Violation of Article 6 - Right to a fair trial (Article 6-2 - Charged with a criminal offence)

Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

The applicant ’s daughter PERSON was born on DATE . Since their separation in DATE , the applicant and A. ’s mother , PERSON , have been quarrelling over the custody of and contacts with A. The child was initially living with her mother . In DATE , PERSON was placed in a home .

On DATE Ms J. laid an information against the applicant with the police , accusing him of having raped their daughter since DATE . As PERSON had persistently declared not to be ready to make a statement before the police , the proceedings were initially discontinued . Following a visit of A. to her mother , the latter informed the police that A. was now ready to testify . A. was heard by the police twice in DATE . On DATE psychological expert PERSON , having examined A. , submitted a report on the credibility of A. ’s submissions .

On DATE ORG charged the applicant with CARDINAL counts of serious sexual abuse of children ( Article CARDINALa of LAW , see paragraph DATE below ) and of sexual abuse of a person entrusted to him for upbringing ( Article CARDINAL of LAW , see paragraph CARDINAL below ) , his daughter PERSON , committed between DATE and DATE mostly in or in the vicinity of GPE . The applicant was accused of having raped A. in his car on CARDINAL occasions and in a holiday apartment on QUANTITY occasions when he met her on DATE and during vacations following her GPE separation .

The applicant was in detention on remand between DATE and DATE , when the execution of the detention order was suspended .

On DATE ORG , having held CARDINAL hearings , acquitted the applicant of the charges on account of insufficiency of proof . It further ordered the ORG to bear the costs of the proceedings and the applicant ’s necessary expenses and to pay the applicant compensation for his detention on remand from CARDINAL to DATE .

ORG , having regard to the testimonies of several witnesses and the ( diverging ) reports of CARDINAL psychological experts , PERSON and PERSON , on the credibility of A. ’s submissions , found that the offences the applicant had been charged with had not been proven with the certainty necessary for a criminal conviction . It noted that the applicant had contested the charges . He was only incriminated by PERSON ’s statements . ORG stated that it has not been convinced by PERSON ’s testimony in the hearing that the charges were completely correct , in particular , in terms of a clear definition of the criminal acts and their time frame .

ORG , having regard to the witness statements of CARDINAL educators who had noted signs of sexual abuse in DATE conduct , CARDINAL psychologists who had treated PERSON and a friend of A. , was not persuaded that A. had been influenced by third persons , including her mother , so as to incriminate her father .

ORG then stated in its judgment :

“ ... To sum up , the ORG does not discern any signs of suggestive influence .

Therefore , the ORG assumes , in sum , that the core events described by the witness have a factual basis , that is , that the accused actually carried out sexual assaults on his daughter in his car . Nevertheless , the acts could not be substantiated , in terms of either their intensity or their time frame , in a manner that would suffice to secure a conviction . The inconsistencies in the witness ’s testimony were so marked that it was impossible to establish precise facts . ”

[ “ ... PERSON einer Suggestion für die PERSON .

So geht die Kammer i m LOC aus , dass das von der GPE geschilderte PERSON realen PERSON hat , nämlich dass es tatsächlich zu sexuellen ORG zu Lasten seiner Tochter in LOC ist . PERSON ließen sich aber dennoch weder ihrer ORG noch ihrer zeitlichen PERSON in PERSON für eine ORG hinreichenden Art und Weise konkretisieren . PERSON in den ORG der PERSON so gravierend , dass konkrete Feststellungen nicht getroffen werden konnten . “ ]

NORP In coming to that conclusion , ORG took into account that witness PERSON had made the impression of being authentic . It was true that her statements had been short and she had appeared being relatively uninvolved . However , CARDINAL witnesses who knew PERSON partly for a longer period of time had confirmed that she generally spoke and acted in that manner and did not discuss problems in detail .

ORG observed , however , that even having regard to these elements , the inconsistencies in witness PERSON ’s statements prevailed to an extent that it was not in a position to establish concrete offences . There were inconsistencies in the witness ’s statements on the number of the acts described by her ( CARDINAL ) , the place of these acts ( notably concerning acts in a holiday apartment which the witness mentioned only at a later stage ) and the time frame in which they took place ( starting when the witness was CARDINAL and ending either on the witness ’s placement in the home or continuing also after that placement ) . Moreover , A. had been uncertain in the hearing about the exact manner in which the acts described by her were committed in the car and did not recall any details on several points . A. had , for instance , been very uncertain in the hearing whether the applicant had moved within the car onto the front passenger seat where she had sat or whether he had left the car and walked around it to come on her seat . Moreover , A. had declared several times in the hearing not to have any precise recollection of the events any more .

The judgment was served on the applicant ’s counsel on DATE and subsequently became final .

On DATE the applicant lodged a constitutional complaint with ORG . He claimed that ORG statements “ that the core events described by the witness have a factual basis , that is , that the accused actually carried out sexual assaults on his daughter in his car ” had breached his constitutional right to a fair trial , his personality rights and human dignity .

On DATE the ORG declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . The decision was served on the applicant ’s counsel on DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Aleš Pejchal;André Potocki;Angelika Nußberger;Mark Villiger;Myroslava Antonovych;Vincent A. De Gaetano

The applicant was born in DATE and lives in ORG .

In DATE F. , a cashier in a game - machines arcade , was found at his workplace unconscious with head injuries . He died in hospital shortly afterwards .

On DATE the applicant was arrested by the LOC police of ORG ( “ the district police ” ) and confessed to having inflicted injuries on F. and robbed the arcade . According to the applicant , that confession was false and had been given by him as a result of ill - treatment . In particular , police officers had applied electric current to his body , suffocated him in a gas mask and applied various other unspecified torture techniques .

At an unspecified time on the date of the applicant ’s arrest he was assigned a legal - aid lawyer , S.

Also on the same date the applicant had a confrontation with CARDINAL witnesses , who claimed that they had seen him running near the arcade , with his bare chest covered in mud and blood , on DATE when PERSON had been found injured .

On DATE the applicant participated in a reconstruction of the crime scene and confirmed his confessional statements in presence of S.

On DATE the applicant was indicted on charges of causing fatal injuries to F. and robbing the arcade . During questioning on that date he confirmed his previous statements . On DATE ORG ( “ the ORG ” ) remanded the applicant in custody , having found that there was a substantial risk that he might abscond or commit other crimes , as the charges against him were serious and he had no steady employment .

On DATE the applicant was placed in the ORG pre - trial detention facility ( “ the ORG GPE ” ) , examined by the GPE medical staff and certified as having no bodily injuries .

In DATE ORG , having conducted an in - patient psychiatric assessment of the applicant , issued an opinion that he was suffering from a mixed personality disorder , which did not prevent him from understanding the meaning of his actions or controlling them .

NORP In DATE B. , a privately hired lawyer , was admitted in the proceedings as a replacement for the legal - aid lawyer , S.

On DATE the applicant , questioned in PERSON ’s presence , retracted his previous confessions , claiming that they had been given under duress from the police , and pleaded innocent . Copies of his relevant statements and ill - treatment complaints have not been submitted to the ORG .

