation , they also called into question the moral integrity of the investigating judges at a personal level . It found that the applicant “ had visibly sought to ‘ do as he NORP even to the extent of harming his client ( whose sentence was extended by DATE by ORG ) ” . The court took the view that the accusation of complicity had been pointless in relation to the interests of his client , and gratuitous , since the judges had mentioned in a mission report the difficulties they had encountered with the NORP authorities , who had prevented them from attending the interviews ( see paragraph CARDINAL above ) . ORG pointed out that the documents in question had been excluded by the court below and that “ there was no need for [ the applicant ] , in the interest of ORG , to claim without any proof that the NORP investigating judges had been complicit in the torture of GPE . It concluded that the attacks were not proportionate to the aim pursued and that the impugned remarks constituted a breach of the essential principles of the legal profession , namely dignity , honour , tactfulness and moderation .

The applicant lodged an appeal on points of law . The Chairman of ORG did likewise . In his grounds of appeal , the applicant relied in particular on Articles CARDINAL and CARDINAL of the Convention to argue that the immunity provided for by LAW was applicable in disciplinary proceedings . He also pointed out that the fact of denouncing the shortcomings of the justice system on the basis of a letter of request issued to the NORP secret services had been necessary for his client ’s defence , and such denunciation could not be considered as a disciplinary offence given the absolute nature of the prohibition of torture .

In a judgment of CARDINAL DATE ORG declared inadmissible the appeal by the Chairman of ORG on the ground that he was not a party to the proceedings . As to the applicant ’s appeal on points of law , it was rejected in the following terms :

“ However , firstly , the judgment states precisely that the provisions of sections CARDINAL and CARDINAL of the Law of DATE are not applicable in disciplinary matters . Having rightly observed that , while the lawyer has the right to criticise the functioning of the justice system or the conduct of a particular judge , his freedom of expression is not absolute because it is subject to restrictions which derive , in particular , from the need to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary , ORG found that the offending remarks were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of statements made by the suspect during interviews conducted for the execution of the international letter of request issued by the NORP investigating judges , but personally impugned the moral integrity of those judges , accusing them of deliberately promoting the use of torture and of being actively complicit in the ill - treatment inflicted by the NORP investigators . Having noted that these serious accusations were both pointless in relation to the client ’s interests and gratuitous , since the judges , in the report of their mission to GPE , had described the difficulties they had encountered with the NORP authorities , who had refused to allow them to attend the interviews , the court rightly inferred that the offending remarks did not fall under the protection of freedom of expression , but breached the principles of honour and tactfulness . On those grounds , without there being any lack of impartiality or any breach of the principle of the presumption of innocence , it legally justified its decision to impose on the lawyer a mere reprimand together with a temporary disqualification from membership of professional bodies and councils ; ... ”


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

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

NORP The applicant is the mother of Mr LOC PERSON ( ORG ) who died on DATE .


Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits

The applicants are CARDINAL NORP nationals . They were represented before ORG , a lawyer practising in GPE .

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

The first applicant is the third applicant ’s biological mother . The third applicant – a child – was born out of wedlock in DATE . The second applicant does not live with the child and his mother . According to the applicants , the child nevertheless recognises the second applicant as his father .

On DATE S.G. lodged an action with FAC seeking to establish his paternity of the third applicant , submitting that he was the biological father .

On DATE applicant officially acknowledged his paternity of the third applicant .

On DATE GPE adopted a judgment in which it dismissed PERSON ’s claims in full . The first applicant was the respondent and the second applicant was a third party in the civil proceedings . The court held the corresponding provision of LAW did not give NORP the standing to dispute in court a voluntary acknowledgement of paternity .

S.G. appealed to ORG and DATE on DATE requested the same court to order genetic ( DNA ) testing in order to establish whether the second applicant or PERSON was the biological father of the child .

On DATE , DATE , ORG held a hearing and adopted a decision to order the genetic testing of LOC , the second applicant and the third applicant in order to verify the child ’s biological descent . According to the court , it was necessary to order genetic testing because the second applicant had acknowledged paternity of the child only after PERSON had already lodged the action with the court . For that reason it was held that LOC had standing to bring a claim to determine paternity . The decision to order genetic testing was not subject to appeal in accordance with the provisions of LAW . On DATE a copy of the record of the hearing was sent to the applicant ’s representative .

On DATE the applicants , relying on sections CARDINAL and CARDINAL of ORG , submitted a request to the President of ORG of the ORG of ORG asking him to lodge a protest against the order of ORG . They claimed , inter alia , that in giving the order for genetic testing ORG had failed to take into consideration the interests of the child and the second applicant ’s right to respect for his private and family life .

On DATE the President of ORG of the ORG of ORG lodged a protest , citing several violations of procedural and substantive law , notably that : the contested order had been issued prior to the examination on the merits of the civil case ; the decision had not been prepared in accordance with the procedure set out by LAW ; and the court had not examined whether the medical laboratory was authorised to carry out such tests . In particular , the wording of the protest noted that at the time of the examination of the case the child ’s paternity had been voluntarily acknowledged , whereas the claimant – S.G. – had not challenged the paternity .

On DATE the ORG of ORG , relying on section CARDINAL of LAW , dismissed the protest . The ORG considered that the claim submitted by ORG had not been intended to challenge the paternity of the second applicant ; rather , it considered that the claim had been submitted in order to determine PERSON paternity . The ORG argued that the second applicant had recognised his paternity only after PERSON had lodged his action and that therefore , the question of LOC ’s standing would only fall to be examined when the case was examined on the merits . The ORG also disagreed that procedural violations such as those alleged in the protest were decisive for the outcome of the case .

