Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

The applicant was born in DATE and lives in GPE .

At TIME on DATE the applicant notified the police that he planned to organise a demonstration from TIME on DATE in front of the FAC prison in GPE , to protest against the “ political persecution of national radicalism ” . FAC is a broad cul - de - sac with a service lane .

A police officer from the police station that had received the notification repeatedly attempted to contact the applicant by phone , in line with the relevant decree issued by the Minister of the ORG on police tasks related to securing public order at major events , in order to arrange for a meeting . Despite making several attempts and leaving messages , however , he could not reach him .

On DATE the head of ORG banned the demonstration on the grounds that traffic could not be diverted to alternative routes ( section CARDINAL(CARDINAL ) of LAW ) . In the decision , he referred to LAW no . CARDINAL/CARDINAL.AB of ORG .

The applicant sought a judicial review of the decision within the statutory DATE time - limit .

On DATE ORG dismissed the applicant ’s case . It noted that in assessing whether or not traffic could be diverted to other routes , the authority had reckoned on the participation of CARDINAL demonstrators , as per the applicant ’s notification , and that it had established that lawful parking and traffic circulation in the neighbourhood would become impossible should the event take place . The court agreed with the police ’s decision in that although the right to assembly was a constitutional fundamental right , it was not absolute and must not give rise to a violation of the fundamental rights of others , and could therefore be restricted . The court was satisfied that the decision had been lawful as the police had adequately established the facts , complied with the procedural rules and applied clear assessment criteria , and the assessment of the evidence had been logical .


CASE OF STANKIEWICZ AND OTHERS v. POLAND (No. 2)

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

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev

The first CARDINAL applicants were born in DATE and DATE respectively . The first applicant is a journalist working for the DATE newspaper Rzeczpospolita and the second applicant was , at the material time , its editorinchief . The third applicant is ORG sp . z o.o . ( at the material time Presspublica sp . z o.o . ) , the publisher of Rzeczpospolita . It is a limited liability company represented by the chairman of its board of directors , Mr P. GPE , and its vice chairman , PERSON NORP PERSON . Its registered office is in GPE .

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

NORP In DATE the NORP government submitted a draft amendment to LAW ( Ordynacja Podatkowa ) to the PERSON . During the drafting process various bodies and individuals , including ORG ( PERSON ) , were invited to submit their comments . Their opinion was prepared by PERSON , a former senior civil servant , who was a well - known expert on tax law and a member of its legislative committee . She further acted as an expert and adviser at meetings before the parliamentary finance subcommittee where amendments to LAW were being examined . CARDINAL of the amendments proposed by the ORG to section CARDINAL , and defended by Ms D.S. at the meetings , consisted of limiting what could be used as evidence in tax proceedings to material collected in criminal proceedings , but only once they had been concluded . The law as it stood did not contain such a limitation and allowed , for instance , material collected in a pending criminal investigation to be used as evidence . Her proposal was accepted by the subcommittee and later by the PERSON and , together with other amendments to LAW , entered into force on DATE .

On DATE the first applicant wrote CARDINAL articles describing the possible consequences of the amendment to section CARDINAL of LAW , the legislative process leading to its adoption and the role that Ms ORG had apparently played . One of the articles contained comments made by Ms ORG and featured her photograph .

The first applicant and another journalist analysed the recordings of all the parliamentary finance subcommittee meetings during which amendments to LAW were discussed . CARDINAL articles which appeared in Rzeczpospolita on DATE contained transcripts of the subcommittee ’s meeting of CARDINAL DATE at which the section CARDINAL amendment was discussed . The journalists interviewed Mr PERSON , a Member of ORG who chaired the subcommittee , PERSON , an appellate prosecutor and PERSON Their statements were quoted in the articles , as was a statement made by an unidentified member of the government during the subcommittee meeting .

The first article , “ ORG pays no taxes ” ( ORG nie zapłaci podatków ) , appeared as a cover story on DATE . The subheading and an excerpt from the article read as follows :

“ [ ORG ] CARDINAL words introduced to LAW have paralysed the prosecution of the petrol mafia , Rzeczpospolita has discovered . Our investigation reveals who changed the law and when it was changed . However , even we do not know why the government did not take any action .

[ text ] DATE , the newest version of LAW , enacted by the PERSON in DATE , entered into force . Problems then started . Because of CARDINAL provision in the law , cooperation between the tax and prosecution authorities has been totally blocked ... Such cooperation has so far led to successful prosecutions in many high - profile cases , such as those concerning the battle against the petrol mafia . ”

The article also explained that the amendment to section CARDINAL of LAW limited what could be used as evidence in tax proceedings to only material collected in criminal proceedings which had already been concluded . This was a real setback for the tax authorities , who could no longer rely on evidence the prosecution had been collecting in proceedings which were pending . According to the author of the article , such an amendment could prolong the tax authorities’ effective investigation into tax evasion for DATE , until the criminal courts arrived at their final decision in a case .

The second article , which had the headline “ ORG to pay no taxes ” ( ORG podatków nie zapłaci ) appeared on page CARDINAL of the same edition of Rzeczpospolita of DATE . It featured a photograph of Ms D.S. The wording of the article , in so far as relevant , read as follows :

“ [ subheading]The amendment to LAW which made it harder to prosecute the petrol mafia was introduced during a subcommittee meeting – Rzeczpospolita has established .

[ text ] As we have established , the above - mentioned amendment to LAW [ of LAW ] was proposed by PERSON of ORG during a subcommittee meeting on DATE . Strictly speaking , it was outside her remit as she is not a member of parliament . However , she was an adviser to the subcommittee and warmly encouraged MPs to introduce the amendment , even though no such change had been proposed . PERSON , a former senior civil servant at ORG , and DATE counsel at a prestigious law firm , received support from the subcommittee chairman and even a government representative ...

PERSON , in an interview for Rzeczpospolita , argues that her intention was to protect the interests of the taxpayer ....

[ Question : ] ‘ You have changed the legal system , but you are not a member of parliament or the government . Was it your idea?’

[ Answer : ] ‘ I believed that the wording of the legal provision in question was incorrect . It had to be changed.’ ”

On DATE Rzeczpospolita published the third article , which had the headline “ Dubious law to be changed ” ( GPE podejrzane prawo ) . In so far as relevant , it stated as follows :

“ [ ORG ] This can not be . The Deputy Minister of Finance is outraged after Rzeczpospolita disclosed the story behind the change in the law which has helped the petrol mafia .

[ Text ] The Deputy Minister [ S.S. ... ] is surprised by [ how ] the unfortunate amendment was introduced . ‘ It is unacceptable’ , he says . ‘ I have ORG backing that this amendment should be corrected immediately . ”

The article included quotes from interviews with CARDINAL Deputy Ministers and CARDINAL official , all from ORG . It also contained a paragraph describing the recent developments in several ongoing investigations against the petrol mafia .

On DATE Ms ORG lodged a claim for the protection of her personal rights against all CARDINAL applicants , seeking compensation in the amount of MONEY ( ORG ) , the equivalent of MONEY ( ORG ) .

On DATE ORG dismissed her claim . It established that both the journalist who had written the articles and the editor - in - chief had been diligent in collecting information for all CARDINAL of them . The articles in question reflected the evidence submitted by the defendants both in form and in content . The amendment to section CARDINAL of LAW had indeed been proposed by ORG , as she had been invited to represent ORG during the finance subcommittee ’s deliberations on the draft law . Had she not voiced her opinion regarding the need to amend LAW , the amendment would most probably not have been introduced . The court stressed that since the claimant had voluntarily entered the public domain , she should respect the rights of others , in particular journalists , to criticise her actions . The first applicant , while preparing material for the articles , had had access to draft laws , legal opinion on those drafts , the finance committee ’s TIME , recordings of the subcommittee ’s deliberations and interviews with prosecutors , from which he took quotations . The court thus concluded that information provided by the defendants had been truthful and collected diligently .

