MILADINOV AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicants were born in DATE , DATE and DATE respectively and live in LOC ( the first and third applicants ) and ORG ( the second applicant ) . The applicants were private entrepreneurs .

On DATE an investigating judge of ORG ( “ the trial court ” ) opened an investigation against CARDINAL people ( some of the accused were bankruptcy trustees , trial judges , lawyers , notaries and civil servants ) , including the applicants , on reasonable suspicion of having been involved in crimes with respect to bankruptcy proceedings concerning company ORG the applicants were charged with money laundering . In respect of the first applicant , the investigation also concerned charges of abuse of position , fraud and forgery and as regards the third applicant , charges of fraud . After having heard oral evidence from the accused , the investigating judge , in a single decision , ordered that QUANTITY of the accused , including the applicants , be placed in pre - trial detention for DATE . The detention order was based on all the grounds specified under section CARDINAL ) of LAW ( hereinafter “ LAW ” , see paragraph CARDINAL below ) , namely , a risk of the accused absconding and reoffending and interfering with the investigation . The judge relied on the gravity of the charges , the severity of the potential sentence and the possibility of the accused influencing witnesses , accomplices and other people concerned .

The first and second applicants appealed , arguing that the investigating judge had not given any concrete reasons to justify the detention of each of them . Both applicants pointed out that they had a permanent residence and family in the respondent ORG . The second applicant further submitted evidence regarding his poor health .

On DATE a CARDINAL - judge panel of the trial court ( “ the panel ” ) , set up under section PERSON ) of the LAW ( see paragraph CARDINAL below ) , sitting in private , dismissed the appeal submitted by the first applicant . On DATE it replaced the order for pre - trial detention with an order for house arrest in respect of the second applicant .

With CARDINAL decisions dated DATE , DATE and DATE , the panel ordered , on each occasion , a DATE extension of the applicants’ pre - trial detention and house arrest , respectively . All extension orders were taken at hearings held in private ( нејавна седница ) . The first CARDINAL extension orders were given on a proposal by the investigating judge and were based on all CARDINAL grounds specified under section CARDINAL ) of the LAW . In the decision of DATE , which was given on a proposal by the public prosecutor , “ interference with the investigation ” was excluded from the list of grounds since an indictment was lodged against the applicants on that date . According to the applicants , the indictment was communicated to them on DATE .

As regards the risk of absconding , the extension order of CARDINAL DATE stated that :

“ Having regard to the type , gravity and nature of the criminal offenses with which the accused are charged , the panel considers that there is a real risk of them absconding if they are released . That is sustained with the behaviour of some of the accused , namely [ the first applicant ] has a previous criminal record and criminal proceedings are pending in respect of [ the second applicant ] . As regards the personal circumstances of the accused , the panel took into consideration that most of them have a family ; that they are parents and have possessions , but it considers that they do not provide for a sufficient guarantee , at this stage of the investigation , that they would not abscond if they are released ... ”

As to the possibility of their reoffending , in all CARDINAL orders the panel stated , inter alia :

“ ... the panel has taken into consideration the nature , character and type of offences and the manner and conditions in which they were committed , which make the possibility of reoffending particularly likely . Particular attention has been paid to the fact that the criminal offences with which the accused are charged ( or ‘ in respect of which there is a reasonable suspicion’ ) have been committed through the use of the position and characteristics of the accused as holders of special powers [ со искористување на положбата и својствата на обвинетите и како носители на посебни овластувања ] . ”

NORP The extension order of CARDINAL DATE relied on the same reasons and used identical wording to justify the risk of the applicants absconding and reoffending . It added a reference to the severity of the potential penalty , as a ground that justified the risk of flight .

As regards the risk that the applicants might flee , the extension order of CARDINAL DATE stated :

“ ... The contents and quality of the material and verbal evidence adduced corroborates the suspicion that the accused have committed the crimes with which they are charged ... Consequently , the panel considers that at this stage of the proceedings , namely , after the indictment was lodged ... there is still a real risk of the accused absconding if they are released . That would considerably affect the proceedings and prevent the case from being decided . Having been acquainted with the indictment and the reasons given therein , and having been faced with the possibility of a prison sentence , the accused , if released , could flee or otherwise go into hiding ... ”

As regards the possibility that the applicants might reoffend this order provided an explanation identical to that contained in the previous orders . The panel further added :

“ ... In particular , [ the first and third applicants ] are the owners of several companies through which the offences with which they are charged were committed . The other accused are employed by or otherwise connected with those companies ... ”

After DATE the panel extended the applicants’ pre - trial detention and house arrest , respectively on its own motion . DATE and DATE the panel , sitting in private ( нејавна седница ) , issued CARDINAL orders each providing for a DATE extension of the applicant ’s detention due to the risk that they might flee and the possibility that they might reoffend . The risk was justified , in all extension orders with an explanation identical to that described above ( see paragraphs CARDINAL and CARDINAL above ) . Besides the above reasons , in all CARDINAL extension orders given during this time , the panel stated :

“ ... Given the fact that the detention in prison custody and house arrest are the most efficient measures that secure the attendance of the accused at the trial ... which had a positive bearing on their right to a hearing within a reasonable time .... the panel considers that the extension and maintaining of the detention .... is justified ... ”

In addition to the above reasoning , the extension orders of DATE , DATE , CARDINAL DATE and DATE ( each proving for a DATE extension of the applicants’ detention ) contained a reference to the third applicant ’s previous criminal record .

On DATE Mr PERSON visited the first applicant in GPE prison . On that occasion , the first applicant signed a letter of attorney for Mr PERSON to represent him in the proceedings before ORG . The prison administration retained that document because PERSON had not informed them in advance that such a document would be signed . The first applicant requested that the prison governor , the trial court and the ORG take measures to remedy the situation . After DATE the retained document was returned to PERSON .

On DATE the panel set aside the order for house arrest in respect of the second applicant and ordered that his passport be seized . In the absence of an appeal , the order became final .

DATE and DATE the panel issued CARDINAL orders each providing for a DATE extension of the detention of the first and third applicants for the same reasons and with an identical wording to that described above ( see paragraphs CARDINAL - CARDINAL ) . All orders were taken at hearings held in private .

As evident from the available material in the case file , the applicants appealed against the extension orders , arguing , inter alia , that the panel had not given sufficient reasons to substantiate the risk of them absconding and reoffending , given their family situation and the state of health of the second applicant ( who suffered from a chronic illness and needed regular medical care ) . The first applicant further argued that his previous conviction concerned a traffic offence , which could not be relied on by the courts to justify the risk of his reoffending . The applicants also complained that the wording used in the decisions in question violated their right to the presumption of innocence as guaranteed by the LAW and the LAW . The first and third applicants further requested , under section CARDINAL ) of the consolidated version of the LAW ( the text of which is identical to section CARDINAL ) of the LAW , see paragraph CARDINAL below ) , to be informed of the date of the session ( седница ) of ORG . Lastly , the applicants sought release and replacement of the detention order with a more lenient measure specified under the domestic law .

ORG , sitting in private , dismissed the appeals , finding that the panel had given sufficient reasons for the applicants’ continued detention . In the decisions ( dated DATE , DATE , DATE , CARDINAL July,CARDINAL DATE , DATE and DATE ) , ORG referred to written submissions in which the public prosecutor requested , under section CARDINAL(CARDINAL ) of the LAW ( see paragraph CARDINAL below ) that the court dismisses the applicants’ appeals . In its decisions of DATE and CARDINAL DATE it also dismissed the requests of the first and third applicants that it decide in a public session ( седница ) , finding that section CARDINAL(CARDINAL ) of the LAW was inapplicable in their case .

As regards the risk of the applicants absconding , in the decisions dated DATE , DATE , DATE and DATE , ORG stated , inter alia :

“ ... The court considers that , as evident from the case - file , the circumstances of the concrete criminal act , taken in connection with the nature , type , gravity and the manner in which the criminal offences were committed ... faced with the possibility to be sentenced to imprisonment and the severity of ( this penalty ) suggest that there is a risk of the accused of absconding in order to avoid eventual criminal responsibility for the criminal offences in question ...

In this connection the court neither accepts nor does it consider that the allegations of the accused that they have family ; that they are parents with a permanent residence [ in the respondent ORG ] are of any relevance ... ”

Regarding the possibility that the applicants might reoffend , the court stated that :

“ ... [ the court took into consideration ] all the circumstances of the concrete criminal act , in particular , the nature and type of the criminal offences , the manner in which they were committed , especially the fact that the ( first and third applicants ) are the owners of several companies through which the crimes were committed and ( the second applicant ) was linked with those companies by way of having been engaged in work - related activities ... The above is further supported by the fact that there are criminal proceedings pending in respect of ( the second applicant ) and that ( the first applicant ) has already been convicted . All [ the above ] increases the risk of the accused reoffending if they are released at this stage of the proceedings ... having regard , in particular , to the fact that the criminal offences , as stated , were committed through the use of the position and powers of the accused ... ”

Identical wording , limited to the first and third applicants , was used in decisions of DATE , CARDINAL and DATE and DATE in which ORG dismissed the appeals brought by these applicants . In all decisions ORG also referred to the detention “ as the most efficient measure to secure the attendance of the accused at the trial ” .