On DATE in a confrontation with the applicant , police officer B. denied having ill - treated him . On DATE ORG ( “ ORG Office ” ) refused to set up a criminal inquiry into the applicant ’s allegations of ill - treatment for want of objective evidence . There is nothing to show that the applicant appealed against that decision .

On DATE the applicant was committed to stand trial before ORG .

On DATE ORG extended the applicant ’s detention , having found no reasons to release him .

On DATE the applicant complained in court that he had been ill - treated by the authorities with a view to extract self - incriminating statements and requested to be released against an obligation not to abscond . On the same date ORG ordered the applicant ’s release against an undertaking not to abscond . It noted that , notwithstanding the gravity of the charges against the applicant , there was no evidence that he might abscond or commit other crimes if at liberty .

On DATE ORG remitted the applicant ’s case for further investigation , having found that the applicant should have been charged with murder , rather than with injuring PERSON The court also ordered that the applicant ’s ill - treatment allegations be verified . By the same decision , the court remanded the applicant in custody again . The relevant part of the decision read as follows :

“ The court also considers that the preventive measure in respect of [ the applicant ] should be replaced by a custodial one , since , if he remains at liberty , he may hide from the investigative authorities , which would interfere with the establishment of the true facts of the case ” .

NORP The applicant , represented by B. , appealed , seeking , in particular , to be released from custody .

The prosecution also appealed , arguing , in particular , that the case had been ready for trial and that the legal classification of the applicant ’s crime could have been decided in the course of the trial proceedings .

On DATE ORG ( “ the ORG ” ) allowed the prosecution ’s appeal and remitted the case for trial . It also rejected the applicant ’s request for release from custody , noting that ORG had properly assessed the facts and adduced sufficient reasons for remanding him in custody .

NORP In DATE ORG ordered the prosecutor ’s office to inquire into the applicant ’s ill - treatment complaints .

On DATE ORG adjourned the proceedings to enable the prosecutor ’s office to carry out its inquiry into the applicant ’s ill - treatment allegations .

On DATE the applicant underwent a forensic medical examination , which found , in particular , that he had an old scar and an area with a modified skin on his body . However , it was not possible to establish whether he had sustained any injuries in DATE . On DATE the district prosecutor ’s office refused to institute criminal proceedings against the police officers implicated by the applicant in his ill - treatment , for want of evidence of such ill - treatment .

On DATE and DATE the applicant requested that he be released against an undertaking not to abscond . His requests were rejected by ORG with reference to the gravity of the charges and the absence of grounds for release .

On DATE ORG remitted the criminal case against the applicant for further investigation , having found that insufficient evidence had been collected for his conviction and that procedures had been breached in collecting the evidence . The court also ordered a further inquiry into the applicant ’s ill - treatment allegations . In the same decision ORG refused the applicant ’s request for release from custody , stating that the custodial preventive measure had been “ properly applied ” .

On DATE ORG revoked the decision of CARDINAL DATE not to institute criminal proceedings in respect of the applicant ’s allegations of ill - treatment and ordered further inquiries .

On DATE the district prosecutor ’s office again refused to institute criminal proceedings in respect of the applicant ’s ill - treatment complaints . They noted , in particular , that according to the applicant ’s submissions , on DATE CARDINAL police officers , PERSON and PERSON , had arrested him and taken him to a wooded area , where they had beaten and threatened him , demanding self - incriminating statements . Upon his arrival at the police station , they took him to the basement and continued beating him . They also made him smoke a cigarette while wearing a gas mask and applied electric current to his naked body . The district prosecutor ’s office further noted that the applicant ’s version of events was full of inconsistencies and wholly improbable . For instance , contrary to his allegations , it was physically impossible to smoke a cigarette in a gas mask without burning one ’s face , which had not happened . In addition , the police officers could not possibly have tortured him in the basement , since the building at issue had no basement . They further noted that the applicant ’s inconsistent conduct after arrest and his further submissions concerning ill - treatment might have been affected by his psychiatric diagnosis .

According to the applicant , he complained about that decision on various dates to different authorities , including ORG , but to no avail . He did not submit copies of his relevant complaints to ORG .

On DATE the applicant ’s case was remitted to ORG for trial .

On DATE and DATE the applicant requested that he be released against an undertaking not to abscond . On the same dates , ORG refused his requests , finding no reasons for releasing him .

On DATE ORG acquitted the applicant of the charges and released him from custody . It noted , in particular , that the reconstruction of the crime scene of DATE had been carried out in breach of various procedural requirements , which the applicant ’s legal - aid lawyer PERSON had never complained about . In those circumstances , there were grounds to doubt that the applicant had been adequately represented at the beginning of the investigation and the court could therefore not conclude that his initial confessions had been genuine . The court held that in those circumstances , any doubts as to the applicant ’s guilt should be interpreted in his favour and he should be acquitted .

On DATE ORG quashed the above judgment and ordered a further investigation of the charges against the applicant .

On DATE the applicant was placed in hospital with acute sinusitis . On the same date the investigation was suspended .

On DATE the applicant was discharged from hospital .

On DATE the decision to suspend the proceedings was set aside and the investigation was resumed .

As of the last correspondence by the parties dated DATE , the proceedings were pending .

On DATE D. ’s body was found in a river . She appeared to have been strangled . On the same date the ORG police instituted criminal proceedings into the circumstances of her death .

In DATE ORG identified the applicant as an acquaintance of NORP ’s and a potential suspect . They notified the administration of the Kharkiv GPE , where the applicant was being detained at the material time .

At TIME on DATE the applicant ’s cellmates in the GPE called the authorities , alleging that he had engaged in self - injury . On DATE the applicant was examined by a GPE medical professional , who recorded that he had cut his left arm several times . According to the applicant ’s explanations addressed to the GPE governor following the accident , he had cut himself with a razor blade intended for shaving because of his sudden anguish on learning that his wife had filed for divorce and that he was potentially facing a long - term prison sentence . The applicant ’s cellmates gave similar explanations .

Following the incident , the ORG governor sent the applicant ’s medical records to the ORG forensic experts facility , asking it to assess the gravity of the applicant ’s injuries . He informed the experts that according to his information , the applicant had inflicted the injuries on himself at TIME on DATE .

On DATE and DATE the forensic experts informed the ORG governor , after examining the records , that the injuries at issue could be classified as minor and that they could have been inflicted at the time and in the manner described in the governor ’s letter .

On DATE representatives of the ORG police visited the applicant in the GPE and took his fingerprints and samples of his blood and saliva in connection with the investigation of NORP ’s death .

On DATE the GPE governor concluded that there was no need to conduct further investigations into the applicant ’s injuries of CARDINAL DATE . Referring , primarily , to the experts’ findings , the applicant ’s own explanations and those of his cellmates and the GPE staff questioned , he found that there was sufficient evidence that the applicant had spontaneously inflicted those injuries on himself when suffering an anxiety attack .

On DATE the GPE authorities took a statement from the applicant , in which he confessed to having killed NORP

On DATE the applicant was indicted on charges of killing NORP and pleaded guilty during questioning by the ORG police investigator .