Section CARDINAL ( as worded at the material time ) provided that a protest against a court judgment and/or decision that had taken effect might be submitted to the ORG of ORG by the President of ORG , by the President of ORG of the ORG of ORG or by ORG , provided that DATE had passed since the ruling took effect .

Section CARDINAL provides that admissible grounds for submitting a protest regarding a ruling ( a judgment or decision ) that has taken effect are : substantive breaches of material or procedural legal provisions in cases which have been adjudicated only by a first - instance court ( provided that no appeal against the ruling has been lodged by the parties to the case in accordance with the law , for reasons beyond their control ) , or the rights of ORG or municipal institutions or persons who were not parties to the case have been affected by the ruling .

Section CARDINAL sets out the jurisdiction of the ORG when reviewing an ancillary complaint . It follows from the domestic courts’ practice that the ORG has the same jurisdiction when reviewing a protest . In particular , the ORG may adopt the following decisions : CARDINAL ) to uphold the lower court ’s decision and dismiss the appeal or protest ; CARDINAL ) to quash the decision , in whole or in part , and remit it to the lower court for fresh examination ; CARDINAL ) to quash the decision , in whole or in part , and decide the question on the merits ; CARDINAL ) to amend the decision .


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

On DATE ORG of FAC ( “ the ORG ” ) ordered , inter alia , the head of the respondent military institute to re - calculate the period of the applicant ’s service , applying the favourable terms of such calculation for a specified period of service . The applicant was also awarded some additional allowances and payments for certain periods .

The judgment came into force on DATE .

On DATE ORG issued a writ of execution . On DATE the bailiffs’ service instituted the enforcement proceedings .

On DATE the enforcement proceedings were terminated and the writ of execution was returned to the applicant , as the debt could not be recovered .

On DATE the head of the respondent military institute issued Order No . CARDINAL requiring to make payments in accordance with the judgment of DATE . However , no calculations or payments were made at that time .

On DATE the applicant submitted the writ of execution to ORG .

On CARDINAL DATE the writ was returned to the applicant on the ground that the judgment obliged an official of an organisation to take certain actions rather than ordered to recover payments from a budgetary organisation . Thus , the writ of execution was to be submitted to the bailiffs’ service .

On an unspecified date in DATE the applicant submitted the writ of execution to the bailiffs’ service .

On DATE the writ of execution was returned to the applicant from the bailiffs’ service without enforcement . The bailiffs explained that for the applicant to be able to receive the payments under the judgment , he should obtain a writ of execution stating the sum of the debt to be recovered . After that , the writ could be submitted to ORG for enforcement .

In DATE in accordance with Order No . CARDINAL , the defendant military institute calculated the amounts due to the applicant as follows : the compensation for the supplementary ration for the period from DATE until DATE MONEY ( RUB ) ; allowance for special regime of the service in DATE – RUB CARDINAL ; and special allowance – RUB CARDINAL . In total : RUB CARDINAL .


Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE , a village in GPE .

According to the applicant , on an unspecified date at DATE he was sitting in a cafe . He saw P. there , a police officer and former schoolmate who was drunk and making indecent suggestions to a girl . The applicant , in his words , reprimanded P. for his behaviour , to which he replied with a vague threat .

CARDINAL on DATE the applicant was hit by a car while on the pavement . The driver was P. , who was accompanied by a passenger , PERSON The accident took place in a recreational area in the centre of the village . As a result , the applicant suffered severe head and spinal injuries . P. ’s car was also damaged . With the help of a passerby , PERSON , P. loaded the semiconscious applicant into his car and drove him away from the scene of the accident .

At TIME with the applicant at a local hospital . The applicant was able to walk but was suffering from memory loss , was disoriented and did not understand what had just happened . His condition started to worsen ; at TIME he was transferred to the hospital ’s intensive care unit .

According to the applicant , having seen what he had done , PERSON called his father , the chief of the local tax police and former chief of the local traffic police . P. ’s father called his acquaintances , A. , a traffic police officer , and PERSON , the head of the laboratory of the local hospital . He explained to them what had happened and asked if they would help protect his son . The Government did not comment on this allegation .

Shortly after the applicant ’s admission to the hospital PERSON arrived and spoke to the applicant . At TIME on DATE he drew up a report stating that the applicant had fallen down the stairs of a nearby cafe and had injured himself . He made the applicant sign the report . No mention of the car accident was made . The report contained a handwritten entry , apparently in the applicant ’s own handwriting , which read : “ Recorded from my words , I have read it ” . The report was then submitted to NORP police station , where the accident was logged in the DATE accident record as “ no . CARDINAL ” .

At TIME on DATE , PERSON arrived at the hospital in P. ’s father ’s car and took samples of the applicant ’s blood . After testing them she concluded that his blood contained a high level of alcohol ( CARDINAL per mille ) , which meant he had been drunk at the time of the accident . The applicant was unconscious when PERSON took the samples . She also took blood from P. The tests showed the presence of CARDINAL per mille of alcohol in his blood ( the then acceptable legal limit for driving a car ) . The applicant alleged that the results of the tests had been falsified by M. He referred to the testimony of CARDINAL staff members of the hospital , who later testified that he had not been drunk . The applicant also pointed to inconsistencies in the report by PERSON and the results of subsequent tests of the samples of his blood , which had revealed different levels of alcohol .

At TIME the applicant ’s parents arrived at the hospital . According to the applicant , they did not smell any alcohol on him . Furthermore , the entries made by the hospital personnel about his condition and the nature of his injuries were incomplete . No mention of his spinal injury had thus been made , since the existence of such an injury would have gone against the story that he had fallen down the stairs . Furthermore , the hospital authorities had washed his t - shirt , which contained traces of his blood and could have confirmed his version of events .