The court considered that the incident described by the defendants had been a very important matter of public interest , as it had shown how easy it could be to influence a change in the law . The controversies surrounding the amendment to LAW had led to LAW being restored to its previous form in DATE .

The aim of the articles had been to draw the public ’s attention to the amendment to section CARDINAL of LAW . The court also considered that the applicants had had a right to publish a photograph of ORG , as she had been a public figure . The photograph could have easily been taken while she had been carrying out her duties for the subcommittee in the present case .

The claimant , Ms ORG , lodged an appeal against this judgment .

On DATE ORG allowed the appeal and action and amended the judgment in question . The court ordered the applicants to publish an apology and pay ORG MONEY to charity , disagreeing with ORG assessment of the case . It considered that by using headlines , subheadings and several statements , the applicants conveyed the suggestion that PERSON had been responsible for the negative consequences the amendment had had on the law . These statements included : “ astonishing amendment ” , “ cooperation between the tax authorities and prosecutors totally blocked ” , “ she ... encouraged MPs to introduce the amendment , even though no such change had been proposed ” , “ [ PERSON has ] changed the legal system ” , “ was it your idea ? ” , “ the amendment was proposed in an astonishing manner by a guest of the subcommittee ” . The court considered that the information contained in the articles had not been truthful , and that the journalists had not been diligent . It also considered that by publishing her picture , the applicants had breached the claimant ’s right to protect her image .

On DATE ORG quashed the judgment and remitted the case to the appellate court . It considered that procedural provisions had been breached ; in particular , the judge rapporteur should have withdrawn from the case given doubts as to his impartiality . Moreover , ORG criticised the vague wording of the apology the defendants had been ordered to publish , and the lack of clarity as to which statements had breached the defendant ’s personal rights .

On DATE ORG allowed the action and ordered the applicants to publish an apology and pay ORG CARDINAL to charity . The court considered that the defendants should publish the following apology on the cover of Rzeczpospolita :

“ [ All CARDINAL applicants ] apologise to PERSON for [ damaging ] her good name by publishing articles without factual basis in Rzeczpospolita on DATE ( ‘ ORG pays no taxes’ and ‘ ORG to pay no taxes’ ) and on DATE ( ‘ Dubious law to be changed’ ) , which have ruined her good name and professional reputation . ”

The court considered that the claimant had proved , to a sufficient degree , that the articles in question had breached her personal rights , as they insinuated that she had been responsible for adopting an amendment which had negative consequences . Its arguments were similar to those outlined in its judgment of CARDINAL DATE . It considered the statement “ [ PERSON has ] changed the legal system ” untrue because as an adviser to the subcommittee , it would have been outside her remit . The use of headlines , subheadings and certain statements conveyed the suggestion that the amendment had been introduced in the “ interests of the [ petrol ] mafia ” . Those statements included : “ astonishing amendment ” , “ cooperation between the tax authorities and prosecutors totally blocked ” , “ she ... encouraged MPs to introduce the amendment , even though no such change had been proposed ” , “ [ PERSON has ] changed the legal system ” , “ was it your idea ? ” , “ the amendment was proposed in an astonishing manner by a guest of the subcommittee ” . Moreover , by featuring a photograph of PERSON in one of the articles , the applicants had “ strengthened the message that [ she ] was the person responsible for having introduced an amendment convenient for the mafia , which [ had ] paralysed cooperation between the prosecution service and the tax services ” .

The court considered that the defendants had used the claimant ’s photograph unlawfully , as the fact she was a public figure had not absolved them from asking her permission . It further stated :

“ ORG has no grounds to consider that the defendants rebutted the presumption under LAW that their actions were unlawful .

The fact that the journalists relied on the comments of other individuals , even if they had indicated their sources , in this case the prosecutors , does not make such practice lawful . Such types of expression do not absolve a journalist from exercising particular diligence and care in collecting and using material .

The defendants did not show that their actions were lawful ; the suggestion they made , namely that the claimant had ‘ changed the law’ had been untrue , their duty to act with particular diligence and care had not been fulfilled , and their direction of criticism against the claimant had not been in the public interest or compatible with the principle of coexistence with others .

It had been unnecessary to ruin the claimant ’s good name and reputation in order to express an opinion about an amendment to section CARDINAL . It is known how laws are passed and the claimant , acting lawfully and openly , did not change the law in force and could have only had a minor impact on the legislative process , in which the final decision did not depend on her . The suggestion that she changed the law is untrue , and making out that she had been responsible for changes in the law undermines journalistic integrity .

The defendants did not provide any evidence to suggest that the claimant had acted in the interests of the [ petrol ] mafia . Other suggestions , namely that the amendment had caused the fight against the mafia and cooperation between the tax and prosecution authorities to become paralysed , were also untrue .

The authors of the articles did not seek the opinion of specialists in tax law , nor did they try to explain the reasons behind the amendment . Their reporting was CARDINAL - sided and formed far - fetched conclusions , creating an atmosphere of sensationalism and scandal ... ”

On DATE ORG amended the judgment as regards the wording of the apology . It held that the applicants should publish the following text :

“ [ All CARDINAL applicants ] apologise to Ms D.S. for ruining her good name through the composition and use of headlines and subheadings in the DATE newspaper Rzeczpospolita on DATE ( ‘ ORG pays no taxes’ and ‘ ORG to pay no taxes’ ) and DATE ( ‘ Dubious law to be changed’ ) , suggesting that , as an adviser to the PERSON ’s finance subcommittee , she had been guided by reasons unworthy of merit and had infringed the principles of honesty . ”

ORG considered that ORG guidelines for the apology were expressed too broadly , particularly as the latter acknowledged that the articles in question had a factual basis . In the present case , certain suggestions were made through the choice of headlines and subheadings , which led to the claimant ’s personal rights being breached . Lastly , ORG considered that the fact that the defendants had taken quotations from public servants could exclude their liability , but only in so far as the wording of the comments quoted was concerned and not the “ composition of the articles which led to negative suggestions [ being made ] , creating an untrue picture of the person in question ” .


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

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE she sustained an injury in a car accident while returning home from work . On DATE her injury was recognised as a work - related injury by ORG ( PERSON osiguranje zaštite zdravlja na radu ) . On the basis of her work - related injury the applicant was granted sick leave between DATE and DATE .

On DATE the applicant visited the Emergency Medicine Centre of ORG ( NORP za hitnu medicinu PERSON bolničkog centra GPE ) owing to the pain in her neck and back . There it was established that she was suffering from a severely sore spine with a deformity .

The following day she visited her chosen general practitioner , who found that the applicant was unable to work and granted her sick leave starting from DATE on the basis of an illness .

On DATE the applicant lodged a complaint against her general practitioner ’s assessment of the reason for her sick leave . She argued that she should be granted sick leave entitlement on the basis of the work - related injury that she had sustained on DATE . She submitted medical documentation in support of her argument .

Following the lodging of the complaint , the applicant ’s general practitioner referred the applicant for an expert medical evaluation , enclosing her medical documentation with the request for expert evaluation .

On DATE an authorised doctor of ORG of ORG ( Hrvatski zavod za zdravstveno osiguranje , ORG ured GPE – hereinafter “ the GPE Office ” ) , specialised in physical medicine and rehabilitation , examined the applicant ’s medical documentation and reported finding no direct causal link between the work - related injury sustained by the applicant in DATE and the sick leave she had begun on DATE .

ORG forwarded the report to the applicant and informed her of her right to seek the delivery of a written decision on the matter of her sick leave entitlement . The applicant availed herself of that right and asked for a written decision .

By a decision of DATE ORG , relying on the report of DATE , refused the applicant ’s request that the sick leave from DATE be granted on the basis of her work - related injury . It also dismissed her claim for compensation for lost salary during the period of sick leave .

