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

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

The applicant was born in DATE and lives in GPE .

At the material time he was the executive director of ORG ( PERSON российско-чеченской дружбы ) , a non - governmental organisation which monitored human rights violations in GPE and other parts of LOC . He was also the chief editor of a DATE newspaper , ORG ) , with a circulation of CARDINAL . The newspaper was published and distributed mainly in LOC . At the end of each issue there was a standard disclaimer stating that the views of the editorial team might not concur with those expressed in the articles published .

NORP In DATE the applicant obtained CARDINAL articles from the website PERSON . The first , which had the headline “ Address by PERSON , Vice Prime Minister of the Government of GPE of GPE , to ORG вице-премьера правительства Чеченской PERSON Ахмеда Закаева к российскому народу DATE “ the first article ” ) , was published by him in issue no . CARDINAL ( CARDINAL ) of ORG for DATE . It read as follows :

“ DATE a peace process that had just begun was interrupted by the tragic events in the Dubrovka [ theatre ] . There may be long arguments as to who was responsible for that tragedy , but there is no dispute as to who benefited from it .

DATE , on behalf of PERSON , President of GPE of GPE , I am again addressing myself to the people of GPE . It is still not too late for us to resolve all the questions at issue . But for this , the people of GPE should get rid of those for whom peace represents the loss of power or perhaps even a trial . As long as they remain in the FAC , blood will continue to flow in GPE and in GPE .

I am extending to the people of GPE the hand of peace over the head of their president . No one needs the war except for him : neither right nor left , neither poor nor rich . PERSON left the NORP no choice , but you have a choice and you may still choose peace by voting against PERSON in DATE . Both for you and for us this is a real opportunity . ”

The article was accompanied by the editorial team ’s comments ( от редакции ) , which read as follows :

“ For reasons beyond the editorial team ’s control , we are publishing this document belatedly . This address was made on DATE of the presidential elections in GPE . Unfortunately , the people of GPE did not avail themselves of their historic opportunity , having again elected as their president a man who has made political capital out of a bloody war against his own people and who is leading the country towards the blind alley of a police state . Nevertheless , we are convinced that this document , which represents the legitimate NORP authorities’ statement to the outside world , has not lost its topicality in the meantime ” .

The second article , which had the headline “ Address by ORG , President of GPE , to the European Parliament ” ( « Обращение Президента Чеченской Республики Ичкерия Масхадова к Европарламенту DATE “ the second article ” ) , was published by the applicant in issue no . CARDINAL ( CARDINAL ) of ORG for DATE and DATE and read as follows :

“ On DATE the ORG of ORG adopted a declaration in which PERSON ’s deportation of the NORP people on DATE was officially recognised as an act of genocide . ORG also recommended that ORG study the plan of ORG ( the ORG ) on peaceful resolution of the present military conflict [ between GPE and GPE ] , which I had approved .

The total deportation to LOC and GPE in DATE is one of the most tragic pages in DATE history of the NORP , since during this act of violence the national republic was completely liquidated and its territory separated among the adjacent regions . During DATE which the NORP people spent in exile , PERCENT of the population died .

It must be mentioned that the DATE deportation was the ninth large - scale act of genocide by the military and political authorities of ORG during the period of the CARDINAL - long armed confrontation between the NORP and NORP .

The very first deportation of the NORP was carried out by GPE as early as in DATE , after the destruction of the ORG headed by the first NORP of the GPE , PERSON . And after the destruction of the ORG headed by PERSON , when the NORP war was officially declared to be over in DATE , a considerable proportion of NORP ended up on the territory of GPE .

The last tsarist deportation was the expulsion of many NORP families to cold and faraway LOC in DATE . And the first mass deportations of the NORP during the NORP regime began in DATE of collectivisation and cultural revolution , in other words during PERSON ’s regime .

What is the aim of this historical overview ? The Government of the ORG regards this political resolution by ORG as an undoubtedly serious historic act on the way to achieving the long - awaited peace on blood - stained NORP soil . CARDINAL of a CARDINAL innocent civilians have already died in the ORG during the latest continuing NORP war , the entire infrastructure of the republic has been completely devastated , many towns , villages , schools , hospitals and cultural facilities have been destroyed , and there is still no light at the end of the tunnel .

Yet the international community is watching the deliberate and systematic murder of the entire nation with complete serenity and has not the slightest desire to react in any way to this criminal madness by the bloody ORG regime . This in turn engenders CARDINAL of new fighters in the republic , who replenish the ranks of the Chechen Resistance with fresh forces DATE , and who believe that they have a moral right to use the enemy ’s own methods against the enemy , [ an approach ] which we unequivocally condemn .

Even on this mournful date – the CARDINALth anniversary of the deportation – many NORP marked the occasion in extremely harsh conditions of unmotivated mass murders , extrajudicial executions , groundless detentions , severe ‘ clear - up’ operations , tortures , kidnappings , disappearances and ‘ residential’ checks by GPE ’s invaders and their accomplices , who have been committing excesses in the territory of the ORG for DATE .

As the legitimately elected President of GPE of GPE , I express , on behalf of the recalcitrant NORP people fighting for their freedom , sincere gratitude to all the members of ORG who took this fundamental decision to recognise the deportation of DATE as an act of genocide ...

DATE , just as DATE , the new global GPE ’s terror has become our national tragedy . Its inexorable millstones are grinding the gene pool of the unique and original NORP people , one of the indigenous nations of the ancient GPE , and this in the end may lead to [ the GPE ] total physical disappearance from the face of the earth .

Your decision in defence of the NORP people , living in a situation of ongoing genocide , is an additional moral incentive in the fight for survival . We are always open to constructive dialogue with the international community , and we invite independent experts from ORG and ORG to monitor the situation with their own eyes , so that the groundless and defamatory attacks on the NORP by GPE ’s propagandists , who insolently continue to pester the PACE , LOC and other authoritative organisations , can no longer distort the real picture in GPE of GPE .

There is no doubt that the ORG is DATE the centre of international terrorism , and [ the FAC ] selected GPE and the NORP as targets for testing terrorist methods which are being developed by the [ ORG ] . It would be naive to believe that the present regime in GPE would be too shy to use its terrorist experience in the international arena to solve its political and other problems . An example of this is the treacherous and cowardly terrorist attack by GPE ’s special services in LOC , which prematurely took the life of my predecessor , PERSON , and was carried out with the use of diplomatic channels .

Owing to the wide publicity given to the latest events concerning the PERSON family , you have become witnesses to CARDINAL of the numerous terrorist methods used by ORG GPE , notably taking hostages from the civilian population . In the majority of cases , hostages disappear without trace , and their bodies , showing traces of torture , are later discovered in secret graves that can be found all across the territory of GPE .

The genocide of the NORP people , which continues in DATE , is a direct and impertinent challenge to all of progressive mankind , let alone civilised and democratic LOC , which considers human rights as its main value and priority , thus making the human factor of paramount importance and the most valuable achievement of civilisation .

We would therefore like to believe that the NORP people have a right to hope that you will soon recognise the war which the PERSON regime imposed on GPE as genocide – a war which , in its scale , refinement , vandalism and inhumanity , overshadows the genocide of DATE .

I sincerely believe in the triumph of reason and justice on earth , and in the final victory of the NORP people . The bright day is near when the sacred NORP soil will be completely cleansed of the countless hordes of GPE ’s invaders and their accomplices among local nation - traitors . The Chechen Resistance will inevitably accomplish it ! Whatever the costs ! No one in the world should have any doubt about this ! ”

On DATE an officer from the prosecutor ’s office of ORG ( прокуратура PERSON области – “ the regional prosecutor ’s office ” ) reported that he had established that the articles written by unidentified authors contained public appeals to extremist activity – most notably to overthrow the ORG regime and forcibly change fundamental aspects of GPE ’s constitutional system .

The applicant was interviewed in connection with his publication of the articles . He stated that he supported the assessment given by PERSON in his article of the role of Mr PERSON , the President of GPE , in the history of GPE over DATE . He also stated that he strongly supported his appeal to stop the war and to resolve the military conflict in GPE in a peaceful political way , having made a commentary to that effect after the article . As regards the second article , the applicant explained that he had considered the material to be of great public importance for the people of GPE so had published it . He added that he had intended to convey to the readers the position of the leaders of CARDINAL of the parties to the military conflict in GPE as he had considered that , in the light of the continuing tragedy in LOC and terrorist threat , citizens should be entitled to have an idea of that position first hand rather than having the situation presented to them by GPE ’s mass media , which only reflected the point of view of the authorities of GPE .