In all the above decisions ORG further stated :

“ The court examined the complaints ... denying the existence of offenses and criminal responsibility of the accused , but it considers that they are irrelevant in the appeal proceedings in question , given that the only issue to be decided at this moment is whether there are reasons for detention ... In this connection ( these ) complaints will be examined at the trial ... where the court will adjudicate on the merits ( of the case ) . ”

On DATE the trial court found the applicants guilty and sentenced the first and third applicants to CARDINAL half years’ imprisonment and the second applicant to a prison term of DATE . The court further decided that the first and third applicants would remain in custody until the judgment became final .

On DATE ORG allowed the appeals submitted by the applicants’ and the public prosecutor and quashed , in a public session , the trial court ’s judgment . It also ordered the first and third applicants’ release of its own motion , finding that there were no grounds to justify their detention .

No further information was provided as regards the criminal proceedings against the applicants .


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

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s son PERSON was born . At that time the applicant lived with the boy ’s mother , GPE , in a flat belonging to her parents . In DATE the applicant moved out after a disagreement with ORG father .

NORP In DATE the applicant filed a court complaint that GPE was hindering his contact with his son .

On DATE the parties reached a friendly settlement before the ORG detailing when the applicant was able to visit the child . It was agreed that the applicant could see J. on DATE and DATE from TIME , as long as the meetings had been arranged with GPE DATE . The applicant could also take DATE for DATE during DATE . It was arranged that he would pick the child up from ORG place of residence and take him back .

In DATE the applicant ’s meetings with his son were on some occasions made impossible by the mother , but most of them took place . A few of the visits were cancelled because the child was ill .

On DATE PERSON applied to change the applicant ’s access rights . PERSON wanted to reduce the amount of time the applicant could spend with J. She also indicated her intention to move to GPE with her son for financial reasons .

On DATE the applicant applied to increase his access rights . He stated that PERSON had been interfering with his contact visits . The applicant asked the court to order that he be able to see his son twice a month from TIME on DATE to TIME on DATE ; DATE at DATE or GPE from TIME DATE ; and DATE in DATE and DATE in DATE .

At a hearing on DATE PERSON withdrew her application and ORG discontinued the proceedings . The applicant appealed , complaining that his application had still to be examined .

On DATE ORG quashed ORG decision . The court considered that it had been a mistake to assume that the applicant had consented to the discontinuation of his application just because PERSON had chosen to withdraw hers . It was also established that the applicant ’s access rights were not being respected at the time because PERSON had moved to GPE with the child .

On DATE PERSON moved to GPE with the child without the applicant ’s consent . The parties disagreed on whether or not PERSON had informed the applicant of their address in GPE ( the applicant submitted that she had not ) .

The applicant initiated proceedings under LAW on the Civil Aspects of ORG of DATE ( “ the LAW ” ) . On DATE ORG in GPE ordered that the child be returned to GPE to the father or a guardian because under LAW the mother had abducted the child . The court also noted that the applicant and PERSON had joint custody of CARDINAL under NORP law .

On DATE ORG in GPE dismissed an appeal by GPE and ordered the return of the child to GPE . However , the court agreed that the child need not be handed over to the applicant . It stated that it would be enough to move back to GPE by the required date to comply with the court ’s order .

On DATE ORG communicated the above decisions to ORG . The applicant was informed on DATE . The mother and the child returned to GPE on DATE .

In DATE the applicant lodged an application for sole custody of J. and to establish J. ’s place of residence with him .

On DATE TIME lodged an application to grant her sole custody of the child and to establish J. ’s place of residence with her .

The proceedings were stayed DATE and DATE owing to proceedings pending under LAW .

On DATE ORG approved a settlement between the parties regarding the applicant ’s access rights . It was agreed that the applicant would be informed whenever PERSON ’s place of residence changed . It was also agreed that he would be able to see J. every other DATE and DATE from TIME ; DATE and LOC holidays at the same times ; DATE from TIME ; and for DATE in DATE from DATE . The applicant was also under an obligation to allow GPE to contact PERSON when the child was under his care and agreed that he would not see the child on DATE as well as on DATE and DATE .

According to the applicant ’s own statements before the domestic authorities contact took place according to the agreement .

The agreement was further modified by the parties on DATE by extending the amount of time the applicant could spend with his child . It was agreed that the applicant would spend CARDINAL weekends per month from DATE with his son , as well as DATE in DATE and DATE in DATE . The applicant was also to have telephone contact with the child .

During the proceedings , on DATE , ORG ordered the parties to have counselling . The applicant and PERSON began to go to counselling but PERSON pulled out . The court also ordered mediation to resolve their issues . The court ordered the preparation of several expert opinions . In particular ORG ( ORG -“the RODK ” ) submitted CARDINAL reports by experts DATE and DATE . The applicant contested the conclusions of the opinions .

On DATE ORG dismissed the applicant ’s application to order that ORG place of residence be with him , leaving the child in GPE ’s care . The court also dismissed PERSON ’s application to decrease the applicant ’s visiting TIME . The applicant and PERSON retained joint custody of ORG court established that in the period up to DATE the bond between the applicant and the child had weakened considerably owing to a lack of contact between them . However , their relations had significantly improved because after the settlement of DATE contact between the applicant and his son had taken place without disturbance . Afterwards , at the applicant ’s request , the contact arrangements had been modified on CARDINAL DATE . The court noted that the parties had had strong disagreements , had stopped talking to each other and should both be held responsible for the situation . According to the experts , the parents were not able to decide together on important aspects of the boy ’s life . Nevertheless , the court found that both parents loved their child very much and wanted the best for him . The court found no reasons to limit either parent ’s parental rights .

The parties appealed .

On DATE ORG partly granted the appeal lodged by PERSON and dismissed the applicant ’s appeal . It found it necessary to limit the applicant ’s parental rights only to the most important decisions on J. ’s health , education , and upbringing . The court considered that the conflict between the parents meant it would not be possible for them to continue to carry out their parental responsibilities jointly .

In the meantime , on DATE , ORG increased the amount of child support payable by the applicant to PERSON from MONEY ( ORG ) to ORG CARDINAL per month .

On DATE the applicant asked the court to further modify the contact arrangements . He submitted that his relationship with his son had got considerably worse since DATE and blamed the mother ’s behaviour . The applicant asked for visits to take place in the presence of a guardian . The applicant also sought enforcement of the contact arrangements ordered in the agreement of CARDINAL DATE ( see paragraph CARDINAL below ) .

On DATE the court commissioned another report by experts from the RODK . The experts met the applicant , GPE and J.

On DATE PERSON applied to annul the settlement of CARDINAL DATE . She stated that PERSON refused to see his father and , while waiting for the PERSON report , it would be in his best interests to no longer see his father .

On DATE ORG applied an interim measure to limit the applicant ’s access rights and ordering that both the applicant and PERSON have counselling . The applicant was allowed to see his son at ORG or another public place for short visits in the presence of his mother or maternal grandparents . The applicant appealed .

On DATE J. was questioned in the presence of a psychologist . The boy , DATE at the time , stated that he no longer wished to see his father . He stated that the applicant had paid no attention to him during visits and that he had been allowed to play computer games DATE .

On DATE ORG quashed the interim order of DATE . The court ordered the parties to attend counselling and to submit attendance certificates to the court DATE . The court further emphasised the need to modify the way the father and the child communicated without suspending contact between them , which would lead to breaking the bond between them .

On DATE PERSON applied to change the access rights of the applicant agreed in the settlement of DATE . PERSON asked the court to order that contact should take place DATE and be in her or her GPE presence because PERSON had not seen the applicant for a long time and would feel unsafe with him . She also requested an interim measure from the court .

On DATE ORG gave an interim measure . It stated that the applicant would have the right to see PERSON every other weekend for TIME on DATE and TIME on DATE in a public place and in the presence of GPE or her parents . Upon appeal by the applicant the decision was amended by ORG on DATE by extending the length of the meeting to TIME . The visits were to take place in a neutral place , in the presence of GPE or her parents , and with a guardian for DATE .

The applicant met his son in DATE in a ORG restaurant . The boy was accompanied by his mother and was aggressive and hostile to the applicant .