The applicant challenged this decision before ORG ( Hrvatski zavod za zdravstveno osiguranje , Direkcija – hereinafter “ the LOC ” ) , submitting further medical documentation and requesting that her sick leave be granted on the basis of her work - related injury .

Following the appeal by the applicant , ORG asked an in - house medical commission to conduct an expert examination regarding the matter . On DATE the medical commission , consisting of CARDINAL doctors of medicine , examined the applicant ’s overall medical documentation and reported that her sick leave from DATE could not be granted on the basis of the work - related injury that she had sustained in DATE .

On DATE ORG , relying on the findings of the medical commission , dismissed the applicant ’s appeal and upheld the decision of ORG .

The applicant then brought an administrative action in ORG ( GPE ) . She contested the findings of the ORG ’s expert medical bodies , relied on her medical documentation and alleged that it indicated a causal link between the work - related injury she had sustained in DATE and her sick leave . She requested that she be heard and that an expert medical report on the matter be obtained .

On DATE ORG submitted a response to the applicant ’s administrative action . This response was forwarded to the applicant .

On DATE ORG held a public hearing , to which the applicant was duly summoned . She did not attend the hearing , but was represented by a lawyer . Her lawyer reiterated the arguments adduced and evidence proposed in the administrative action . The representative of ORG contested this . ORG then dismissed the proposal to hear the applicant and to obtain a further expert medical report on the matter and closed the hearing .

On DATE ORG dismissed the applicant ’s action as unfounded . It stressed , in particular , that CARDINAL expert medical bodies of the ORG , as well as the applicant ’s chosen general practitioner , had established without a doubt that the applicant ’s sick leave beginning on DATE was not linked to the work - related injury she had sustained in DATE . It also stressed that the applicant , by the submissions in her administrative action , did not manage to put into doubt the findings of the expert medical bodies and that thus there was no need to hear her or to obtain a further expert medical report on the matter .

NORP The applicant lodged a constitutional complaint , alleging that the proceedings had been unfair in that she had been excluded from the procedure of commissioning and obtaining the administrative authorities’ expert reports , whereas ORG had refused to hear her and to obtain an independent expert medical report on the matter .

On DATE ORG dismissed the applicant ’s constitutional complaint as manifestly ill - founded . This decision was served on the applicant ’s representative on DATE .


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE in GPE , GPE .

In DATE , in the face of potential prosecution for religious extremism , he fled GPE with a forged NORP passport under an assumed name . On DATE he entered the territory of GPE .

On DATE he obtained a NORP passport using forged documents .

On DATE and CARDINAL September CARDINAL the applicant was indicted by the investigative authorities of GPE on charges of terrorism , inciting religious hatred , encroaching upon the constitutional order , illegally crossing the State border , organising a criminal group , producing and disseminating material threatening public security and order , participating in religious extremist , separatist , and fundamentalist movements , and smuggling . Since the NORP authorities could not locate him he was indicted in absentia .

According to the NORP investigative authorities , in DATE and DATE the applicant had been actively involved in operating the terrorist organisation ORG , which has extensive ties with ORG , ORG . He allegedly took part in recruiting and training terrorists , smuggling extremist material into GPE , organising gatherings where extremist material , including video and audio recordings , were viewed and distributed , fundraising for terrorist acts , training recruits in using firearms and hand - grenades , and facilitating illegal border crossings by the leaders of ORG . The NORP authorities further contended that members of the above - mentioned group had been involved in terrorist acts that had taken place in GPE and GPE on DATE and CARDINAL DATE .

On DATE ORG ordered the applicant ’s pre - trial detention . The order was issued in absentia and the reasons given were the gravity of the charges against the applicant and the fact that he could not be located . On DATE an investigator issued an international search and arrest warrant against him .

In DATE the NORP investigative authorities sent a notification to ORG in GPE that according to their intelligence , the applicant was living in the region .

On DATE the applicant ’s name and his CARDINAL aliases were put in the ‘ RM’ public transport search and identification system . The record mentioned his alleged association with radical and extremist organisations .

On DATE the ‘ RM’ system registered the sale of a ticket for a passenger train going from GPE to GPE . The ticket had been bought under the applicant ’s assumed name , which he used in his NORP passport . An alert was sent to ORG .

On DATE at TIME the applicant was apprehended at GPE railway station by officers of ORG and ORG ( ORG ) . During the initial identity check , he used his NORP passport bearing an assumed name .

After the applicant ’s true identity had been established , an ‘ express ORG was conducted with him by PERSON ’s assistant transport prosecutor , PERSON The applicant stated during the interview that he had fled GPE after learning that he was suspected of taking part in watching extremist material , while his prosecution was actually politically motivated . He further stated that since his entry into GPE , he had been living on various construction sites in GPE , NORP and GPE .

At TIME a record of apprehension of a person under an international search and arrest warrant was drawn up and the applicant was officially informed of his rights and the nature of the charges in GPE .

On DATE at TIME he was once again interviewed by Mr M. During the interview , he was informed of the right not to incriminate himself and that he would be provided with an interpreter if needed . He expressed his wish to give answers in LANGUAGE . The interview record was verified and signed by him .

The applicant stated during the interview that in DATE he had decided to leave GPE because of possible prosecution for watching video material which was considered extremist by the NORP authorities . He further stated that he had procured a forged NORP passport under an assumed name , which he had used to enter GPE and obtain NORP citizenship . In particular , the interview record contained the following passages :

“ ... Until DATE my permanent income came from exchanging currency in GPE and selling fruit ...

In DATE an acquaintance [ working ] in law enforcement informed me that my name was on the list of people suspected of extremism . Aware that my acquaintances had been prosecuted for watching extremist material and sentenced to lengthy prison terms , I decided to evade law enforcement , since I had also watched that material ...

In DATE I decided to return to GPE because I no longer wished to be a fugitive and it was necessary to make contact with the law enforcement bodies in GPE to resolve the situation surrounding [ their ] search [ for me ] .

As to the criminal case against me I learnt of its existence from my wife during a phone conversation in DATE ... I did not understand what the charges against me were , but presumed that I had been prosecuted for watching the extremist videos .

I did not commit any of the crimes I am accused of , except illegally crossing the NORP border . In DATE I watched a documentary at home with some of my acquaintances about the killing of NORP in GPE and GPE by GPE soldiers – I presume they were NORP because the majority of population in those countries are followers of ORG . We did not like the actions of the NORP soldiers and we discussed that . I do not think I committed any crime ...

I did not request political asylum or refugee status in GPE ...

I believe that my prosecution is politically motivated , because I do not like GPE ’s policies on entrepreneurs ; an opinion I expressed to the ORG institutions of GPE . ”

DATE the applicant was placed in a pre - trial detention facility , SIZO-CARDINAL in GPE , pursuant to the detention order issued by ORG . ORG in GPE was notified of the arrest .

On DATE an extradition request under LAW ( “ the GPE Convention ” ) was lodged by ORG of GPE . Making reference to the provisions of LAW and NORP legislation , the request included the following assurances :

On DATE and DATE and on DATE the applicant ’s detention was extended by ORG of Orenburg .

On DATE the Deputy Prosecutor General of GPE examined the merits of the extradition request and authorised it in respect of the charges of terrorism , participating in an armed group , and illegally crossing the NORP border . The request was refused in respect of the other charges due to a lack of evidence and/or their being no comparable crimes under NORP law . The extradition authorisation did not examine any risks to which the applicant might have been exposed in GPE and merely stated that “ no obstacles to extraditing Mr LANGUAGE under international law or the legislation of GPE had been established ” .