In the meantime PERSON left the hospital and returned to the scene of the accident . According to the official examination report , the police examined the scene between CARDINAL and TIME on DATE . PERSON took part in the examination , together with police officers from NORP police station . He signed the report , as did the attesting witnesses present . The applicant claimed that the examination had taken place much later in the day , during the afternoon .

According to the applicant , later that day P. drove his car to a garage , where it was quickly repaired and the broken windscreen replaced .

At TIME on DATE the applicant ’s father arrived at NORP police station and tried to formally report the car accident . However , the officer on duty refused to accept it , referring to the earlier report by A. stating that the applicant had fallen down the stairs .

DATE a.m. doctors at the hospital made an encephalogram of the applicant ’s head and took samples of his spinal fluid .

At TIME a second test of the applicant ’s blood was carried out , which showed the presence of QUANTITY of alcohol . A further test of the same sample showed the presence of CARDINAL per mille of alcohol .

The applicant ’s first operation took place at TIME on DATE and was carried out by PERSON , a surgeon from the hospital . His condition , however , remained very unstable and continued to worsen . His relatives suspected that when they had left the hospital , someone had tried to strangle him to death , because upon their return they had discovered marks on his neck . They also blamed the hospital authorities for their inaction in dealing with the applicant ’s case .

DATE the police examined P. ’s car . It appears from the report of the examination that the car had dents on the right side of the bonnet and on the front right windscreen support . The police did not mention the windscreen in their report . It is unclear whether the car was examined before or after it had been repaired .

At TIME on DATE the local hospital requested the help of GPE at the insistence of the applicant ’s relatives . A neurosurgeon arrived at TIME and performed further surgery , which was more successful . The applicant started to recover . DATE he was transferred to GPE for further treatment . In DATE that followed he had to undergo a further CARDINAL neurosurgical operations , but he never recovered completely ; he lost the ability to work and started to suffer from repeated epileptic fits . He was registered as Category CARDINAL disabled ( where QUANTITY to a severe disability preventing a person from working , and CARDINAL corresponds to a less severe disability ) .

According to the applicant , on DATE the NORP district police informed LOC about the incident on DATE . The Government did not comment .

On DATE ORG opened a criminal investigation into the accident ( registered as case no . DATE ) . The applicant alleged that the investigator in charge of the case , PERSON , had been a schoolmate and close friend of PERSON also alleged that the date the decision was taken to open an investigation was incorrect , as the case had in fact been opened on DATE .

On DATE the investigator started questioning witnesses . PERSON , who had been with the applicant on TIME and helped take him to the hospital , testified that the applicant had not been drinking that evening . He also testified that the applicant had been walking parallel to the road when the car had hit him . His account was confirmed by the testimony of several other witnesses . In contrast , some other witnesses testified that the applicant had suddenly moved in the direction of the car a second before the collision . Several witnesses had also noticed that the windscreen of the car of P. had been broken after the incident . It appears that the investigator identified and questioned CARDINAL witnesses who had seen the accident or observed the events immediately afterwards . The investigator also questioned paramedics from the local hospital , some of whom testified that PERSON had probably been drunk . Others had not noticed anything of that kind .

On DATE the investigator examined the car again . His report suggests that the car did not have any visible dents , but evidence of repair work was discovered on the front right windscreen support .

On DATE the investigator questioned PERSON again . It appears that he was questioned as a witness . He claimed that the applicant had made a dangerous unexpected move in the direction of the car . He also denied that the car had sustained any damage to the windscreen or the front right windscreen support .

On DATE the investigator examined the scene of the accident . It was established , amongst other things , that it had taken place in an area marked as a pedestrian zone . There was a road sign prohibiting cars from access , although it was unclear whether it had been there on the night of the accident and had been visible .

On DATE a forensic expert tested a sample of P. ’s blood , obtained from him on DATE . The expert did not find any traces of alcohol . A similar test of a sample of the applicant ’s blood revealed the presence of CARDINAL per mille of alcohol .

On DATE the investigator conducted a reconstruction of the accident , in the presence of P. Neither the applicant nor his parents were notified or participated .

On DATE a forensic expert drew up a report examining the nature of the applicant ’s injuries and making conclusions as to the speed and direction P. ’s car had been travelling , the position of the applicant ’s body at the time of the accident , and other relevant factors .

On DATE the investigator questioned PERSON ’s father who explained , among other things , that the dent on the bonnet of the car was not related to the accident involving the applicant . PERSON testified that he had arranged for the car to be repaired DATE before the accident .

On DATE the applicant ’s father complained to ORG that the investigator PERSON had been leaking information about the investigation to P. ’s father . He asked that the case be transferred to another investigator from a neighbouring district .

On DATE the applicant ’s father submitted to the investigator in charge of the case a list of CARDINAL witnesses who had seen the accident . He asked the investigator to summon and question them .

On DATE the applicant was granted victim status in the investigation . On CARDINAL and DATE the investigator questioned him . The applicant testified , among other things , that he had not been drinking on DATE of the accident . He also claimed that he had been walking straight when the car had hit him from behind .

On DATE the investigator organised a reconstruction of the accident in the presence of the applicant , P. and PERSON

On DATE the investigator questioned PERSON She denied falsifying the results of the blood test . The difference between the original and second blood tests could , in her words , be explained by a different testing method and the acceptable margin of error .

On an unspecified date experts examined the applicant ’s clothes in order to establish the mechanics of the injuries .

On DATE P. was questioned again , this time as a suspect in the criminal case . He refused to give evidence .