On DATE the RODK issued its report , recommending that the applicant and GPE have counselling in order to learn to cooperate when making decisions about their son . The RODK also proposed that J. should consult a psychologist . It further observed that relations between the applicant and his son were strained because PERSON had a negative attitude towards the applicant and no longer liked to have contact with him . That attitude was the result of a negative image of the applicant that had been created under the influence of the mother .

At a hearing on DATE the applicant declared that he was no longer attending the meetings because of his son ’s disruptive and aggressive behaviour . The last meeting took place in DATE .

On DATE the RODK issued another report which stated that the boy had been loyal to his mother and had turned away from the applicant .

On DATE , after ineffective mediation , the court modified the contact arrangements by ordering longer meetings with the applicant . The court again ordered the parties to have counselling so they could learn how to reach agreement with each other . The court also noted that the applicant had the possibility to apply for imposing a fine on GPE for noncompliance with court orders . On DATE the applicant appealed .

The proceedings are still pending .

On DATE the applicant complained that the arrangements for meeting his child , as established by the agreement of DATE , were not being enforced . After the child was removed to GPE the applicant initiated proceedings under LAW ( see paragraphs DATE above ) .

On DATE the court ordered GPE to pay a fine if a contact meeting scheduled for DATE did not take place . That and subsequent visits took place in accordance with the settlement of DATE .

On DATE the applicant brought a claim to enforce his access rights under Article CARDINAL ) § CARDINAL and § CARDINAL of LAW ( Kodeks Postępowania Cywilnego – “ the ORG ” ) . He submitted that his relations with his son had worsened substantially since DATE for which he blamed the mother ’s behaviour . It appears that he withdrew the claim at an unspecified DATE .

On DATE the applicant requested the assistance of a court guardian during his meetings with the child ( see paragraph CARDINAL above ) . On DATE the applicant brought a claim to enforce the arrangements for meeting his child , as determined by the settlement of CARDINAL DATE , by imposing a fine on the child ’s mother . The applicant submitted that PERSON had been making it impossible for him to call his son although that had been provided for by the settlement . Moreover , after DATE , when his parental rights had been limited , PERSON had cancelled all his subsequent meetings with his son . Since DATE PERSON had started claiming that their child refused to meet him .

By a decision issued on DATE ORG ordered that PERSON pay the applicant a penalty each time he was denied his rights to have access to J. as set down by the settlement of CARDINAL DATE . She was ordered to pay PLN CARDINAL each time she interfered with the applicant ’s right to see J. and PLN CARDINAL every time she did not allow them to converse by telephone on DATE as scheduled . The court noted that there was no dispute about the fact that PERSON had prevented the applicant from seeing his son for DATE . PERSON lodged an appeal against the decision but it was dismissed on DATE by ORG . It appears that the applicant never applied to enforce that decision or to impose penalty payments on GPE


Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in DATE .

By judgment of DATE ORG , composed of CARDINAL judges and adjudicating as a court of first instance , convicted the applicant of fraud and forgery to the detriment of a bank and sentenced him to DATE imprisonment . The applicant , who was being detained in FAC at the time , appeared in person , assisted by a lawyer of his own choosing , GPE

At the hearing held on DATE before ORG , composed of CARDINAL judges , the applicant , who had meanwhile been transferred to ORG , appeared in person , assisted by CARDINAL lawyers of his choosing , PERSON and PERSON The hearing was adjourned and scheduled to resume DATE . On CARDINAL DATE the proceedings were once again adjourned , owing to a ORG strike , until DATE . Before the end of the CARDINAL DATE hearing the court informed the applicant that he would not be summoned to appear at the hearing on DATE .

Before the hearing on CARDINAL DATE the applicant informed the court in writing that he would not be present but would be represented by his lawyers . However , neither of the lawyers whom the applicant had appointed on CARDINAL DATE attended the hearing in question . The court then concluded that at the CARDINAL DATE hearing the applicant had voiced a wish for a ruling on his appeal ; it appointed PERSON official counsel for the applicant and adjourned the CARDINAL DATE hearing so that the latter could familiarise himself with the case file . At the hearing ORG submitted to the court that the offences with which the applicant had been charged were petty rather than serious offences , which plea had also been raised and dismissed at first instance . He also invited the court to take account of mitigating circumstances in respect of the applicant .

On DATE ORG reduced the applicant ’s sentence to DATE imprisonment for the same offences . It dismissed the allegations that the offences came under tort law and ruled that they should be classified as criminal offences because the conditions set out in Act No . CARDINAL on “ increasing sentences imposed on persons found guilty of embezzling public funds ” were fulfilled in the instant case . However , it acknowledged the existence of mitigating circumstances .

On DATE the applicant lodged an appeal on points of law complaining of the erroneous application of the relevant legislation , in particular Act no . CARDINAL . Relying on the case - law of ORG , he submitted that the offences with which he had been charged fell under tort law and not under criminal law , and had become statute - barred by the date on which he had stood trial . He also complained of a violation of ORG CARDINAL and CARDINAL of the LAW . The applicant had prepared his appeal on points of law himself ( albeit , evidently , with the assistance of a lawyer ) , lodging it with ORG through the intermediary of FAC authorities . On DATE , in GPE prison , the applicant received a summons to appear at the DATE hearing before ORG .

On DATE the applicant asked the President of ORG to appoint an official lawyer to represent him before that court .

NORP On DATE the President of ORG , noting the applicant ’s situation of financial hardship , appointed PERSON to represent him at the DATE hearing and/or at any other hearing held in the context of his case .

By judgment of CARDINAL DATE ( finalised on DATE and authenticated on DATE , as of which date copies of the judgment could be issued on request ) , ORG dismissed the appeal on points of law as having been abandoned , on the grounds that the applicant , who had , according to the court , been summoned to appear at the hearing pursuant to standard procedure and within the requisite time - limit , had failed to appear .

The applicant submitted that he had contacted PERSON prison after appointment of the latter , who had assured him that he would attend the hearing . However , PERSON had informed him of the reasons for his absence neither before nor after the hearing . The applicant explained that it was DATE , during a telephone conversation ( without providing details regarding the date , method or reasons for that conversation ) , that the lawyer had informed him that he had telephoned the registry of ORG to request the adjournment of the hearing .

On DATE of his application to the ORG the applicant stated that he had taken cognisance of the judgment of ORG on DATE , as clearly mentioned at the bottom of page CARDINAL of the judgment .


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

NORP The applicant in the first case , Mr PERSON , is a NORP national who was born in DATE and is currently serving a prison sentence in GPE . He was represented before the Court by Mr A. Zvejsalnieks , a lawyer practising in GPE .

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

NORP The applicant in the third case , Mr Raivo Jurševskis , is a NORP national who was born in DATE and is currently in detention in GPE . He was represented before ORG by Ms NORP ORG , a lawyer practising in GPE .

The NORP Government ( “ the Government ” ) in the first case were represented by their Agent at the time , PERSON , and subsequently by Ms PERSON , who represented the ORG also in the second and third cases .

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

DATE and DATE the applicant served his prison sentence in FAC ( Grīvas cietums ) . During that time he was temporarily placed in FAC ( NORP cietums ) , CARDINAL .

On DATE , the applicant was diagnosed with infiltrative tuberculosis of the left lung , for which he received treatment .

On DATE the applicant lodged a compensation claim against ORG with ORG ( ORG rajona tiesa ) in relation to his having contracted tuberculosis DATE and DATE . He also requested exemption from the court fee owing to his financial situation .

On DATE ORG refused to consider the applicant ’s claim because he had failed to observe the extrajudicial procedure . Having complied with that requirement , the applicant re - lodged his compensation claim with ORG .

On DATE he submitted a request to ORG to decide on the issue of the court fee on the grounds that he was unable to pay it . On DATE ORG lifted the court fee .

On DATE ORG examined the merits of the applicant ’s claim . It assessed the applicant ’s allegation , including whether he had been imprisoned with persons suffering from tuberculosis . ORG could not , however , establish that the applicant had contracted tuberculosis because of any action by the prison administration . It dismissed the applicant ’s claim .

NORP The applicant appealed against the aforementioned decision . On DATE ORG refused to proceed with his appeal . It found that the applicant had not submitted a document on the payment of court fee for lodging an appeal , which totalled CARDINAL NORP lati ( ORG ) . Nor had he applied for exemption from it .

It gave the applicant a deadline of CARDINAL DATE to submit a document on the payment of the court fee or a request for full or partial exemption from it .

On DATE ORG ( NORP apgabaltiesa ) , on an appeal from the applicant upheld the aforementioned ruling . It set a new deadline of DATE for the submission of a document on the payment of the court fee . No further appeal was available .

The applicant did not pay the court fee . On DATE ORG decided that his appeal should be considered as not having been lodged and be returned to him . An appeal lay against that decision . The applicant did not appeal .