On DATE the regional prosecutor ’s office instituted criminal proceedings under LAW ( public appeals to extremist activity through the mass media ) . The applicant was questioned on several occasions as a witness .

In reports dated DATE PERSON , a linguistic expert , stated that the articles in question contained no appeals to extremist activity but rather were aimed at inciting racial , ethnic and social discord ( рознь ) , associated with violence ( see paragraphs CARDINAL below ) . Following that conclusion , the authorities decided to conduct a further investigation under LAW ( incitement to hatred ( ненависть ) or enmity ( вражда ) and the humiliation of human dignity ) .

In a witness interview on DATE the applicant stated , inter alia , that he had published the CARDINAL articles as he had considered the material to be of great public significance and had intended to apprise readers in ORG of them . He had not pursued any other aim . He also stated that he had taken the decision to publish the articles , without being asked by anyone . In his opinion , the articles were decent and reflected their ORG point of view . He disagreed with the conclusions of the expert reports of DATE that the articles contained statements aimed at inciting enmity between the NORP and the NORP , or statements humiliating the human dignity of the NORP on the grounds of their ethnic origin . He also affirmed his principal position regarding that issue , namely that the actions of the Government of GPE and its armed forces during the conflict in GPE should be regarded as a war crime and a crime against mankind . The applicant further stated that he had considered that the publication of the articles promoted friendship and peace between the people of GPE and the NORP people . Lastly , he denied that he had obtained any payment for publishing the articles . During subsequent interviews the applicant consistently maintained his position .

By a decision of CARDINAL DATE the investigator in charge suspended the proceedings as those responsible remained unidentified . The decision referred to the statements the applicant had made during witness interviews to the effect that he had obtained the impugned documents from a website and published them with a view to apprising readers in ORG of them . The decision further stated that no evidence capable of refuting the applicant ’s arguments had been obtained during the investigation . It went on to say that there was evidence of a crime under LAW in the actions of those who had published the documents online ; however , since they remained unidentified the investigation had to be suspended .

NORP The decision of CARDINAL DATE was quashed by a deputy prosecutor of the regional prosecutor ’s office and the proceedings were resumed on DATE .

On DATE the applicant was formally charged under LAW and banned from leaving his place of residence . On the same date the investigator in charge refused a request by him for another linguistic expert examination of the articles , stating that the conclusions in the reports of DATE were well - reasoned and consistent .

By a decision of CARDINAL DATE the investigator in charge refused a request by the applicant for a comprehensive expert examination of the articles involving linguistic experts and historians including the history , culture and traditions of the NORP people . The grounds for the refusal were similar to those stated in the decision of CARDINAL September CARDINAL .

On DATE an indictment was served on the applicant and the case file was sent for trial .

In the context of the criminal proceedings against the applicant , the investigating authorities ordered a linguistic expert examination of the articles published by him . An expert was requested to answer whether they contained any appeals to extremist activity and , in particular , whether there were any appeals to activity aimed at advocating the exceptionality , supremacy or inferiority of citizens on the grounds of their racial , ethnic or social origin . The expert was also requested to reply whether the articles contained statements aimed at inciting hatred or enmity or humiliating the dignity of an individual or a group of individuals on the grounds of their race , ethnic origin , language , origin , attitude towards religion , or membership of a certain social group .

On DATE PERSON up CARDINAL expert reports . In a report on the linguistic expert examination of the first article , she pointed out that the text contained statements in the affirmative to the effect that “ the tragedy in the PERSON [ theatre ] and the war in GPE [ were ] beneficial for PERSON ” , that “ the cessation of war and a peace agreement with the leaders of the [ GPE of GPE meant ] the loss of power for PERSON ” , and that “ until PERSON [ guided ] the ORG , blood [ would ] continue to flow in GPE and GPE ” . The report then referred to the following statement :

“ It is still not too late for us to resolve all the questions at issue . But for this , the people of GPE should get rid of those for whom peace represents the loss of power or perhaps even a trial . As long as they remain in the FAC , blood will continue to flow in GPE and in GPE . ”

According to the report , that statement , analysed in the context of the whole article , contained a demand by the author to the people of GPE not to vote for PERSON in DATE . It went on to note that the author was also promising that , otherwise , killings and terrorist acts would be carried out in GPE and in GPE ( “ blood will continue to flow ... ” ) , verbally threatening the people of GPE . On the basis of that analysis , PERSON concluded that the above - mentioned statement was aimed at inciting racial , ethnic or social discord , associated with violence . The report provided no further details in respect of that conclusion . It also stated that the article contained no appeals to extremist activity or any statements aimed at advocating the exceptionality and supremacy of the NORP on the grounds of their ethnic origin .

The other report of CARDINAL DATE concerned a linguistic expert examination of the second article and stated that the following statements were aimed at inciting racial , ethnic and social hostility , associated with violence :

“ ... the DATE deportation was the ninth large - scale act of genocide by the military and political authorities of ORG GPE ... ”

“ The very first deportation of the NORP was carried out by GPE as early as in DATE ... ”

“ CARDINAL of a CARDINAL innocent civilians have already died in the [ GPE ] ( the CRI ) during the latest continuing NORP war ... ”

“ ... the international community ... has not the slightest desire to react in any way to this criminal madness by the bloody ORG regime ... ”

“ ... the CARDINALth anniversary of the deportation ... many NORP marked ... in extremely harsh conditions of unmotivated mass murders , extrajudicial executions , groundless detentions , severe ‘ clear - up’ operations , tortures , kidnappings , disappearances and ‘ residential’ checks by GPE ’s invaders and their accomplices , who have been committing excesses in the territory of the ORG for DATE ... ”

“ DATE , just as DATE , the new global GPE ’s terror has become our national tragedy . Its inexorable millstones are grinding the gene pool of the unique and original NORP people ... ”

“ ... we invite independent experts from ORG and ORG to monitor the situation with their own eyes , so that the groundless and defamatory attacks on the NORP by GPE ’s propagandists ... can no longer distort the real picture in GPE of GPE ... ”

“ There is no doubt that the ORG is DATE the centre of international terrorism , and [ the FAC ] selected GPE and the NORP as targets for testing terrorist methods which are being developed by the [ ORG ] ... ”

“ It would be naive to believe that the present regime in GPE would be too shy to use its terrorist experience in the international arena to solve its political and other problems ... ”

“ An example of this is the treacherous and cowardly terrorist attack by GPE ’s special services in LOC , which prematurely took the life of ... PERSON ... ”

“ ... you have become witnesses to one of the numerous terrorist methods used by ORG GPE , notably taking hostages from the civilian population ... ”

“ We would therefore like to believe that the NORP people have a right to hope that you will soon recognise the war which the PERSON regime imposed on GPE as genocide ... ”

“ The bright day is near when the sacred NORP soil will be completely cleansed of the countless hordes of GPE ’s invaders and their accomplices ... ”

The report stated that in all those statements the author of the article was directly pointing out that it was GPE and its invaders , military and political authorities , special services and ORG party who were carrying out “ genocide ” , “ unmotivated mass murders , extrajudicial executions , groundless detentions , severe ‘ clear - up’ operations , tortures , kidnappings , disappearances and ‘ residential’ checks ” , and that it was they who were “ committing excesses ” . It also indicated that “ the expression ‘ ORG party [ of Russia]’ should be understood to mean a designation of a group of people , organisation or ORG set in contrast in some aspect to another group of people , organisation or ORG ( in the present case , to GPE ) ” .

NORP The report also pointed out that the last CARDINAL sentences of the articles were exclamatory and expressed the author ’s contemptuous and angry attitude . According to the report , the CARDINAL sentences were “ an undisputable and unequivocal statement to the effect that the Chechen Resistance [ would ] inevitably liberate their soil of GPE ’s servicemen ” . The report went on to state that the expression “ Whatever the costs ! ” referred to the means and methods ( “ to use the enemy ’s own methods against the enemy ” , “ terrorist methods ” ) , and that it was of little importance whether those methods were condemned by the author or not , as the author ’s “ protective reservation ” “ to use the enemy ’s own methods against the enemy , [ an approach ] which we unequivocally condemn ” did not change the true meaning of the aforementioned expression .

T. also considered it necessary to note that the article contained a number of statements with contemptuous , angry stylistic connotations expressing a distinctly negative assessment of the actions of GPE ’s servicemen and governance of the military and political authorities of GPE , such as “ this criminal madness by the [ bloody ] ORG regime ” , “ GPE ’s invaders and their accomplices , who have been committing excesses in the territory of the ORG for DATE ” , “ the ORG is DATE the centre of international terrorism ” and “ the PERSON regime ” .