DATE . On DATE the ORG prosecutor dropped the charges against the applicant , having found that his statements were inconsistent with the objective evidence on the file .

On DATE the criminal proceedings against the applicant were discontinued for lack of evidence of his involvement in NORP ’s murder . Subsequently ORG convicted CARDINAL other individuals of the crime at issue .

On DATE , during a court hearing in the first set of criminal proceedings against the applicant , he complained that he had been subjected to unlawful pressure and ill - treatment in the GPE . He claimed , in particular , that in DATE and DATE he had been questioned off the record by the GPE authorities and various other officers , who had coerced him to give self - incriminating statements concerning NORP ’s murder . In addition , the authorities had engaged his cellmates in threatening and harassing him with a view to obtaining such confessions . The applicant also said that , although the charges concerning NORP ’s murder had been dropped , he was afraid of similar pressure in connection with the criminal proceedings in PERSON ’s case .

On various occasions DATE the applicant complained to the prosecutor ’s office and other authorities that he had been ill - treated in the GPE with a view to making him confess to NORP ’s murder . No copies of the relevant complaints have been submitted to ORG . It appears from the summaries of the applicant ’s complaints drafted by the prosecutor ’s office that he maintained that he had been psychologically pressured on numerous unspecified occasions in DATE and DATE . On DATE , in particular , warden PERSON and detainee PERSON had beaten him in PERSON ’s office . When the applicant returned to his cell , detainees L. and PERSON continued to beat him , while other cellmates held him down . According to some of the summaries , the applicant maintained that his arm had been cut by his inmates , while according to others he had cut it himself in the hopes that the wardens would be called and he could get out of the cell .

On DATE the prosecutor ’s office refused to institute criminal proceedings in respect of the applicant ’s ill - treatment allegations , having found that the GPE governor ’s conclusions of DATE had been well - founded .

On DATE the deputy regional prosecutor revoked the decisions of DATE and DATE and ordered a further inquiry into the circumstances in which the applicant had sustained his injuries and had falsely confessed to NORP ’s murder .

On DATE the prosecutor ’s office took a fresh decision not to institute criminal proceedings , having found that there was no ill - treatment case to answer . They referred , primarily , to the explanations provided by the applicant ’s inmates in DATE and to the questioning of the GPE wardens . They noted , in particular , that according to PERSON , the deputy PERSON governor , on DATE the GPE had received information from the LOC police concerning the applicant ’s possible involvement in NORP ’s murder . Following this information , the GPE officers had questioned the applicant about the matter and he had volunteered his confession without any pressure having been applied to him .

The parties did not inform the ORG whether that decision was further appealed against .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);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 - Review of lawfulness of detention)

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and , at the time of the most recent communication from the applicant , was detained in GPE .

On an unspecified date in DATE PERSON mentioned in a confession given whilst being questioned by the police that the applicant had participated in the murder of PERSON , a gang member , in DATE .

On DATE the applicant was stopped on the motorway and arrested by police , who also seized his car .

According to the applicant , the reasons for his arrest were not clearly explained to him . DATE and DATE he was transferred to various police units and questioned .

On DATE the police found explosives in the car which had been seized from the applicant upon his arrest .

On DATE criminal proceedings were instituted against the applicant on suspicion of the illegal possession of explosives and the murder of PERSON , and an arrest report was drafted and countersigned by the applicant .

On DATE ORG ( “ the ORG ” ) remanded the applicant in custody for DATE pending collection of information concerning his person .

On DATE the applicant was formally charged with possessing illegal explosives and taking part in the murder of PERSON , which had been committed by an organised gang in DATE .

On DATE ORG remanded the applicant in custody for DATE , to be counted from DATE . The court noted that the gravity of the charges against the applicant constituted a sufficient basis for the fear that he would abscond or interfere with the investigation if released .

On DATE the court made a separate ruling drawing the attention of the Minister of the Interior to breaches of the applicant ’s rights whilst effecting his arrest . It noted , in particular , that the applicant ’s undocumented detention DATE and DATE was unlawful . The court asked the Minister to investigate the incident . The case file does not show any follow - up .

The applicant , acting through his lawyer , appealed against the detention order . He submitted that he had good references from his employer , had a family including CARDINAL children who were minors , and that he had been suffering from health problems .

On DATE the NORP Regional Court of Appeal ( “ ORG ” ) rejected the applicant ’s appeal . The court noted , in particular , that taking into account the gravity of the charges against the applicant , together with the fact that he resided in GPE ‒ whereas the investigative authority was located in GPE ‒ there was reason to fear that he might abscond or interfere with the investigation if released .

On DATE the Odessa Court of Appeal extended the applicant ’s detention until DATE , stating in general terms that the applicant might abscond , pressure witnesses or interfere with the investigation if released .

On DATE the applicant , represented by his lawyer , lodged an objection against the investigative authority ’s request to extend his detention . He reiterated that he had a permanent address , a family with CARDINAL children who were minors , and that prior to his arrest he had been engaged in lawful business activity . He referred to the aggravation of his ulcers and stated that during the time he had been held in custody , no investigative action involving him had been initiated and no new evidence of his involvement in any crime had been discovered .

On DATE ORG allowed the investigative authority ’s request and extended the applicant ’s detention until DATE , giving the same reasons as in its decision of DATE .

On DATE the applicant , represented by his lawyer , and citing the same reasons as before , again brought an objection against the investigative authority ’s request to extend his detention .

On DATE ORG further extended the applicant ’s detention until DATE , stating that additional investigative action needed to be taken and there were no reasons to release the applicant .

On DATE the applicant was charged with participation in several other offences committed in a gang , including murders , abductions , and torture .

On DATE ORG granted the investigative authority ’s request to extend the detention of CARDINAL purported criminal gang members , including the applicant , until DATE . It noted the gravity of the charges , the fact that the investigation related to CARDINAL different episodes of alleged crimes committed by a criminal association and that the investigative authorities needed more time to finish their work .

According to the ORG , during the pre - trial investigation the authorities interviewed in total CARDINAL defendants , CARDINAL victims and CARDINAL witnesses , conducted CARDINAL face - to - face confrontations , CARDINAL identification parades , CARDINAL reconstructions and CARDINAL seizures , obtained CARDINAL experts’ reports and carried out a number of other investigative actions .

On DATE the applicant was presented with the final bill of indictment . In addition to previous charges , the applicant was also indicted for participation in an armed gang ( banditry ) .

On DATE the investigation was completed and the applicant and his co - defendants were given time to study the case file .

On DATE ORG ( “ ORG ” ) extended the applicant ’s detention until DATE , noting the gravity of the charges , confirming that the decision to place him in detention was correct , and referring to the need to complete the study of the case file .

On DATE the applicant lodged an objection against the investigative authority ’s request to extend his detention . He argued , in particular , that the reason that familiarisation with the case file materials was taking so long was poor procedural organisation .

On DATE ORG extended the applicant ’s detention until DATE , citing the same reasons as in its decision of DATE .

On DATE the applicant notified the prosecutor ’s office that although there was some case file material he had not yet seen , he waived his right to further study and asked to be released pending trial .