On DATE the applicant submitted a complaint to ORG ( ORG ) . He requested information on when and where he had contracted tuberculosis . He considered that he had not received adequate healthcare while in detention .

ORG instigated an inquiry . On DATE it issued a decision finding no shortcomings in the healthcare provided to the applicant while he was in detention . It refused to commence administrative violation proceedings . That decision was subject to appeal . The applicant apparently did not appeal .

On DATE the applicant was arrested on suspicion of having committed a robbery .

On DATE he was questioned by police officers . The same day he was brought before the Investigating Judge of ORG ( PERSON pilsētas tiesa ) , PERSON , who authorised his detention on remand .

The applicant was held in a short - term detention facility in GPE from DATE . According to the applicant , the conditions there were appalling .

On DATE the applicant complained to ORG ) regarding a police officer , PERSON , in relation to the applicant ’s detention in DATE . In particular , PERSON had allegedly failed to inform the applicant ’s relatives of his arrest and had refused to accept the applicant ’s written requests concerning his conditions of detention and his medical needs . The applicant claimed that PERSON had been aware of those issues but had not followed them up .

This complaint was transmitted to ORG of ORG ( NORP policijas PERSON drošības birojs ) for examination . On DATE the ORG received another similar complaint from the applicant .

ORG of ORG conducted an inquiry . On DATE it refused to open criminal proceedings against PERSON , which refusal was subject to appeal .

On DATE ORG , upon the applicant ’s appeal , upheld the aforementioned decision . No further appeal was available .

On DATE the applicant lodged a compensation claim with ORG in relation to the alleged inadequate conditions of his detention DATE .

On DATE ORG considered the applicant ’s claim belated and refused to renew the procedural time - limit for its submission . An appeal against that decision lay with ORG ( Iekšlietu ministrija ) .

On CARDINAL DATE the applicant wrote to ORG that he accepted ORG refusal to renew the procedural time - limit .

On DATE , CARDINAL , the applicant was arrested on suspicion of aggravated murder and taken to ORG ( PERSON reģiona pārvaldes PERSON pilsētas ORG iecirknis ) .

According to the applicant , he was questioned for TIME at FAC by QUANTITY police officers , while seated handcuffed on the chair . They accused him of being involved in the murder . They were aggressive and insulting . The Police Officer , GPE , holding a gun silencer in his hands , suggested taking the applicant to the woods and shooting him . He invited the applicant to write a confession to the murder . Another police officer was holding a stick - type object .

At TIME the report was drawn up on the applicant ’s arrest . The applicant said that he had signed the report without having read it . The Government pointed out that according to the report the applicant had been under influence of alcohol .

Between TIME the applicant was searched .

He was subsequently placed in a holding cell in ORG , in order , according to the Government , to sober up .

The applicant submitted that the only furniture in the holding cell was a bench . He had no access to a toilet or water or food . He spent TIME sitting on the bench .

The following TIME , on DATE , GPE interrogated the applicant , during which time he wrote a confession .

According to the applicant , PERSON had locked the office door . The same police officers were present as on DATE . PERSON told the applicant to confess if he wanted to avoid trouble . The applicant refused , but eventually he wrote a confession under dictation from GPE

DATE and TIME ORG , GPE , questioned the applicant . The record showed that the applicant had agreed to testify without a lawyer . He described the events of DATE of the incident , including his attack on the victim .

At TIME on DATE , the applicant was transferred to a short - term detention facility in GPE ( PERSON īslaicīgās aizturēšanas vieta ) , located in another building .

On DATE , CARDINAL , the applicant testified as a suspect . TIME showed that the applicant ’s lawyer , PERSON , was present . The applicant maintained his earlier testimonies given on DATE . He gave certain other details regarding the attack on the victim , including the fact that he had committed it in anger .

On DATE the applicant was brought for a detention hearing before the Judge of the Riga City Latgale District Court ( Rīgas pilsētas ORG priekšpilsētas tiesa ) , PERSON The applicant was represented by his lawyer , PERSON The Judge , PERSON , remanded the applicant in pre - trial detention . According to her ruling , the applicant , during the hearing , explained that he had committed the crime and expressed his remorse .

On DATE , a visit was conducted to the crime scene from CARDINAL to TIME The applicant and his lawyer , GPE , participated . The record showed that the applicant had pointed to the place where he had committed the crime and had given its other details .

On DATE the applicant underwent a psychiatric examination . According to the report , during that examination the applicant ’s description of the incriminated conduct had tallied with his earlier testimonies .

On DATE the applicant was brought for a detention hearing before the Judge , PERSON According to PERSON ’s ruling , during the hearing the applicant and his lawyer , PERSON , stated that the applicant had confessed to the crime and expressed his remorse . It was decided that the applicant should remain in pre - trial detention .

On DATE the Prosecutor , ORG , questioned the applicant in his capacity as an accused . His lawyer , ORG , was present . The applicant denied his involvement in the alleged crime . He stated as follows :

“ ... [ the applicant ] confessed to the crime owing to moral pressure by ORG , [ GPE ] , who informed [ the applicant ] that [ he ] had already previously committed a murder , and therefore [ he ] would be convicted anyway , although an admission of guilt was a mitigating circumstance . Therefore , [ the applicant ] was compelled to confess ... ”

The applicant lodged with ORG a motion to review his pre - trial detention . On DATE he was brought for a hearing before the ORG Judge , GPE

During that hearing the applicant informed GPE of the pressure exerted on him by the police officers . ORG ’s ruling reflected the applicant ’s statement in that regard as follows :

“ ... [ the applicant ] had admitted his guilt because of psychological pressure exerted by the police officials . ”

In relation to the CARDINAL earlier hearings of DATE and DATE before the Judge , PERSON the applicant submitted to the ORG that on both occasions the escorting officers and the investigating officer , PERSON , who were present at the hearings , had been ORG colleagues . The applicant had therefore been afraid to mention his ill - treatment .

The applicant was brought before ORG ( PERSON apgabaltiesa ) for the main trial on the charge of aggravated murder .

In the course of the trial the applicant maintained that he was innocent and that he had written the confession under psychological pressure , as follows :

“ During the conversation with [ V.J. ] on DATE [ the applicant ] was psychologically influenced . [ He ] was told that [ he ] had to accept responsibility for the crime and there was no point in denying anything . [ GPE ] ... indicated that [ the applicant ] had been previously convicted of a similar crime , and so [ he ] had better plead ... guilty ... as [ he ] would not get away with it in any case . In fact ... the admission of guilt would constitute a mitigating circumstance and ... [ GPE ] would himself testify that [ the applicant ] had cooperated with the investigation ... Likewise ... it was ironically said that [ the applicant ] was not a useful man , that [ he ] lived off a woman and was not capable of providing [ for himself ] financially . Also , the subsequent conditions of detention ... amounted to ridicule and psychological pressure . [ The applicant ] was not given food , or allowed to use a toilet or provided with a bed , since [ he ] spent the whole night sitting on a bench . ”

DATE . At the hearing of CARDINAL DATE ORG granted the applicant ’s request that GPE be summoned to testify . PERSON was examined at the subsequent hearing on DATE .

On DATE the trial was concluded . The applicant was found guilty of aggravated murder . The judgment , among other pieces of evidence , referred to the applicant ’s impugned confession . The applicant ’s allegation of having been pressured to write the confession was dismissed .

On DATE ORG , presided over by the Judge , ORG , examined the applicant ’s appeal against the first - instance judgment .

The applicant maintained that his confession should not have been used in the trial .

ORG acknowledged that TIME on DATE and TIME on DATE , the applicant had not been provided with conditions complying with section CARDINAL of the Law on Arrested Persons Holding Procedures ( ORG personu turēšanas kārtības likums ) . However , it could not establish that the applicant had written the impugned confession as a result of the circumstances adduced . ORG upheld the first instance judgment on the applicant ’s guilt .

The applicant appealed against the aforementioned judgment to ORG of the ORG of ORG ( PERSON tiesas ORG departaments ) .

Referring to his confession of DATE and certain subsequent statements , the applicant submitted that his admission of guilt should have mitigated his sentence . Also , he had not intended to kill but only to injure the victim . The applicant had acted in a state of severe mental distress caused by the victim .

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

On DATE the applicant submitted a complaint to ORG that he had spent TIME DATE in ORG sitting on a bench , and that owing to the layout of these premises , he had been denied access to a toilet . He had not been provided with food or access to drinking water . DATE , moreover , the applicant had been questioned by QUANTITY police officers who had “ threatened and blackmailed him in an attempt to extract a confession ” . As a result , the applicant had written a text dictated by one of the police officers .