On DATE the investigator questioned an expert , who explained the difference between the results of the CARDINAL tests of the blood samples taken from the applicant and P.

On DATE the investigator questioned the applicant ’s father .

On DATE a team of experts produced a report analysing the applicant ’s injuries and the mechanics of the accident . They answered twentytwo questions which had been formulated by the investigator .

On DATE the applicant lodged a civil claim against P. in connection with the health problems he had suffered as a result of the accident .

On DATE P. was ordered by the investigator not to leave the village without his consent .

On DATE P. was formally charged under Article CARDINAL § CARDINAL of the Criminal Code for causing serious bodily harm by negligently breaching traffic regulations . He was questioned but denied his guilt .

On DATE the investigator questioned the deputy head of NORP police station , PERSON . , who had been an eyewitness to the accident .

On DATE a further reconstruction of the accident was carried out .

On DATE the applicant obtained an expert report from ORG , in which the events of DATE were reconstructed on the basis of the material of the case file .

On DATE the applicant was examined by medical experts .

On DATE doctors examined X - ray images of the applicant ’s neck and drew up a report .

DATE . On DATE P. started working at NORP police station as a district police officer . On DATE CARDINAL witnesses to the accident , PERSON complained to the district prosecutor that pressure had been put on them by P. in connection with his criminal case .

On DATE the investigator obtained another expert examination of the applicant ’s injuries and the mechanics of the accident .

On DATE the prosecutor approved the indictment against P. By the end of the investigation , the case file was CARDINAL volumes and CARDINAL pages long . The applicant was given access to the case material .

On DATE the applicant brought proceedings to challenge the investigator ’s decision , as he was dissatisfied with the accident being classified as an LAW offence . He applied for an injunction requiring the investigator to instead charge P. under LAW ( intent to cause serious bodily harm ) . On DATE ORG dismissed his complaint ; it held that the courts had no jurisdiction to review the decisions of the investigator in so far as they concerned the legal classification of a criminal charge , since such a decision did not interfere with the applicant ’s constitutional rights and freedoms .

On an unspecified date in DATE the investigation was completed , and the parties were given access to the case material . The investigator ’s decision of DATE stated that the applicant ’s father had studied it . According to him , he only had CARDINAL - and - a - half hours to study the material , which consisted of CARDINAL files , each CARDINAL pages long . During that time he was only able to read part of the material and copy CARDINAL pages . The last volume of the case file was incomplete and did not contain an index of documents . As a result , the applicant had to request additional time to examine the case file during the court proceedings . A handwritten inscription he had written indicating that he had not read all the material allegedly disappeared from the case file .

On DATE the criminal case and indictment were forwarded to the ORG for examination on the merits .

On DATE the ORG ruled that the first hearing in the case would be held on DATE , and that there was no need to hold a preliminary hearing . The applicant objected , claiming that CARDINAL was necessary .

The hearings in the case were held on DATE , DATE and DATE .

On DATE the ORG found P. guilty under LAW and sentenced him to DATE months’ imprisonment , although he was not required to serve his sentence owing to the expiry of the statutory limitation period for crimes of that category . As to the civil claim lodged by the applicant within the criminal proceedings , the court awarded him MONEY ( RUB ) in respect of non - pecuniary damage . It also acknowledged that he had a right to compensation in respect of pecuniary damage but decided to transfer the matter to a civil court for examination because it was impossible to make a precise calculation within the criminal proceedings .

On DATE P. was dismissed from service in the police at his own request .

On DATE the NORP ORG quashed the judgment of CARDINAL DATE and remitted the case for fresh examination . In particular , it ordered the lower court to clarify whether the road sign could have been visible to P. on TIME of the accident .

In the course of the second round of the trial the court examined documentary evidence in the case file and heard over CARDINAL witnesses , including the applicant , PERSON , the applicant ’s parents , several people who had seen the accident , police officers who had been involved in the initial inquiry , CARDINAL expert witnesses , attesting witnesses and a number of hearsay witnesses .

On DATE the ORG found P. guilty under LAW . Its findings of fact can be summarised as follows . The court found that ORG car had been moving at QUANTITY . The car had entered the pedestrian zone , which had been marked by a road sign , and had hit the applicant from behind . He had been walking straight and had not contributed in any manner to the accident . P. had been able to avoid collision by manoeuvring or stopping his car , but for whatever reason he had not done so . He had applied the brakes a while after the collision . As a result of the collision , the applicant had received lifethreatening injuries . No mention was made of P. or the applicant being drunk during the accident . The court was also unable to make any conclusive findings as to when the dents on P. ’s car had been repaired , or whether or not the windscreen had been broken . It concluded that the injuries had been caused to the applicant by P. ’s carelessness , but not deliberately . The court sentenced P. to CARDINAL months’ imprisonment , although again he was not required to serve his sentence owing to the expiry of the statutory limitation period for crimes of a less serious nature . The court awarded the applicant RUB CARDINAL in respect of nonpecuniary damage . As to compensation for pecuniary damage , the court referred the case to a civil court . The ORG specified that although the applicant had produced contracts , receipts and other documents to support his claim for pecuniary damages , he had failed to explain the amounts claimed and the court was therefore unable to make a precise calculation .

Both parties appealed .

On DATE the Rostov ORG amended the decision of the first - instance court . Confirming its conclusions as to the facts of the case and their legal classification , the court decided that P. could not be held guilty , owing to the expiry of the statutory limitation period . As a result , the judgment of the first - instance court was quashed in its entirety and the proceedings discontinued . ORG judgment did not make reference to the civil award made by the first - instance court .