On DATE the applicant ’s representative PERSON lodged a complaint against this decision , alleging that the applicant was at a heightened risk of being subjected to torture if extradited to GPE . The complaint stressed that since the applicant ’s asylum application had not been definitively dismissed on appeal , any extradition authorisation was unlawful .

The complaint alleged that contrary to the interpretation of the law in force provided by Ruling no . CARDINAL of DATE of ORG of GPE ( see paragraphs CARDINAL below ) , the prosecutor had neglected his incumbent duty to consider the risk of torture in GPE , having regard to the general situation in the destination country and the applicant ’s personal situation , and the fact that the text of the extradition authorisation gave no reasons in this regard .

The applicant ’s representative also referred directly to CARDINAL of the ORG ’s judgments issued DATE in which a violation under LAW had been found in similar circumstances . He argued that the prosecution authorities had disregarded the ORG ’s conclusion that individuals accused of crimes concerning politics and religion constituted a “ risk group ” systematically exposed to ill - treatment in GPE . Accordingly , their extradition , just like the applicant ’s , had been contrary to GPE obligations under LAW .

Referring to reports by the ORG agencies , ORG and CIVICUS in DATE , the applicant ’s representative alleged that the use of torture and ill - treatment was commonplace in respect of people accused of religiously and politically motivated crimes .

Lastly , relying on the official position of certain NORP State institutions , PERSON highlighted the fact that ORG in its note of DATE “ On human rights in GPE ” stated :

“ ... criminal trials are characterised by a dependence on forced confessions , and a lack of adequate legal representation ... it is also noted that people convicted of anti - State , religious and politically motivated crimes are incarcerated in much stricter regimes than others ... ”

The complaint also quoted a DATE letter from the head of ORG of ORG to the director of ORG :

“ ... Considering the reasoning of ORG , it is actually possible to state that currently the extradition , deportation or administrative removal to GPE of any person wanted by the law enforcement agencies ... will constitute a violation of the LAW ... ”

On DATE ORG dismissed the complaint . It stated that the approval of the request was lawful , properly reasoned , and took into account the assurances of the NORP authorities . Furthermore , it considered that the ill - treatment allegations were merely a defence strategy of the applicant , who had procured a forged NORP passport under an assumed name , illegally crossed the NORP border on DATE , obtained NORP citizenship under an assumed name , and lodged an asylum request only after his apprehension under the international search and arrest warrant . The court noted that he had been convicted in GPE on DATE of forgery and fined MONEY ( RUB ) ( CARDINAL ( ORG ) ) ( see paragraphs CARDINAL below ) . It also stated that the extradition authorisation given by ORG did not presume an automatic transfer of the applicant to GPE , and that no extradition could take place before his asylum proceedings had finished .

On DATE the applicant ’s representative Mr PERSON appealed to ORG against ORG decision , relying on essentially the same arguments as presented before . In addition , he stated in his appeal that contrary to the decision of ORG , the NORP authorities had not explicitly stated that the applicant would not be subjected to torture , but had limited their assurance to a statement that the legislation in force prohibited it ( see paragraph CARDINAL above ) . The representative referred ORG to the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL , § CARDINAL , CARDINAL DATE ) , where the existence of domestic and international law provisions prohibiting illtreatment was not considered to be a sufficient assurance in itself .

On DATE ORG of GPE dismissed the appeal and upheld the lower court ’s decision and extradition authorisation . The relevant parts of the decision read as follows :

“ ... [ In his appeal ] Mr PERSON indicates that [ ORG ] ignored the fact that ... he had requested asylum and thus may not be returned to GPE . The court did not examine all the circumstances and adopted a wrong decision ...

The attorney PERSON requests in the interests of PERSON ... that extradition proceedings be terminated . The attorney believes that [ ORG ] violated NORP and international asylum law and did not examine the fact that the applicant had requested asylum . The court also did not examine any evidence proving that PERSON might be subjected to torture ... in GPE . In his opinion , the case file does not contain guarantees that [ the applicant ] would not be subjected to unlawful actions and [ the decision must therefore be quashed as unreasoned ] ...

When ORG decided to transfer Mr PERSON to the law enforcement agencies of GPE , his asylum request was denied .

[ Furthermore , ORG restated the reasons for the denial of asylum and the assurances provided by the NORP authorities . ]

The arguments of PERSON and his counsel that in GPE he will be persecuted on religious and political grounds are unfounded , since there is no objective proof .

The material in the case file demonstrates that PERSON PERSON ’s prosecution by the NORP authorities is of a general nature and is not related to the policies of that ORG .

PERSON did not submit to the court any convincing arguments giving weighty grounds to believe that the NORP authorities might subject him to torture , inhuman or degrading treatment or punishment , or that he might be persecuted on the grounds of race , religious beliefs , citizenship , ethnicity , belonging to a social group , or political convictions .

[ ORG ] finds no grounds to annul the decision ... ”

On DATE a criminal investigation was initiated by the NORP authorities in respect of the use of forged identification papers by the applicant .

On DATE the Justice of the Peace for the CARDINALth Circuit of the Promyshlenniy District of GPE convicted the applicant of using of forged documents ( a NORP passport ) and fined him RUB CARDINAL ( EUR CARDINAL ) . During the trial , he acknowledged his guilt , but stated that the procurement of false NORP and NORP identification papers had been a necessary measure to avoid his arbitrary prosecution in GPE for the crimes he had not committed .

On DATE PERSON applied on the applicant ’s behalf for asylum , alleging that the criminal charges against him had been “ fabricated ” after he , a successful businessman , had refused to pay bribes and provide payoffs to the NORP authorities .

On DATE the applicant was interviewed by the immigration authorities and his answers were recorded in an asylum questionnaire .

On DATE ORG of ORG refused to consider the merits of his request , because in their opinion it had been lodged only to evade prosecution in GPE , and the applicant had failed to substantiate his alleged fear of return . The relevant parts of the decision read as follows :

“ ... In the questionnaire , Mr NORP states that the reasons for his arrival in GPE were the extortionist demands of the authorities , unlawful persecution for his business success , and fear for his life . He submitted no other reasons , and stated that he had never been a member of religious , political or non - governmental organisations .

According to the questionnaire , there were no incidents of violence against him GPE ; he never complained of persecution to the law enforcement or ORG institutions in GPE or to human rights organisations .

He explains his unwillingness to return to the country of origin by his fear of prosecution for serious offences by the law enforcement authorities in GPE ...

The fact that PERSON , expressing his wish to receive protection from GPE ... did not lodge his asylum request at the border crossing in DATE ... or attempt to legalise his status during the lengthy period thereafter , and [ did so ] only after his apprehension [ under the warrant ] for crimes committed in GPE , demonstrates that the objective reason for ... his arriving in GPE was to evade prosecution for crimes committed outside of GPE ...

During his stay in GPE DATE and DATE , Mr PERSON had also committed an offence by [ being in possession of ] forged documents and unlawfully obtaining a NORP passport ...

It follows that the analysis of the reasons given in the asylum questionnaire , case file and search for the applicant for the crimes committed outside of GPE ... does not lead to a conclusion [ that there is any risk of him being persecuted in GPE ] . ”

On DATE ORG of Orenburg in reviewing the above decision , established that the applicant had illegally crossed the NORP border on DATE , procured a forged NORP passport under an assumed name , obtained NORP citizenship under that name , and lodged an asylum request only after his apprehension under the international search and arrest warrant . On that basis the court rejected his complaint against the immigration authorities’ decision .

On an unspecified date the applicant appealed against ORG decision . He alleged that both the immigration authorities and ORG had failed to consider his claims that he risked ill - treatment if returned to GPE .

