Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

NORP In or before DATE criminal proceedings were instituted in GPE against named individuals ( not including the applicants ) who were charged , inter alia , of conspiracy , money laundering , abuse of a position of influence in financial trading , embezzlement , tax evasion and fraud . In particular it was suspected that Mr ORG organised , financed and managed , directly or indirectly a network of companies situated in various states ( GPE GPE , GPE , GPE , GPE ( ORG ) and GPE ) which were all traceable to CARDINAL source namely , ORG ( hereinafter “ NORP ” ) . According to the applicants , Mr ORG owned ORG ’s entire capital stock which was instrumental to the accomplishment of a series of investment and fiduciary operations ( operazioni fiduciarie ) the aim of which was to allow a number of NORP clients to launder money coming from illicit sources ( by impeding the identification of the real source of the money entrusted to it by means of a double system of fiduciary mandates ( mandati fiduciari ) ) . The group of co - accused were suspected of having , through such network , abusively supplied investment services contrary to the legal requirements as provided in the relevant NORP law ( ORG ) and of having abusively carried out financial activities without being in possession of the necessary economic and financial requisites and the relevant registration as required by NORP law ( ORG ) .

In the context of these proceedings , by means of a letter rogatory received by the GPE judicial authorities on CARDINAL DATE , ORG office ( of ORG ) asked the GPE authorities for assistance in obtaining documentation and carrying out searches in various banks , fiduciary institutes and trust companies ( banche , fiduciare e societa’ trust ) in GPE , in accordance with LAW between GPE and GPE DATE .

By a decision of CARDINAL DATE ( hereinafter also referred to as the exequatur decision ) , the ordinary first - instance tribunal ( PERSON , hereinafter the PERSON ) , accepted the request in conjunction with the crimes of conspiracy , money laundering , aggravated fraud and embezzlement with the aim of fraud , considering that the relevant requirements for the execution of the request were fulfilled . In particular the PERSON considered that those crimes were also punishable under GPE law . It therefore ordered , inter alia , an investigation in respect of all banks , fiduciary institutes and trust companies in GPE . The purpose was to acquire information and banking documents ( inter alia , copies of statements showing transactions and movements , cheques , fiduciary dispositions ( disposizioni fiduciarie ) and emails ) related to a number of named current accounts in specified institutes as well as any other current account which could be traced back ( riferibile ) to ORG , held by all banks and fiduciary institutes in GPE , which were directly or indirectly involved with the company or physical persons mentioned in this decision . In reaching that decision the PERSON bore in mind the relevant articles of LAW between GPE and GPE of DATE , law no . CARDINAL/CARDINAL , ORG , and GPE commitment to international organs such as ORG and ORG ( ORG ) as well as LAW no . CARDINAL/CARDINAL which provides that banking secrecy can not be held against the criminal justice authorities and LAW no . CARDINAL/CARDINAL according to which the act of acquiring copies of documentation amounts to seizure .

It gave further details as to the search and seizure operation , inter alia , that copies should be made of the documentation , that in the event that the investigation was successful the directors of the credit institute were to submit the relevant documents within DATE to the ORG for financial investigations , who in turn would immediately transfer it , indicating the names of those involved ( directly or indirectly ) , to enable notification . It further ordered that where data was held on electronic storage devices ( supporti informatici ) , the collection of data from these devices should be supervised by appointed experts ; and that clone copies were to be made of these storage devices , as well as back - up copies . Any means of information technology seized had to be sealed and kept in custody in appropriate places , and the removal of such seals had to be notified to the interested persons to enable them ( or their lawyers ) to be present . It ordered the judicial police to serve the decision upon the directors of all the banks and trust companies , to the legal representatives of the physical persons , to the directly interested persons , and to persons who were in possession , under whatever title , of the those places . It also warned that documentation obtained and forwarded could not to be used for purposes other than those linked to the criminal proceedings mentioned in the decree accepting the request made in the letter rogatory , unless the court decided otherwise following a further assessment .

By a note of DATE the PERSON ordered that NORP citizens who had entered into fiduciary agreements ( aperto posizioni fiduciarie ) with NORP ( CARDINAL in all ) should be notified of the decision . It was noted that any information referring to the said citizens and transmitted to the judicial authority of the requesting state could not be used for the purposes other than the prosecution of the criminal offences mentioned in the exequatur decision ( non potra essere utilizzata per fini diversi dal perseguimento degli illeciti penali di cui alle norme di legge indicate nel provvedimento di amissione della rogatoria ) , unless the court decided otherwise following a new assessment .

Following the investigation and implementation of the exequatur decision , in consequence of the last - mentioned order of the PERSON , the applicants were served with the relevant notification ( ORG on CARDINAL DATE , GPE on DATE and ORG and ORG DATE ) .

On an unspecified date the applicants lodged a complaint ( Article CARDINAL of law no . CARDINAL/CARDINAL ) before the judge of criminal appeals ( Giudice delle PERSON ) against the PERSON ’s decision concerning the seizure of documents related to them on the basis that they were not persons charged with the criminal offences at issue . They alleged a violation of the principles contained in LOC on NORP and Fundamental Principles ( hereinafter “ the declaration ” ) . In particular they contended that the principle that crimes had to be punishable under the law of the requested state had not been respected , that there had been a violation of both NORP and GPE law , and they noted the absence of the fumus delicti and of any link between the crimes at issue and the position of the applicants . Moreover , given that many such complaints by persons in similar situations had already been declared inadmissible by the domestic courts for lack of standing - them not being the persons charged and therefore not the direct victims of the seizure - the applicants further complained that LAW ) of law no . CARDINAL/CARDINAL was not compatible with the principles laid down in the LAW , in so far as it had been interpreted as not protecting or recognising the right to lodge a complaint by anyone who was subject to coercive measures of seizure of documents ( related to their interests ) as a result of an exequatur decision .

By decisions of CARDINAL DATE in respect of GPE , C.R. and ORG , and of DATE in respect of ORG , the judge of criminal appeals declared the complaints inadmissible . The court noted that the applicants had been served with a notice of the exequatur order and had exhausted pleas available in law in that respect ( hanno esperito le impugnazioni previste dalla legge ) . It further noted that an exequatur decision may only be challenged by a person who is involved in the investigation being carried out by the requested authority , or by a third party who is not investigated but who has been subjected to the measure . A person , who , in consequence of the investigation , is involved in any way with the activity undertaken , may not be considered as an interested person since any breach of the rights or interests of such persons , resulting from the execution of the exequatur decision , must be raised in the ambit of the NORP jurisdictions . The court considered that as established by domestic case - law it was only after the finding of admissibility of the application that a judge had to set a time - limit for submissions . For the purposes of admissibility one had to verify , amongst other things , the juridical interest of the appellant . Moreover , any constitutional complaints could give rise to an assessment of such question by the competent court ( PERSON ) , following a referral , only if the original proceedings were properly instituted , and not where , because of a lack of juridical interest of the appellant , the application was inadmissible . In the present case the appellants were not interested parties in relation to the exequatur decision , but may only have an eventual interest in the effects of such execution , and thus they did not have juridical interest to challenge the said decision .

In relation to the complaint of incompatibility with the LAW , the court of criminal appeals only pronounced itself on the request made by ORG : on DATE it declared the complaint inadmissible as on that date no proceedings appeared to be pending .

The applicants appealed to the third instance criminal judge ( Terza Istanza Penale ) reiterating their complaints and invoking LAW . In particular they noted that the PERSON ’s exequatur decision had ordered the seizure of documents related to them , despite them not being linked to any of the activities mentioned in that decision or them having ever had relations with the NORP companies . Moreover , the seized documents were irrelevant for the purposes of ascertaining the existence of the crimes attributed to the accused , thus , the only purpose behind the seizure was to name the NORP who had had dealings with NORP irrespective of any involvement they had had with the facts object of the letter rogatory . They further challenged the appeal decisions in so far as they were issued in breach of the rights of the defence , in particular as they were not allowed to present submissions as provided for in law , neither in respect of the challenge nor in respect of the constitutional complaint . Furthermore , the decisions had lacked reasons and made no reference to the actual position of the applicants and a lack of reasoning in respect of the rejection of the constitutional complaint was particularly detrimental as it did not allow a proper examination of the matter by the third - instance judge .