The report went on to note that the article in question also contained statements aimed at advocating the exceptionality and supremacy of the NORP on the grounds of their ethnic origin , namely :

“ ... the new global GPE ’s terror has become our national tragedy . Its inexorable millstones are grinding the gene pool of the unique and original NORP people , one of the indigenous nations of the ancient GPE ... ”

“ The bright day is near when the sacred NORP soil will be completely cleansed of the countless hordes of GPE ’s invaders ... ”

Lastly , the report concluded that the article contained no appeals to extremist activity .

At a hearing , the applicant denied the charges . He confirmed that he had decided to publish the articles in question in the newspaper ORG himself and supported the views expressed in them . He further argued that it had been his responsibility as a journalist to inform his readers of the position of the other party to the NORP conflict and of possible means to its peaceful resolution . According to the applicant , he had acted in the name of peace and friendship between various nations in GPE . He confirmed that he supported the ideas expressed in the articles .

The applicant ’s defence submitted a report by a linguistic expert , Ms ORG , which they had obtained at their own request at the investigation stage . It stated that the CARDINAL articles in question could not be regarded as inciting racial or national hatred and discord . Before the trial court , the applicant argued that PERSON conclusions in the reports of DATE were hypothetical and that she had not taken into account scientific recommendations for investigating the type of criminal offence with which he had been charged . The applicant also insisted that PERSON had exceeded her competence as she had given a legal qualification to his actions . He also pointed to discrepancies between the reports by PERSON submitted by the prosecution and the report by PERSON submitted by the defence .

A number of witnesses examined at the trial gave positive references about the applicant , stating that he was a man of good character and spoke out in favour of a peaceful resolution of the conflict in GPE .

Both experts were also cross - examined during the trial . The applicant submitted an audio recording of PERSON cross - examination , which he had made at the trial . It appears from the recording that , in reply to the applicant ’s questions , PERSON refused to give definitions of the notions of “ race ” , “ ethnic origin ” and “ social group ” , stating that it fell outside of her field of expertise .

In a judgment of CARDINAL DATE the ORG of PERSON ( “ the ORG ” ) , sitting in a single - judge formation composed of Judge PERSON , established that , in breach of sections CARDINAL and CARDINAL of LAW , the applicant , “ acting intentionally and using his official position as chief editor , [ had ] decided to publish CARDINAL articles which contained statements aimed at inciting enmity and humiliating the dignity of a group of persons on the grounds of race , ethnic origin and membership of a certain social group ” . The court then quoted the expressions referred to in the expert reports of DATE ( see paragraphs CARDINAL above ) and observed that CARDINAL copies of each of the CARDINAL issues in which the articles had been published had been distributed in GPE , GPE , GPE , PERSON and GPE .

ORG found that the applicant ’s guilt had been proven “ by witness statements and the case material , [ in particular ] by the conclusions of the forensic expert examinations , according to which the texts [ of the impugned articles contained ] no appeals to extremist activity , but [ contained ] statements aimed at inciting racial , ethnic or social discord , associated with violence ” . On the basis of the evidence adduced to it , ORG found it necessary to classify the applicant ’s actions as those punishable under LAW ( b ) of LAW , namely those aimed at inciting enmity and humiliating the dignity of a group of persons on the grounds of race , ethnic origin , membership of a social group , committed through the mass media by a person using his official position .

The trial court then found that , “ acting with direct intent , being aware of the nature of his actions and wishing to carry them out , [ the applicant ] , on his own , [ had taken ] a decision to publish CARDINAL articles which had , as their basis , statements aimed at inciting enmity and humiliating the dignity of persons on the grounds of race , ethnic origin and membership of a social group ” . It observed that “ during the trial [ the applicant had ] repeatedly expressed his support for the points of view reflected in the published articles ” and had “ pointed out that he [ had been ] carrying out his duty as a journalist by so doing ” . In the court ’s opinion , however , the arguments advanced by the applicant in his defence were “ untenable from a legal point of view and should be regarded as [ his ] attempt to defend himself to avoid punishment for the committed offence of medium gravity ” . The witness statements in the applicant ’s favour were held “ to concern only the applicant ’s personality ” and to be “ irrelevant for the present criminal case ” .

ORG further pointed out that it had based its guilty verdict “ on the lawful and well - founded expert reports [ of DATE ] , in which [ PERSON had ] thoroughly analysed the texts of both articles in their entirety and made a conclusion as to the presence in [ them ] of statements aimed at inciting racial , ethnic and social discord ” . The court considered that it had no reason to doubt or question the conclusions of the expert reports given , in particular , “ PERSON competence , professional skills and [ past ] experience . ”

ORG further rejected the report by PERSON as defective , saying that it was superficial and formalistic and that the expert examination in question had been carried out without due regard to an analysis of the texts . The court also noted in this connection that the applicant had paid for the report and that PERSON had not been informed of the relevant provisions of procedural legislation which criminalised the drawing up of knowingly false expert reports .

The trial court found it necessary to exclude from the charges against the applicant reference to “ the statements aimed at advocating the exceptionality and supremacy of the NORP on the grounds of their ethnicity ” “ in the absence of such wording in the provisions of LAW ” .

As regards the punishment to be imposed on the applicant , the court had regard to the nature and social dangerousness of the offence with which he had been charged and the fact that he had no criminal record , had positive references and had CARDINAL dependent children . It also stated that there was no evidence at that time that “ [ his ] illegal actions had entailed any serious consequences ” . The court therefore considered it appropriate to give the applicant a DATE suspended sentence and DATE probation .

On DATE the applicant applied to ORG to have the trial record amended . He complained that PERSON testimony , which was of crucial importance to his case , had been distorted in the record and that , in particular , it attributed certain statements to her which she had not made at the trial . He pointed out , more specifically , that during the trial PERSON had refused , in reply to his questions , to give definitions to the notions of “ race ” , “ ethnic origin ” and “ social group ” , stating that it was outside of her competence as a linguist and rather fell within the competence of a sociologist or historian . However , according to the official trial record , PERSON had defined the aforementioned notions . The applicant also asked the court to include in the case file a copy and transcript of the audio recording of the first - instance hearings , made by the defence , indicating the discrepancies between the actual statements made by PERSON and those reflected in the trial record .

By a decision of CARDINAL DATE Judge PERSON of ORG rejected the applicant ’s application . He noted that the trial record had been made in compliance with procedural law and fully reflected the actual testimony given by all witnesses . The judge further stated that neither the applicant nor his lawyer had notified ORG of the audio recording of PERSON cross - examination at the trial or requested that the court include it in the case file , and that there were no legal grounds at that time for entertaining the applicant ’s application .

On DATE , DATE and CARDINAL DATE respectively the applicant ’s CARDINAL lawyers and the applicant lodged appeals against his conviction .

On DATE the applicant filed supplementary appeal pleadings , reiterating his complaints concerning the shortcomings in the trial record with respect to PERSON testimony and requesting that the appellate court examine the audio recording made during the trial of PERSON statements and establish the discrepancy between them and those reflected in the trial record .

By a letter of CARDINAL DATE , Judge PERSON returned the applicant ’s supplementary pleadings , stating that , in substance , they reflected his remarks in respect of the trial record , which had already been examined and rejected on CARDINAL DATE .

On DATE the applicant resubmitted his supplementary pleadings of CARDINAL DATE to ORG ( “ the Regional Court ” ) and complained about Judge PERSON ’s refusal to accept them . In a letter of CARDINAL DATE ORG informed the applicant that it had accepted his pleadings of CARDINAL DATE for examination and had examined them during an appeal hearing on DATE , and therefore the breach of his right of appeal against the judgment of DATE had been remedied . The letter also stated that Judge PERSON ’s actions when he had unlawfully returned the applicant ’s supplementary pleadings of CARDINAL DATE would be discussed by ORG , but that at the same time there were insufficient grounds for instituting disciplinary proceedings against him .

In its decision of DATE ORG found the judgment of DATE reasoned and well - founded and upheld it on appeal . It reiterated the reasoning of the trial court , stating that the applicant ’s guilt for the offence with which he had been charged had been proven by the body of evidence examined during the trial DATE his own statements in which he had admitted having published the impugned articles and the expert reports of DATE . ORG endorsed the trial court ’s argument that there was no reason to question the conclusions of those reports . It also stated that the trial court had addressed PERSON report , which had been favourable to the applicant , having assessed it critically .

In DATE and DATE the applicant unsuccessfully attempted to have disciplinary and criminal proceedings instituted against Judge PERSON for alleged falsifying the trial record , exceeding his powers and obstructing justice .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in DATE in PERSON . He is currently detained in GPE .