On an unspecified date the applicant brought civil proceedings against P. claiming compensation for health damage , moral suffering , loss of earning capacity and the inability to live a normal life . The applicant ’s relatives also lodged separate claims within the same proceedings . The applicant claimed compensation of RUB CARDINAL for past medical expenses , MONEY ( ORG ) for a DATE ’s loss of earnings , MONEY ( ORG ) for future surgery and medical expenses , and LAW a month for health damage . In addition , he claimed ORG CARDINAL in respect of non - pecuniary damage .

On DATE the Sholokhovskiy District Court , at the applicant ’s request , ordered that the car belonging to P. be temporarily seized .

On DATE the ORG allowed the applicant ’s claims in part .

On DATE the NORP ORG quashed that decision and remitted the case for fresh examination .

DATE . Since all the judges working in LOC had participated in the earlier proceedings , the case was transferred to a court in an adjacent district , ORG , situated QUANTITY from the applicant ’s village . The applicant , who was a wheelchair user at the time , objected without success .

In those proceedings the plaintiffs ( the applicant and his relatives ) amended their claims . In particular , they claimed that damages should be paid by the ORG , because ORG had been a police officer at the time of the events .

The applicant formulated his claims in respect of pecuniary damage as follows . The accident and resulting injuries had deprived him of the ability to work . Although the applicant , who was a qualified naval operator mechanic , had had no actual work at the time , he had been promised an offer of employment overseas on a cargo ship , and had been on a waiting list for a job . If he had accepted that job , his salary would have amounted to ORG CARDINAL per month . Consequently , he asked to be compensated the CARDINAL years’ salary he would have earned but for the accident ( USD CARDINAL,CARDINAL ) . Further , he asked for reimbursement of various medical expenses , including several operations and consultations in GPE and GPE , and legal costs related to his participation in the proceedings against P. ( RUB CARDINAL ) . He also claimed reimbursement of his expenses related to a special diet he had to follow , and the personal assistance he had required during his periods of complete disability . Lastly , the applicant claimed that he still needed further surgery , which could only be done at a clinic in GPE because he had developed several brain cysts as a result of the previous operations ( EUR CARDINAL ) . Lastly , he claimed compensation for his expenses for having to retrain in another field , which would enable him to work again ( RUB CARDINAL ) .

As to non - pecuniary damages , the applicant claimed RUB CARDINAL under this head , referring mostly to the same facts and the suffering caused by the accident , the subsequent surgery , his participation in the proceedings , and lost opportunities related to his disability .

The representative of the ORG claimed that the ORG could not be held responsible for the accident . In their words , liability would arise when CARDINAL conditions were met : if the damage was caused in the course of realisation of the ORG ’s public functions , and if the ORG ’s acts were unlawful . Where damage was caused in the context of an economic activity , it should be compensated in the ordinary way , by the immediate wrongdoer . P. had injured the applicant while driving his own car , and had not been on duty at the time . He had therefore had to be the defendant in the civil proceedings , not the ORG .

On an unspecified date the court obtained ( through the applicant or otherwise ) a letter from an employment assistance agency , ORG , dated DATE . It said that the agency had an opening for the applicant on an overseas voyage on a DATE contract basis , with a salary of ORG CARDINAL . A letter from another shipping company , ORG , which had the applicant ’s name on a waiting list for an offer of employment at the time of the accident , said that he could have earned ORG CARDINAL working as an operator mechanic on a ship in DATE . It also indicated that on overseas voyages on foreign ships , the pay of operator mechanics varied between USD CARDINAL and CARDINAL .

On DATE the Verkhnedonskoy District Court gave judgment in the civil case . The court ’s findings of fact were almost identical to the findings of the criminal court . It concluded that P. had been fully responsible for the injuries caused to the applicant . As to the amount of pecuniary damages , the court noted that the applicant had only been on a waiting list for future employment and had not received an actual job offer . At the time of the accident he had been unemployed . Moreover , it could be seen from the material in the case file that he could not have obtained a job as a naval operator mechanic on overseas voyages in DATE owing to a lack of previous work experience and his poor LANGUAGE . Furthermore , the applicant had a chronic kidney problem , which would have prevented him from going overseas . As a result , the court calculated the applicant ’s loss of earnings as CARDINAL times the minimum wage and took into consideration the “ minimum subsistence level ” which existed at the relevant time in the area where the applicant lived . The resulting amount for loss of earnings for the period under consideration was RUB CARDINAL ( approximately ORG CARDINAL,CARDINAL ) . The court also ordered that the defendant pay him RUB CARDINAL ( approximately EUR CARDINAL ) DATE until the next expert examination of his health . The court also partially satisfied the applicant ’s claims concerning the reimbursement of his medical expenses ( RUB CARDINAL ) and his and his father ’s travel expenses connected to consultations in GPE clinics ( RUB CARDINAL ) and the cost of those consultations ( RUB CARDINAL ) . The part of the applicant ’s claim related to his special diet , treatments , legal and postal expenses and so forth were dismissed by the court as unnecessary , unsubstantiated , or not actually incurred . In particular , the court held that further treatment in GPE had not been proven necessary by the plaintiff .

The court ordered P. to pay non - pecuniary damages , dismissing the claims against the ORG . The court fixed the amount of compensation referring to , inter alia , the defendant ’s financial situation , at RUB CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) . The overall amount to be recovered from P. was RUB CARDINAL ( approximately EUR CARDINAL,CARDINAL ) . The court dismissed the claims of the applicant ’s relatives as unsubstantiated .

DATE . The applicant lodged an appeal , but it appears to have been dismissed by ORG on DATE .

The amount of compensation awarded by ORG was paid in full by DATE .