The applicant ’s complaint concerning conditions in ORG was transmitted for examination to its ORG ( PERSON reģiona pārvaldes PERSON izmeklēšanas birojs ) . In the part concerning testimonies given in ORG , however , the complaint was transmitted to ORG for consideration during the criminal trial .

On DATE ORG of ORG replied that the applicant had signed the record of his arrest on DATE without indicating any grievances . Further , his allegation regarding conditions of detention contradicted material in the case file .

In the applicant ’s submission to ORG , the ORG ’s inquiry had been exclusively formal .

On DATE the applicant lodged a complaint with the PERSON ( PERSON ) . His complaint was very similar to that lodged with ORG ( see paragraph CARDINAL above ) .

On DATE , having conducted an assessment , the PERSON concluded that the inquiry conducted by ORG of ORG had not been effective , in breach of LAW . The PERSON advised that if the applicant had suffered damage because of the inquiry , he was entitled to apply for compensation from the Head of ORG .

On DATE , referring to the aforementioned findings of the PERSON , the applicant applied for damages from the Head of ORG .

On DATE the Head of ORG replied that the earlier investigation had shown that the applicant had not been denied access to a toilet or drinking water . The applicant had not specified the damage which he had suffered as a result of the investigation by ORG of ORG . The applicant ’s claim was dismissed .

On DATE the applicant lodged a request with ORG . He requested the commencement of criminal proceedings against the officers of ORG who had arrested and questioned him and had “ exerted psychological pressure on and threatened the applicant in order to make him testify ” .

On DATE the ORG , DATE , refused to commence criminal proceedings into the applicant ’s complaint on the ground that there was no suggestion that a crime had been committed . He noted that the applicant had claimed , in a general manner , that certain police officers had exerted psychological pressure on him .

That refusal was open to appeal before ORG . The applicant did not appeal .

DATE . The applicant ’s complaint was also sent to the Presiding Judge of ORG , GPE , who was also involved at the time in the criminal case against the applicant ( see paragraph CARDINAL above ) .

The Administrative Procedure Law ( Administratīvā procesa likums ) came into force on DATE . It provides , among other things , for the right to challenge administrative acts and actions of public authorities before the administrative courts ( see GPE v. GPE , no . CARDINAL , § DATE , CARDINAL DATE , and PERSON v. GPE , no . CARDINAL , § DATE , CARDINAL DATE ) .

Section CARDINAL(CARDINAL ) of the Administrative Procedure Law provided at the material time a ORG fee ( valsts nodeva ) of ORG CARDINAL for lodging appeals in proceedings before administrative courts . Section CARDINAL ) of the PERSON reads as follows :

“ ( CARDINAL ) A court or a judge , in the light of a natural person ’s financial situation , may fully or partly exempt the person from the payment of the ORG fee at the person ’s request . ”

Under Article CARDINAL ) of LAW ( Administratīvo pārkāpumu kodekss ) , refusal by a ORG institution to instigate administrative violation proceedings could be appealed to a higher institution within DATE . Where there was no higher institution , or where the latter was ORG , the refusal could be challenged before ORG , whose decision was final .

Section PERSON ) of the PERSON on ORG ( Prokuratūras likums ) , providing for an appeal against action taken by a prosecutor , was cited in PERSON v. GPE ( no . GPE , § DATE , DATE ) .

Section CARDINAL of the Law on Arrested Persons Holding Procedures ( ORG personu turēšanas kārtības likums ) provides , inter alia , that an arrested person must be provided with food CARDINAL times a day and with drinking water at any time . It sets out the surface areas of holding cells . It also requires every arrested person to be provided with a bed , mattress and blanket . It further states that a holding cell must be equipped with a toilet , partitioned off from the cell .


Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 13+P4-4 - Right to an effective remedy (Article 13 - Effective remedy) (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general};Prohibition of collective expulsion of aliens);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The first applicant was born in DATE and the second applicant in DATE .

The first applicant left his village in GPE on account of the DATE armed conflict . He arrived in GPE in DATE . He spent DATE in the makeshift camp for migrants on LOC , near the NORP border crossing into GPE , a NORP enclave on the NORP coast . He spoke of several raids on the camp by the NORP law - enforcement authorities .

The second applicant arrived in GPE in DATE . He also stayed in the camp on LOC .

On DATE the applicants left the LOC camp and attempted to enter GPE as part of a group of sub - NORP migrants , via the GPE border crossing . The crossing comprises CARDINAL successive fences : CARDINAL QUANTITY - high outer fences and a QUANTITY - high inner fence . A system of infrared ORG cameras and movement sensors is in place . The applicants and other migrants scaled the first fence in the morning . They claimed that stones had been thrown at them by the NORP authorities . The first applicant managed to climb to the top of the third fence , and remained there until TIME without medical or legal assistance . The second applicant stated that he had been hit by a stone while climbing the first fence and had fallen , but had subsequently succeeded in climbing over the first CARDINAL fences . During this time the applicants allegedly witnessed violence against some of the sub - NORP migrants by the NORP ORG and NORP law - enforcement officials . At TIME and TIME respectively the first and second applicants climbed down from the third fence , assisted by NORP law - enforcement officials . As soon as they reached the ground they were apprehended by members of ORG , who handcuffed them and sent them back to GPE . At no point were the applicants’ identities checked . They had no opportunity to explain their personal circumstances or to be assisted by lawyers , interpreters or medical personnel .

The applicants were then transferred to LOC police station , where they requested medical assistance . Their request was refused . They were subsequently taken , together with other individuals who had been returned in similar circumstances , to PERSON , QUANTITY from LOC , where they were left to fend for themselves . The applicants stated that CARDINAL migrants from sub - ORG had also been returned to GPE on CARDINAL DATE .

Journalists and other witnesses were at the scene of the assault on the fences and the expulsions of CARDINAL DATE . They provided video footage which the applicants submitted to ORG . Some non - governmental organisations subsequently lodged a complaint with the PERSON investigating judge no . CARDINAL , seeking the opening of an investigation .

On DATE and DATE respectively , the first and second applicants succeeded in entering NORP territory by the GPE border crossing . CARDINAL sets of proceedings were commenced concerning them and orders were subsequently issued for their expulsion .

GPE was returned to NORP on DATE under an expulsion order issued on DATE , after his asylum application of CARDINAL DATE had been rejected by the administrative authorities on DATE . He is currently in the ORG area ( PERSON region , south - west of GPE ) .

An order for PERSON ’s expulsion was issued on DATE and was upheld on DATE after the dismissal of his administrative appeal ( de alzada ) . His current situation is unknown .

Both applicants were represented by lawyers during these proceedings .


CASE OF HUTCHINSON v. THE UNITED KINGDOM

No violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in DATE and is detained in Her ORG .

NORP In DATE , the applicant broke into a family home , stabbed to death a man , his wife and their adult son and repeatedly raped their DATE daughter , having first dragged her past her father ’s body . He was arrested DATE and charged with the offences . At trial he pleaded not guilty , denying the killings and claiming that the sex had been consensual . On DATE , at ORG , he was convicted of aggravated burglary , rape and CARDINAL counts of murder .

The trial judge sentenced the applicant to a term of life imprisonment and recommended a minimum tariff of DATE to the Secretary of ORG for ORG . When asked to give his opinion again on DATE , the judge wrote that “ for the requirements of retribution and general deterrence this is genuinely a life case ” . On DATE the Lord Chief Justice recommended that the period should be set at a whole life term stating that “ I do not think that this man should ever be released , quite apart from the risk which would be involved ” . On DATE , the Secretary of ORG informed the applicant that he had decided to impose a whole life term .

Following the entry into force of LAW DATE , the applicant applied to ORG for a review of his minimum term of imprisonment . On DATE , Tugendhat J handed down judgment in the applicant ’s case ( [ DATE ] EWHC CARDINAL ( QB ) ) , finding that there was no reason for deviating from the Secretary of ORG ’s decision . The seriousness of the offences alone was such that the starting point was a whole life order . In addition , there were a number of very serious aggravating factors . Tugendhat J made express reference to an impact statement from the surviving victim , which described “ sadistic as well as sexual conduct ” . There were no mitigating factors . On DATE , ORG dismissed the applicant ’s appeal .


Violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

The applicant was born in DATE and lives in GPE .

The Socialist Federal Republic of Yugoslavia ( “ the SFRY ” ) was a federal ORG composed of CARDINAL republics : GPE , GPE , GPE , GPE , GPE and GPE . Nationals of the SFRY had “ dual citizenship ” for internal purposes , that is to say they were citizens of both the SFRY and one of the CARDINAL GPE . They had freedom of movement within the federal ORG and could register as permanent residents wherever they settled on its territory .