On DATE ORG promised to send the applicant the relevant procedural forms but stated that there were no grounds for his release .

On DATE the applicant again objected , in similar terms , to the prosecution ’s request for extension of his detention .

On DATE ORG allowed the prosecution ’s request , extending the applicant ’s detention until DATE , and stating , in addition to reasons given previously , that the defendants needed time to complete the study of the case file .

On DATE ORG further extended the applicant ’s detention until DATE , citing the same reasons .

Between DATE and DATE the applicant remained in detention .

On DATE the ORG , acting as the trial court , held a preparatory hearing in the applicant ’s and his co - defendants’ case . It rejected the applicant ’s request for release , lodged on DATE , stating that there was no basis for granting it .

On DATE the applicant , represented by his lawyer , asked to be released pending trial , arguing that his health was deteriorating , that there was insufficient evidence against him , that because all the witnesses and victims had already testified at trial the applicant would not be able to pressure them , and lastly that he had good references , CARDINAL dependent children who were minors , and a permanent address .

On DATE ORG rejected the applicant ’s request , noting the gravity of the charges against him and stating that the trial was not complete and that there was no reason to release him .

According to the ORG , a total of CARDINAL hearings were held in the case by ORG , a number of which were adjourned , some due to the failure of CARDINAL of the defendants ‒ who was at liberty ‒ to attend .

On DATE ORG found the applicant guilty of murder , kidnapping , and banditry and sentenced him to CARDINAL years’ imprisonment with confiscation of his property .

According to the applicant , on DATE ORG , on appeal from him and his lawyer , upheld his conviction and amended the judgment of the trial court , rectifying the domestic legal classification of CARDINAL of the offences .

On DATE ORG rejected the request for a meeting with the applicant lodged by ORG , the applicant ’s wife . ORG noted there was “ no indication that a meeting between the relatives and [ the applicant ] was necessary ” at the time .

According to the applicant , he was denied the possibility of meeting or corresponding with his family for the entire period of his pre - trial detention .

On DATE the applicant lodged a request with ORG for permission for a visit from his family , namely his mother , wife and children . He stated that throughout the period of his pre - trial detention the investigative authorities had rejected his requests for family visits without sufficient justification .

According to the Government , the applicant ’s request of CARDINAL DATE was granted but the applicant ’s relatives did not avail themselves of it and did not visit the applicant .


CASE OF ERNST AUGUST VON HANNOVER v. GERMANY

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

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in DATE and lives in GPE .

In DATE the applicant was involved in an altercation with a cameraman outside his property , “ Gut Calenberg ” , during which he struck the cameraman with an umbrella . In DATE the press reported on another scuffle between the applicant and the manager of a discotheque on LOC off the NORP coast , as a result of which the applicant was convicted of assault .

On DATE the company ORG ( GPE ) ORG ( “ the company ” ) launched a DATE advertising campaign with full - page advertisements in magazines and on posters at bus stops and other busy locations showing , on the lower CARDINAL , a crumpled packet of Lucky Strike cigarettes lying on its side . The top CARDINAL read , in large lettering : “ Was it PERSON ? Or DATE ? ” At the bottom of the advertisement was the phrase “ Lucky Strike . Nothing else . ” ( “ Lucky Strike . Sonst nichts . ” ) The campaign covered CARDINAL towns and cities and CARDINAL billboards , which meant that it had a potential reach of CARDINAL people . It was also reported in the media .

The applicant asked the company that had commissioned the advertisement and the advertising agency that had designed it to discontinue the campaign . The agency agreed to do so in writing , but the company refused . The applicant then made an urgent application to ORG .

On DATE ORG granted an interim injunction against any further distribution of the advertisement at issue , and confirmed the injunction on DATE . The company subsequently announced that it was discontinuing the advertisement , but refused to reimburse the costs incurred by the applicant for the official notice served on it .

On DATE the applicant asked the company to pay him damages of MONEY ( ORG ) . The company did not respond to that request .

On DATE the applicant applied to ORG for an order requiring the company and the advertising agency that had designed the advertisement to pay him LAW for a “ notional licence ” ( fiktive ORG ) and at least ORG CARDINAL in compensation for infringing his right to protection of personality rights , and also to reimburse the costs incurred in serving the official notice .

On DATE ORG allowed the applicant ’s application as regards the notional licence and costs , and dismissed it as regards compensation . It pointed out that although everyone had the right to decide whether or not to allow his or her name to be used for advertising purposes , the general right to protection of personality rights ( allgemeines PERSON ) protected a person against the unlawful use by third parties of his or her name , including in the context of advertising . ORG went on to observe that although the forenames “ PERSON ” and “ DATE ” were fairly common , the combination of the CARDINAL was not . Moreover , since entering into a relationship with Princess PERSON of GPE the applicant had become well known and the crumpled cigarette packet was a clear allusion to his scuffles . ORG explained that advertising was also protected by freedom of expression in so far as it contributed to shaping public opinion ; this applied , in its view , to the impugned advertisement . It further pointed out that both the right to freedom of expression and the right to protection of personality rights were protected under LAW and that , in principle , they deserved equal respect . Where a person was used for advertising purposes without his or her consent , the right to protection of personality rights prevailed as a general rule . ORG added that the company ’s argument that as a result of his scuffles , the applicant had himself caused the event to which the advertisement referred did not deprive him of protection but it did affect the degree of the interference and the level of protection of freedom of expression . In conclusion , ORG held that when balancing the competing interests , more weight was to be attached to the protection of the applicant ’s personality rights than to the company ’s right to freedom of expression regarding an advertisement which was essentially humorous in nature and pursued commercial aims .

As regards the pecuniary damage sustained , ORG pointed out that the aim of a “ notional licence ” was to ensure that anyone using someone else ’s personality without permission would not be in a more advantageous position than if he or she had obtained the person ’s consent . It explained that the cost of such a licence was determined on the basis of the amount of a fee that would have been reasonable ( angemessen ) . Having regard in particular to the applicant ’s high profile , the billboards and advertising media used , and the fact that the advertisement had only used the applicant ’s forenames , ORG assessed the pecuniary damage at ORG CARDINAL,CARDINAL . It also awarded the applicant the costs incurred in serving the official notice because they had resulted from the actions of the company and the agency .

On the other hand , ORG did not award the applicant compensation in respect of non - pecuniary damage on the ground that there had been no serious interference with the protection of his personality rights . It emphasised that the applicant had struck the cameraman in public and that the advertisement had simply referred back to that event . Furthermore , the fact that the advertisement was merely derisive meant that there was no unavoidable need ( unabwendbares Bedürfnis ) to award pecuniary compensation , and the award of a notional licence should be deemed sufficient redress .

On CARDINAL DATE ORG upheld most of ORG judgment , varying it solely as regards the order for the company to reimburse the costs incurred in serving the official notice .