According to the applicant , during the trial P. made repeated death threats towards him and other members of his family . As a result of that stressful situation , the health of some his relatives worsened and they have since died . The applicant asked the prosecutor to initiate criminal proceedings against P. in respect of the death threats but his request was refused for lack of evidence . The applicant tried to challenge the refusals in the courts but to no avail .

The applicant also sought to initiate a criminal investigation into the alleged falsification of the results of the blood tests by M. However , the prosecutor decided not to open a case , a decision which was upheld by the courts .

The applicant tried to initiate a criminal investigation into the actions of the surgeon PERSON . , but the investigator did not find any grounds on which to prosecute him .


No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Síofra O’Leary;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

The applicant had been employed as head of the sub - division in charge of sanctioning misuse of housing property ( GPE ) in ORG since DATE .

On DATE a meeting of the staff of ORG took place in the presence of the Deputy Mayor for ORG , W. , an elected official who , inter alia , governed ORG , and of a number of staff and trade union representatives . Following a short address on the issue of the expiry of the regulation on misuse of housing property by DATE given by PERSON , the applicant took the floor and accused PERSON of having committed perversion of justice ( PERSON ) by ordering the issue of an unlawful demolition permit for a block of flats in DATE .

On DATE the applicant ’s head of division requested the applicant to substantiate his allegations in writing .

On DATE the applicant submitted several pages of written comments , in which he repeated several times ( using bold characters ) his allegations that PERSON had committed perversion of justice by ordering the issue of a demolition permit in DATE without , at the same time , imposing compensation payments for the loss of housing space caused by the demolition . According to the applicant , PERSON had “ ruthlessly pursued politico - economic interests ” . He further submitted that all staff members of his sub - division considered that PERSON had deliberately discredited their work . Furthermore , PERSON had unlawfully attempted to dissolve the sub - division , thus putting at risk its staff ’s employment . The statement made by PERSON during the staff meeting had been degrading and cynical and had contained halftruths and lies . PERSON had not assumed any personal responsibility and did not show any concern for finding a socially acceptable solution to the problems arising from the dissolution of the sub - division .

By letter of CARDINAL March CARDINAL GPE dismissed the applicant with effect from DATE . The dismissal was primarily based on the applicant ’s statement during the staff meeting . According to the letter of dismissal , the applicant ’s accusations against PERSON had been unjustified . By making these accusations in front of a large number of staff members and representatives of the staff committee and of the trade union , the applicant had damaged his superior ’s reputation and thus irrevocably destroyed the mutual trust which was necessary for effective cooperation . It was further observed that the applicant had not availed himself of the possibility of submitting his concerns to his superior or to the Mayor . Finally , it was noted that the applicant had been reprimanded for disloyal conduct on CARDINAL previous occasions .

On DATE a local newspaper published a letter to the editor in which the applicant expressed the opinion that the Deputy Mayor PERSON lacked any competence for resolving problems relating to housing issues .

NORP By judgment of CARDINAL DATE ORG ( Arbeitsgericht ) established that the employment contract had not been terminated by the dismissal since this could not be justified under LAW ( GPE , see relevant domestic law , below ) . ORG did not find it necessary to decide whether the applicant ’s allegations had been correct , as they were , in any event , covered by the applicant ’s right to freedom of expression .

On DATE ORG ( PERSON ) dismissed the appeal lodged by GPE .

On DATE ORG ( Bundesarbeitsgericht ) , upon the ORG ’s appeal on points of law , quashed the judgment of DATE and remitted the case to ORG ( no . CARDINAL AZR CARDINAL ) . Under the case - law of ORG , gross insults directed against the employer or the employer ’s representative , which constituted a serious violation of the concerned person ’s honour , could justify dismissal on grounds relating to the employee ’s conduct . In order to establish the seriousness of the violation of honour , it had to be established whether the applicant ’s allegations were based on objective facts . Account also had to be taken of whether the criticism had been made among staff members or whether other persons had been present . Finally it had to be considered that employees of the public service had to respect specific obligations under LAW .

The Federal Labour Court confirmed that the right to freedom of expression always had to be taken into account when assessing inappropriate language in a workplace context and that the applicant ’s allegations fell within the scope of his right to freedom of expression . Accordingly , the court had to weigh this right against the protected legal interest with which there had been an interference .

ORG considered that ORG , when weighing the competing interests , had failed to establish correctly the seriousness of the applicant ’s allegations and of the violation of the Deputy Mayor ’s personality rights . Under LAW , perversion of justice was a crime subject to up to DATE imprisonment . In case of a criminal conviction under this provision , a deputy mayor would automatically lose his office . The conduct of a public service employee had to be measured against a stricter yardstick than that of an employee in the private sector . In particular , the employee was under an obligation to behave in such a way as not to interfere with his public employer ’s reputation . Under LAW , the employee had to exercise special restraint when openly criticising a superior ’s decisions . A public allegation of perversion of justice directed against a superior , in particular if it was unfounded , very seriously violated the superior ’s personality rights and interfered , as a rule , with the employee ’s professional duties .

Accordingly , in order duly to weigh the competing interests in the light of the right to freedom of expression , ORG would have to examine whether the applicant ’s allegations had been justified or not . It had further to be taken into account that the allegations had been made during a staff meeting . While it was true that criticism made in this context could occasionally be exaggerated or polemic without giving the employer a ground for dismissal , this right was limited by the obligation not to disturb peace in the office . It had to be taken into account in the applicant ’s favour that the staff meeting concerned the suppression of the applicant ’s field of work and that the atmosphere had been rather tense . However , this did not justify neglecting the fact that the allegation of perversion of justice did not concern the subject matter of the staff meeting , but a single incident which dated back DATE and had not been mentioned by the applicant since DATE . The applicant did not make use of the possibility of informing the Mayor about his legal concerns regarding the Deputy Mayor ’s decision . At the time of the staff meeting , the decision dated back such a long time that an attempt to put the decision into question must have lacked the prospect of success . Accordingly , it appeared that the applicant ’s statement was rather aimed at attacking the Deputy Mayor .