On DATE ORG dismissed the appeal and upheld the lower court ’s decision and immigration authorities’ refusal to consider the asylum request . In particular , it stated :

“ Information from reputable international human rights organisations concerning the unfavourable political climate in GPE and practice of malicious persecution of those accused of crimes against the ORG was not proven by objective evidence within the framework of PERSON case and may not serve as a basis for the annulment of a judicial decision ... Moreover , a competent ORG institution deciding on asylum status independently evaluates the situation in a specific country relying on its own sources , and the opinion of human rights organisations is not determinative of such a decision ... ”

On DATE the applicant lodged a request for temporary asylum in GPE , but it was denied by the immigration authorities on DATE .

DATE . On DATE the applicant ’s representative PERSON submitted to the ORG a request for the application of an interim measure under LAW to stay the applicant ’s extradition to GPE until further notice . The request specified that the applicant ’s extradition would expose him to a risk of treatment contrary to LAW . The evidence and arguments presented to the ORG were essentially the same as the evidence and arguments previously presented to the national authorities .

On DATE the Acting President of the First Section indicated to the respondent Government , under Rule CARDINAL of ORG , that the applicant should not be extradited to GPE until further notice .

By a letter of CARDINAL DATE ORG informed the ORG that they had taken relevant steps to guarantee that the applicant would not be extradited to GPE until further notice . In particular , ORG , departments of ORG , and ORG had been ordered to prevent the applicant ’s extradition or removal from GPE , and other law enforcement agencies had been instructed to comply with the measure applied .

On DATE the applicant ’s representative PERSON was informed that the applicant would be released on DATE . However , since it was a public holiday in GPE the release was rescheduled to CARDINAL a.m. DATE . PERSON was informed in person .

A decision to release the applicant dated DATE was issued by ORG . It restated the procedural history of the case available to the NORP authorities at that time and explicitly mentioned the application of an interim measure by the ORG . In the absence of any further legal grounds for the applicant ’s detention , his release was ordered .

According to statements submitted to the ORG by the applicant ’s representative , he arrived at the detention facility on DATE at TIME Despite his previous enquiries about the time of release , Mr PERSON was informed at TIME that the applicant had been released at CARDINAL TIME and had left in an unknown direction . According to the DATE ’s submissions , the release had taken place at TIME

Later the same day Mr PERSON lodged a request with ORG the Orenburg Region . The relevant parts of the request read as follows :

“ ... [ On DATE ] officers at the checkpoint [ of SIZO-CARDINAL ] informed me that ... Mr PERSON was going to be released on DATE , no earlier than TIME

Relying on the veracity of the information provided , I arrived TIME at SIZO-CARDINAL , where I was informed at TIME [ sic ] that PERSON had already been released and had departed in an unknown direction . I was refused information about the precise time of release [ sic ] . At the present moment I ’m not aware of the whereabouts of my client .

I draw your attention to the fact that during a private conversation , PERSON PERSON asked me to be personally present during his release and to further support him until the regularisation [ of his immigration status ] in GPE ; he strongly denied any possibility of returning to GPE voluntarily .

Having regard to these facts , and the fact that there have previously been instances of disappearances from GPE of NORP nationals charged with State crimes , whose extradition was being sought [ by the NORP authorities ] , I have grounds to believe that PERSON PERSON was abducted by interested parties with a view to transferring him to GPE .

Accordingly , I request [ that ] :

An inquiry is initiated into these allegations .

Criminal proceedings are initiated into the suspected [ abduction ] ... ”

Similar requests were lodged with ORG , ORG of the ORG , and the police .

On DATE the administration of the detention facility SIZOCARDINAL sent a letter to ORG , informing it of the applicant ’s release .

Following PERSON request a preliminary inquiry into the applicant ’s alleged disappearance was initiated by ORG TIME in GPE .

On DATE the inquiry was handed over to ORG , since the crime suspected fell under their jurisdiction . The inquiry case file reached them on DATE .

On DATE the investigator examined the applicant ’s cell in SIZO-CARDINAL and seized from the administration the applicant ’s personal file and the available video surveillance recordings .

On DATE he questioned CARDINAL officers working at the detention centre who were present during the applicant ’s release . They stated that the applicant ( i ) had been released at the expiry of the court - ordered detention , ( ii ) had been informed of his obligation to register with the immigration authorities , ( iii ) had not made any complaints or requests during his release , and ( iv ) had not been approached after his release by anyone in uniform , NORP - looking or anyone else .

On DATE , in reply to the investigator ’s request , ORG informed him that there was no record of the applicant in their databases , and ORG of the ORG stated that due to the absence of any IT systems at the borders of the Orenburg Region it was not possible to provide information about a specific person .

On DATE the period of inquiry was extended by DATE to collect further evidence .

On DATE , in reply to the investigator ’s request , ORG in GPE stated that since DATE the applicant had not been apprehended or detained by the police .

On DATE the applicant ’s cellmate in SIZO-CARDINAL , PERSON , was interviewed after being cautioned about criminal liability for perjury . The relevant part of the interview record stated as follows :

“ .... In DATE he was released ... He did not know about his release from detention because he was woken up early in the TIME and told that he was being released ... he did not inform me of his future plans . I am not aware where he might be . ”

On DATE an officer of ORG in GPE , Mr Ab . , who was involved in apprehending the applicant , was questioned after being cautioned about criminal liability for perjury . He stated , in particular , that ( i ) the applicant was of no interest to his agency since there was no evidence of his involvement in criminal activities in GPE , ( ii ) that he was not aware of the applicant ’s possible whereabouts , and ( iii ) that there had been no contact or exchange of information between his agency and the NORP law enforcement agencies .

On DATE the investigator requested from ORG in GPE a copy of the extradition case file , in order to fully consider the possibility of the applicant ’s forced removal to GPE . It was provided on DATE .

DATE . On DATE , in reply to the investigator ’s repeated request , ORG informed him that there was no record of the applicant crossing the State border after DATE .

On DATE an officer of the ORG in GPE , Mr St. , who was involved in apprehending the applicant , was questioned after being cautioned about criminal liability for perjury . His statements were essentially the same as those provided previously by PERSON . , the officer of ORG in GPE ( see paragraph CARDINAL above ) .

On DATE the applicant ’s representative PERSON was interviewed after being cautioned about criminal liability for perjury . The relevant part of the interview records stated as follows :

“ On DATE I arrived at SIZO-CARDINAL in GPE with Mr Al . and Mr R.M. , who lives in GPE but works in GPE and who is a brother of PERSON PERSON ... I was told [ by officers of the detention facility ] that the client ’s release would not take place that day , since the papers were not ready ... [ I was told to return the next day by TIME ]

... While PERSON was detained in SIZO-CARDINAL I frequently visited him , but he never informed me of any visits from law enforcement agents or anyone else [ or ] the use of unlawful investigative measures or torture . If something like that had happened to him , he would have told me about it . I personally have also never been contacted about PERSON by agents of the ORG or other services of GPE or GPE ; from what I know the same applies to his relatives ...

... [ DATE I arrived at SIZO-CARDINAL at TIME The officer on duty refused to provide me with any information on PERSON ... [ she ] told me that at TIME he was being released ... At TIME I called SIZO-CARDINAL and was informed that PERSON had been released at TIME To date I have not been aware of his whereabouts , his relatives do not have this information either , as he did not make any contact . I am saying that his NORP passport has been seized and his NORP passport has been lost . Before his release PERSON did not inform me of an intention to move somewhere after his release ; on the contrary , he wanted to regularise his status in GPE . I personally believe that certain parties from GPE interested in his return are implicated in [ his ] disappearance . There have been similar cases in GPE in the past . ”

DATE , in reply to the investigator ’s request , ORG in GPE stated that there was no record of the applicant buying train or plane tickets DATE .

On DATE , relying on the results of the preliminary inquiry , ORG initiated criminal proceedings in respect of the applicant ’s disappearance and suspected murder . The investigation was assigned to a group of investigators from ORG , the ORG , and the regional ORG .