By decisions of CARDINAL DATE filed in the registry on DATE and served on DATE in respect of PERSON and GPE , and of CARDINAL DATE filed in the registry on DATE and served on DATE in respect of ORG , the third - instance criminal judge confirmed the appeal decision in that the appellants lacked juridical interest . In consequence the appeal was inadmissible and in any event there appeared to be no violation of law tainting the impugned decision . The question of constitutional legitimacy of law no . CARDINAL/CARDINAL was also rejected on the same ground as that put forward by the appeal court .

In the meantime , the applicants ( except for ORG ) had lodged an objection requesting the revocation of the exequatur decision in their respect , on the basis that the documents related to them were of no relevance to the investigation .

By a decision of DATE , served on their lawyer on an unspecified date , the PERSON held that the objection was to be discontinued ( non luogo a procedere ) in view of the findings of the third - instance criminal judge . The PERSON noted that the authorities were not limited to carrying out the actions requested by the letters rogatory only in respect of persons formally charged , but could also extend such acts to third persons who were not so charged .

The applicants lodged a further objection requesting the PERSON to restrict the use of the seized documents . By decisions filed in the relevant registry on DATE the PERSON held that its exequatur decision of CARDINAL DATE had already applied such a limitation , indeed that decision had clearly stated that such documentation was not to be used for purposes other than those linked to the criminal proceedings mentioned in the letters rogatory , unless the court decided otherwise following a further assessment .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

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

The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE .

On DATE ORG started secretly monitoring the applicants’ telephone conversations on the basis of an order issued by ORG attached to ORG ( “ ORG Office ” ) . The surveillance order issued by ORG was based on PERSON no . CARDINAL on national security ( “ the National Security Act ” ) . The applicants were suspected of being part of a network trafficking in GPE visas .

The first CARDINAL applicants were at the material time NORP army officers , while the last CARDINAL applicants were civilians .

On DATE the first CARDINAL applicants were questioned for the first time at ORG as part of the investigation initiated by the domestic authorities against a network of individuals trafficking in GPE visas . At the material time the CARDINAL applicants had not been charged with any offence and were not assisted by a lawyer . The first applicant had allegedly been pressurised by the prosecutor to sign a written statement . The second applicant was detained by ORG for TIME , allegedly without an arrest warrant in his name and without being informed about the reasons for his detention .

On DATE the second applicant was heard by ORG for the second time . No charges had been brought against him at the time . He was informed of his right to be assisted by a legal representative and agreed that one could be appointed for him .

On DATE the third applicant was questioned at ORG for the first time . At the time he had not been informed of the charges brought against him and he was not assisted by a lawyer .

On DATE the fourth applicant was questioned for the first time at ORG . At the time he had not been charged with any criminal offence and was not assisted by a legal representative . His written statement contained only confirmation that he had been using a company mobile phone and the phone number attached to the phone since DATE . On DATE the fourth applicant was summoned to appear at ORG on DATE .

By a Military Prosecutor ’s Order issued on the same date a criminal investigation was opened ( ȋnceperea urmăririi penale ) against the first CARDINAL applicants for complicity in bribery and aiding an offender . ORG did not expressly state that a criminal investigation had been opened against the fourth applicant as well , although his name and the unlawful act he was suspected of was mentioned in the order .

On DATE , in the presence of the chosen legal representative of the first CARDINAL applicants and of the officially appointed legal representative of the third applicant , the previously mentioned CARDINAL applicants were charged by the domestic authorities with complicity in bribery and aiding an offender , and were heard in respect of the charges brought against them . They maintained and reiterated their previous statements and they were presented with the evidence available in the file . In addition , they stated that they did not request any other evidence .

On DATE , in the presence of an officially appointed legal representative , the fourth applicant was charged with complicity in bribery and was questioned in respect of the charges brought against him . He too reiterated his previous statement . He was presented with the evidence available in the file .

On DATE ORG indicted the CARDINAL applicants and sent their case to trial before ORG . ORG relied mainly on transcripts of the recordings of the applicants’ telephone conversations , witness statements by some of the individuals the applicants had unlawfully helped to obtain visas , and the applicants’ own statements .

On DATE and DATE CARDINAL newspaper articles were published in a national newspaper and on news websites reporting on the CARDINAL ORG indictment and the offences they were suspected of .

At the hearing of CARDINAL DATE the applicants sought an adjournment of the proceedings in order to allow them to acquaint themselves with the contents of the secret file of the case to prepare their defence .

At the hearing of CARDINAL DATE the CARDINAL applicants were heard by ORG . They all maintained their statements given before the domestic authorities over the course of the criminal investigation . The first - instance court also ordered the summoning of the individuals unlawfully helped by the applicants to obtain visas , although the applicants expressly stated that they did not insist on those people being heard .

At the hearing of DATE the first - instance court heard some of the witnesses summoned on DATE and ordered the resummoning of the witnesses who had not attended the hearing , although the applicants had once more expressly stated that they did not insist on the remaining witnesses being heard .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest;Prompt information);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 13+P4-4 - Right to an effective remedy (Article 13 - Effective remedy) (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general};Prohibition of collective expulsion of aliens);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;András Sajó;Angelika Nußberger;Dmitry Dedov;Erik Møse;Georgios A. Serghides;Guido Raimondi;Helen Keller;Khanlar Hajiyev;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Gabriele Kucsko-Stadlmayer;Georges Ravarani;Pere Pastor Vilanova

The applicants were born in DATE , DATE and DATE respectively . Mr ORG ( “ the first applicant ” ) lives in GPE ( GPE ) ; PERSON GPE and PERSON ( “ the second and third applicants ” ) live in LOC ) .

On DATE in the case of the first applicant , then DATE , DATE , in the case of the second and third applicants , the applicants left GPE with others on board rudimentary vessels heading for the NORP coast . After TIME at sea , their vessels were intercepted by the NORP coastguard , which escorted them to a port on the island of GPE . The applicants arrived on the island on CARDINAL and CARDINAL DATE respectively .

The applicants were transferred to an Early Reception and Aid Centre ( Centro di Soccorso e Prima Accoglienza – “ ORG ” ) on the island of GPE at PERSON where , after giving them first aid , the authorities proceeded with their identification . According to the Government , on this occasion individual “ information sheets ” were filled in for each of the migrants concerned ( see paragraph CARDINAL below ) ; this is disputed by the applicants ( see paragraph CARDINAL below ) .

They were accommodated in a part of the centre reserved for adult NORP . According to the applicants , they were held in an overcrowded and dirty area and were obliged to sleep on the floor because of the shortage of available beds and the poor quality of the mattresses . They had to eat their meals outside , sitting on the ground . The centre was kept permanently under police surveillance , making any contact with the outside world impossible .

The applicants remained in the ORG until DATE , when a violent revolt broke out among the migrants . The premises were gutted by fire and the applicants were taken to a sports complex on GPE for the night . At dawn on QUANTITY DATE they managed , together with other migrants , to evade the police surveillance and walk to the village of GPE . From there , with CARDINAL other migrants , they started a demonstration through the streets of the island . After being stopped by the police , the applicants were taken first back to the reception centre and then to Lampedusa airport .

On TIME the applicants were flown to GPE . After disembarking they were transferred to ships that were moored in the harbour there . The first applicant was placed on the PERSON , with some CARDINAL other people , while the second and third applicants were put on board the ORG , with CARDINAL others .

The applicants described the conditions as follows . All the migrants on each vessel were confined to the restaurant areas , access to the cabins being prohibited . They slept on the floor and had to wait TIME to use the toilets . They could go outside onto the decks twice a day for TIME at a time . They were allegedly insulted and ill - treated by the police , who kept them under permanent surveillance , and they claimed not to have received any information from the authorities .

The applicants remained on the ships for DATE . On DATE the second and third applicants were taken to GPE airport pending their removal to GPE ; the first applicant followed suit on DATE .

Before boarding the planes , the migrants were received by the NORP Consul . In their submission , the Consul merely recorded their identities in accordance with the agreement between GPE and GPE of DATE ( see paragraphs CARDINAL below ) .

In their application the applicants asserted that at no time during their stay in GPE had they been issued with any document .