The Court of Appeal observed that the company and the agency had interfered with the applicant ’s right to his own name without his permission . In that context , it pointed out that even though the advertisement had only used the applicant ’s forenames , those names were well known to the general public because of the relationship between the applicant and the daughter of Prince Rainier III of GPE and the repeated press reports on the applicant ’s altercations in DATE and DATE . It further noted that the company had derived a pecuniary advantage from using the applicant ’s forenames . In cases such as the present one , where the impugned advertisement was designed to enhance the recognition and sales of a brand of cigarettes , freedom of expression generally took second place to the protection of personality rights . ORG considered that the impugned advertisement had made very little contribution , if any , to shaping public opinion , that the applicant ’s scuffles had been neither a political nor a societal event , and that the incidents had only been exploited for the purpose of entertaining a general public curious about the behaviour of famous people .

The Court of Appeal further pointed out that the impugned advertisement had infringed the pecuniary aspect of the right to protection of personality rights by depriving the applicant of his right to make his own choice as to whether and how his name could be used for advertising purposes . Clearly , the advertisement had not given the impression that the applicant identified with the product advertised or that he recommended it , nor was it offensive or degrading in nature , but with the sole aim of increasing sales of a brand of cigarettes it publicly mocked the applicant by suggesting that he even crumpled up cigarette packets .

As regards the cost of the notional licence , ORG pointed out that the unauthorised use of a person ’s name for commercial purposes was tantamount to unlawfully using a person ’s image and infringed the pecuniary aspect of the right to protection of personality rights . It held that in using the applicant ’s name without his consent the company and the agency had shown that they had attached economic importance to that name . The company and the agency were therefore under an obligation to pay the applicant the amount corresponding to the use of his name , and this obligation existed irrespective of whether the person in question would have been prepared to consent or not .

The Court of Appeal further stated that the cost of the notional licence had to be freely determined on the basis of all the relevant circumstances . It noted that the particular feature of the impugned advertisement was that it mocked the applicant , which made it unlikely that the applicant would have authorised it . However , it considered that the amount of the fees agreed between advertising companies and famous people who consented to the use their names might provide an indication for determining the cost of the notional licence . It noted in that connection that the company was CARDINAL of the largest tobacco companies in GPE and that the impugned advertisement had been part of a very successful advertising campaign which the company had launched in DATE . The advertisement in question had taken up a full page in several national magazines and also , from DATE onwards , in the form of posters at bus stops and other busy locations . Lastly , emphasising that the applicant was a well - known figure , it found that the advertising campaign had indeed attracted extensive public attention , thus justifying the award made by ORG .

The Court of Appeal granted leave to appeal on points of law , on the grounds that the question whether the use of a famous person ’s name for advertising purposes was justified where the advertisement referred to an event in contemporary history which was of no , or virtually no , interest except from an entertainment perspective had not yet been determined by the case - law of ORG , and that a decision was required from that court in order to develop and maintain a standard line of authority .

In a judgment of DATE ( no . I ORG CARDINAL ) ORG quashed ORG judgment . It held that the applicant ’s claims were ill - founded because the company and the agency had not unlawfully interfered with his right to protection of personality rights or his right to his name , given that the use of his name in the impugned advertisement was covered by the right to freedom of expression as guaranteed by LAW ( see “ Relevant domestic law and practice ” ) . While upholding the findings of ORG as regards the existence of an interference and the possibility of granting a notional licence in accordance with the principle of unjust enrichment , ORG held that ORG had not had sufficient regard to the fact that the pecuniary components of the right to protection of personality rights and the right to one ’s name were only protected by ordinary law , whereas freedom of expression enjoyed protection under constitutional law .

ORG explained at the outset that the case before it related solely to interference with the pecuniary components of the rights relied upon , since the applicant ’s contention that the advertisement had also infringed the non - pecuniary components of his rights had already been dismissed by ORG . It pointed out that the rights to protection of personality rights were among the fundamental rights safeguarded by LAW to the extent that they protected non - pecuniary interests , but that the pecuniary components were only protected by civil law and therefore did not prevail over freedom of expression . ORG also observed that the protection conferred by LAW also covered advertising whose content contributed to shaping public opinion , while specifying that that was not only the case where the advertisement referred to a political or historical event , but also where it dealt with questions of general interest . Furthermore , reports with an entertainment purpose could also play a role in shaping public opinion , or indeed , in certain circumstances , could stimulate or influence the shaping of public opinion more effectively than strictly factual information .

ORG noted that the impugned advertisement provided a satirical , derisive slant on the applicant ’s scuffles outside his “ Gut Calenberg ” property and on LOC . The media had reported on these events , mentioning the applicant ’s name and publishing photographs of him , because there was a particular public interest in information about the incidents on account of the applicant ’s relationship with the daughter of Prince PERSON III of GPE . ORG considered that even though the company had merely alluded to the applicant ’s scuffles as part of its advertising campaign , it could still rely on the specific protection of freedom of expression . It held that the fact that the advertisement – by using the applicant ’s forenames and alluding to his propensity for picking fights – had been mainly intended to increase sales of the cigarette brand by capturing the attention of the general public did not mean , as ORG had maintained , that the right to protection of personality rights prevailed in general .

ORG continued as follows :

“ In weighing up the competing interests ORG failed to take adequate account of the fact that the only issue at stake in this case was the protection of the pecuniary components of the right to protection of personality rights , such protection being based solely on civil law and not constitutional law . In the case of interference with the pecuniary components of the right to protection of personality rights because a well - known person ’s name has been used in an advertisement without his consent , it can not simply ( ohne weiteres ) be maintained that the person ’s right to protection of his personality rights will always prevail over the advertiser ’s right to freedom of expression . On the contrary , it might be appropriate to tolerate an interference with protection of personality rights resulting from reference to a person ’s name if , on the one hand , the advertisement alludes in a derisive , satirical manner to an event involving the person and forming the subject of public debate and if , on the other hand , it does not exploit the person ’s brand image ( Imagewert ) or advertising value ( PERSON ) by using his name , and if it does not give the impression that the person identifies with the product advertised or advocates its use ( reference to ORG judgment of DATE , no . I ZR CARDINAL ) . ”

ORG held that the impugned advertisement had not given such an impression . It had merely served as a reminder of the applicant ’s scuffles for anyone who already knew about them , while anyone who had never heard of those events would have been unable to understand the play on words , especially since the incidents had not been actually mentioned but had been hinted at in a particularly clever ( pfiffig ) way . ORG therefore took the view that the advertisement had been part of the public debate on the applicant ’s aggressive attitude . Above and beyond the derisive , satirical allusion to the events already known to the public , it had been devoid of any offensive or seriously degrading content in relation to the applicant . Given the absence of any suggestion that the applicant identified in any way with the product advertised , there were no grounds for considering that the advertisement was disparaging towards him simply because it was promoting cigarettes . ORG concluded that the applicant ’s interest in not being mentioned in the advertisement without his consent carried less weight than the tobacco company ’s freedom of expression , and that in the absence of a violation of the pecuniary or non - pecuniary components of his right to protection of his personality rights , the applicant could not claim an entitlement to a notional licence or to reimbursement of the costs incurred in serving the official notice .

On DATE the ORG declined to accept for adjudication a constitutional complaint by the applicant ( no . DATE ) . It provided no reasons for its decision .