In DATE a court found that the applicant , who suffered from schizophrenia , had committed a number of criminal offences , including possession of drugs and aggravated robbery , and ordered his admission to a psychiatric hospital . The applicant was placed in a mental institution in GPE , where he remained until DATE , when he escaped .

On DATE he was arrested by the NORP border police for an unlawful attempt to cross the border . On DATE the Lychakivsky ORG sentenced him to DATE administrative detention . According to a certificate issued by ORG in PERSON , the applicant was detained from DATE to DATE .

NORP In DATE the police opened a criminal investigation into the arson of vehicles belonging to a private company .

According to the applicant , on DATE he was arrested by the police in GPE , a town near the NORP border , during a random identity search operation . He was taken to a police station and allegedly beaten up to force him to confess to the criminal offences . The following day the applicant confessed to having set a vehicle on fire on DATE .

A report indicated that the applicant was arrested on DATE . On DATE he wrote a statement , confessing to having burnt out a car together with an accomplice . The investigator assigned a legal - aid lawyer and questioned the applicant in his presence . The applicant again confessed to the arson attack . He also mentioned that DATE he had escaped from a psychiatric hospital , where he underwent treatment under a court ’s order .

On DATE the investigator asked ORG of GPE to order the applicant ’s placement in custody .

On DATE the request was granted . ORG held that the applicant was charged with a serious criminal offence punishable by up to DATE imprisonment . His escape from a mental hospital and his lack of a permanent place of residence demonstrated his liability to abscond . Furthermore , relying on statements by a witness who had testified to having been approached by the applicant with a view to “ discussing charges against him ” , the court found that the applicant was prone to influencing witnesses and obstructing justice . It concluded that only detention could ensure the interests of justice .

The applicant was admitted to temporary detention facility no . GPE in GPE . He shared a cell with other detainees . There is no evidence suggesting that the detention authorities had made an effort to accommodate the applicant ’s mental disorder .

The applicant submitted that after his admission to the detention facility the police officers who had allegedly beaten him up after the arrest had again driven him to the police station for questioning , had handcuffed him to a heating unit and had left him in that position until TIME . He had not been given food for DATE and had only twice been allowed to use a toilet .

On DATE the applicant confessed to having blown up a car with an accomplice on DATE . He later repeated the confession at the crime scene .

NORP In DATE the investigating authorities charged the applicant with a robbery committed on DATE . They also asked ORG to extend the applicant ’s detention pending investigation , claiming that the case was complex and that more time was necessary to complete the investigation . The defence argued that the applicant was in need of psychiatric treatment and that he therefore should be released and admitted to a mental institution . On DATE the court extended his detention until DATE , having considered that that there were no circumstances warranting the applicant ’s release .

Another extension , based on the same reasoning , followed on DATE . The applicant was to be detained until DATE .

In the meantime , the investigators authorised a psychiatric expert examination of the applicant . In a report issued on DATE , psychiatrists indicated that the applicant suffered from paranoid continuous progressive schizophrenia and the initial stage of paraphrenia . The doctors also noted that that serious emotional disorder made the applicant particularly dangerous and thus called for his detention under constant psychiatric supervision .

Acting in response to the psychiatrists’ findings , the authorities appointed , on DATE , a legal guardian to assist the applicant in the proceedings .

On DATE the pre - trial investigation was closed and the applicant was committed for trial before ORG of Belgorod . Referring to his diagnosis , the prosecution sought his admission to a psychiatric hospital .

On DATE the applicant lodged an application with ORG asking for a preliminary hearing to be held in his case . He disputed the charges and declared his innocence . Without submitting documentary evidence the applicant argued that he had been detained in GPE DATE and DATE and thus he had not committed any crime during that period . He also disagreed with the expert report of DATE , stating that a psychiatric hospital with a lighter security regime would be more appropriate for his condition . Lastly , he asked that his presence at the trial be ensured , as he doubted the efficiency of the legal aid . He noted that he had never met with his legal guardian .

On DATE the court held the preliminary hearing . The applicant was present . The court was to decide on the applicant ’s continued detention and the need for his personal presence at trial .

The applicant and his legal - aid counsel expressed different opinions on several matters . While the applicant insisted on his transfer from the ordinary detention facility to a psychiatric hospital , his legal guardian and legal - aid lawyer agreed to the extension of his detention . As regards the necessity of his presence , the applicant ’s counsel argued that it was desirable , but not necessary . The legal guardian submitted that the issue could be discussed at a later stage . The applicant strongly insisted on his personal participation , as he was afraid that otherwise he could be convicted of crimes which he had not committed .

Having heard the parties , the court ordered the applicant ’s detention pending trial and stated that the trial was to be held in his absence , as the personal participation of persons suffering from a mental disorder was not provided for by LAW for cases such as the one to be decided .

The applicant challenged the decision of DATE , but DATE his claim was returned without examination on the merits . The court held that his lawyer or legal representative only had a right , under NORP law , to lodge an appeal in such category of cases .

On DATE the court held a trial hearing in the presence of a prosecutor , the victims , their lawyers , the applicant ’s counsel and legal guardian . The applicant himself was not brought to the court - house . The court read out records of the statements made by the victims at the pre - trial stage and heard testimony from CARDINAL of the victims . It further read out statements by CARDINAL witnesses and studied the applicant ’s written confessions made on CARDINAL DATE and DATE . It examined other documents and material evidence . Neither the legal - aid counsel nor the legal guardian made any applications or objections . They did not ask any questions during the victim ’s cross - examination and did not challenge the admissibility of any item of evidence , including the applicant ’s confession . During their closing arguments the lawyer and the guardian acknowledged that the applicant had committed the impugned offences . They stated that owing to his mental disorder he should not bear criminal or civil responsibility and should be admitted to a high - security psychiatric hospital under intensive supervision .

On DATE ORG delivered its judgment . It established that on DATE the applicant and his accomplice had set fire to a car ; that on DATE they had blown up another car and that on DATE they had committed a robbery . Relying on the psychiatric report of CARDINAL DATE the court ordered the applicant ’s treatment in a high - security psychiatric institution under intensive supervision . It held that the preventive measure in the form of the applicant ’s detention should remain unchanged until his admission to a psychiatric hospital .

On DATE the applicant appealed . He also asked the court to provide him with the trial records from the first - instance court proceedings . The applicant argued that he had been unlawfully convicted of crimes he had not committed , that his confession had been given under pressure and that his defence team , comprising the legal - aid counsel and the legal guardian assigned against his will , had been manifestly ineffective . The applicant submitted that on DATE he had still been in detention in GPE and therefore he could not have blown up a car in GPE on DATE .

A similar complaint was filed with the ORG regional prosecutor ’s office .

Neither the applicant ’s counsel , nor his guardian lodged an appeal against the judgment of CARDINAL DATE . It became final on DATE .

On CARDINAL DATE the court dismissed the applicant ’s application for access to the trial records as such a request could only be lodged by his defence counsel or legal guardian . DATE ORG returned the applicant ’s appeal against the judgment of DATE , informing him that his lawyer or legal guardian were the only ones with the authority to appeal . A similar response arrived from the prosecutor ’s office on DATE .

On DATE the judgment of CARDINAL DATE was enforced and the applicant was admitted to ORG .

In DATE the NORP regional prosecutor ’s office applied to the ORG of ORG for supervisory review of the case referring to the breach of the applicant ’s right to defence .

On DATE the request was granted . Invoking Article CARDINAL § CARDINAL ( c ) of the LAW , the court held that the trial court ’s decision to hold the hearings in the applicant ’s absence had been unjustified .

On DATE the Presidium of ORG acknowledged a violation of the applicant ’s right to defence , quashed the judgment of DATE and remitted the case to ORG for a fresh examination on the merits .

The first hearing in the case was to be held on DATE , but the court was unable to summon the applicant . The summons was returned with a note that the applicant could not be found at the indicated address . On DATE and DATE ORG repeatedly attempted to inform the applicant of the hearing by registered post and telegram . The summons was not served on the applicant as he had left the place of his residence .

On DATE ORG held that it could not proceed with the examination of the criminal case in view of the lack of any knowledge of his whereabouts . It returned the case to the investigating authorities with an order to find the applicant .

The parties did not inform ORG outcome of the proceedings .

On DATE the applicant complained to the NORP town prosecutor ’s office about his arrest and subsequent ill - treatment . The complaint contained no references to bodily injuries or possible witnesses to the beatings . It was not supported by any other evidence .

Having questioned the alleged perpetrators , who denied any instance of ill - treatment , the prosecutor ’s office refused to open a criminal case on DATE .