Annexed to their observations , the Government , however , produced CARDINAL refusal - of - entry orders dated CARDINAL and DATE that had been issued in respect of the applicants . Those orders , which were virtually identical and drafted in NORP with a translation into LANGUAGE , read as follows :

“ The Chief of Police ( questore ) for GPE

Having regard to the documents in the file , showing that

( CARDINAL ) on ‘ CARDINAL [ CARDINAL ] DATE CARDINAL’ members of the police force found in the province of ‘ Agrigento’ , near the border of : ‘ island of Lampedusa’ , PERSON [ surname and forename ] born ... on [ date ] ... ‘ Tunisian’ national ... not fully identified , ‘ ORG ( sedicente ) ;

( CARDINAL ) the alien entered the territory of the country by evading the border controls ;

( CARDINAL ) the identification ( rintraccio ) of the alien took place on / immediately after his arrival on national territory , and precisely at : ‘ island of Lampedusa’ ;

WHEREAS none of the situations [ provided for in ] LAW no . CARDINAL of DATE is present ;

CONSIDERING that it is appropriate to proceed in accordance with LAW no . CARDINAL of DATE ;


Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions)

András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

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

On DATE the applicant lodged a request with ORG no . PERSON ( ORG ) seeking compensation for assets owned by her ancestors and transferred to ORG . On DATE ORG issued a decision whereby the applicant was entitled to compensation of ROL CARDINAL ( approximately EUR CARDINAL,CARDINAL at the time ) .

DATE the applicant lodged several applications with ORG ( hereinafter “ the ORG ” ) and the President of GPE for payment of the compensation . On each occasion , the applicant was informed that her file was subject to ratification by the responsible authority for implementing PERSON no . CARDINAL/CARDINAL .

On DATE ORG issued the ratification decision , confirming the applicant ’s entitlement to PERSON PERSON ( approximately ORG CARDINAL,CARDINAL at the time ) . The decision mentioned that the payment would be made in CARDINAL DATE instalments , as provided for by the methodological rules for the implementation of the law , in force since DATE and amended on CARDINAL DATE .

To date , the applicant has not received the compensation or any indication as to when such compensation would be paid .


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

The applicant was born in DATE and lives in GPE .

A demonstration was planned to be held on DATE in GPE . Prior to the assembly , on DATE , the organisers , members of the opposition , gave notice to the relevant authority , ORG ( “ the ORG ” ) .

The ORG refused to authorise the demonstration at the place indicated by the organisers and proposed a different location on the outskirts of GPE – the grounds of a driving school situated in the CARDINALth habitable area of LOC .

The organisers nevertheless decided to hold the demonstration in the centre of GPE . According to the applicant , the demonstration was intended to be peaceful and was conducted in a peaceful manner . The participants were protesting against , inter alia , corruption and demanding the resignation of the President of the ORG .

The applicant attended the demonstration , but shortly after it had begun the police started to disperse those who had gathered . The applicant was arrested during the dispersal operation and was taken to CARDINAL different police stations consecutively .

According to the applicant , he was arrested at TIME His arrest and custody in the police stations were video recorded on a mobile phone by CARDINAL of the protesters , Mr A.H.

On DATE of the applicant ’s arrest , an administrative - offence report ( inzibati xəta haqqında protokol ) was drawn up in respect of him by police officer E.G. The report stated that at around CARDINAL.CARDINAL p.m. , at FAC in GPE , the applicant had attempted to hold an unlawful demonstration and had disobeyed a lawful order of a police officer . He had been charged with administrative offences under LAW ( violation of the rules on holding public assemblies ) and LAW ( failure to comply with a lawful order of a police officer ) of ORG ( “ the CAO ” ) .

On DATE QUANTITY police officers , ORG , prepared a report ( raport ) for a superior , stating that at TIME during the demonstration they had arrested CARDINAL individuals . The report contained a list of the arrested protesters . According to the applicant , his name – the eleventh on the list DATE was added to the report later in different handwriting .

According to the official records , the administrative - offence report in the applicant ’s respect was prepared on the basis of the abovementioned report drawn up by police officers ORG

According to the applicant , he has never been served with a copy of the administrative - offence report or with other documents from his case file . He was also not given access to a lawyer after the arrest or while he was in police custody .

On DATE of his arrest the applicant was brought before a firstinstance court , ORG .

A ORG - funded lawyer was appointed to assist the applicant . None of the material submitted to the ORG contains any record showing that the ORG - funded lawyer , Mr ORG , made any oral or written submissions on behalf of the applicant .

No witnesses were questioned during the court hearing .

By a decision of CARDINAL DATE , the court convicted the applicant under Article CARDINAL of the ORG and sentenced him to CARDINAL days’ administrative detention .

On an unspecified date the applicant lodged an appeal with ORG , arguing that his arrest and conviction were in violation of his right to freedom of assembly and that the hearing before the firstinstance court had not been fair . He argued that he had participated in the demonstration because he had had a constitutional right to do so , but that he had not disobeyed any order of a police officer .

The applicant also asked the appellate court to summon and examine witnesses on his behalf ( namely , PERSON , Mr DATE and PERSON ) who , according to the applicant , had witnessed his arrest and time in custody , and to examine the video recordings made by PERSON , which , according to the applicant , showed his arrest and custody in the police stations . He further asked the court to order a handwriting examination of the report prepared by police officers GPE and H.A. , in order to establish whether his name had been added to it by CARDINAL of those QUANTITY police officers . The applicant alleged that his name had been added to the mentioned report as the eleventh person in the list later and in different handwriting .

NORP The applicant was represented before ORG by a lawyer of his own choosing .

On DATE ORG partially granted the applicant ’s appeal and remitted the case to the first - instance court for reexamination . ORG found that the first - instance court had failed to examine the report prepared by police officers GPE and H.A. The court also held that the case - file contained only a photocopy and not the original of that report and , therefore , it had not been possible to order its expert examination . The court did not address the applicant ’s abovementioned requests to summon and examine the witnesses on his behalf and to examine the video recordings .

On DATE ORG re - examined the case .

According to the applicant , he was not given an opportunity to appoint a lawyer of his own choosing .

A ORG - funded lawyer was appointed to assist him .

The only witnesses questioned during the court hearing were police officers GPE and ORG The former testified that the applicant had been detained for having participated in an unlawful assembly , making noise and disobeying the lawful orders of the police . The latter testified that he had prepared the administrative - offence report .

On an unspecified date the applicant appealed . He argued before ORG that his arrest and conviction had been in violation of his right to freedom of assembly . He also complained that his arrest had been unlawful , and that the rehearing before the first - instance court had not been fair .

The applicant again requested that witnesses on his behalf ( namely , PERSON , Mr DATE , PERSON and PERSON ) be summoned and heard . In addition , he challenged the reliability of the official records related to his arrest and police custody . He pointed out in particular the discrepancy between the time of arrest indicated in the administrative - offence report and the report prepared by police officers PERSON and H.A. The applicant repeated his allegation that his name had been added as the eleventh person on the list in the mentioned report later . The applicant asked the appellate court to hear CARDINAL individuals listed along with him in the report prepared by police officers GPE and H.A. He further asked the court to examine certain photographs and the video recordings made during his arrest and time in police custody .

The applicant was not represented before ORG by a lawyer .

On DATE ORG dismissed the applicant ’s appeal and upheld the first - instance court ’s decision .

The appellate court did not address the applicant ’s above - mentioned requests to summon and hear the witnesses and to examine the photographs and video recordings .

On DATE Mr I. GPE , who represented the applicant before the ORG , was arrested on charges of large - scale tax evasion , abuse of power and illegal entrepreneurship . On DATE he was detained pending trial . The circumstances relating to Mr PERSON ’s arrest and detention are the subject of a separate application brought by him before the ORG ( application no . CARDINAL ) .

On DATE and CARDINAL DATE the prosecuting authorities conducted a search of Mr PERSON ’s home and office . During the search the domestic authorities seized a large number of documents , including all the case files relating to the pending applications before the ORG , which were in PERSON PERSON ’s possession as a representative . The file relating to the present case , which , it appears , included copies of all the documents and correspondence between the ORG and the parties , was also seized in its entirety . No adequate inventory of the seized files relating to the ORG proceedings was made in the search and seizure records of CARDINAL and CARDINAL DATE .

On an unspecified date Mr PERSON lodged a complaint with ORG , claiming that the search had been unlawful . He further complained about the seizure of the documents and files relating to the pending court proceedings before the ORG and the domestic courts .