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

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and is currently detained at FAC in GPE . He was represented before the ORG by PERSON of ORG , a firm of lawyers based in GPE . The respondent Government were represented by their Agent , PERSON , of ORG .

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

NORP On TIME applicant attacked PERSON , stabbing him several times . He was charged with attempted murder and his trial took place in DATE in ORG before a jury . Before the trial commenced , the jury were shown a video about their role as jurors , setting out what they should and should not do . At the start of the trial , the judge reiterated the instructions given in the video and expressly instructed the jury members that they should not look up information relevant to the case on the Internet .

NORP The applicant ’s defence at trial was that although he had intended to cause serious bodily injury to PERSON he had not intended to kill him . Whether he had intent to kill was therefore the only contested issue .

The trial judge ’s summing - up and directions to the jury set out in detail the factors that the jury was required to take into account when deciding whether the prosecution had proved that the wounding was done with intent to kill . The jury then retired to consider its verdict . No verdict was reached DATE and the jury was sent home for TIME .

The next morning the jury members sent the judge a note which read :

“ Can the judge give the jury any guidance on the factors to be taken into account in deciding whether the defendant intended to murder PERSON with particular onus on the definition of intent ? ”

With the agreement of counsel for the prosecution and the defence , the judge gave the jury a written extract from the relevant section of her summing - up where she had discussed intent . The judge also read the passage out to the jury members . She gave additional details at some length as to the circumstances that needed to be considered .

On DATE the applicant was convicted of attempted murder by a majority verdict of the jury ( CARDINAL jurors to CARDINAL ) . On DATE he was sentenced to indefinite imprisonment for public protection with a minimum term of CARDINAL years’ imprisonment , less time spent on remand .

Meanwhile , on DATE , ORG , who had been a juror at the trial , sent an email to ORG alleging a number of shortcomings in the conduct of his fellow jurors . In particular , he alleged that information had been obtained from the Internet by CARDINAL jurors and had been disclosed to fellow jurors . The trial judge informed counsel for the prosecution and the defence that allegations of jury irregularities had been made by a juror .

The applicant subsequently sought leave to appeal his conviction and sentence , alleging that his trial was unfair on account of significant jury irregularities . On DATE ORG directed that ORG ( “ CCRC ” ) be asked to investigate the allegations .

The ORG interviewed the jurors in the case . ORG claimed that ORG , the foreman and a solicitor , had researched sentencing tariffs in similar cases and had shared the information he had discovered with his fellow jurors . In its report of CARDINAL DATE the ORG summarised statements from CARDINAL other jurors alleging that the jury foreman had looked up the definition of “ attempted murder ” , had looked at information concerning the question of intent and had looked up the sentencing guidelines for attempted murder . CARDINAL of the jurors had no recollection of the alleged improper conduct having taken place . None of the jurors supported the claim that CARDINAL further jurors had undertaken Internet research .

The ORG subsequently interviewed the jury foreman under caution . After receiving legal advice , the jury foreman gave a prepared statement and refused to answer questions . In his statement he confirmed that there had been some uncertainty as to the law on intent , for which further direction had been required from and provided by the trial judge ; and that the issue of possible sentences had arisen . The statement neither confirmed nor denied that the foreman had conducted Internet searches relating to the case .

The ORG report noted that ORG ’s allegations in interview appeared to be not “ quite so stark ” as those made in his initial email . It further noted that there was no support for the majority of his allegations . However , it accepted that there was some corroboration for the more general allegations that the jury foreman had conducted case - related research on either the question of the differing elements of intent as between the offences under consideration , or the different sentences which might arise , and had provided information to his fellow jurors .

On DATE ORG granted leave to appeal against conviction and refused leave to appeal against sentence .

In its judgment on the merits of the appeal against conviction , the court noted that the summing - up by the trial judge had been “ impeccable ” and had not been criticised by the applicant . The court referred to the jury ’s question during deliberations regarding the law on intent and noted that the trial judge ’s response was very thorough and that the jury could not have had any doubt as to the correct directions in law and the factors to which they were required to have regard .

The court agreed with the parties that it should proceed on the basis that an irregularity had occurred at trial . It considered that CARDINAL matters had to be examined : first , the information introduced to the jury in relation to the requirements to establish the intent to kill ; and second , the information introduced concerning applicable sentences .

As to the former , ORG considered it inconceivable that the jury members would have paid any attention whatsoever to what had been said by the foreman after the judge had handed them the answers to the questions they posed . The court rejected the applicant ’s submission that it could not be presumed in his case that the jurors would follow directions . Had the judge not handed a direction to the jury , there might have been some doubt but considering the timing , the probabilities and the care with which the judge provided a written document to the jury , the court had no doubt whatever that the jury followed the direction of the judge and ignored what the foreman of the jury had said .

On the question of what was said regarding sentencing guidelines , ORG accepted that it should bear in mind the potential effect that a jury knowing the range of sentences could have on their attitude towards conviction . However , it continued :

“ CARDINAL . But we must look at the reality of this case . As we have explained , there was CARDINAL narrow issue before the jury , namely whether the ORG had proved , in addition to the intent to cause really serious bodily injury ... an intent to kill . It must have been obvious to the jury that the reason why the ORG was proceeding with the trial was that they did not consider that a plea to wounding with intent was sufficient to enable the judge to pass a severe enough sentence . It must have been obvious to the jury that by proceeding to seek a verdict on the count of attempted murder , the ORG were interested in establishing the more serious offence , so that the punishment could be the more serious . Thus , the fact that the foreman explained to the jury that sentences for attempted murder were more serious than for wounding with intent can not have any effect ...

It seems to us that it must have been obvious to the jury that they were tasked with deciding whether the ORG had proved the intent to kill , that if they did so the sentence would be more severe and therefore the introduction by the foreman of that further material can have had no material effect upon their decision to convict ... ”

For these reasons , the court dismissed the appeal against conviction .

The applicant did not ask ORG to certify a question of general public importance to enable him to apply for leave to appeal to ORG .

The applicant provided a copy of counsel ’s advice dated DATE . The advice explained :

“ At the hearing of the appeal it was accepted ... that extraneous material had been introduced into the jury ’s deliberations , and that the material related at least in part to the ingredients of the offence of attempted murder . There was no dispute as to the relevant law . It was accepted that the introduction of such material prima facie constituted a material irregularity in the trial process . The issue to be determined on appeal was whether that irregularity affected the safety of the appellant ’s conviction .

Following full argument , [ ORG ] expressed the opinion that the appeal concerned the fact - specific issue of considering whether , in the light of the admitted irregularities , the appellant ’s conviction was safe ...

The issue at appeal ... was wholly fact - specific ... As there was no dispute between the parties on any point of law it was not possible to request a certification of a point of law of general public importance , and I regret to inform PERSON that there are no further domestic avenues of appeal . ”

Upon responding to a summons , jury members are sent a leaflet called “ Your Guide to Jury Service ” . The leaflet explains that ORG discussions are private and that jurors should not discuss any aspects of the trial with anyone other than fellow jurors . It sets out that the verdict must be that of the jurors alone and reminds jurors that their role is to reach a verdict on the evidence presented in the court room at trial . The leaflet also notes that it is an offence for anyone outside the jury to try and influence them .