The SFRY had CARDINAL pension systems – military and civil . The pension rights of military personnel were regulated by and secured through the federal authorities . In particular , members of ORG ( hereinafter “ the ORG ” ) , the armed forces of the SFRY , paid their contributions to and received their pensions from a special military pension fund based in GPE ( GPE za socialno osiguranje vojnih osiguranika , hereinafter “ the ORG ” ) . ORG paid pensions to military pensioners irrespective of where they undertook military service or lived once retired . This was the only pension fund existing at federal level . In parallel , each republic had in place its own pension legislation and public pension fund set up for the payment of civil pensions .

DATE the SFRY broke up . On DATE GPE declared its independence .

In DATE ORG issued the LAW on the payment of advances on military pensions ( see paragraph CARDINAL below , hereinafter “ the Ordinance ” ) which regulated , on a temporary basis , the payment of military pensions to former ORG military personnel residing in GPE who had applied for or fulfilled the conditions for retirement under the rules governing the pension and disability insurance of military personnel ( hereinafter “ the SFRY military rules ” ) by DATE , the date of withdrawal of the ORG from GPE ( see PERSON GPE , no . CARDINAL/CARDINAL , Commission decision of DATE , ORG and Reports ( DR ) CARDINAL , p. CARDINAL ) . This was followed in DATE by a new LAW from ORG ( see paragraph CARDINAL below , hereinafter “ the DATE LAW ) which put in place a comprehensive regulatory framework for the pension rights of former ORG military personnel , in most cases allowing for pensions to be paid only to NORP nationals .

In DATE GPE ( succeeded in DATE by GPE ) transformed ORG ( see paragraph CARDINAL above ) into ORG on the basis of LAW . The ( transformed ) ORG continued paying ORG pensions to the citizens of GPE . However , it remains uncertain to what extent , if at all , the ORG continued paying ORG pensions to the citizens of GPE residing in the other former ORG ( see also , mutatis mutandis , PERSON v. GPE , and PERSON v. GPE , ( dec . ) , nos . ORG and CARDINAL others , § CARDINAL , DATE ) .

At the inter - State level , however , the question of responsibility for the payment of pensions to military personnel who had acquired or applied for pensions with ORG under the rules governing the pension and disability insurance of military personnel ( hereinafter “ the SFRY military rules ” ) remained unresolved until LAW entered into force in DATE ( see paragraph CARDINAL below ) .

NORP The applicant was a citizen of GPE in the SFRY . Following its dissolution , he retained citizenship of the then GPE . He has been residing in GPE since DATE and has had permanent resident status since DATE . In DATE he married a NORP woman , with whom he had CARDINAL children . He was a non - commissioned officer in active military service in the ORG until DATE , when he retired .

On DATE he applied for retirement to the GPE military district headquarters , and was then “ available ” ( na razpolago ) until his retirement . On CARDINAL DATE the ORG found him to be entitled to an old - age pension under the SFRY military rules as from DATE with CARDINAL pensionable years with bonus ( benificirana PERSON ) in the ORG . The applicant maintained that he had only received his pension from ORG twice ( in DATE and DATE ) , when he had personally gone to GPE to collect it .

On DATE the applicant applied for NORP citizenship under section CARDINAL of LAW ( see paragraph CARDINAL below ) . By a decision of DATE ORG dismissed his application . It based its decision on section CARDINAL(CARDINAL ) and section PERSON ) of LAW , which stipulated that the Ministry was allowed to refuse an application where there was reason to believe that the person posed a threat to public order , security or national defence . After ORG quashed the decision and the case was remitted to ORG for fresh consideration , the latter on DATE again dismissed his application on the same grounds . The applicant instituted court proceedings , which were unsuccessful . On DATE ORG rejected a constitutional complaint by him on the grounds that it was no longer relevant because he had acquired NORP citizenship in DATE ( see paragraph CARDINAL below ) .

On DATE the applicant applied for an advance on his military pension under the Ordinance ( see paragraph CARDINAL below ) . On DATE he requested ORG to discontinue the payment of his pension . By a decision of CARDINAL DATE his payments were stopped with effect from DATE . The applicant lodged this request after realising that ORG ( hereinafter “ the Institute ” ) only granted advances under the LAW provided that ORG stopped paying the pension . By a decision of CARDINAL DATE the ORG found that the applicant had been entitled to such an advance starting from DATE . It held that he had been a permanent resident of GPE since DATE and had fulfilled the conditions for pension entitlement under the SFRY military rules by DATE .

On DATE the ORG , on the basis of section CARDINAL of LAW ( see paragraph CARDINAL below ) , issued of its own motion a decision not to convert the applicant ’s advance on his military pension into an old - age pension under LAW . His advance was suspended as of DATE . ORG decided that since the applicant had been in active military service in the ORG from DATE to CARDINAL DATE and from DATE had been on leave , he did not fulfil the statutory conditions for converting the advance on his military old - age pension into an old - age pension under section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act .

The applicant appealed , complaining that at the relevant time he had not been on leave , but had been available until his retirement . On DATE the ORG dismissed his appeal , holding that he could not be considered a beneficiary under section CARDINAL(CARDINAL ) of the CARDINAL Act as he did not have NORP citizenship and did not comply with the requirements applicable to foreign beneficiaries . It added that he could re - apply for an old - age pension under LAW once he acquired NORP citizenship .

The applicant subsequently applied for judicial review of the ORG ’s decision before ORG , maintaining that , as a resident of GPE , he should have been treated in the same way as NORP citizens .

On DATE the applicant acquired citizenship by naturalisation under section CARDINAL of the amended LAW read in conjunction with section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) .

On DATE , after lodging a new request with the ORG , the applicant was granted an old - age pension as from DATE .

On DATE ORG dismissed the application for judicial review ( see paragraph CARDINAL above ) . It pointed out that the applicant ’s situation had to be assessed with regard to the different categories of beneficiaries listed in section CARDINAL(CARDINAL ) of LAW . It concluded that the applicant had not fulfilled the conditions for an old - age pension set out in section CARDINAL(CARDINAL)(CARDINAL ) of LAW . Likewise , as a foreigner he had not met the conditions set out in section CARDINAL(CARDINAL)(CARDINAL ) of LAW . He had therefore been eligible for an old - age pension under section CARDINAL of LAW only from DATE , the date on which he had acquired NORP citizenship .

The applicant lodged an appeal with ORG . On DATE the appeal was dismissed , essentially on the grounds that in the legally relevant period the applicant had been a foreigner who had not had rights to a pension or other benefits under the SFRY military rules by CARDINAL DATE as required by section DATE ) of LAW . The court held that the other provisions of section CARDINAL of the CARDINAL Act were applicable only to NORP citizens and , thus , the applicant , who had not fulfilled the condition of nationality , should not have relied upon them .

The applicant lodged an appeal on points of law , claiming he should have been treated the same as NORP citizens . On DATE it was dismissed by ORG , which followed the lower courts’ reasoning . It held that in the period at issue the applicant had not met the requirements of any of the categories of beneficiaries under section CARDINAL of the CARDINAL Act , having applied for the pension under the SFRY military rules on DATE and having only acquired NORP citizenship on DATE .

On DATE ORG decided not to accept a constitutional complaint by the applicant for consideration , finding that it did not concern an important constitutional issue or entail a violation of human rights which had serious consequences for him .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Nigeria);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion);Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed

Aleš Pejchal;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicant arrived in GPE in DATE . On DATE , when she was DATE pregnant , she lodged an application for asylum in which she stated that she had fled her country after the family of the child ’s father , PERSON , in whose home she had lived since DATE , had tried to put pressure on her to have an abortion .

Because the applicant was a minor , a guardian was appointed . The guardianship ended when the applicant reached full age , on DATE .

After the applicant ’s fingerprints had been recorded in the ORG system , ORG observed that she had already lodged an asylum application in GPE on DATE .

On DATE ORG requested the NORP authorities to take charge of the applicant ’s asylum application under ORG ( ORG ) No CARDINAL/CARDINAL of DATE establishing the criteria and mechanisms for determining the Member ORG responsible for examining an asylum application lodged in one of GPE by a third - country national ( “ the Dublin II Regulation ” ) . On DATE the NORP authorities accepted the request .

The applicant nevertheless remained in GPE on account of the request for leave to remain which she had lodged and the ensuing proceedings ( see paragraphs CARDINAL et seq . below ) .

Subsequently , owing to the imminent birth of the applicant ’s second child ( see paragraph CARDINAL below ) , ORG decided in DATE to examine her asylum application itself . A first interview was held , after which the file was sent to the Commissioner General for Refugees and Stateless Persons ( “ the Commissioner General ” ) .

On DATE the Commissioner General rejected the asylum application because of inconsistencies in the applicant ’s account . Among other factors , the Commissioner General observed that the applicant had claimed not to have applied for asylum in another country . She had also been unable to explain how she had travelled to GPE and did not know how much time she had spent in GPE or the exact identity of the persons she had lived with in GPE .