On DATE ORG dismissed PERSON PERSON ’s claim . It held that the searches had been conducted in accordance with the relevant law . As to the seizure of the documents relating to the cases pending before the ORG and the domestic courts , it found that they could not be returned to the applicants at that stage of the proceedings . Following an appeal , on DATE ORG upheld the first - instance court ’s decision of CARDINAL DATE .

On DATE the investigating authorities returned a number of the case files concerning the applications lodged with the ORG , including the file relating to the present case , to Mr PERSON ’s lawyer . The investigator ’s relevant decision specified that “ since it has been established that among documents seized on CARDINAL and CARDINAL DATE there were files concerning applications by a number of individuals and organisations lodged with ORG , which have no relation to the substance of the criminal proceedings [ against Mr PERSON ] , [ those files ] have been delivered to [ Mr PERSON ’s lawyer ] Mr PERSON ” .


Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)

André Potocki;Mārtiņš Mits;Síofra O’Leary

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law . The applicant in application no . CARDINAL also raised another complaint under the provisions of the Convention .


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

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


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicants complained of the inadequate conditions of their detention .


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

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

The applicant was in a relationship with ORG , a NORP and NORP national . Their sons ( twins ) , also of NORP and NORP nationality , were born on DATE . The family had been living together in ORG and the applicant and ORG had joint custody of the children under NORP law .

On DATE the applicant and ORG had a dispute , which resulted in ORG leaving their home with the CARDINAL children . She claimed that she would return DATE .

On DATE , instead of coming back home , PERSON went with the children to stay with her parents in LOC in the south of GPE . She informed the police of this fact .

On DATE C.B. notified the police in PERSON that she intended to move to GPE , where she had already taken her main residence .

On DATE , however , she notified the police in ORG that she was living with her parents and that her lawyer would inform the applicant of her whereabouts . Nonetheless , the same day PERSON , her mother and the children left GPE and travelled to GPE .

On DATE the family judge at the ORG tribunal de grande instance , after an oral hearing on DATE , issued an interim injunction at the applicant ’s request , ruling that he and ORG had joint custody , but that the children ’s main residence was with their father . The court also proceeded to determine ORG ’s contact rights . It noted that PERSON , being absent from the oral hearing , had been duly summoned to attend .

On DATE the ORG investigating judge issued an arrest warrant against PERSON and on DATE the ORG tribunal de grande instance issued a NORP Arrest Warrant ( EAW ) against her for unlawful removal of the children from GPE .

On DATE ORG upheld the interim injunction issued by the PERSON tribunal de grande instance on DATE on the above - mentioned points ( see paragraph CARDINAL above ) .

On DATE the competent public prosecutor decided not to institute a preliminary investigation against the applicant , who had been accused of sexual assault by ORG in a complaint lodged with the NORP authorities on DATE .

On DATE the GPE tribunal correctionnel convicted PERSON of child abduction and sentenced her to DATE imprisonment . In addition , she was ordered to pay the applicant MONEY ( ORG ) in damages . PERSON subsequently lodged an appeal against that decision , but withdrew it on CARDINAL DATE .

On DATE ORG dismissed an appeal on points of law by PERSON against ORG decision of DATE .

On DATE ORG ( “ FAC ) granted a request by PERSON for an interim injunction against the applicant , ordering him to refrain from contacting her for DATE . The court based its decision on statements given by ORG according to which the applicant had threatened to kill her and had tried to abduct CARDINAL of the children .

On DATE the mayor of GPE granted a request by PERSON for a ban on disclosing information ( Auskunftssperre ) under the relevant provision of LAW ( Meldegesetz ) .

On DATE the applicant lodged a complaint against ORG with the NORP criminal authorities for suspected child abduction .

On DATE ORG dismissed a request by PERSON for an extension of the interim injunction granted against the applicant on DATE .

On DATE PERSON filed a new request with ORG for an interim injunction against the applicant , this time claiming that they were all at risk of physical harm and the children at risk of sexual abuse . The request was dismissed on DATE .

On CARDINAL DATE the GPE public prosecutor ’s office ( ORG ) informed the applicant that the criminal investigation it had initiated against him for the aggravated sexual abuse of minors had been discontinued .

On DATE the public prosecutor ’s office informed the applicant that the criminal investigation against ORG in GPE for child abduction had been discontinued .

On DATE the applicant lodged a request with ORG for the children ’s return , pursuant to LAW DATE on ORG ( “ LAW ) .

On DATE ORG , after hearing the applicant and PERSON in person , ordered PERSON to return the children to the applicant . It found that ORG ’s allegations of sexual abuse of the children directed against the applicant could not be proven by her or her mother ’s statements , or reports obtained from ORG ) . It argued that she had raised that suspicion rather late in the proceedings , and that ORG reports mainly relied on her and her mother ’s allegations . Furthermore , ORG first report , dated DATE , did not contain any information about alleged sexual abuse , while the reasoning in the second report , dated DATE , why certain observations of the children ’s behaviour would allude to sexual abuse by their father , was considered to be unsubstantiated . ORG further held that the children ’s removal had been wrongful within the meaning of LAW and that PERSON had failed to establish that their return would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation pursuant to LAW ( b ) of LAW .

C.B. appealed against that decision .

On DATE ORG ( “ the Regional Court ” ) partly allowed ORG ’s appeal and amended the decision in so far as it ordered the children ’s immediate return to GPE ( and not to the applicant ) . Under point CARDINAL of the decision , it further declared that the decision would only become effective if the NORP authorities demonstrated that they would take adequate measures to protect the children ’s best interests in GPE after their return , in particular with regard to the suspicion of sexual abuse and in accordance with LAW ) of ORG . It held that neither tactical reasons for the mother ’s allegations of sexual abuse nor interference with the children ’s best interests after their return to their father ’s place could be excluded .

On DATE ORG dismissed an appeal by PERSON against ORG decision . However , it partly allowed an appeal by the applicant and removed point CARDINAL from the impugned decision . Since it had not been established that he actually posed a threat to the children or that there were any other obstacles to their return , there was no reason to make the return order dependent on the safeguards which could be furnished by the NORP authorities under LAW ) of ORG ( “ safe harbour orders ” ) .

On DATE the applicant filed a request with ORG for enforcement of the return order .

On DATE a court bailiff ( huissier de justice ) in GPE confirmed that ORG and the children had presented themselves to her . In submissions to ORG of DATE , ORG claimed to have fulfilled the conditions set out in the decisions of ORG and ORG by returning the children to GPE ( and not to the applicant ) .

On DATE the applicant informed ORG of his suspicion that ORG had meanwhile left GPE again and travelled back to GPE .

On DATE ORG ordered a bailiff ( PERSON ) to remove the children from PERSON and hand them over to ORG .

On DATE the competent judge , the bailiff and a representative of ORG looked for PERSON and the children at her and her mother ’s addresses in GPE . However , the enforcement attempt was unsuccessful as neither PERSON nor the children were present at the addresses known to the LOC representatives . However , they did see PERSON ’s mother and a friend of hers , who stated that PERSON was currently hiding in GPE with her children but would have to come back to GPE for work . Afterwards the applicant , who had been waiting nearby , was informed of the authorities’ unsuccessful attempt to trace ORG and their children DATE . The incidents were reported in a letter to the president of ORG , including a statement that the court currently regarded the “ issue ” as “ terminated ” .

C.B. subsequently appealed against ORG enforcement order of DATE , and on DATE she filed a request for the court to refrain from enforcing the return order ( Antrag auf PERSON des Rückführungsverfahrens ) .

On DATE the applicant requested that ORG disclose ORG address , which had been kept secret from him .

On DATE ORG granted the applicant ’s request , holding that the ban on disclosure was no longer justified .

On DATE ORG dismissed PERSON ’s request for nonenforcement of the return order .

On DATE ORG rejected PERSON ’s appeal against ORG enforcement order of DATE . It held that she was no longer adversely affected by the impugned decision as the enforcement date had already passed before she had filed the appeal . However , as an obiter dictum it pointed out that , according to recent reports from ORG , the children ’s accounts of alleged ill treatment by their father had become more precise in the meantime , which constituted a substantial change in the circumstances on which the return order had been based . Contrary to the outcome of the main proceedings under ORG and LAW , ORG therefore considered the obligation under LAW ) of ORG to be applicable in that ORG would have to ask the NORP authorities to use safeguards to ensure that the return of the children was in their best interests , such as not to return them to the applicant in person while the suspicion of abuse against him remained .