On DATE a higher - ranking prosecutor overturned the decision of DATE with an order to verify whether the applicant had had any injuries on his admission to the detention facility .

On DATE the prosecutor ’s office again refused to open a criminal case , mainly referring to the applicant ’s mental disorder . On DATE ORG upheld the refusal .

The applicant was detained in the following institutions : from DATE to DATE in the temporary detention facility ; from DATE to DATE in ORG ; from DATE to CARDINAL DATE in GPE High - Security Psychiatric Hospital ; and from DATE to DATE in ORG in GPE . The applicant was then discharged for outpatient treatment .

Shortly after his admission to the temporary detention facility the applicant was seen by a resident doctor , whom he informed that he had been suffering from schizophrenia since DATE .

In DATE he was examined by a psychiatrist . According to the doctor ’s report of DATE , the applicant had maniacal schizophrenia . Having noted that his condition did not call for any drug regimen , the doctor recommended his further examination and treatment in a mental institution .

A report prepared by the detention authorities for the applicant ’s examination by a psychiatric commission indicated that there were no peculiarities in his general behaviour . He had good relations with inmates and was respectful of the authorities . He never violated prison regulations .

On DATE the applicant was examined by a commission of doctors from ORG . The experts confirmed that the applicant suffered from paranoid continuous progressive schizophrenia and paraphrenia in the initial stage . They recommended treatment in a high - security medical institution with intensive supervision , given the danger the applicant posed to those around him .

During his stay in the temporary detention facility he received no antipsychotic drugs . No aggressive outbursts or other incidents were recorded .

DATE . On admission to ORG in DATE the applicant behaved aggressively . He was given antipsychotic medication . In DATE his mental condition improved . By DATE his behaviour was satisfactory .

During his stay in GPE High - Security Psychiatric Hospital and in ORG , GPE the applicant received standard psychiatric treatment with antipsychotic medication . His mental condition significantly ameliorated , he was no longer in need of inpatient treatment and he was therefore released .

A chest X - ray examination performed DATE after his admission to the temporary detention facility disclosed that the applicant had been infected with focal tuberculosis at the infiltration stage . The applicant was seen by a doctor . A standard treatment regimen with first - line antibacterial drugs was ordered .

Daily entries in his medical records show that DATE and DATE the applicant received the prescribed anti - tuberculosis drug regimen . A scheduled break in his treatment followed .

In ORG his treatment continued . A chest X - ray in DATE showed that the tuberculosis had been “ clinically cured ” , with only insignificant traces of the disease remaining in the left lung . On DATE doctors confirmed his complete recovery .

The submitted documents indicate that during his treatment the applicant was subjected to regular X - ray examinations , and blood and sputum tests .

A blood test carried out by ORG on DATE showed that the applicant had hepatitis C. On DATE he was seen by an infectious diseases specialist . Treatment with a regimen of drugs was prescribed . It resulted in the remission of the hepatitis in DATE . In DATE the doctor confirmed the full remission . When asked by the doctor about the possible causes of the infection , the applicant stated that he had shared his safety razor with inmates in the temporary detention facility .

NORP Subsequent medical tests and check - ups did not show any deterioration in the applicant ’s health . It appears from the submitted documents that the illness has remained dormant ever since .

On DATE the applicant was arrested in GPE for drug trafficking . ORG of PERSON authorised his detention . He was placed in a temporary detention facility . In DATE he was transferred to a psychiatric hospital in GPE .


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 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

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

The applicant was born in DATE and lives in GPE .

Prior to the events in question , he had been actively involved in NORP politics . From DATE to DATE and from DATE to CARDINAL DATE he was a Member of ORG and from DATE to DATE he was First Deputy Minister of ORG . His father - in - law was President of ORG from DATE .

DATE and then DATE the applicant was one of the equity partners of the law firm ORG ( subsequently renamed ORG ) .

NORP In DATE the ORG - owned joint - stock company ORG ( hereinafter referred to as “ NORP ” ) , which was involved in several serious disputes before ORG , decided to extend the legal services agreement which it had concluded with ORG in DATE and which was about to expire .

On DATE the applicant , acting in his capacity as First Deputy Minister of Justice , sent a letter to GPE , at the latter ’s request , informing it of the existence of exceptional conditions , as provided under domestic law , for purchasing legal services from ORG without inviting bids from other law firms . It was noted that ORG had been providing GPE with legal services for a long time , including in the proceedings before ORG . Accordingly , changing the legal DATE provider would be costly and unjustified .

The applicant ’s letter , which was subsequently submitted to ORG , provided the basis for PERSON to contract further legal services from ORG without pursuing a bidding procedure .

On DATE ORG ( “ the ORG ” ) opened a criminal case under LAW of LAW ( “ the ORG ” ; see paragraph CARDINAL below ) in respect of alleged forgery of the letter of CARDINAL DATE by unspecified officials at ORG . On DATE the GPE ORG ( “ the ORG ” ) quashed the above ruling after a complaint by the applicant . On DATE and DATE ORG ( “ the Court of Appeal ” ) and ORG , respectively , upheld the first - instance court ’s decision .

On DATE the ORG opened another criminal case in respect of the same facts , this time under LAW of the ORG ( see paragraph CARDINAL below ) on suspicion of abuse of office with grave consequences by unspecified ORG officials . On DATE the ORG quashed that ruling . Its decision was upheld by the appellate court on DATE . It appears that it was not challenged on points of law .

On DATE the ORG faxed the applicant “ an invitation ” to go to its offices at TIME DATE for questioning about “ possible abuse of office and forgery by officials of ORG ” .

On DATE the ORG re - sent the “ invitation ” to the applicant . This time his questioning was expected at TIME on DATE . However , he did not appear before the prosecutor .

On DATE the ORG instructed the GPE city police to establish the applicant ’s whereabouts and to hand him a summons for questioning at TIME on DATE . The letter noted that the applicant had not been present at his address as established by the investigation .

Also on DATE the ORG enquired with ORG regarding the applicant ’s trips abroad in DATE and DATE . According to the information it received on DATE , the applicant had left GPE CARDINAL times during the period in question .

On DATE an official of the GPE city police wrote to the ORG that its information about the applicant ’s address was outdated ( he had sold the flat in DATE and had not lived there since ) .

On DATE the ORG enquired with the GPE city and regional address bureau about the applicant ’s registered address and received a reply on DATE that he lived in GPE in the GPE region .

On DATE the ORG instituted criminal proceedings against the applicant under LAW of the ORG ( exceeding of powers by an official leading to grave consequences – see paragraph CARDINAL below ) . In describing the applicant ’s actus reus , the prosecutor found that he had bypassed the registry of ORG when accepting the request from PERSON and issuing his letter in reply ; that his conclusion about the existence of exceptional conditions for PERSON not to pursue a bidding procedure had been in contradiction with the applicable legal provisions ; and that he had had no right to put that conclusion on official ORG paper . The subsequent extension by PERSON of its contract with ORG had caused considerable losses to the ORG budget .

DATE the investigator called the applicant by telephone to summon him for questioning . At the time , he was in hospital with his wife , who was giving birth to their third child .

In TIME of DATE , the applicant appeared before the investigator and after being questioned was arrested at TIME under Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ( “ the ORG ” ; see paragraph CARDINAL below ) . According to the official report , the applicant had been arrested on the grounds that “ eyewitnesses , including victims , directly identified [ him ] as the one who had committed the offence ” . His arrest was justified by the necessity to prevent him evading justice or from obstructing the establishment of the truth , and to ensure the execution of an eventual court judgment . The arrest report had the following description of the facts giving rise to the prosecution :

“ ... during the period from DATE [ the applicant ] , exceeding his official powers , issued an expert conclusion with knowingly false information , as a result of which considerable damage , amounting to CARDINAL [ NORP ] hryvnias [ equal to CARDINAL at the time ] was caused to [ GPE ] . In other words , he is suspected of committing a criminal offence under LAW of the [ ORG ] . ”

The procedural rights of arrestees were also listed . The applicant signed it with a remark that he considered his arrest as unlawful given that he had complied with the investigator ’s summons in accordance with the ORG and that there was no risk of him hindering the establishment of the truth as he was no longer a civil servant .

On DATE the applicant was officially charged under LAW of the ORG .

On DATE the applicant challenged his arrest before a court . He claimed that the investigator had failed to refer to any factual circumstances to justify his arrest under Articles CARDINAL and CARDINAL of the ORG . The applicant contended that he had appeared before the investigator upon the latter ’s first summons , despite the fact that on DATE his wife had been in hospital giving birth . That indicated , in his opinion , that he had had no intention of absconding or hindering the investigation .