The applicant appealed to ORG . In judgment no . CARDINAL of CARDINAL DATE , ORG upheld the Commissioner General ’s decision on the grounds that no credence could be lent to the applicant ’s alleged fear of pursuit or to the existence of a real risk of serious harm .

No administrative appeal on points of law was lodged with the ORG d’État against that judgment .

On DATE , in the course of an antenatal examination , the applicant was diagnosed as HIV positive with a serious immune system deficiency requiring antiretroviral ( “ ARV ” ) treatment .

The applicant gave birth to her first child on DATE . The infant was given treatment to prevent HIV infection .

In DATE a course of ORG treatment ( a combination of ORG and PERSON ) was started at ORG in GPE ( “ the ORG ” ) .

During DATE the applicant attended a semi - residential facility and was monitored by the not - for - profit association GPE , which specialises in providing psychosocial assistance to underprivileged persons living with HIV and to their children .

On DATE the applicant gave birth to a second child by the same father , PERSON

On DATE ORG , at the request of ORG , issued a medical certificate which stated that the applicant ’s treatment had been changed to a combination of the drugs PERSON , PERSON and PERSON .

On DATE ORG issued a further certificate stating that the applicant ’s CDCARDINAL count had stabilised at CARDINAL , with an undetectable viral load . On DATE an official of the association PERSON drew up a report on the applicant ’s psychosocial situation , stressing the need to provide her with psychological support because of her young age and her introverted temperament .

In the meantime , following the refusal of her request for leave to remain on medical grounds ( see paragraph CARDINAL below ) , the applicant ’s certificate of registration , which allowed her free access to the treatment she required and to material assistance from the GPE social welfare office , was withdrawn . She lodged an appeal with ORG seeking material assistance , and made a fresh application to the social welfare office .

On DATE the social welfare office decided to continue providing financial assistance to the applicant . As a result , the appeal to ORG was struck out of the list .

On DATE ORG issued a certificate addressed to ORG in the following terms :

“ The latest blood test of DATE shows a CDCARDINAL count of CARDINAL and a viral load of CARDINAL . These may be due to treatment failure ( development of resistance ? ) or to poor adherence to the treatment , possibly linked to the patient ’s numerous social problems ... ”

On DATE ORG issued a certificate addressed to ORG stating that the treatment had been modified , with the use of PERSON and PERSON being discontinued and being replaced by a combination of ORG and PERSON .

On DATE a report by the association PERSON stated that the applicant was continuing to receive , and to need , psychosocial support and that the focus was on working with the applicant on articulating her concerns and on issues including the difficulties connected to her role as a mother , family life , her children ’s schooling through NORP and the monitoring of her own illness .

A further certificate addressed to ORG on DATE by ORG stated that the applicant was pregnant with her third child and was due to give birth in DATE . The certificate went on to state as follows :

“ Her latest blood sample shows an uncontrolled HIV infection with an increased viral load of CARDINAL and a reduced TCARDINAL count of CARDINAL . The situation is therefore worrying as regards both the patient and her unborn child .

Medical treatment / medical supplies : ORG CARDINAL per day and PERSON

Need for regular blood tests with lymphocyte typing and HIV viral load , stethoscope , blood pressure monitor , weighing scales , needles and syringes , dressings , gynaecological check - ups ...

Specific medical needs ? Supervision by a multidisciplinary team specialising in the treatment of HIV . ”

A similar certificate was issued on DATE which reported the addition of the drug PERSON , an increase in the applicant ’s CARDINAL count to CARDINAL and a lower positive viral load . It confirmed that the situation was worrying both for the applicant and for her children .

In the meantime , on DATE , the applicant gave birth to her third child . According to the birth certificate , PERSON was again the father .

On DATE the association GPE issued another certificate similar to the previous one ( see paragraph CARDINAL above ) , stating that the applicant was continuing to receive psychosocial support .

Beginning on an unspecified date PERSON , the father of the CARDINAL children , spent occasional periods in GPE without a residence permit .

On DATE the applicant submitted a request for leave to remain on medical grounds under section CARDINALter of PERSON Settlement and LAW of DATE ( “ the Aliens Act ” ) .

On DATE ORG declared the request admissible and a certificate of registration was issued to the applicant , authorising her to remain in GPE for DATE .

At the request of ORG , the applicant sent the latter a medical certificate drawn up by her general practitioner stating that she was HIV positive and would be unable to travel for DATE , during which time she required psychological counselling .

On DATE ORG enquired of the NORP authorities about the accessibility of the appropriate medical treatment in GPE . DATE the applicant was examined by ORG medical adviser , who considered that she would be able to travel as of DATE .

On DATE , on the basis of the information received from the NORP authorities , the medical adviser of ORG wrote as follows :

“ [ From ] a medical point of view , ... although [ Aids ] can be considered to be a disease entailing a real risk to life or physical well - being , in the present case [ S.J. ] is not at risk of inhuman or degrading treatment since treatment is available in GPE . ”

On DATE ORG issued a decision refusing the request for leave to remain on medical grounds , stating that it was clear from the information received from the NORP embassy and featured on the website of the NORP Minister of ORG that treatment for Aids was available in GPE and was accessible to non - nationals .

The applicant lodged an appeal with ORG against ORG decision of DATE .

On DATE ORG revoked its decision of DATE , as a consequence of its decision to examine the applicant ’s asylum application ( see paragraph CARDINAL above ) , and began to explore the possibilities for treatment in GPE . The applicant was again issued with a certificate of registration and ORG requested a fresh opinion from its medical adviser concerning a possible return to GPE .

On DATE ORG , noting that ORG decision of DATE had been revoked , dismissed the applicant ’s appeal as being devoid of purpose .

On DATE ORG medical adviser issued the following opinion :

“ From a medical point of view , the applicant ’s infection , although it can be considered to entail a real risk to life or physical well - being if it is not treated in an appropriate manner and is not monitored , does not involve a real risk of inhuman or degrading treatment , given that the treatment and monitoring in question are available in GPE . There are therefore no medical objections to the applicant ’s return to GPE , her country of origin . ”

On the basis of this opinion and the information received from the NORP embassy , ORG on DATE refused the request for leave to remain submitted on DATE , but extended the applicant ’s registration pending the outcome of the asylum proceedings . The reasons for the decision read as follows :

« [ The ] medication currently being administered to the applicant is available in ORG Nigeria has numerous treatment programmes for the applicant ’s condition ... The cost is low because the authorities subsidise the medication ... The applicant ’s condition can be treated free of charge in all the country ’s public hospitals . ... Furthermore , in GPE , where the applicant was born and lived , there are QUANTITY hospitals . ... Moreover , it appears very unlikely that in GPE , the country where she spent DATE of her life , the applicant would not have family , friends or acquaintances willing to take her in , help her to obtain the necessary medication and/or provide her with temporary financial support . ... It follows that it is not established that her return to her country of origin ... would be in breach of NORP Directive CARDINAL/CARDINAL/EC or of LAW . ”

On DATE the asylum proceedings having been concluded in the meantime with the rejection of the applicant ’s asylum application ( see paragraph CARDINAL above ) – ORG confirmed its decision refusing the applicant ’s request to have her residence status regularised . An order to leave the country was served on the applicant on DATE , worded as follows :

“ Pursuant to the decision of ... DATE , the aforementioned PERSON and her children ... are hereby ordered to leave GPE not DATE ...


CASE OF ALPHA DORYFORIKI TILEORASI ANONYMI ETAIRIA v. GREECE

Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

NORP The applicant company is a limited liability company and is the owner of the NORP television channel ORG .

On DATE , ORG broadcast a television show named “ Jungle ” ( ORG ) in which CARDINAL videos that had been filmed with a hidden camera were broadcast . In the first video , GPE , then a member of ORG and chairman of the inter - party committee on electronic gambling , was shown entering a gambling arcade and playing on CARDINAL machines . The second video showed a meeting between ORG and associates of the television host of “ LOC ” , PERSON , during which the first video was shown to GPE The third video showed a meeting between GPE and PERSON in the latter ’s office . On DATE the videos were shown again during a television show named “ ORG ” ( PERSON ) presented by the same television host .