On DATE the applicant filed a new request for enforcement of the return order , stating that in another set of proceedings before a court in PERSON representative had informed the court that her current address was her mother ’s in GPE , where for the purposes of enforcement of the return order PERSON and the children had been searched for by the competent authorities on DATE ( see paragraph CARDINAL above ) .

On DATE PERSON filed a new request for ORG to refrain from enforcing the return order , which was dismissed on DATE . She also submitted a psychiatric opinion , dated DATE and commissioned by ORG . The expert stated that the children seemed to be traumatised and suffering from post - traumatic stress disorder , possibly due to assaults by their father which could not be specified any further ; thus , even assuming that ORG had also attempted to alienate her children from the applicant , their return to their father would in any event trigger fear and panic reactions contrary to their best interests .

On DATE ORG dismissed appeals by ORG against the decisions of DATE and DATE concerning her requests for non - enforcement of the return order . It further rejected an appeal by her against the ORG decision of DATE , ordering the disclosure of her address to the applicant . However , it held again that it would be ORG task to obtain safeguards from the NORP authorities to avoid the children being exposed to a grave risk of physical or psychological harm .

On DATE ORG rejected an extraordinary appeal on points of law by PERSON against ORG decision of CARDINAL DATE . It upheld ORG reasoning in so far as PERSON was no longer adversely affected by the impugned decision ( see paragraph CARDINAL above ) , but held that it was for the court of first instance to examine whether the circumstances had changed in the meantime in such a way that the enforcement of the return order would now entail a grave risk for the children .

On DATE ORG rejected an extraordinary appeal on points of law by PERSON against ORG decision of CARDINAL DATE . It noted that ORG had already contacted ORG by letter in accordance with LAW ) of ORG , and that the enforcement of a return order under LAW could only be stopped if it was established that there were no adequate safeguards to protect the children ’s best interests upon their return to GPE . It therefore called upon ORG to examine the adequacy of the safeguards offered by the NORP authorities .

On DATE ORG held an oral hearing to examine how best to approach the question whether the children would face a grave risk of harm upon their return to GPE . The competent judge also requested that ORG inform her of all the proceedings then pending in GPE .

On DATE the judge appointed an expert psychologist , PERSON , and ordered her to submit a report on whether the children ’s return to GPE ( either to their father or to a child protection institution ) could harm their psychological development . The judge pointed out , inter alia , that due to the arrest warrants ( see paragraph CARDINAL above ) PERSON was likely to be arrested as soon as she returned the children to GPE herself , and that the expert ’s observation of the father ’s and the children ’s interactions with each other would be of significant importance with a view to the accusations of ill - treatment directed against him . All the parties were ordered to cooperate with the expert .

On DATE PERSON ’s counsel submitted to the court the requested information concerning the pending proceedings in GPE ( custody proceedings , criminal proceedings against PERSON for child abduction , and criminal proceedings against the applicant for sexual abuse ) ( see paragraphs CARDINAL – CARDINAL above ) .

On DATE PERSON informed the court that the children would not be able to attend the scheduled examination by the appointed expert due to illness ; she also submitted a medical certificate describing the children ’s illness .

DATE . On DATE PERSON challenged the judge and S. for bias . The president of ORG dismissed the challenge for bias against the judge on DATE . PERSON subsequently appealed against that decision and submitted new challenges for bias against the competent judge of ORG again as well as the panel of judges of ORG which had given the decision of DATE ( see paragraph CARDINAL above ) . ORG , ORG and ORG each subsequently ruled on these challenges for bias and on ORG ’s respective appeals . Her allegations were dismissed with final effect on DATE by ORG , which , inter alia , considered ORG ’s allegations to be unfounded and that she had lodged several challenges for bias for tactical reasons .

On DATE ORG dismissed PERSON ’s challenge against the expert S.

On DATE ORG removed PERSON from the case and appointed another expert psychologist , NORP who , unlike PERSON , was a specialist in traumatology . It referred to the ORG ’s judgment in the case of PERSON and GPE v. GPE ( no . CARDINAL/CARDINAL , CARDINAL DATE ) , in which the ORG found a violation of LAW because the domestic courts in that case had not adequately taken into consideration the risk of psychological trauma that would inevitably stem from a sudden and irreversible cutting of the close ties between mother and child .

On DATE R. submitted her expert opinion to ORG ; CARDINAL further psychological opinions were privately commissioned by ORG and submitted by her counsel to the court at the same stage of the proceedings .

On DATE ORG dismissed the applicant ’s request of DATE for enforcement of the return order ( see paragraph CARDINAL above ) . Referring to the CARDINAL expert opinions mentioned above ( see paragraph CARDINAL above ) , in particular the one obtained from NORP , it held that the children had been severely traumatised by all the events which had occurred in their family since DATE , that they were suffering from severe post - traumatic stress disorder , and that a separation from their mother and their return to GPE would very likely trigger an existential crisis and gravely harm their emotional and cognitive development . The court did not deny that the mother ’s adverse influence on the children regarding their father had also contributed to their negative attitude towards him . However , it also stated that the allegations of sexual abuse against him could neither be proven nor excluded . Regarding the statement on the applicant ’s mental health in the psychiatric opinion forwarded by ORG ( see paragraph DATE below ) , ORG considered that the report had not been drawn up in accordance with the NORP standards for examining a person ’s educational skills as it had only been based on the applicant ’s interview with the expert and no psychological tests had been carried out . In contrast , the CARDINAL expert opinions ( see paragraph CARDINAL above ) were not only based on ORG ’s allegations , but also on psychological tests of the children and their mother . However , in her examination of the case NORP did not hold a meeting between the children and the applicant as such an interaction would have very likely resulted in the children being further traumatised .

In its reasoning , ORG further reiterated that a court could only refuse to return a child for the reasons set out under LAW ( b ) of LAW if it was not established that adequate measures to protect the child ’s best interests after his or her return would be taken . In DATE it had therefore requested that the NORP authorities provide the appropriate safeguards . According to ORG answers by letters of CARDINAL May and DATE , all conditions would be met to ensure that the children were returned without any risk ; they also stated that the children would not be immediately entrusted to the applicant upon their return . ORG concluded therefore that the children would temporarily be put into foster care , which was contrary to their best interests . It also pointed out that on DATE it had held a hearing to discuss possible scenarios concerning the children ’s return to GPE and to consider alternative ways of reestablishing contact between the applicant and the children . Since the applicant had failed to attend the hearing without providing any excuse , the court assumed that the purpose of the proceedings seemed to be more for him to argue out his conflict with PERSON than for the children ’s return to GPE . It further held that a balancing of the competing interests of those involved had to be carried out in such a case , and that the children ’s interests were of paramount importance . Referring to the case of Neulinger and GPE v. GPE ( [ ORG ] , no . ORG , ORG DATE ) , the court stated that the possibility of the children being further traumatised , the serious difficulties that they would be likely to encounter under new living conditions in GPE and the lack of adequate safeguards were reasons why the return order could not be enforced . Instead , psychologically assisted contact between the applicant and the children should be slowly re - established in GPE .

The applicant appealed against the decision and challenged the judge for bias .

On DATE ORG dismissed the challenge for bias . The decision was upheld by ORG on DATE .

On DATE ORG dismissed an appeal by the applicant against ORG decision of CARDINAL DATE ( see paragraph CARDINAL and DATE above ) , upholding its reasoning and adding that , due to the arrest warrant against ORG , the children would likely be put into foster care without their mother .

On DATE ORG quashed ORG decision of CARDINAL DATE and ORG decision of CARDINAL DATE and remitted the case . It observed that under LAW the court dealing with an application for return should act expeditiously when deciding it and , subsequently , when providing for the enforcement of an already issued return order . It would be contrary to that obligation if the court delayed or possibly impeded the return of a child by not ruling or by belatedly deciding the parties’ requests . In that context , it noted that in the present case , after ORG had delivered its decision on CARDINAL DATE , DATE had already elapsed before the case eventually came before it . The delay in the return proceedings caused by the abducting parent ’s behaviour was not a fact which by itself exempted the authorities from their obligation to swiftly and adequately implement their duties under international law .