On DATE a detailed plan of the investigation was adopted by the group of investigators , presided by PERSON The plan contained CARDINAL investigative measures each assigned to specific investigators . The measures were aimed at detecting the current whereabouts of the applicant , discovering information and evidence , and verifying CARDINAL existing theories about the applicant ’s disappearance . The theories adopted were that :

DATE an investigator examined the area around SIZO-CARDINAL and established that there had been no outside video surveillance cameras placed there .

On DATE the applicant ’s representative PERSON challenged the opening of an investigation into his client ’s disappearance and suspected murder , arguing that the investigation should be based on his suspected abduction . On DATE he was informed by the investigator that there was no evidence to substantiate the suspected abduction .

DATE . DATE the applicant ’s representative PERSON was once again interviewed after being cautioned about criminal liability for perjury . His statement was essentially the same as his previous one ( see paragraph CARDINAL above ) .

On DATE the release officer of SIZO-CARDINAL , PERSON , was questioned after being cautioned about criminal liability for perjury . The relevant parts of the interview records read as follows :

“ ... [ The prosecutor ’s decision to release PERSON on DATE due to expiry of the maximum period for his detention ] arrived at SIZO-CARDINAL on DATE at TIME ...

During TIME of DATE , the lawyer PERSON ... called me to inquire about the date of release ... [ PERSON informed him that it would be DATE ] ...

Around TIME on DATE I was informed by officers at the checkpoint that PERSON had visited [ SIZO-CARDINAL to inquire about PERSON PERSON ’s release ] ...

On DATE I arrived at work at TIME at the request of the head of SIZO-CARDINAL , Mr GPE .... [ and immediately took part in Mr NORP ’s release ] ...

During the release , PERSON asked me whether his lawyer was waiting for him , but I could not tell [ him ] because I did not know ... ”

On DATE the head of SIZO-CARDINAL , Mr GPE , was questioned after being cautioned about criminal liability for perjury . The relevant parts of the interview records read as follows :

“ ... During PERSON detention in SIZO-CARDINAL and after the prosecutor ’s decision to release him , I was made aware of [ his ] concerns for his safety after release .

Accordingly , in order to ensure his safety I made the decision to release [ him ] before regular working hours ...

I took part in [ his ] release ... as an officer in charge of supervising the release procedure ...

[ After release ] PERSON left the premises of SIZO-CARDINAL . He left the area and passed the guards alone ...

I am not aware if anyone was meeting him ... ”

On DATE CARDINAL security guards of SIZO-CARDINAL who were present during the applicant ’s release were questioned after being cautioned about criminal liability for perjury . They all stated that the release had taken place at TIME and were not aware if anyone had been expecting the applicant , since they could not leave their duty stations in the building .

On DATE , in reply to the request of CARDINAL DATE , the administration of SIZO-CARDINAL informed the investigation that while there were video surveillance cameras covering the building and adjacent area , the recordings of CARDINAL DATE were no longer available due to the expiry of their storage period . However , the recording from the camera at the checkpoint of the detention facility covering the period DATE was available ( see paragraphs CARDINAL below ) , since a local copy had been saved following a request in the course of the preliminary inquiry .

On DATE and DATE the ORG in the Orenburg Region informed the chief investigator that they had complied with the investigative tasks assigned to them . They stated that they had contacted ORG of GPE in order to obtain information about the applicant ’s possible whereabouts , establish a list of his relatives , and procure the necessary background information . They further stated that according to their sources , the applicant might have been assisted in illegally crossing the NORP border by Mr Al . , with whom he had previously collaborated extensively in illegal activities .

On DATE the applicant ’s cellmate in SIZO-CARDINAL , PERSON , was repeatedly questioned after being cautioned about criminal liability for perjury . He mostly confirmed his previous statements , supplementing them with the following relevant passages :

“ ... PERSON told me that in GPE he had been prosecuted for terrorism . He told me that in GPE he might have been sentenced to DATE imprisonment ...

[ He ] also told me that in DATE he had decided to travel to GPE by train , because he was worried about his CARDINAL or CARDINAL wives and QUANTITY children ...

... He had only learnt of the international search warrant after his apprehension ...

[ He ] did not want to return to GPE , because he would have been sentenced to lengthy imprisonment there ...

[ He ] also mentioned that if there was no possibility of him staying in GPE , he would travel to GPE or GPE , where he had acquaintances ...

[ DATE before his release he was informed of it ]

PERSON told me that his lawyer was going to inform his friends and relatives of DATE of release and that they were going to come and meet him ...

[ He was convinced that his friends and relatives ] were going to help him relocate to another country if he was not able to stay in GPE , because he did not want to return to GPE ... ”

On DATE PERSON , the applicant ’s brother , was officially recognised as a victim by the investigative authorities .

On DATE the investigator sent a request for legal cooperation to the NORP authorities . The competent authorities were requested to inform PERSON of his status in the investigation conducted in GPE and question him according to a non - exhaustive list of TIME questions concerning the applicant ’s background , state of health and mind , social and family ties , political and religious affiliations , and questions in respect of the events of CARDINAL and DATE . Lastly , the NORP authorities were requested to collect a saliva sample from him for his DNA , in the event of a future need for identification .

On DATE , in reply to the request of CARDINAL DATE , ORG informed the investigation that there was no record of Mr NORP crossing the NORP border .

According to the material in the ORG ’s possession , other investigative activities DATE included a screening of the applicant ’s possible contacts , a search for possible witnesses , monitoring of the sale of train and airline tickets , putting the applicant on the list of missing persons , and sending legal cooperation requests to neighbouring regions .

The applicant ’s representatives’ submissions of DATE addressed to the ORG were accompanied by an undated letter by PERSON ( the applicant ’s second representative ) . The relevant parts of the letter stated :

“ ... in DATE I received a phone call on my mobile from a man identifying himself as a relative of my client , Mr PERSON . The man told me [ the applicant ] was being held in custody in GPE and that the criminal case would be sent to trial soon . Due to fears for his safety , he refused to provide me with detailed information on the case ... or to state his full name .

Furthermore , from a private conversation with an investigator , PERSON , I have learnt that he ( the investigator ) is preparing to go on a mission to GPE in order to get statements from Mr PERSON himself concerning the circumstances of the criminal case opened following his disappearance . He further informed me that the statements ... would be obtained by officials of the NORP law enforcement agencies , and that just he himself would be present during the interview . ”

On DATE the applicant ’s representatives informed ORG recent developments in the case . In particular , the letter stated :

“ ... The applicant ’s lawyer PERSON recently received a call from an unknown person ... [who stated ] that the applicant was currently being detained in GPE ( GPE ) and that the criminal case against him was about to be handed over to the court . The man also informed me that the applicant ’s brother ( who was acknowledged as a victim of the crime in the criminal investigation into the applicant ’s abduction in GPE ) was also currently being detained in GPE ...

The applicant ’s representatives also pointed out that the initial authorities’ intention to conduct certain investigative measures in GPE was not realised for unknown reasons . The intention to visit GPE confirms in itself that the applicant was in GPE ...

The detention of the applicant ’s brother , PERSON ( whose name was mentioned in the request for cooperation of CARDINAL.CARDINAL.CARDINAL ... ) illustrates the reluctance of the NORP authorities to provide the NORP investigative authorities with an opportunity to get an independent statement from [ him ] ... ”

No other information is available to the ORG regarding the progress of the criminal investigation .

The applicant ’s whereabouts are currently unknown .

The Government submitted as evidence to the ORG a recording from the video surveillance camera placed inside SIZO-CARDINAL in GPE facing the checkpoint of the detention facility , opposite the only entrance to the building . The recording covers the period between CARDINAL.CARDINAL and TIME on DATE , DATE of the applicant ’s release .