It had also to be taken into account that the statement was made in the presence of persons who were not necessarily bound by confidentiality . Accordingly , there was the risk that the applicant ’s allegations would leak out of this close circle and be made known to a wider public . ORG finally observed that the applicant ’s statement had to be seen in the wider context of his conduct and that the applicant had further exacerbated the conflict by the content of his written comments .

On DATE the Saxon Labour Court of Appeal quashed the judgment of ORG dated DATE and dismissed the applicant ’s action .

ORG considered that the applicant ’s dismissal had been justified because the applicant , in his statement at the staff meeting and in his subsequent written submissions , had seriously insulted and slandered the Deputy Mayor by accusing him of perversion of justice . Based on a detailed examination of the factual and legal situation in DATE , ORG considered that the decision taken by the Deputy Mayor at that time had been lawful . The applicant ’s written submissions of CARDINAL DATE demonstrated that he was not willing to accept and implement politically legitimate decisions , if they concerned sanctions for misuse of property by house owners . The content of the letter to the editor ( see paragraph CARDINAL , above ) contained value judgments which did not amount to insult . However , the Deputy Mayor could not be expected to maintain DATE co - operation with the applicant after reading this letter in which he had been described as incompetent . ORG further observed that the applicant had not revised his opinion during the proceedings .

ORG further considered that the employer did not have any milder means at its disposal . In particular , it would not have been sufficient to reprimand the applicant and to transfer him to another working position . The court observed that the applicant was currently working in ORG and that there was no negative information about his conduct . This was temporary employment which the applicant had obtained by court order in separate proceedings . The applicant had expressed his readiness to accept employment even at a lower level . However , ORG considered that the applicant would not have changed his attitude without his dismissal from office . The Municipality could reasonably expect that the applicant would have carried on with his self - righteous attitude if he had not been dismissed . ORG finally considered that the applicant ’s chances of finding new employment were low . Nevertheless , the employer ’s interest in terminating the employment outweighed the applicant ’s interests .

On DATE ORG dismissed the applicant ’s request to be granted leave to appeal on points of law .

On DATE ORG refused to entertain the applicant ’s constitutional complaint ( no . CARDINAL BvR CARDINAL/CARDINAL ) , without providing reasons .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On TIME applicant was arrested on a street in GPE and taken to ORG of GPE ( “ the police department ” ) , where he was asked to empty his pockets in the presence of CARDINAL attesting witnesses . The attesting witnesses were CARDINAL unemployed men . The applicant produced small bags containing cocaine .

According to the applicant , during his arrest on the street some police officers struck him down , handcuffed him and escorted him to their car , where they allegedly planted drugs ( small bags of cocaine ) on him and continued to beat him up . The assault was accompanied by threats of sexual abuse , and continued until he arrived at the police department .

At TIME on DATE the police took the decision to arrest and detain the applicant under LAW of LAW for violating drug circulation rules , an administrative offence pursuant to LAW .

The applicant was then interviewed . He wrote a confession admitting that he had unlawfully bought cocaine for personal use . According to him , he was forced to make the confession , which was dictated to him by CARDINAL of the police officers .

After the confession he was placed in a police cell .

According to the applicant , during his stay in the police department he was not given enough food or water . He was held in bad sanitary and hygienic conditions . Allegedly , he was locked for TIME in a toilet of the police department , which was dirty and stinking . He felt unwell and had acute lower back pain .

NORP On DATE the police received a specialist report stating that the substance seized from the applicant had contained QUANTITY of cocaine .

DATE the police investigator instituted criminal proceedings against him for illegally purchasing and storing narcotic drugs in large quantities , an offence pursuant to LAW .

At TIME the investigator , relying on Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , took a decision to arrest and detain the applicant on suspicion of the above - mentioned offence . The decision authorised the applicant ’s preliminary detention for TIME .

The applicant was also questioned DATE and gave details of the circumstances surrounding his purchase of the drugs . According to him , his lawyer , who had been hired by his parents , joined him when the interview had gone on for a considerable length of time . In the lawyer ’s presence he complained of being in a poor state of health , and added that CARDINAL of his acquaintances had instigated purchasing the drugs .

According to the Government , on DATE the applicant was given a medical examination and diagnosed with intercostal neuralgia . His state of health was considered satisfactory .

On DATE the prosecutor refused to approve the investigator ’s application to have the applicant placed in pre - trial detention . The investigator then decided to release him on a written undertaking not to abscond .

On TIME , following his release , the applicant was examined by an ambulance team , who noted that he was suffering from acute pyelonephritis ( a severe kidney infection ) and lumbosacral radiculitis ( sciatica ) .

On DATE and DATE he was examined by ambulance teams again , who diagnosed him with acute radiculitis and possible acute pyelonephritis .

DATE the applicant was provided with inpatient treatment at the neurological department of ORG no . CARDINAL . He was diagnosed with lumbar spinal osteochondrosis ( остеохондроз поперекового відділу хребта ) , vertebrogenic lumbodynia ( вертеброгенна ломбаргія ) and pain and muscular tonic syndrome ( больовий та м’язово-тонічний синдром ) .

On DATE he was examined by a psychiatrist , who noted that he was showing signs of post - traumatic stress disorder .