NORP However , ORG conceded that , given that the children had meanwhile adapted well to living in GPE and their mental health had become stable , their well - being would be gravely put at risk if the return order was enforced without any safeguards . Nonetheless , it noted that this development was mainly due to the fact that almost four years had elapsed since the return order had become final in DATE . Therefore , the return order was still enforceable as long as it was not established that no adequate measures would be taken to protect the children ’s best interests upon their return to GPE . ORG therefore ordered ORG to clarify whether the arrest warrant issued against ORG in GPE could be lifted , to assess whether ORG mother in place of ORG would be willing to accompany the children to GPE and care for them in a child protection institution , and to obtain the NORP authorities’ assurance that the children could live in a child protection institution as close to the applicant as possible . It further held that it was for the applicant to apply to the competent authorities in GPE for temporary care for his children in a child protection institution , and that it was not for the NORP courts to establish contact between him and the children under LAW ( CARDINAL ) of ORG since the establishment of contact for the purposes of the enforcement of a return order fell within the competence of the authorities of the ORG from which the children had been abducted .

On DATE ORG asked the NORP authorities for information as requested by ORG in its decision of CARDINAL DATE .

On DATE , after another oral hearing on CARDINAL DATE and a telephone conversation with the public prosecutor at ORG on DATE , ORG again dismissed the applicant ’s request of DATE for enforcement of the return order ( see paragraph CARDINAL above ) . It held that PERSON ’s mother was unwilling to stay temporarily with the children in GPE after their return and that , in any event , PERSON had to start serving her prison sentence once she entered GPE . It further noted that the NORP authorities had formulated different ways of avoiding the children ’s separation from their mother , but could not give any guarantees in advance ; instead , they had pointed out that PERSON first had to return the children to GPE before any concrete measures could be taken . ORG therefore concluded that the NORP authorities had failed to devise an exact plan which , in particular , would avoid the children being immediately separated from their mother . Given that the children would probably be placed in a child protection institution in a ( for them ) foreign country and without any familiar caregivers around , there would be a severe risk of harm for them within the meaning of LAW ( b ) of LAW if they were returned to GPE .

On DATE ORG dismissed an appeal by the applicant against ORG decision of DATE . It conceded that ORG ’s behaviour concerning the removal of the children from GPE in itself , but also with regard to her delaying tactics in the present proceedings , was unacceptable . However , it was now for the NORP courts only to decide whether the requirements of LAW ) of ORG were fulfilled , namely whether the children could be returned to GPE without being separated from their mother . In this regard , it held that ORG had correctly concluded that the requirements of LAW ( CARDINAL ) were not fulfilled , since the NORP authorities had not provided sufficient guarantees to ensure that the children would not suffer severe harm upon their return . It had not been established that the children could stay with ORG while she was serving her prison sentence , and since their grandmother was unwilling to accompany them to GPE , they would be left without any caregivers familiar to them .

Regarding the applicant ’s allegations that ORG had failed to contact the relevant NORP authorities and to ask the right questions , ORG held that the NORP authorities had merely referred to general alternatives without offering any precise answers to the NORP courts’ concerns . The court considered that ORG had already made sufficient attempts to obtain concrete guarantees from the NORP authorities as it was mainly their responsibility to take adequate measures . In particular , the NORP authorities should have given an undertaking that the decision of DATE provisionally determining the children ’s main residence with their father would be revoked and that , despite the prison sentence , PERSON would be granted safe conduct in order to be able to participate in the custody proceedings in GPE . ORG also considered that the applicant ’s conduct was not in the children ’s best interests either , since the enforcement of the decision of DATE and ORG ’s criminal conviction appeared to be more important to him than their well - being , and he did not even realise the seriousness of the burden to which he would expose his children if they were forced to return to him after not having seen him for DATE . In sum , ORG concluded that because of a lack of adequate “ safe harbour orders ” the children ’s return to GPE entailed a grave risk for them ; furthermore , since they had meanwhile adapted well to living in GPE , their uprooting would very likely also lead to a severe endangerment of their well - being .

On DATE the applicant filed an extraordinary appeal on points of law .

On DATE ORG rejected the extraordinary appeal on points of law . It confirmed that the children ’s separation from their mother in the event of their return to GPE could still not be excluded because of ORG ’s prison sentence , and that such separation would very likely severely traumatise and psychologically harm them within the meaning of LAW ( b ) of LAW . It reiterated that the return of the children could not be refused if it was established that the NORP authorities had made adequate arrangements to protect the children ’s best interests upon their return . However , if there remained doubts in this respect , the return would have to be refused . Since the measures as set out by the NORP authorities had to be considered insufficient to secure the protection of the children upon their return , the non - enforcement of the return order was justified . Nonetheless , ORG pointed out that the decision was primarily based on what seemed best for the children ’s well - being and did not necessarily lead to the conclusion that PERSON ’s conduct had been lawful . Lastly , it observed that the applicant still had the possibility of applying to the NORP courts for contact rights .

The decision was served on the applicant on DATE .

In a letter of CARDINAL DATE ORG stated that , to date , the applicant had not applied to the NORP courts for contact rights .

DATE . ORG ( bureau de l’entraide civile et commerciale international ) at ORG ( hereinafter “ the ORG ” ) and its NORP counterpart at ORG ( hereinafter “ the ORG ” ) remained in contact throughout all of the abovementioned proceedings . In their letters , the officials in charge of the case regularly discussed how to protect the children ’s best interests upon their return to the applicant . The ORG sent several requests to its counterpart for information on the progress of the case , in particular on the measures taken by the NORP authorities to locate PERSON and the children and the reasons why the return order had not been enforced . The ORG informed its NORP counterpart of the respective state of the proceedings , referred to the parties’ requests and appeals as obstacles to the continuation of the enforcement of the return order and considered the actual address of ORG and the children to be unknown . Regarding the ORG ’s requests for safeguards to secure the protection of the children , the ORG pointed out at the beginning of the enforcement proceedings that there were no obstacles impeding the children ’s return to their father as the competent NORP judge had already determined that their main residence was at his home ; thus , ORG would not be notified of the children ’s return to GPE . However , on CARDINAL DATE the ORG confirmed in a letter to the ORG that if the children returned to GPE , a social worker would meet them at the airport in GPE and take them to their father .

In DATE and DATE the competent judge at ORG twice requested that the ORG help her establish contact with the judge competent in childcare matters ( juge des enfants – hereinafter “ the children ’s judge ” ) in GPE because she had doubts as to whether the immediate return of the children to their father would expose them to grave harm and therefore preferred temporary social care for them .

On DATE the ORG informed its NORP counterpart that it had been suggested to the public prosecutor in charge of childcare matters that the case be brought before the children ’s judge in accordance with LAW ) of ORG , and that the public prosecutor had indicated a wish to do so .

On DATE the children ’s judge at the GPE tribunal de grande instance appointed an expert psychiatrist and ordered him to deliver a report on whether the applicant was suffering from any form of mental illness ; on DATE he ordered the ORG ( Service territorial éducatif de milieu ouvert et d’insertion , a youth welfare service ) in GPE to examine the living conditions at the applicant ’s home and his educational and emotional skills .

On DATE the ORG submitted the psychiatric opinion obtained by the children ’s judge , which stated that the applicant did not suffer from any form of mental illness , could meet a child ’s needs and was very much devoted to his children .

On CARDINAL DATE the ORG submitted the ORG ’s pre - report which confirmed that the living conditions provided by the applicant were appropriate to accommodate his children ; however , the ORG would only be able to assess the applicant ’s educational and emotional skills once the children were returned to him .

In a letter of CARDINAL DATE the ORG confirmed , in reply to the NORP authorities’ concerns about an immediate return of the children to the applicant and their proposal of temporary social care , that the children would not be entrusted to their father right after their return , and that the children ’s judge would monitor their best interests and , if need be , take measures of educational support .

On DATE the ORG submitted a judgment given by the children ’s judge of the GPE tribunal de grande instance on DATE , which stated that no measures of educational support for the applicant had to be taken at that time . According to the evidence taken so far ( see paragraphs CARDINAL and CARDINAL above ) , the applicant was able to provide appropriate living conditions for his children and did not suffer from any form of mental illness or sexually deviant behaviour . His educational and emotional skills could only be assessed upon the children ’s effective return to GPE , and by the time of their return concrete measures could again be taken into consideration .