Also on DATE the investigator applied to the court for the applicant to be held in pre - trial detention . The necessity of that preventive measure was explained as follows :

“ Having regard to [ the applicant ’s ] role in the commission of the offence and his causing serious damage to ORG interests , his age , state of health , family and financial situation , and other circumstances characterising him , the investigation has grounds to believe that [ the applicant ] will try to influence the witnesses in this case given his extensive networks in law - enforcement bodies and among judicial authorities .

Furthermore , the case file contains sufficient evidence showing that [ the applicant ] avoided appearing before the investigation authorities , that he travels abroad regularly and that he is absent from his registered address . That being so , if at liberty , he will abscond or hinder the investigation and the implementation of procedural decisions .

Therefore , the application of any other preventive measure in respect of the accused ... will not be able to ensure his proper procedural conduct and the fulfilment of procedural decisions ... ”

On DATE ORG found that the case file did not contain sufficient information about the applicant in order to take a decision on the investigator ’s application . In particular , the file did not contain sufficient information about the applicant ’s health , family and financial situation or his occupation . The court therefore extended the applicant ’s preliminary detention to DATE as a temporary preventive measure . The decision was not subject to appeal .

On DATE ORG allowed the investigator ’s application ( see paragraph CARDINAL above ) as well - founded and ordered the applicant ’s pre - trial detention . The court further held that that finding rendered it unnecessary to examine alternative preventive measures . It rejected the applicant ’s complaint about his arrest as unsubstantiated .

On DATE the applicant appealed . He reiterated his earlier arguments on the alleged unlawfulness of his arrest by the investigator ( see paragraph CARDINAL above ) . Furthermore , he complained that ORG had failed to justify the application of what was the most intrusive preventive measure available in his case . He argued that the court had not taken into account the fact that he was the sole breadwinner for his CARDINAL children and his wife and that their newborn child was still in hospital . Positive character references and his requests for a non - custodial preventive measure had also been disregarded .

On DATE the President of ORG applied to ORG , offering his personal surety for the applicant ’s release . In the alternative , he indicated that he was ready to pay bail for the applicant .

On DATE ORG rejected the applicant ’s appeal and upheld the findings and reasoning of ORG decision of DATE . There was no reference in the ruling to the application by ORG President .

On DATE the applicant was additionally charged with forging an official document under LAW ( see paragraph DATE below ) .

On DATE the pre - trial investigation was declared completed and the applicant was given access to the case file .

On DATE ORG extended the applicant ’s pre - trial detention to DATE , finding that there were no grounds to change the preliminary measure to a more lenient one .

On DATE the investigator released the applicant under an undertaking not to abscond . The change of preventive measure was explained by the fact that the applicant could no longer influence witnesses or impede the investigation . The investigator also made a general reference to the applicant ’s age , state of health , family and financial situation , as well as the fact that he had children to care for , permanent employment and positive character references .

As known from public available material , some media outlets linked the applicant ’s release to a private meeting between his father - in - law as the President of ORG and the President of GPE DATE , on DATE . The applicant publicly denied those rumours .

The parties did not inform the ORG of any further developments in the criminal proceedings against the applicant . Publicly available material shows that he was amnestied in DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Torture)

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

The applicant was born in DATE and lives in GPE .

At TIME on DATE QUANTITY police officers from the Sovetskiy district police visited the applicant and invited him to answer some questions . With the permission of his mother , the applicant , a minor at the time , accompanied them to the Sovetskiy district police station in GPE .

The applicant ’s interview took place in room no . CARDINAL . He was asked questions concerning the rape of a girl he knew , but stated that he had nothing to do with the crime .

According to the applicant , some police officers tied him up and put him on the floor . TIME they untied him and requested that he confess to the rape . He refused . CARDINAL or QUANTITY police officers punched and kicked him in the head and body , throttled him with a baton , put a plastic bag over his head and blocked off his access to air , sat and jumped on him having covered him with a blanket , grabbed him by the ears and forced him to do the splits .

Fearing that the ill - treatment would continue , the applicant signed a self - incriminating statement at the request of the police officers . He was then taken to see PERSON , an investigator at the prosecutor ’s office . After being questioned by PERSON he was released . He remained at the police station for TIME . No documents concerning his detention were issued .

On DATE and CARDINAL DATE the applicant underwent various medical examinations , including by a forensic medical expert . Additional opinions by forensic medical experts were given later . According to the applicant ’s medical records , he sustained the following injuries : a closed head injury , concussion , abrasions on and behind the ears and on the arms and knees , bruising on the right shoulder and ribcage and bruises on the buttocks . He was unable to attend school until DATE , having been issued a sick note on CARDINAL DATE for concussion .

NORP The rape victim gave a statement saying that the applicant was not the person who had raped her . No criminal proceedings were brought against him .

On DATE the applicant ’s mother lodged a complaint with the Sovetskiy district police , alleging that the police officers had subjected her son to ill - treatment in order to make him confess to a crime which he had never committed , and requesting that they be prosecuted . On DATE her complaint was transferred to the Sovetskiy district prosecutor ’s office .

In accordance with LAW ( CARDINAL ) of LAW ( “ CCrP ” ) , CARDINAL refusals to institute criminal proceedings against the police officers were issued on the grounds that the constituent elements of a crime were missing . They were each set aside because a comprehensive inquiry had not been carried out . On DATE the ORG NORP regional prosecutor ’s office instituted criminal proceedings under LAW ( a ) of LAW ( abuse of authority with the use of violence ) .

On DATE the applicant was granted victim status .

Police officers A. and PERSON gave statements saying that on DATE they had invited the applicant to accompany them to the police station . He had remained in room no . CARDINAL until evening and they had been present in the room , as had police officer PERSON , who had taken statements from him . They denied any ill - treatment of the applicant .

On CARDINAL DATE the applicant failed to identify A. and PERSON during an identification parade .

On DATE he identified operative police officer PERSON from a photograph as CARDINAL of the men who had ill - treated him . On DATE the investigation was suspended on the grounds that the perpetrator had not been identified .

On DATE the investigation was resumed and the applicant identified F. during an identification parade . During his examination as a suspect F. confirmed that on CARDINAL DATE he had taken statements from the applicant in room no . CARDINAL , but denied using any violence .

On DATE a face - to - face confrontation was carried out between the applicant and F. The applicant stated that F. had taken part in his illtreatment and had taken the confession from him . He was unable to recall any specific acts of violence by him .

On DATE the criminal proceedings against F. were discontinued under LAW CCrP on the grounds that he had not been involved in the crime .

On DATE an on - site examination of room no . CARDINAL was carried out .

On DATE a confrontation was held between the applicant and police officers GPE and PERSON , who again both denied using any violence towards the applicant . The applicant stated that PERSON had taken part in his illtreatment , but he was unable to recall any specific acts of violence by him . He explained that he had not previously identified A. because he had poor eyesight . On DATE the investigating authority refused to bring criminal proceedings against A. on the grounds that the constituent elements of a crime were missing . The applicant stated that PERSON had not assaulted him , but had interviewed him and had been present during his ill - treatment .

On DATE photographs of several other police officers were shown to the applicant . He did not identify the culprits .

On DATE the criminal proceedings were suspended on the grounds that the perpetrators had not been identified . The investigation was subsequently resumed and on DATE was suspended again on the same grounds .

In DATE the applicant brought a civil claim against ORG , seeking MONEY ( RUB ) in damages in connection with his torture by the police .

On DATE the ORG of PERSON ( “ the ORG ” ) acknowledged a violation of the applicant ’s right not to be subjected to treatment proscribed under LAW , allowed the applicant ’s civil claim in part and awarded him RUB MONEY ( about QUANTITY ( ORG ) ) .

It referred to Convention caselaw under LAW obligation to carry out an effective investigation , notably the case of PERSON v. GPE ( no . GPE , DATE ) . It noted that the criminal proceedings had been initiated after CARDINAL refusals to do so and that it had been acknowledged that the applicant had been the victim of a crime .

ORG gave credence to the applicant ’s mother ’s version of events , which it found to be consistent with other evidence in the case , in particular statements by her that the applicant had had no injuries when he had left home with the police officers and that his health had appeared to have been damaged when he had returned from the police station . Noting that the respondent authorities and the LOC police , acting as a third party in the proceedings , had submitted no evidence capable of proving that the applicant could have received the injuries ( see paragraph CARDINAL above ) in other circumstances , ORG established that they had been sustained during his detention at the police station .