On DATE the ORG of GPE ( “ the ORG ” ) considered the applicant ’s complaint concerning the unlawfulness of his arrest and detention under LAW . It found that the investigator ’s decision of DATE to arrest and detain him as a criminal suspect had been unlawful in so far as the grounds for his arrest in such a capacity had existed as from DATE .

On DATE the applicant , assisted by a lawyer , denied the charges and refused to answer any of the investigator ’s questions .

On DATE the GPE prosecutor ’s office refused to institute criminal proceedings against the police officers in connection with the applicant ’s allegations of a violation of his rights during his arrest and detention . According to the decision , the ORG actions lacked the elements of an offence . It referred to explanations given by the police investigator in charge of the applicant ’s criminal case and to the official custody records concerning his detention .

On DATE the applicant ’s father complained to the investigator that there had been numerous violations of his son ’s rights , including an extraction of his confession through pressure and unlawful arrest and detention .

On DATE the applicant , assisted by his lawyer , denied the charges and refused to answer any of the investigator ’s questions .

On DATE he complained to the prosecutor of failure on the part of the investigative authorities to carry out an appropriate examination of the circumstances in which he had been arrested and questioned in the initial period of the investigation .

On DATE the prosecutor replied that the criminal case against the applicant had been referred to ORG , and that he could raise the relevant issues during the trial .

On DATE a linguistic specialist , in reply to a request by the applicant , issued a report stating that the confession of CARDINAL DATE had been written by the applicant with the assistance of another person who had dictated the text .

During a court hearing on DATE the applicant requested that the linguistic specialist report be admitted to the case file . He further requested that the statements he had made on DATE and DATE be excluded , as they had been obtained in breach of his rights . The court rejected his requests .

The applicant denied the charges throughout the trial . He insisted that the drugs had been planted on him , and that he had been psychologically pressured and physically ill - treated by the police officers . The court then questioned the officers and investigators concerned , who denied the applicant ’s allegations . The court also questioned the CARDINAL attesting witnesses who had been present when the applicant had taken the drugs from his pocket . They stated that when he had produced the little bags in their presence , he had told them they contained cocaine ; they had not noticed any visible injuries on him at the time .

On DATE ORG found the applicant guilty of illegally purchasing and storing narcotic drugs in large quantities , and sentenced him to CARDINAL GPE imprisonment . The sentence was suspended conditional upon CARDINAL years’ probation . In reaching its conclusions , the court had regard to the witness statements and material , documentary and expert evidence . It considered that there was no indication that the applicant had been ill - treated or had suffered a violation of his procedural rights at the time of making his initial self - incriminating statements .

The applicant appealed , claiming that the key evidence had been obtained during his unlawful detention and ill - treatment , and that he had not been given access to a lawyer after the arrest .

On DATE ORG upheld the judgment of the first - instance court . It noted that in the applicant ’s confession of DATE he had explained in detail how he had committed the crime . ORG further noted that on DATE the applicant had also admitted he was guilty .

On CARDINAL DATE ORG , sitting in private , dismissed a cassation appeal by the applicant on the grounds that his guilt had been well established by the evidence in the case file , including the original self - incriminating statements he had made . On DATE his lawyer received a copy of that decision .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE the applicant applied to ORG ( PERSON ) for enforcement of a final judgement by which ORG , the applicant ’s former husband , was ordered to pay her alimony .

On DATE the first - instance court issued a writ of execution ordering GPE to pay the applicant amounts of CARDINAL NORP kunas ( HRK ) together with the statutory default interest for the period starting from DATE until the payment , and also the amount of HRK CARDINAL together with the statutory default interest starting from DATE until the payment on account of costs and expenses .

The writ of execution was served on ORG of ORG ( Hrvatski zavod za mirovinsko osiguranje , Područna služba ORG ) for enforcement .

On DATE GPE appealed against the writ of execution and on DATE the applicant responded to his appeal .

On DATE the first - instance court held a hearing at which both parties gave their statements .

On DATE the first - instance court instructed GPE to institute separate civil proceedings with a view to declaring the enforcement inadmissible .

On DATE the applicant appealed against the decision of CARDINAL DATE .

On DATE the case - file was forwarded to ORG ( Županijski sud u Vukovaru ) to decide upon the parties’ appeals .

On DATE the ORG dismissed the applicant ’s appeal and returned the case - file to the first - instance court .

NORP However , since ORG failed to decide upon the appeal lodged by GPE , the case file was again returned to it and on DATE it dismissed GPE ’s appeal .

On DATE the first - instance court informed ORG of ORG , that the writ of execution became final and that it should be executed .

On DATE the first - instance court again asked ORG of ORG to execute the final writ of execution .

On DATE ORG of ORG transferred HRK CARDINAL,CARDINAL to the applicant ’s account ; on DATE it transferred the amount of HRK CARDINAL ; and on CARDINAL DATE the amount of HRK CARDINAL.CARDINAL .

Meanwhile , on DATE and DATE the applicant lodged a request for the protection of the right to a hearing within a reasonable time ( zahtjev za zaštitu prava na suđenje u razumnom roku ) with ORG ( PERSON ) complaining about the length of the above enforcement proceedings . In these proceedings the ORG was represented by ORG ( ORG odvjetništvo PERSON ) .

On DATE ORG examined the case file of ORG and a submission of ORG , and found that the enforcement proceedings had started on DATE and that they were still pending . It considered that the proceedings had not been excessively long and dismissed the applicant ’s request .

On DATE the applicant ’s appeal was dismissed by a CARDINAL - judge panel of ORG .

On DATE the applicant ’s subsequent constitutional complaint was declared inadmissible by ORG ( Ustavni sud PERSON ) .