DATE . Following ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) , on DATE the ORG informed its NORP counterpart that it had forwarded ORG request of DATE ( see paragraph CARDINAL above ) to the public prosecutor at ORG , suggesting that the case again be brought before the children ’s judge at the GPE tribunal de grande instance .

In a letter of DATE the ORG submitted a report which the public prosecutor at ORG had made on DATE , in reply to ORG request of DATE ( see paragraph CARDINAL above ) . According to the report , PERSON , due to the arrest warrant against her , was registered in the NORP register of persons being searched for by the criminal authorities ( fichier des personnes recherchées – “ FPR ” ) ; thus , she could immediately be arrested once she entered GPE . However , in the event of her return to GPE together with her children , the public prosecutor would be prepared to withdraw her from the ORG on the grounds that the children ’s return would make it possible for the applicant to see his children , so that the objective of the arrest warrant would then also be achieved . Hence , ORG would not risk immediate arrest if she entered GPE . The public prosecutor however noted that in any event PERSON would have to start serving her prison sentence , and that suspending it from the outset would not be possible . She could however apply to serve the sentence under electronic surveillance immediately after being imprisoned if she proved that she had a residence in GPE . After serving CARDINAL of the sentence she could then apply for conditional release , which could even be granted earlier if she proved that her children were living with her . As to the civillaw issues of ORG request of DATE , the public prosecutor referred to the children ’s judge ’s decision of CARDINAL DATE ( see paragraph CARDINAL above ) .

In their letter of DATE , the ORG complemented the public prosecutor ’s report by explaining that the children ’s judge could order that the children be placed either with their mother , another member of the family or a trusted third party , or eventually in an institution , possibly in the vicinity of the applicant ’s home . Such an order would overrule the decision of the ORG tribunal de grande instance family judge of DATE , which had determined that the children ’s main residence was with their father . As for PERSON ’s prison sentence , it was recommended that she or her counsel contact the competent public prosecutor in advance and already prepare the necessary applications , since it could not be excluded that she would be questioned by the judge in charge of the review of her punishment as early as on DATE of her detention .

On DATE the ORG submitted confirmation by the children ’s judge dated DATE that as soon as the effective return of the children was fixed by the NORP authorities he would be prepared to order temporary foster care for them and educational support for the father to reestablish the ties between them .

On DATE the ORG submitted another report from the public prosecutor at ORG which , in reply to another questionnaire of ORG , repeated the conditions under which ORG could apply for conditional release . It further stated that the children would not be allowed to stay at the detention centre while PERSON was serving her sentence . During that time they would be cared for by their father or by ORG . Instead of temporary foster care , the children ’s judge could order educational support in an “ open setting ” consisting of a team of social workers assisting the father with his children . If the exact return date was not communicated by the NORP authorities in advance and an interim measure had to be adopted quickly due to PERSON ’s detention , the public prosecutor would have to order temporary foster care for the children and would have DATE to bring the case before the children ’s judge , who would then have to take the necessary steps .


CASE OF INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE

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

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

NORP The applicant company , ORG ( a limited liability company ) , is the editorial body of the ORG newspaper ( FAC ) , registered in GPE . According to the applicant company , at the material time the newspaper was one of the top nationwide dailies in GPE by circulation and was closely associated with ORG , a political leader .

In DATE PERSON worked as a newspaper journalist in GPE . In DATE she headed the GPE bureau of ORG . In DATE she became a spokesperson for the then - Prime Minister , PERSON , a move which was widely perceived as constituting a significant change of sides in the political debate on Ms NORP ’s part . In DATE she was elected as a member of parliament on the list of ORG , led by PERSON . At the material time she frequently presented her party ’s and PERSON views on various television and radio programmes and debates .

On DATE the President of GPE issued a decree dissolving ORG . This decree led to an acute constitutional crisis , with the parliamentary majority , grouped around ORG , initially refusing to comply with the decree . Fresh parliamentary elections were originally scheduled for CARDINAL DATE but were postponed ; they eventually took place on DATE . Political parties led by Mr Yanukovych and Ms Tymoshenko won the largest numbers of votes .

On DATE ORG published an article entitled “ How I became a victim of demagogues ” ( Как я стал жертвой демагогов ) written by PERSON ( “ the author ” ) .

The relevant extracts from the article read as follows :

“ On DATE TIME ORG almost lost CARDINAL of her fans ... I am embarrassed to admit that I almost went over to PERSON ’s side ...

And it ’s PERSON fault . She was talking live on ORG radio and she almost persuaded me . She said that they had CARDINAL supporters in GPE and that the party numbered CARDINAL members . I was dumbfounded !

And of course I was impressed by her eloquence . How beautifully she speaks , what a well - trained voice and proper intonation she has . She uses not only words but intonation , communicating non - verbally as well ... Of course , she is such a professional ...

I thought that after her speech CARDINAL would join ORG . I used to think that one could easily debate with PERSON . I put myself in PERSON position and it seemed that she must be feeling very uncomfortable .

I thoughtlessly believed that the question “ PERSON , what are you doing in this gang ? ” should make her blush and lower her gaze . She , a nationalist , should be ashamed to belong to this group of GPE haters ( украиноненавистническую компанию ) .

PERSON dropped hints about not being a rich person , which means that money was evidently not the least motivation for her decision to work for PERSON . And although she does it for money , she does it with such devoted artistry that it made me want to cry out , contrary to PERSON : “ I believe you ! PERSON , I believe you ! ”

I did almost believe her .

As a journalist and someone who knows PERSON personally , and someone who has even learned from her ( I learned from her how not to write ) , I have constantly tried to put myself in her position .

I certainly understand , PERSON , that it ’s about the money ...

But it ca n’t be that kind of money ! CARDINAL , really ? MONEY ? Or more ?

I think any NORP journalist would sell himself to PERSON for that much money DATE for MONEY . I do n’t even know if I myself would be able to resist . What would I say to my wife , to my friends ? I would say : “ You do n’t know PERSON . I know PERSON personally . I have talked with him a lot . He is a great guy ... ”

What if I were given MONEY a month ? And [ if I had an offer ] to become a member of parliament , as in PERSON case ? That is , for a flat in GPE ? I believe that all journalists dream of selling themselves for a flat in GPE , even those who already have CARDINAL . One does not have to do anything complicated for this . CARDINAL just has to say , with beautiful diction and intonation , that PERSON is a lost sheep that has finally found the right path and constantly thanks God for it ...

I could also say those things . For a flat in GPE . And many other simple country guys could say those things for a flat in GPE . The problem is , however , that PERSON would n’t give just anyone a flat in GPE . We do n’t have many stars , like PERSON , [ whose worth is ] that of a flat in GPE ( Мало у нас таких звезд , как PERSON , которые стоят , как квартира в Киеве ) . By the way , for the cost of an MP ’s flat one could maintain the editorial staff of a DATE newspaper for DATE ( depending on what kind of flat it is ) . And each and every CARDINAL of them would write about what criminals and falsifiers the members of ORG are and what a wise , honest and principled man our PERSON is .

I listened to PERSON and I wish I were as lucky as she is . I wish I could sell myself like that ! That is of course the highest point in a journalist ’s career . Not even for a flat . At least MONEY , but all in one go . Alright , for CARDINAL . Even CARDINAL . Or for a DATE salary of MONEY . And I am wholly yours . Or DATE ... But CARDINAL .

All of this is a joke . Pardon me for ... the irony . This is irony , although somebody may consider it sarcasm . No , it is n’t sarcasm .

According to [ the ] PERSON [ dictionary ] , “ demagoguery ” is “ influencing the feelings and instincts of those with low - level awareness on the basis of the deliberate distortion of facts ” . For a long time I suffered from not being able to argue with such demagogues as PERSON , PERSON , PERSON , and all the [ members of ORG ] and communists . It is not possible to argue logically with them . An intelligent man can hardly stay emotionally composed listening to them .

When I was on ORG ’s [ television programme ] , [ fellow guest ] ORG gave me a tip . It ’s irony . The thing is that demagoguery requires artistry . An intelligent man can feel the falsity but can not put his finger on it . At this point you need irony to make the demagogue ’s statements sound absurd ... ”

On DATE PERSON lodged a defamation claim with the GPE ORG against the applicant company and the article ’s author . She sought a retraction – in the form of the publication of a court judgment in her favour – of the allegedly false statements made in the article concerning her alleged acquisition of a flat , . She also sought compensation for non - pecuniary damage . The applicant company maintained that the statements in question had constituted a value judgment in respect of the legal provision entitling members of parliament to housing support .