Once selected for jury duty , jurors must swear an oath or affirmation that they will :

“ faithfully try the defendant and give a true verdict according to the evidence . ”

At the outset of the trial , the jury are conventionally given a direction to the effect that they must try the case on the evidence alone , which is what they hear in court . They are instructed that they must not discuss the case with family , friends or anyone else or conduct their own research into the case .

NORP The rule governing the secrecy of jury deliberations is set out in the Contempt of Court Act DATE . Section CARDINAL(CARDINAL ) of the LAW states that it is a contempt of court to obtain , disclose or solicit any particulars of any statements made , opinions expressed , arguments advanced or votes cast by members of the jury in the course of their deliberations .

Section CARDINALA of LAW DATE enables ORG to direct the ORG , in the context of an appeal against conviction , to investigate and report to the court on any matter deemed relevant to the resolution of the appeal .

In NORP v PERSON and others [ DATE ] PERSON CARDINAL , ORG , addressing the matter of jury irregularities , explained :

“ CARDINAL . Much more difficult problems arise when after the verdict has been returned , attention is drawn to alleged irregularities . This may take the form of a complaint from a defendant , or his solicitors , or in a very few cases it may emerge from CARDINAL or more jurors , or indeed from information revealed by the jury bailiff . It is then beyond the jurisdiction of the trial judge to intervene . Responsibility for investigating any irregularity must be assumed by this court . In performing its responsibilities , it is bound to apply the principle that the deliberations of the jury are confidential . Except with the authority of the trial judge during the trial , or this court after the verdict , inquiries into jury deliberations are “ forbidden territory ” ... If any complaint about jury deliberations is received by the trial court after verdict it is immediately referred to this court and whether the complaint has been received from the court of trial or by this court directly , the practice is to examine each case to see whether or not , exceptionally , further inquiries ought to be made , and if so , to invite the assistance of ORG to conduct the necessary inquiry . ”

The court confirmed that the rule that jury deliberations were confidential was subject to CARDINAL narrow exceptions . The first arose if it emerged that there might have been a complete repudiation of the oath taken by the jurors to try the case according to the evidence ( for example , a decision arrived at by the toss of a coin ) . The second exception arose in cases where extraneous material had been introduced into the jury deliberations . Where the complaint was made that the jury had considered non - evidential material , the court was entitled to examine the evidence ( possibly after investigation by the ORG ) to ascertain the facts .

Section CARDINAL of LAW DATE ( as amended ) provides that a person convicted of an offence on indictment may appeal to ORG against his conviction . An appeal can only proceed with the leave of ORG or if the judge of the court of trial grants a certificate that the case is fit for appeal .

Section CARDINAL(CARDINAL ) of the DATE LAW provides that ORG :

“ ( a ) shall allow an appeal against conviction if they think that the conviction is unsafe ; and

( b ) shall dismiss such an appeal in any other case . ”

Pursuant to section CARDINAL(CARDINAL ) of LAW , a defendant has the right to appeal to ORG against a decision of ORG ) . Section CARDINAL(CARDINAL ) clarifies that the leave of ORG or ORG is required and that leave will not be granted unless it is certified by ORG that a point of law of general public importance is involved in the decision and it appears to ORG or ORG ( as the case may be ) that the point is one which ought to be considered by the latter court .

LAW DATE ( “ the DATE LAW ) incorporates the LAW into GPE law . Under section CARDINAL(CARDINAL ) of the LAW , a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the LAW right or rights concerned in any legal proceedings .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant worked as a driver of tractors and other heavy machines for DATE . This work led to her developing dysfunctions of the nervous system . In DATE she was declared to have a “ third degree disability ” and started receiving a disability pension .

DATE the applicant underwent CARDINAL medical reexaminations by the local ORG ( “ the ORG ” ) , the body competent to assess the level of disability . The medical examinations serve as a basis for the allocation of disability pensions . She was diagnosed with vegetative polyneuropathy of the upper extremities , coxarthrosis , cervical spondylosis and radiculopathy . On all occasions she was assessed to have a “ third degree disability ” ─ she had lost PERCENT of her ability to work , which entitled her to receive a disability pension .

On DATE the applicant underwent a new regular reexamination by the ORG . This time she was diagnosed with vegetative polyneuropathy of the upper extremities and myotendinosis . No mention was made of the other diseases diagnosed earlier , namely coxarthrosis , cervical spondylosis and radiculopathy . On that basis the ORG assessed the applicant ’s loss of ability to work at PERCENT , which was not sufficient to entitle her to a disability pension .

The applicant challenged this decision before ORG ( “ the ORG ” ) . After re - examining her , the ORG declared the applicant fully fit to work in a decision of DATE . Its diagnosis was “ spondylosis and related diseases ” .

The applicant applied to ORG for judicial review of that decision .

The Sofia City Court appointed a medical expert who examined the applicant and concluded that she suffered from the following conditions : cervical spondylarthrosis , vegetative polyneuropathy , myotendinosis of the upper limbs and coxarthrosis of the coxofemoral joint . The expert pointed out that these conditions had a chronic character and had permanently and negatively affected the applicant ’s state of health . If anything , some of them had become worse after DATE . The expert pointed out that such conditions typically led to a significant reduction in the affected person ’s ability to work .

On the basis of that report , on DATE the ORG quashed the ORG ’s decision of DATE as unlawful . It found , on the basis of the expert ’s conclusions corroborated by the remaining documents in the case file , that the applicant ’s ability to work was reduced . The court concluded that the ORG had erroneously assessed the applicant ’s state of health by failing to consider all relevant elements to her actual state of health . The court remitted the case for a fresh examination , pointing out that it was the ORG which had to fix the exact percentage of the applicant ’s reduced ability to work . The judgment entered into force on DATE .

The ORG examined the applicant on DATE . In its decision of the same date it indicated as a leading diagnosis “ spondylosis and related diseases ” . It specified that the applicant suffered from cervical spondylarthrosis and cervical radiculopathy , which were occupational diseases , and from myotendinosis of the upper limbs and coxarthrosis , which were not . It considered that she did not suffer from vegetative polyneuropathy of the upper limbs . On that basis the ORG assessed the applicant ’s reduced ability to work at PERCENT . The decision stated that it was valid for DATE .

Once again , the applicant applied for judicial review of the ORG ’s decision . ORG appointed a medical expert who concluded that the applicant suffered from the following diseases which he considered occupational : cervical spondylarthrosis , vegetative polyneuropathy , myotendinosis of the upper limbs and coxarthrosis of the CARDINAL coxofemoral joints . The expert considered that these conditions had a permanent and chronic character and had led to irreversible degenerative changes to the applicant ’s locomotor system .