On the recording , at TIME a person identifying himself as Mr PERSON is brought before an officer responsible for releasing detainees . He gives the same date and place of birth as those indicated ( in paragraph CARDINAL ) above , and gives an address in PERSON as his place of residence . He is provided with an identity certificate , and after receiving it at TIME leaves , presumably after being released from the detention centre .

The recording of TIME shows several people approach and pass the checkpoint .

At TIME the following fragments of a conversation are audible :

“ Woman : Permission to enter .

Man [ over the phone ] : Where are you ? The exit ? Alone ? ...

Woman : ... civilians ...

Man : NORP ?

Woman : No ... [ he ] is in uniform and CARDINAL civilians ... ”

At TIME a senior officer approaches the checkpoint , presumably from outside the building :

“ Officer at the checkpoint : Good TIME , Sir !

Senior officer : Hello ! Have you seen anything ?

Officer at the checkpoint : ...

Senior officer : I am asking you if you have seen anything .

Officer at the checkpoint : No .

Senior officer : OK . I am asking just in case . ”

On DATE the Ministers’ Deputies at the FAC meeting , having considered the information and documents made available to them by the applicant ’s representatives and ORG ( see paragraph CARDINAL above ) , adopted the following decision concerning the applicant ’s disappearance :

“ The Deputies ,

Recalling the decisions adopted at their ORG meeting ( DATE ) ( DH ) and CARDINAL meeting ( DATE ) ( DH ) in the PERSON group of cases against GPE ,

NORP noted with grave concern that a further incident involving allegations of kidnapping and illegal transfer of an applicant protected by an interim measure indicated by ORG under Rule DATE has been reported , this time in the context of the NORP case ;

NORP strongly insisted that light be shed on this incident and on the fate of the applicant as quickly as possible ;

NORP consequently insisted again on the pressing need to adopt as of now measures to ensure an immediate and effective protection of the applicants in a similar situation against kidnappings and irregular removals from the national territory ;

recalled in this context the letter sent by the Chairman of ORG to the Minister of ORG of GPE ;

NORP agreed that a draft interim resolution will be considered in the light of progress that would have been made , including the updated action plan submitted by the NORP authorities ; this text will be circulated in the draft revised order of business of their CARDINAL meeting ( DATE ) ( DH ) . ”


No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The applicant was born in DATE and lives in GPE . He is the founder of the NORP TV station ORG and director of the management board of its operating company ORG PERSON CARDINAL ’s programme contents are broadcast nationwide in GPE and in GPE through the TV station ORG . The latter is operated by private limited - liability companies established under NORP law and , since DATE , by LAW ORG ( GPE beschränkter PERSON ) with the applicant as CARDINAL of its shareholders . The applicant alternately occupied the position of managing director ( Geschäftsführer ) or authorised signatory ( NORP ) in such companies .

Since DATE a specific programme slot in the channel ’s broadcasting schedule had been allocated to the non - profit association Deniz PERSON , founded , inter alia , by the Kanal CARDINAL head of human resources who was also a member of the association ’s board of directors . During that programme , broadcast in GPE and in GPE , the association reported on charitable aid projects being run by it and appealed for monetary donations . In DATE a similar association was founded in GPE under the name of PERSON . PERSON ( hereinafter “ LOC ” ) by PERSON , CARDINAL of the other shareholders and managing directors or , alternately , authorised signatories of LAW Fernseh- und Marketing GmbH. PERSON was also appointed chairman of the association and remained in that position until DATE . In its donation appeals on television PERSON stressed that the funds donated would be used directly and exclusively for charitable purposes and for the funding of social projects .

In DATE the GPE am GPE prosecution authorities ( ORG ) launched investigations against the applicant and several co - suspects , including PERSON , on suspicion of having fraudulently used the majority of funds donated to the associations for commercial purposes and their own benefit .

On DATE the preliminary criminal proceedings against the applicant were separated from the investigations against the co - suspects .

In DATE criminal investigations based on the same allegations of fraud were also initiated against the applicant in GPE .

By a judgment , the operative part of which together with a summary of its reasoning was pronounced orally on DATE ( file no . CARDINAL PERSON TIME CARDINAL CARDINAL/CARDINAL ) , ORG ( ORG ) of the GPE am ORG convicted CARDINAL of the applicant ’s co - suspects , PERSON and PERSON , of aggravated fraud ( FAC in einem besonders schweren Fall ) acting as members of a joint criminal enterprise with its leaders in GPE . Another co - accused , PERSON , was convicted of having aided and abetted the commission of the offence . PERSON and NORP were sentenced to prison sentences of DATE and DATE and DATE and DATE respectively , while PERSON was given a suspended prison sentence of DATE and DATE . The full judgment , with the complete reasoning , was subsequently delivered in writing DATE and DATE .

ORG found it to be established that PERSON had created and maintained a complex structure for the purpose of concealing the fact that the majority of the donations obtained for charitable purposes as advertised by PERSON were in reality earmarked and used to finance the entrepreneurial activities of private companies in which PERSON and the applicant , among others , became shareholders . At PERSON ’s request , T. had contributed to the fraudulent misrepresentation by , inter alia , fabricating CARDINAL of virtual association meetings of Deniz Feneri in order to conceal the unauthorised use of donated funds from the tax authorities . PERSON , for his part , also acting upon instructions from PERSON , had omitted to record the actual use of the donations in the association ’s official accounts and had documented them in separate unofficial accounts ( PERSON ) .

The court ’s findings were primarily based on confessions made by ORG , PERSON and PERSON following a plea bargain reached between the court , the prosecution authorities and the defence and also on further evidence obtained in the course of the trial . PERSON maintained that he alone had decided how the donated funds would be used without having consulted any contact persons in GPE , GPE and PERSON testified that PERSON had been integrated into the hierarchy of a criminal organisation whose leaders were in GPE and in which the applicant had played a leading role . According to T. and PERSON ’s testimony , PERSON had to obtain the applicant ’s prior approval with respect to all essential decisions relating to the use of donations obtained by the association . The court was therefore satisifed that PERSON had not been at the top of the criminal organisation ’s hierarchy but had received orders from its leaders residing in GPE .

The judgment ’s reasoning is divided into CARDINAL parts headed by ORG numerals . Part I provides information on the personal background of the accused . Part II contains a description of the circumstances of the case . Part III sets out the type of evidence on which ORG based its establishment of the facts and the court ’s assessment of the veracity and credibility of the relevant evidence . Parts PERSON and V contain the legal assessment of the offences committed by the accused and the determination of their relative guilt and the resulting sentence . Part VI stipulates that the accused are to bear the costs of the proceedings . The judgment refers on several occasions to the role that the heads of the criminal organisation in GPE played in connection with the use of donated funds for non - charitable purposes . In that context the applicant ’s full first and last names are mentioned numerous times in the judgment running to some thirtytwo pages . The most relevant passages of the judgment in parts II to V of its reasoning read as follows :

It was neither the association ’s chairman nor the registered members of the association [ Deniz Feneri ] who decided on the use of funds obtained on behalf of the association but the accused PERSON in coordination with and upon the instructions of the separately prosecuted ( gesondert Verfolgte ) PERSON , ... , ... and ... , ... ( pp . CARDINAL to CARDINAL )

The accused PERSON and the persons in charge of FAC in GPE were ... aware that donations collected in the NORP association ’s [ Deniz Feneri ] name would only partly be used for charitable purposes or social projects . At any rate , since DATE it had been the intention of PERSON and the separately prosecuted persons behind the scenes ( PERSON ) to also use a large part of the collected funds for economic activities , in particular for the start - up financing of entrepreneurial projects of private - law companies in which PERSON or the separately prosecuted PERSON , ... , ... and ... became shareholders . ( pp . CARDINAL )

For this reason , the accused PERSON and the separately prosecuted PERSON instructed the co - accused PERSON to keep unofficial accounts ( PERSON ) . ( p. CARDINAL )

DATE the contents of the unofficial accounts in GPE were coordinated between PERSON and ... , ... or PERSON . ( p. CARDINAL )

According to the entries in the unofficial accounts a total amount of QUANTITY was handed over to the separately prosecuted Zekeriya PERSON . ( p. CARDINAL )

The separately prosecuted Zekeriya PERSON , ... , ... , ... and ... decided on the use of the funds collected by means of donations . In his capacity as director of the management board of ORG , PERSON was accorded a pre - eminent role in this respect . ( p. CARDINAL )

The accused ORG was not aware of the exact amount of donated funds that had been used for non - charitable purposes . However he endorsed appeals for further donations while knowing that they were to a large extent going to be used for unauthorised purposes ... Following PERSON ’s arrest in DATE he was the contact person of PERSON with respect to all matters related to PERSON in GPE . The latter provided him with a mobile phone and a prepaid card in view of suspected telephone surveillance . ( p. CARDINAL )

ORG ) have been established ( steht fest ) on the basis of the confessions made by the accused and further evidence obtained in the course of the trial as set out in the record of the hearing . ( p. CARDINAL ) .