On DATE ORG allowed the plaintiff ’s claims in part . It found that the following extracts constituted an untrue statement :

“ And [ if I had an offer ] to become a member of parliament , as in PERSON case ? That is , for a flat in GPE ? ...

The problem is , however , that Yanukovych would n’t give anyone a flat in GPE . We do n’t have many stars , like PERSON , [ whose worth is ] that of a flat in GPE . ”

NORP The court found that the plaintiff had not requested or received a flat in her capacity as a member of parliament ; she had bought her own flat in DATE , before she had been elected . The court considered that the above statements suggested that the plaintiff had become a member of parliament for the sole purpose of obtaining a flat in GPE . In the court ’s view this was not a value judgment because only concrete information as to whether Ms NORP had exercised her entitlement to housing support could serve as the basis for such statements . Rather , the statements in question constituted statements of fact which had not been verified or proved by either of the defendants , and were negative and insulting to the plaintiff .

Relying in particular on the provisions of LAW and of LAW and referring to the constitutional provision guaranteeing respect for private life ( see paragraphs DATE below ) , the court ordered the applicant company to retract this information by publishing the operative part of its judgment and to pay the plaintiff CARDINAL NORP hryvnias ( ORG , MONEY ( ORG ) at the time ) in compensation for non - pecuniary damage .

The court also found that the following extract constituted a value judgment on the author ’s part and rejected the claim in this respect :

“ What if I were given MONEY a month ? ... I believe that all journalists dream of selling themselves for a flat in GPE , even those who already have CARDINAL ... I listened to PERSON and I wish I were as lucky as she is . I wish I could sell myself like that ! ”

The applicant company appealed , arguing , in particular , that the statement in question had been an expression of the author ’s opinion . In particular , he had wondered what could have induced PERSON , “ a former nationalist ” , to change her political sympathies . Being aware that the Member of ORG ’s Status Act provided for housing support , the author speculated that he might be willing to change his views in exchange for a flat in GPE . For the applicant company , the lack of coherence in the plaintiff ’s demand that a subjective opinion be retracted was illustrated by the fact that the plaintiff and the first - instance court had been unable to formulate a specific statement of retraction and had resorted to the requirement to publish the text of the judgment itself . For the applicant company , the plaintiff ’s failure to formulate a specific retraction illustrated the rationale behind section CARDINAL of LAW , under which value judgments were not subject to retraction . The applicant company argued that the requirement to retract the statement by publishing the text of the court judgment contradicted section CARDINAL of LAW . The applicant company also argued that the author had not had the requisite intent to disseminate untrue information . In support of its arguments it invoked the constitutional provision guaranteeing the freedom of expression .

On DATE ORG upheld the judgment of DATE , finding the applicant company ’s arguments unsubstantiated and ORG conclusions correct .

The applicant company appealed on points of law . In addition to reiterating the arguments it had raised on appeal , it referred to the ORG ’s judgments in ORG v. GPE ( no . CARDINAL/CARDINAL , DATE ) , and PERSON and PERSON v. GPE ( DATE , Reports of Judgments and Decisions DATE ) , arguing that according to the ORG ’s case - law the limits of acceptable criticism were wider with regard to a politician than in relation to a private individual and that such criticism could include recourse to a degree of exaggeration , or even provocation .

On DATE ORG found no grounds to review the case on points of law , finding that there were no reasons to believe that the lower courts’ decisions had breached any provisions of substantive or procedural law .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in ORG .

At the time of the events the applicant was the director general of a joint venture ORG ( “ company CARDINAL ” ) , which had its office in the premises belonging to a joint stock company Y. ( “ company Y. ” ) .

In DATE the owner of company Y. changed . The new management questioned the legality of the use of its premises by company ORG specifically , they challenged the lease contract of CARDINAL DATE in respect of those LOC , which had been signed by the applicant , on the one side , and ORG , the chairman of the board of directors of company Y. at the time , on the other side . Under that contract , company ORG could use the office space in question from CARDINAL DATE to CARDINAL DATE without any payment , but in exchange for certain services for company Y.

Starting from DATE , company Y. no longer allowed access to its premises to company ORG As a result , the applicant transformed his flat in a temporary office of company ORG

NORP In DATE company ORG brought commercial proceedings against company Y. seeking compliance with the lease contract . Company Y. , in turn , lodged a counter - claim seeking invalidation of that contract . By a final decision of ORG of DATE , the national courts rejected the claim of company ORG and discontinued the proceedings as regards company Y. ’s counter - claim . It was concluded that “ there [ was ] no subject matter of the dispute ” , given that the impugned contract failed to stipulate basic terms inherent in a lease contract and could not therefore be regarded as a lease contract .

On DATE a criminal case was opened in respect of suspected forgery of the lease contract of CARDINAL DATE , without being targeted against any particular persons .

On DATE the ORG ( “ ORG ” ) issued a warrant for seizure of CARDINAL documents relevant for the investigation , such as the original of the lease contract itself , related correspondence and several statements of acceptance of the services indicated in the contract ( see paragraph CARDINAL above ) . The seizure was to be carried out in company ORG ’s office .

On DATE the seizure took place in the applicant ’s flat , in the presence of his wife . It appears that the applicant was not present . CARDINAL of the CARDINAL documents listed in the warrant were seized . The seizure report did not contain any information as to whether it had been handed to any person occupying the LOC . The applicant did not specify in the domestic proceedings , or in the present proceedings , how the seizure of the documents had taken place .

On DATE the seizure warrant of DATE was served on the applicant .

On DATE the investigator decided that a forensic expert examination of the signatures on the contract of CARDINAL DATE was required in order to establish their real date .

On DATE the Odesa ORG ( “ the ORG ” ) ordered a search of the applicant ’s flat , which was also company ORG ’s office , with a view to collecting samples of his handwriting and signatures . As stated in the court ’s ruling , “ notebooks , correspondence and other personal records with [ the applicant ’s ] handwriting ” were required for the above - mentioned expert evaluation . That decision was not amenable to appeal .

On DATE the search took place in the applicant ’s flat in his presence and resulted in a seizure of CARDINAL documents . The applicant did not provide any description , be it in the domestic proceedings or in the present proceedings , as to how the search had been carried out .

On DATE the investigator ordered a seizure of company ORG ’s constituent documents from the company ’s office . It appears that the seizure was carried out on DATE in the applicant ’s flat .

On DATE the above seizure warrant was served on the applicant .

On DATE company ORG meeting decided to suspend the applicant from the exercise of his duties as its director general pending the ongoing criminal proceedings .

On DATE the prosecutor discontinued the proceedings for the absence of unequivocal evidence of a criminal offence . Although a forensic expert examination had established that the signatures on the impugned contract had been antedated ( namely , it was established that they had been made no earlier than in DATE ) , the official approval of the technical methods used by the expert was previewed only for DATE .

On DATE the applicant resumed his duties in company ORG

On DATE the applicant brought proceedings against ORG claiming compensation in respect of non - pecuniary damage allegedly caused by its unlawful actions . The applicant based his lawsuit on the fact that the criminal proceedings had been terminated , without raising any specific complaints about the search and seizures . He contended that the institution of the criminal proceedings had been arbitrary , which had led , inter alia , to the unlawful search of his flat and the seizure of documents .

On DATE ORG rejected the applicant ’s claim as unfounded . The case file does not contain a copy of that decision . It appears that the court ’s conclusion was that the applicant had not suffered any non - pecuniary damage .

NORP The applicant appealed . He argued , in particular , that the impugned measures had been devoid of any legitimate purpose given the impossibility at the time to carry out the forensic handwriting examination ordered by the investigator . He further submitted that , in ordering the seizure of documents , no differentiation had been made between the company ’s premises and his home . The applicant maintained that the first - instance court had left those matters without consideration .

On DATE ORG rejected the applicant ’s appeal . It held , in particular , that the company ’s office had de facto been located in the applicant ’s flat . As regards his complaint about the ORG

On DATE ORG upheld the lower courts’ decisions .