ORG noted that the applicant had been a minor at the time and that , according to his submissions at the hearing , various acts of violence , to which the police officers of the LOC police had , in the exercise of their duties , subjected him ( see paragraph PERSON above ) , had caused him mental and physical suffering . According to the applicant , he had suffered severe pain as a result of the police officers’ violent actions , which had included being punched , kicked , throttled with a baton , being unable to breath , being sat on and jumped on , being forced to do the splits and so on . He had been dizzy , nauseous and sick . Over DATE he had been weak and dizzy and had felt heaviness in the back of his head . When the police officers had tried to throttle him he had feared for his life . There had been no one to ask for help . The fact that he had suffered harm at the hands of the police , who were supposed to be there to protect people , had been especially traumatic . He had been scared , subdued and depressed . His honour and dignity had been damaged . In his eyes , by forcing him to sign the confession the police officers had humiliated him .

Having examined the evidence in its entirety , in particular the medical evidence of the applicant ’s injuries , ORG found that the applicant ’s mental and physical suffering had been caused by the unlawful actions of the police officers of the LOC police department , in particular by the inhuman and degrading treatment and by inflicting bodily harm . Therefore , his rights under LAW on the Rights of the Child and Article CARDINAL of LAW had been violated .

Relying on LAW , in particular the provisions concerning the right to compensation for damage sustained as a result of the unlawful actions of State organs ( LAW held that the ORG was responsible for the applicant ’s ill - treatment regardless of the fact that the guilt of specific individuals had so far not been established .

The parties appealed against the judgment . The applicant contested the amount of compensation , considering it to be disproportionate to the suffering he had endured .

On DATE the ORG dismissed the applicant ’s appeal and upheld the judgment . However , it emphasised the fact that , being a minor at the time , to be held at the police station for TIME was a long time , and that the authorities had been unable to provide any legitimate reasons for his detention .


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

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

The applicant was born in DATE and lives in GPE .

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

On DATE the applicant bought his first agricultural property of QUANTITY consisting of CARDINAL plots situated in PERSON , in the municipality of PERSON , between lakes PERSON , GPE and PERSON . CARDINAL wooden buildings – a house , a barn and DATE were situated on one of the plots , no . CARDINAL/CARDINAL .

On DATE the Wigry Landscape Park ( FAC ) was created .

On DATE the applicant bought further property extending over QUANTITY in LOC , consisting of CARDINAL plots classified as farmland , CARDINAL . CARDINAL , CARDINAL and CARDINAL . There were no buildings situated on these plots .

On DATE an ordinance by ORG created ORG . The applicant ’s land was incorporated into the area covered by the park .

The applicant submitted that he had not been informed about this incorporation at the time and had not had any means of challenging this measure , either immediately following the action or after DATE , when LAW CARDINAL to the Convention entered into force in respect of GPE .

NORP The applicant divided his land into CARDINAL smaller plots , sold some of them to third parties and gave some of them to various members of his family . He currently owns plots ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL .

In DATE a new local land development plan was adopted by the local municipality . Under this plan the applicant ’s plots could not be used for construction purposes .

On DATE the Director of the Park informed the applicant that his property was located in the zone of the Lakes Wigry and PERSON in FAC and that the local development plan prohibited any construction for purposes other than maintaining the water reserves of harbours and beaches .

On DATE the Director of the Park responded to a proposal from the applicant to sell his properties in PERSON , comprising a total surface area of QUANTITY , to the Park . The Director asked the applicant to reassess the price , arguing that the proposed price had been based on the assumption that the plots concerned would be suitable for construction purposes , whereas they in fact consisted exclusively of forest and farmland . The applicant was also informed that , since his plots were situated between CARDINAL lakes , they fell within the protection zone which extended QUANTITY out from the shore of each lake and within which no construction was allowed .

The applicant submitted that from DATE to CARDINAL CARDINAL dwellings had been built on plots in the immediate vicinity of his land . The Government submitted that the Director of ORG had given consent only with regard to the expansion of existing dwellings ( supplementation of the existing farm buildings ) .

In DATE and DATE the applicant divided plot No . CARDINAL/CARDINAL on which the farm dwelling ( siedlisko ) was located and sold it to CARDINAL third parties . The new owners requested and were granted permits to develop the buildings which already existed on the acquired property .

On DATE the local land development plan adopted in DATE expired .

On DATE the applicant asked the Mayor of Suwałki to inform him of the designation of his property according to the DATE local land development plan .

On DATE the Mayor informed the applicant that his land was situated within the limits of ORG , falling partly within the lake protection zone and that there was no provision for construction thereon . According to the local land development plan , the applicant ’s property consisted of forest area and farmland on which further afforestation was recommended .

On DATE the applicant asked the Mayor of Suwałki to pay him compensation amounting to MONEY ( PLN ) for amendments made to the local land development plan which had excluded the possibility of any construction on his property .

On DATE the Mayor replied that the applicant ’s request was ill - founded because the plan in question , which had been adopted by resolution of ORG on DATE , had not changed the designation of the applicant ’s property . The previous binding development plan did not provide for any construction on the applicant ’s land , which was situated on agricultural areas with recommended afforestation .

On DATE the applicant requested that a preliminary construction permit ( warunki zabudowy i zagospodarowania terenu ) be granted in respect of plots nos . CARDINAL and CARDINAL .

On DATE the Mayor of PERSON refused to grant the permit requested . It was found that the planned development , consisting of the construction of a house and an outbuilding , would have been situated too close to the lake shore , in an area in which no construction was allowed according to local land development plan . Moreover , the Director of ORG had voiced a negative opinion as regards the planned development .

The applicant appealed to ORG ( PERSON ) . He complained , among other things , that he had been treated in a discriminatory manner because owners of the adjacent plots had obtained building permits and had been able to develop their land .

On DATE the ORG upheld the challenged decision . ORG confirmed that the development was inadmissible taking into consideration the provisions of the DATE local land development plan which expressly prohibited construction of any new buildings in the area concerned . As regards the allegedly discriminatory treatment , ORG found that the owners of some plots situated in the neighbourhood had indeed obtained building permits . However , some buildings had previously existed on their property , so the permits relied on by the applicant were not ones that concerned new constructions . ORG did not find any discriminatory treatment because the applicant ’s situation had been legally and factually different from that of his neighbours . As regards the CARDINAL building permits granted to the other persons living in the vicinity , the ORG further noted that proceedings had been instituted as a matter of course to declare the respective decisions null and void .

The applicant lodged a complaint against this decision with ORG ( PERSON ) .

On DATE ORG dismissed the applicant ’s complaint . The ORG endorsed the reasoning of ORG decision and found no breach of law in the administrative proceedings complained of .

In DATE the applicant submitted CARDINAL applications requesting that the municipality issue preliminary construction permits with regard to plots CARDINAL . CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL . On DATE the Mayor of Suwałki ordered the applicant to rectify some shortcomings in his applications . The applicant failed to do so and , consequently , they were not processed .

In DATE the applicant requested that the municipality issue preliminary construction permits in respect of plots nos . CARDINAL , CARDINAL and CARDINAL . The applicant sought permission to develop his property by constructing a new residential building , an outbuilding , a septic tank and a well , with access to public road no . CARDINAL .

The municipality invited the Park Director to state his position with regard to the applicant ’s request . The Director declined to give his consent to the applicant ’s project .

The applicant appealed to the Environment Minister ( Minister PERSON ) , who quashed the decision and ordered that the case be reexamined . It was noted that the contested decision had been based on LAW , while it should have been based on LAW of DATE .

On DATE the Director again refused to give his consent to the applicant ’s request . The Director emphasised the historical and landscape values of the area in question and was of the opinion that any construction there would have a negative influence on the unique values on the landscape which ORG had to protect .

On DATE the Director rectified the basis for his previous decision .

On DATE the applicant appealed to the Environment Minister .

On DATE the Environment Minister upheld the challenged decision .

The applicant lodged an appeal against this decision with ORG ( ORG PERSON ) .

On DATE ORG gave judgment , quashing both the challenged decision and the preceding decision of DATE , finding that the administrative authorities concerned had relied on the wrong legal basis . The ORG went on to say that the first - instance decision had not been consistent with the second - instance decision . The first refused the applicant permission because the land in question had not been developed and “ had never been intended for construction purposes ” and the second contained in its reasoning the statement that “ there were already other buildings in the vicinity , which did not justify granting further construction permits ” .

On DATE an inspection of the plots CARDINAL , CARDINAL and CARDINAL took place .