On that basis , on DATE the ORG quashed the ORG ’s decision of CARDINAL DATE and remitted the case to it for further examination in accordance with the conclusions of the medical expertise accepted by the court in the case proceedings . The court found that the administrative body had erred when assessing the applicant ’s state of disability as it had not taken into account all the relevant circumstances . It considered the ORG ’s opinion that the applicant did not suffer from vegetative polyneuropathy unfounded and concluded that the ORG ’s decision was not based on the applicant ’s actual state of health . The court held , like in its judgment of DATE , that the ORG was exclusively competent to assess the percentage of disability .

Upon an appeal by the ORG , ORG upheld ORG judgment in a final judgment of DATE .

Following that , in a decision of DATE the ORG assessed the applicant ’s reduced ability to work at PERCENT which did not entitle her to a disability pension . In the decision ’s entry “ occupational deceases ” , only vegetative polyneuropathy featured this time . The operative provision of the decision stated that the ORG “ Quashes and decides anew the question of percentage of disability . Confirms the rest of the elements . ” The decision stated that it was valid for DATE .

The applicant did not apply for judicial review of the above decision .

The payment of the applicant ’s disability pension was discontinued as of DATE and there is no information about what happened after the DATE ORG decision .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants were employed as police officers . They were all charged with the commission of various criminal offences . They were dismissed from the police force pursuant to LAW DATE which was in force at the time . Subsequently , all the applicants were acquitted . However , their dismissals remained in force . They unsuccessfully challenged their dismissals in civil proceedings before the national courts .

On DATE a criminal complaint was lodged against the first applicant with ORG ( “ the ORG ” ) . He was reported to have instigated his superior , the second applicant , to abuse his power . He was arrested DATE and criminal proceedings were instituted against him .

On DATE , simultaneously with the initiation of criminal proceedings , ORG instituted disciplinary proceedings against the applicant . He was suspended from the police force on DATE , pending the decision of ORG .

On DATE ORG charged the applicant for alleged instigation to abuse of power .

On DATE the competent directorate of ORG rendered a decision by which the applicant was dismissed from the police force . The decision noted that criminal proceedings had been instituted against the applicant and that LAW DATE which was in force at the time of the dismissal could be applied . The applicant lodged an appeal against this decision . On DATE the Minister , acting as a second - instance administrative body , rejected his appeal , confirming the dismissal .

On DATE the disciplinary proceedings against the applicant were stopped without any decision on the merits . ORG concluded that the applicant had already been dismissed from the police force as a result of the initiation of the criminal proceedings against him and that this fact rendered the disciplinary proceedings redundant .

On DATE ORG ( “ the ORG ” ) acquitted the applicant . The ORG appealed against this decision . On DATE ORG confirmed ORG decision and the applicant ’s acquittal became final .

Shortly after the applicant ’s acquittal in the criminal proceedings , he instituted civil proceedings in which he requested the annulment of the above decisions on dismissal . On DATE ORG accepted the applicant ’s claim and ordered ORG to reinstate him in his former post . The court held that the formulation of LAW ORG left broad discretionary powers to ORG to dismiss its employees even when no criminal responsibility was attributable to them . It concluded that this legal solution “ most certainly left the possibility of abuse of this authority . ” It also observed that the applicant had been acquitted in criminal proceedings instituted against him . Finally , the court noted that the applicant had been dismissed without any determination of his disciplinary responsibility but solely through the use of the discretionary power given to ORG by Article CARDINAL of the DATE ORG and without any further reasoning .

The Ministry of the ORG appealed against this decision . On DATE ORG upheld the decision and reasoning of ORG .

The Ministry of the ORG lodged an appeal on points of law before ORG . On DATE ORG quashed ORG decision and decided that the applicant ’s dismissal was lawful . According to ORG , ORG had used its discretionary power under LAW DATE in accordance with the law . It concluded that the applicant ’s acquittal in the criminal proceedings and the absence of a decision on the merits in the disciplinary proceedings were irrelevant to his dismissal . It also held that the lower courts had overstepped the limits of their authority in considering the necessity , proportionality and correctness of the dismissal decision .

On DATE a criminal complaint was lodged against the second applicant with ORG . He was alleged to have committed the crime of abuse of power . He was arrested DATE and criminal proceedings were instituted against him .

On DATE , simultaneously with the initiation of the criminal proceedings , ORG instituted disciplinary proceedings against the applicant . He was suspended from the police force on DATE , pending the decision of ORG .

On DATE ORG charged the applicant with alleged abuse of power .

On DATE ORG rendered a decision by which the applicant was dismissed from the police force . The reasoning of the decision was identical to that in the case of the first applicant . The applicant appealed against this decision . On DATE , the second - instance administrative body confirmed the decision .

On DATE the disciplinary proceedings against the applicant were stopped without any decision on the merits for the same reasons as in the case of the first applicant .

On DATE ORG acquitted the applicant . The prosecutor lodged an appeal which was dismissed on DATE by ORG . It confirmed ORG decision and the applicant ’s acquittal became final .

NORP The applicant instituted civil proceedings after the acquittal , in which he requested the annulment of the above decision on dismissal . On DATE ORG accepted the applicant ’s claim and ordered ORG to reinstate him in his previously held post . The reasoning of the court was the same as in the case of the first applicant .

The Ministry of the ORG lodged an appeal on points of law . On DATE ORG quashed the above decisions on the same grounds as in the case of the first applicant .

On DATE , ORG lodged an indictment with ORG ( “ the ORG ” ) against the third applicant for the alleged unauthorised possession of weapons and ammunition . On DATE the ORG found him guilty as charged and sentenced him to DATE of imprisonment .

On DATE ORG rendered a decision by which the applicant was dismissed from the police force with the same reasoning as in the case of the first and the second applicants . The applicant appealed . On DATE the second - instance administrative body confirmed the above decision . No disciplinary proceedings were instituted against the applicant .

On DATE ORG confirmed the applicant ’s conviction in criminal proceedings . The applicant lodged a request for the re - opening of the proceedings , which was granted . On DATE the ORG acquitted the applicant . The Prosecutor appealed against this decision . On DATE ORG confirmed the acquittal .

Shortly after the applicant was acquitted in the criminal proceedings , he instituted civil proceedings in which he requested the annulment of the DATE decision on dismissal .

On DATE ORG accepted the applicant ’s claim and ordered ORG to reinstate the applicant in his previously held post . ORG appealed . On DATE the ORG quashed this decision , giving essentially the same reasons as in the decisions of ORG delivered in the cases of the first and the second applicant . The applicant lodged an appeal on points of law . On DATE ORG upheld ORG decision .

In the criminal proceedings against the third applicant , another police officer , ORG was a co - defendant . PERSON was charged with the same crime as the applicant and was acquitted . He is still employed as a police officer .

The third applicant also instituted a separate set of civil proceedings in which he requested compensation for non - pecuniary damage related to his unlawful detention , stress sustained in prison and the loss of reputation caused by the imprisonment . On DATE ORG partially accepted the applicant ’s claim and awarded him MONEY ( ORG ) , ( MONEY ( ORG ) ) . On DATE the Gnjilane ORG partially upheld this decision , decreasing the awarded amount to ORG CARDINAL ( approximately ORG CARDINAL,CARDINAL ) . The awarded sum was paid to the applicant accordingly .