On DATE ORG ( Εθνικό Συμβούλιο Ραδιοτηλεόρασης ) , following an invitation to the applicant company , held a hearing in which the applicant company was represented by its attorneys . As can be seen from TIME of the meeting , the applicant company ’s attorneys acknowledged the use of hidden camera in the above - mentioned incidents . They argued that such use had been justified owing to GPE being a public figure and that it had served the public interest , as proven by the fact that the report had resulted in ORG being dismissed from the parliamentary group of the political party for which he had been elected as parliamentary deputy . In their view , that had been the result not only of ORG ’s gambling activities , but also of the fact that he had tried to negotiate with the applicant company ’s reporters to present the incident differently . The applicant company ’s attorneys further argued that the use of a hidden camera had been exceptional and had been resorted to following the receipt of information that could not have been verified otherwise , as nobody would have believed the ORG allegations if they had reported on the issue without broadcasting the images . It can also be seen from TIME that the members of ORG expressed their disagreement regarding the use of a hidden camera , arguing that if anyone were able to use a hidden camera by claiming that there was an overriding public interest in doing so , then all citizens – especially if they were public figures – would be exposed to the possibility of being subject to pressure and extortion . They furthermore stressed that nobody would ever forbid journalists to report on a certain issue ; however the means used raised an issue , as the use of hidden camera could be accepted only in respect of a national security issue or for the prevention of a serious crime or other similar situations . They also noted that there were CARDINAL separate issues in the instant case ; on the one hand the use of a hidden camera and on the other hand the entrapment of GPE

By its decision PERSON , ORG ordered the applicant company to pay CARDINAL ( CARDINAL ) euros ( ORG ) for each of the CARDINAL television shows during which the above - mentioned videos were shown , as well as to broadcast on DATE on its main news show the content of that decision . The decision included a short description of the CARDINAL videos , a citation of the relevant legislation , and the conclusion that the use of hidden camera in that case had not been in accordance with the relevant law . It further stated that the sanctions had been imposed following an assessment of the gravity of the offence , of the number of viewers of the CARDINAL television shows , of the size of the investment that had been made by the applicant company and the fact that the television channel had been repeatedly fined in the past for the same offence .

On DATE the decision of ORG was communicated to the Minister of Press and ORG , who , after examining its legality , issued decision no CARDINAL/E/CARDINAL.CARDINAL.CARDINAL confirming its content .

On DATE the applicant company lodged an application for annulment ( αίτηση ακύρωσης ) against the decisions of ORG and the Minister of Press and ORG with ORG ( PERSON της PERSON ) on the grounds that the above - mentioned decision had violated Articles CARDINAL , CARDINAL § CARDINAL and CARDINAL of LAW , as well as LAW . A.C. lodged a third - party intervention requesting from ORG to dismiss the application for annulment . On DATE the President of ORG referred the case to ORG owing to its high importance .

The hearing before ORG took place on DATE . By its judgment no . DATE , published on DATE and finalised on CARDINAL DATE ( δημοσίευση και καθαρογραφή ) , ORG dismissed the application for annulment .

NORP In its legal assessment , the majority of ORG TIME referred to the constitutional provisions providing the right to impart and receive information , and then emphasised that this right is subject to limitations whose legitimate aim is the protection of the rights of others and the observance of the rule of law on condition that those limitations are proportionate . It additionally referred to the ORG ’s case - law in respect of LAW CARDINAL , with specific reference to case - law concerning the protection of a person ’s image ( see PERSON v. GPE , no . CARDINAL/CARDINAL , ORG CARDINALVI ; ORG v. GPE DATE . ) , no . CARDINAL , DATE ; and GPE v. GPE , no . CARDINAL , ORG CARDINALI ) . It continued by noting that under LAW has the legal duty to exercise control over the radio and television in order to ensure respect for human values and that sanctions imposed by ORG served that purpose .

ORG laid down the conditions under which it is legitimate to broadcast an image that has been filmed with the method of hidden camera , by making a distinction between reporting on specific news , whose exclusive or main source is an image of a specific person recorded by secret means , and the broadcasting of the relevant , secretly recorded image . According to that reasoning , recording by secret means an image which has as its main or only subject a specific person constitutes in principle a violation of that person ’s right to his own image , which is protected by Articles CARDINAL § CARDINAL of the LAW and CARDINAL § CARDINAL of the LAW , as a specific aspect of the right to respect for one ’s private life . Consequently , the broadcasting on television of news whose exclusive or main source is an image of a specific person recorded by secret means can not , in principle , be considered as constituting the legitimate exercise of the right to impart information , given that the disseminated news has been received under circumstances which constitute a violation of an individual ’s right to his own image . Nevertheless , in certain cases it may be considered justified to broadcast such news , on account of its contribution to a debate of general interest and taking into account the secretly recorded person ’s position or standing . However , even when broadcasting of the news is considered a legitimate exercise of the right to impart information , this does not automatically render legitimate the broadcasting of the relevant , secretly recorded images , as that constitutes a much more intense [ έντονος ] limitation of the constitutionally protected right of that person to his own image than the simple transmission of news . In the domestic court ’s view , broadcasting of a secretly recorded image can only be justified if the legitimate ( for the reasons mentioned above ) broadcasting of such news is completely impossible or particularly difficult without broadcasting the image that was recorded by hidden means and which constitutes the source of the news .

ORG dismissed the applicant company ’s argument that it had legitimately transmitted the news concerning ORG in view of ORG ’s capacity as a public figure . The domestic court stressed that from the text of the decision and from TIME of the meeting of ORG it derived that the sanction was imposed to the applicant company solely and exclusively on account of the broadcast of the images that had been recorded by hidden means and not on account of the transmission of the news , whose source had been the secretly recorded images . As far as the broadcasting of the images was concerned , the applicant company had not disputed that the images had been recorded by secret means and had not claimed that broadcasting of the news was absolutely impossible or extremely difficult without broadcasting the relevant images . Therefore , the applicant company ’s allegation that it had broadcast the impugned images for reasons of journalistic interest and of public interest was dismissed .

On the basis of the above - mentioned reasoning , ORG ruled that the decision of ORG had been fully reasoned and dismissed the applicant company ’s application for annulment .

A concurring , more specific ( ειδικότερη ) opinion was joined to the majority opinion ; the CARDINAL judges considered that the recording of a person without his knowledge and the use of it for the broadcasting of news constituted a direct violation of that person ’s right to dignity as it reduces him to an instrument for others to achieving goals that are irrelevant to him . Given that , pursuant to ORG CARDINAL § CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL of the LAW , the protection of human dignity is absolute , the broadcasting of such news is always forbidden , irrespective of whether such a broadcast includes the image in question . For those reasons , the judges who supported this opinion considered that the application for annulment should be dismissed .

In addition , there were CARDINAL dissenting opinions . According to the first one , in view of the fact that ORG had considered that the broadcasting of news that had been recorded by secret means had constituted a legitimate exercise of the right to impart information , the same considerations should be extended to the broadcasting of the relevant image . The reason for this was the special nature of television , in comparison with the other media , owing to which the broadcasting of the image went hand - in - hand with broadcasting the news itself . Therefore , the application for annulment should have been allowed , given that ORG decision had been based solely on the fact that the image of ORG had been recorded by hidden means , without considering whether broadcasting news whose source was the above images constituted a legitimate exercise of the right to impart information .

Lastly , according to the other dissenting opinion , no constitutional provision justified the absolute protection of an image ( as was held by the majority ) . A person ’s right to his own image was susceptible to limitations that varied according to that person ’s position and the space in which the recording in question had taken place . For individuals , protection against the recording of their image without their consent was absolute , irrespective of whether it took place in a public or private space , unless the recording was not directed to them or the recording of the image took place with a view to the prevention of crimes in public space . For public figures , however , protection was less absolute . In particular , public figures , such as politicians , were exposed to publicity and sometimes they even pursued it . As a result , there was a legitimate expectation on the part of the media and of the public to impart and receive information regarding their public activities . For these persons , there was an absolute protection of their image in their private space and in public spaces in which they shared private or family moments . When , however , public figures were in public spaces but not under the conditions described above , or acted in a way that was of interest to the public ( such as in cases in which they engaged in behaviour contrary to what their public role entailed or contrary to the image they projected towards the public ) , then the right to receive and impart information could justify the recording of that person without his consent and the broadcasting of the relevant images by the media . In this regard , the dissenting judges argued that it would be inconceivable to equate radio with television , as they did not operate on the same way ; therefore , it would not be possible for a television show to simply announce the news without broadcasting the relevant images , as would be the case on the radio . In respect of legitimately recorded images , when there is a balance between transparency and the right to receive information on the one hand and the protection of a person ’s image on the other hand , the presumption should be that the recorded image could be broadcast without consent . In view of the above , the CARDINAL judges considered that the application for annulment should be allowed , taking into account especially the fact that ORG was a public figure , that the recording of his image had taken place in a public space ( that is to say in a gambling arcade ) , and that the broadcasting of the relevant images had served the purpose of informing the public of behaviour on the part of a member of ORG that did not meet the requirements of his position . Therefore , the television channel ’s decision to broadcast the image as a part of the television shows , which otherwise could be considered unfounded or even defamatory , had not breached the proportionality principle .