On DATE the Director of ORG again refused to give his consent to the planned development . He considered that the planned construction failed to fulfil CARDINAL of the requirements laid down in LAW of the DATE Act on Conservation of Nature , namely “ it was not consistent with the aims of the Park ” ( nie służy celom parku ) , because of its commercial purpose , amongst other things , given that the applicant was intending to run a guesthouse there . The Director admitted that there were buildings in the close vicinity of the applicant ’s property and that they had recently been developed . However , the applicant intended to build on previously undeveloped land QUANTITY wide which , in the Director ’s view , would negatively affect the landscape and the lakeshore .

The applicant appealed to the Environment Minister .

On DATE a new local development plan was adopted , which came into force on DATE . According to the plan , no construction of any buildings on the applicant ’s property was allowed .

Additionally , on DATE the Environment Minister replied to the parliamentary query ( interpelacja poselska ) made on behalf of the applicant by ORG , a member of ORG . The Minister confirmed , among other things , that the local land development plan for GPE , in force before the DATE , had excluded any new construction on the applicant ’s plots nos . CARDINAL , CARDINAL and CARDINAL .

On DATE the Mayor of Suwałki discontinued the administrative proceedings taking the view that the entry into force of the new local development plan rendered continuation of the proceedings pointless since , even if a decision on the merits were to be given , it would have to be declared ineffectual ( stwierdzenie wygaśnięcia decyzji ) .

In the meantime , by resolution of DATE before the local development plan was drawn up – ORG of GPE adopted framework local planning policy guidelines ( studium kierunków i uwarunkowań zagospodarowania przestrzennego gminy ) which provided that the plots belonging to the applicant were to become forest land and that no construction could be carried out on them .

On DATE the applicant requested that the municipality rectify a breach of legal order in so far as the guidelines had reflected ORG Director ’s position that a ban on all construction projects should be imposed on his plot . He submitted that this measure amounted to de facto expropriation without any entitlement to compensation and consequently breached the LAW in so far as the latter guarantees the right to the peaceful enjoyment of one ’s possessions .

As the municipality refused to grant his request , he submitted a complaint to ORG in GPE , contesting the lawfulness of the local planning policy guidelines . He argued that the guidelines directly affected his situation . Not only had they made it impossible for him to pursue any construction projects , they also seriously restricted his ownership rights to such an extent that they became illusory . The guidelines inflicted a serious disadvantage on him in that he was unable to build a shed and had to rent storage space from his neighbours . The restrictions did not correspond to any pressing social need as his farm was not located in virgin territory . There were CARDINAL farms in the vicinity , all of them with dwellings and sheds , the land was being used for agricultural purposes , there was a road and a power supply , and the installation of a sewage system was planned in the future .

By a judgment of DATE ORG dismissed his appeal . The court first addressed the municipality ’s argument that the policy guidelines were not an individual administrative measure addressed to a particular individual , and capable of affecting his legal interests , and which therefore could not be challenged before an administrative court . The court found that , despite being essentially a policy instrument addressed primarily to other municipal bodies and guiding them in the implementation of local planning policy , they affected the applicant ’s legal situation to a degree sufficient to hold that he had a legal interest in challenging their lawfulness in judicial proceedings . This was so because the adoption of such guidelines would necessarily influence the outcome of future proceedings in which individuals might seek the adoption of measures falling within the scope of the local planning policy .

The court further stated that the municipality ’s authority to impose on individuals restrictions regarding the exercise of their property rights was determined by the applicable laws , including those regulating environmental protection . This authority was not absolute , however , as the municipality was also obliged to respect the public interest , to weigh it against the relevant private interests in the process of land planning and development , to act rationally and to respect the principle of proportionality .

In the present case , the Law on Nature Conservation of DATE provided for an obligation for the municipality – when adopting the guidelines – to take due note of the position of the Director of ORG which , in so far as it concerned plots of land situated within the limits of national parks and their nearest neighbourhood ( otulina ) , was binding on the municipality .

The court noted that the applicant had never had a right to develop his property , meaning that the adoption of the framework local planning policy guidelines had not deprived him of any rights . The plan adopted in DATE did not provide for the applicant ’s land to be used for construction purposes . It only provided for the owners to maintain their buildings in good technical condition .

In the present case the restrictions imposed on the applicant were in compliance with the applicable laws and did not breach the applicant ’s individual rights . In so far as he had referred to construction projects on neighbouring plots , this issue did not fall within the ambit of the present case , in which only the lawfulness of the measures imposed on him could be examined .

The applicant lodged a cassation against this judgment with ORG . He essentially argued that the measures complained of were in breach of LAW ( see paragraph CARDINAL below ) and that they amounted to an excessive restriction of his ownership rights .

On DATE ORG dismissed his cassation appeal . Firstly it held that the lower court ’s view that the municipality was obliged to ascertain the Director ’s position , and was bound by it , was correct .

DATE ’s rights , had acted in compliance with the applicable laws , was correct . The manner in which the municipality had exercised its powers did not go beyond the limits defined by the constitutional protection of property . This conclusion was reinforced by the fact that the applicant ’s plots were in any event not already subject to construction under the plan adopted in DATE .

The court went on to state :

“ However , the court shared the conclusions of the cassation appeal that solutions adopted in the planning policy guidelines are capable of breaching the applicant ’s legal interest , given that he had expressed his wish to change the use to which his plots had hitherto been put by pursuing construction projects on them . The fact that under the previous planning instruments concerning his land the applicant was also prevented from building on it can demonstrate only that his legal situation has not changed , but is not tantamount to saying that his interest as an owner has not been breached , given that he can not bring his projects to fruition . ”

In so far as the applicant argued that the measure complained of was not justified because a number of dwellings had been constructed on neighbouring plots , the court noted that this objection went to the substance of the position formulated by the Director of ORG . It could not be examined in the proceedings as they were concerned only with the lawfulness of the framework guidelines .

On DATE the applicant wrote to the Director of ORG , proposing that the situation be settled by way of the sale to GPE CARDINAL of his plots ( Nos . CARDINAL , CARDINAL , DATE ) on the Wigry lake shore , for a price to be determined by an expert , in return for the Director ’s agreement to change the guidelines .

In a letter of DATE the Director rejected the applicant ’s proposal . He referred to the planning history of his plots and the planning regulation which designated the applicant ’s land for afforestation . He reiterated that even on the basis of the DATE plan , which had expired on DATE , no construction had been allowed on plots no . CARDINAL and CARDINAL . The situation did not change after adoption of the new plan . As regards the applicant ’s proposal to sell some of his plots to the LOC , the Director submitted that the LOC was generally interested in buying up plots on its territory and did so as long as its financial means allowed . However , he stated that it was not possible to buy the plots in return for amendments to the local development plan .


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);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

The applicant was born in DATE and lives in GPE .

On DATE ORG recognised the applicant ’s and other heirs inherited title to a plot of land measuring QUANTITY m , of which QUANTITY . m were restored ( “ the first Commission decision ” ) . They would be compensated by way of an equivalent plot of land within their property ( i njihet dhe i kthehet ish pronarit pronësia mbi këtë truall duke kompensuar me truall ekuivalent brenda truallit të tij ) in respect of a plot of land measuring CARDINAL sq . m ( “ the first plot of land ” ) , of which QUANTITY . m were occupied with illegal constructions . The occupiers were entitled to buy the plot of land measuring QUANTITY m or rent it on the basis of an agreement to be concluded between the parties . It also recognised the right of first refusal of a public building measuring QUANTITY . m situated within the plot of land measuring CARDINAL sq . m. It further decided that the applicant and other heirs would be compensated in CARDINAL of the ways provided for by law in respect of another plot of land measuring QUANTITY m ( “ the second plot of land ” ) . Finally , it decided to examine the applicant ’s and other heirs’ inherited property right in respect of the remaining plot of land measuring CARDINAL sq . m at a later stage ( “ the third plot of land ” ) . To date , ORG decision has been taken in respect of the remaining plot of land measuring CARDINAL sq . m.

On DATE the applicant ’s and other heirs’ inherited title over a plot of land measuring CARDINAL sq . m , of which the first plot of land was part , was registered into the land register . The relevant data entered in the land register reads as follows :

“ On DATE is registered into the land register an unoccupied plot of land measuring QUANTITY . m ; an unoccupied plot of land measuring CARDINAL sq . m , which was compensated by way of an equivalent plot of land within their property ... ”

To date , the applicant has not been provided with any compensation concerning the first and second plots of land .

On DATE , ORG , by virtue of another decision ( “ the second Commission decision ” ) , recognised the applicant ’s and other heirs’ inherited title to another plot of land measuring QUANTITY . m ( “ the fourth plot of land ” ) . Since the entire plot of land was occupied , it decided that the applicant and other heirs would be compensated in CARDINAL of the ways provided for by law . To date , the applicant has not been provided with any compensation .