The ORG did not follow PERSON ’s submissions that he alone had decided on the unauthorised use of donated funds without consulting the persons behind the scenes in GPE . The accused PERSON and the accused ORG had stated in the course of their confessions during trial and during previous police questioning that PERSON had been integrated into a hierarchy and had to coordinate all essential decisions with the separately prosecuted PERSON , ... and ... , while PERSON , in his capacity as director of the management board of PERSON , played a pre - eminent role . ( p. CARDINAL )

Such integration into a structure controlled from GPE , as described by the QUANTITY coaccused , is sufficiently proved by the implementation of an unofficial accounting system , a parallel structure to the television station and the association PERSON in GPE and GPE for the collection of donations , the shareholding in the companies funded by donations , and the fact that cash withdrawals had been handed over at the LOC of FAC in GPE . By assuming sole responsibility for the donation appeals and the unauthorised use of the donated funds , the accused PERSON apparently tried to protect the persons behind him in GPE from criminal prosecution in GPE and/or GPE . ( p. CARDINAL )

The accused ORG is guilty of fraud committed in his capacity as successive joint offender ( in sukzessiver PERSON ) pursuant to Articles CARDINAL and CARDINAL § CARDINAL of LAW . Not only did ORG want to support the actions of others but he also wanted to participate in a joint operation ( gemeinschaftliche ORG ) together with PERSON and the persons behind the scenes in GPE . ( p. CARDINAL )

Furthermore , it had to be considered in [ PERSON ’s ] favour that he was not positioned at the top of the hierarchy which organised the fraud ( ORG ) but received instructions from the persons behind the scenes in GPE . He could not decide alone on the unauthorised use of the donated funds but only develop ideas that ultimately had to be approved by the persons behind the scenes in GPE . He was an executing organ rather than a decision maker ( mehr ausführendes als bestimmendes Organ ) . ( p. CARDINAL )

[ T. ’s ] confession was not limited to his own participation in the commission of the offence . He also revealed his knowledge regarding the background and in particular concerning the persons behind the scenes . His knowledge was limited since PERSON and the persons behind him deliberately granted him only a restricted insight . In the hierarchy he was placed far below PERSON and the responsible persons in GPE . ( p. CARDINAL )

By keeping unofficial accounts [ E. ] made a significant contribution to the functioning of the overall system . The fact that he was not only requested by PERSON but also directly by the separately prosecuted PERSON to keep off the recorded accounts demonstrates the importance of such unofficial accounting . ( p. CARDINAL )

The persons behind the scenes in GPE had previously attempted to prevent [ E. ] from testifying before the investigative authorities by establishing contact with his first counsel and members of his family . ” ( p. CARDINAL )

According to an article published by the NORP newspaper PERSON on the Internet on DATE , the Acting President of the GPE am ORG had stated , when delivering the judgment , that the donated funds had been used by the persons behind the scenes for a mixture of their own economic and political purposes even though part of the money had indeed been spent on aid projects . The same newspaper had reported in an article published on the Internet on DATE that the prosecution authorities ( ORG ) had referred to the applicant as the “ main perpetrator and leader ( führender PERSON ) of the whole organisation ” . Similar quotations were published in several NORP newspapers on CARDINAL and DATE . For instance , according to an article published in the NORP newspaper PERSON on DATE , the presiding judge had declared when delivering the judgment , that “ strings were pulled at the level of FAC . PERSON and NORP acted in accordance with instructions they had received from ORG , in particular from PERSON , ... , ... and ... The main persons in charge were located in GPE . ”

The judgment was published on ORG website on DATE . In the judgment ’s Internet version the names of the accused and separately prosecuted were replaced by letters and the names of the companies involved by numbers . The introductory comments to the Internet publication included a paragraph stating that the judgment had become final and was binding only on the CARDINAL convicted persons . It was specified that references and findings in the judgment with respect to the actions of other persons , in particular those separately prosecuted , were not binding in relation to those persons and that the latter still benefited from the presumption of innocence . The text of the judgment itself does not contain a similar specification .

The judgment became final on DATE .

By written submissions dated DATE the applicant lodged a complaint with ORG . He argued that the references in the reasoning of ORG judgment of CARDINAL DATE to his role in the fraudulent use of the donated funds had violated the principle of the presumption of innocence , which constituted CARDINAL aspect of the constitutionally guaranteed right to a fair trial taken in conjunction with the principle of the rule of law .

By a decision of CARDINAL DATE , served on the applicant on DATE , ORG dismissed the complaint as inadmissible ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

The Constitutional Court found that while defendants were not categorically prevented from challenging a judgment delivered in proceedings conducted against third persons , an applicant who had not been party to the proceedings did have to be able to claim that his or her legitimate interests were directly affected by the impugned decision and not only in an indirect de facto manner . ORG reiterated its established case - law according to which , by virtue of the constitutionally guaranteed principle of the presumption of innocence , no measures effectively amounting to a penalty could be taken against an accused without his guilt having been established beforehand in the course of a fair trial . Furthermore , that finding of guilt had to become final before it could be held against the person concerned . However , in the context of criminal proceedings the presumption of innocence did not prevent the law - enforcement authorities from making an assessment as to whether and to what degree a person could be suspected of having committed a criminal offence .

NORP , ORG pointed out that the presumption of innocence did not protect the applicant ab initio from any factual impact of statements made in a judgment rendered in criminal proceedings against third persons with respect to his own involvement in the commission of the offence . That judgment did not constitute a decision that required the determination of the applicant ’s guilt or exposed him to disadvantages amounting to a conviction or sentence . Statements made in criminal proceedings against third persons did not have a binding effect on the courts or the prosecution authorities , whether with respect to preliminary proceedings pending against an applicant or in relation to any other court or administrative proceedings to which an applicant might possibly become a party in the future . The applicant could not be regarded as guilty on the basis of that judgment and was still protected by the principle of the presumption of innocence . The fact that the establishment of the facts by ORG not only concerned the accused , who were convicted at the end of the proceedings , but also the applicant was an inevitable consequence of the fact that in complex criminal proceedings it was hardly ever possible to conduct and terminate the proceedings against all the accused simultaneously .

A request for legal assistance was sent to the NORP authorities on DATE with a view to obtaining the applicant ’s examination in GPE . No information was submitted to the ORG as regards compliance with that request .

On DATE the GPE am GPE prosecution authorities brought charges against the applicant and CARDINAL co - accused in connection with the events in issue . It further appears that on DATE ORG brought similar charges against the applicant and that his trial in GPE commenced on DATE . According to the ORG ’s submissions , the GPE am ORG , by an order dated DATE , opened the main hearing in the proceedings against the applicant . These are apparently still pending .