Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

NORP The applicant , Mr NORP PERSON , is an NORP and NORP national , who was born in DATE and lives in GPE , GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) are represented by their Agent , PERSON , of ORG .

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

NORP In DATE , the applicant ’s father , claimed restitution of his family ’s property , an apartment building in GPE , which had been unlawfully expropriated in DATE . His property restitution claim , filed in the context of the ownership reform process taking place in GPE at that time , gave rise to a number of administrative and court proceedings . The main issues in the proceedings , in brief , were the following : on which grounds Y. ’s father , PERSON , had left GPE in DATE ; whether he had already received compensation for the property left in GPE and unlawfully expropriated by the NORP authorities ; and what the legal implications of these facts were .

By a judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL ) ORG found for Y. in his complaint against a decision of DATE of ORG for the Return of and Compensation for ORG ( NORP võõrandatud vara tagastamise ja kompenseerimise PERSON linnakomisjon ) .

On DATE Y. died and the applicant pursued the proceedings as his successor .

Following an appeal by ORG , on DATE ORG quashed ORG judgment . It annulled the decision of ORG on the ground that pertinent evidence had not been assessed and ordered ORG Y. ’s claim for the return of the property . ORG noted in its judgment that it did not instruct the ORG to reach any particular outcome in resolving the matter . The ORG appealed . On DATE ORG declined to examine the ORG ’s appeal and ORG judgment became final .

On DATE the applicant , dissatisfied with the ORG ’s delayed examination of his claim , requested that ORG impose a fine on ORG for its failure to comply with the judgment of DATE .

On DATE the ORG decided to postpone the examination of Y. ’s claim pending the receipt of information from the NORP archives on whether PERSON ’s father had received compensation for the property in question from GPE .

On DATE ORG fined the Committee CARDINAL kroons ( EEK ) ( MONEY ) for its failure to resolve the matter . It noted that ORG had taken certain measures in order to gather the information required to reach a decision , but found that the delay was unjustified .

On DATE ORG dismissed the ORG ’s appeal against that decision . ORG appealed to ORG , which declined to examine the appeal on DATE .

NORP In the meantime , on DATE , the ORG issued a decision by which it declared that the property in question was subject to the ownership reform process and that Y. ’s successors ( that is , the applicant ) were “ legally entitled subjects ” ( õigustatud subjektid ) in respect of the property . The decision contained a summary of the prior proceedings including , inter alia , reference to ORG judgment of DATE , by which ORG had been ordered to reexamine Y. ’s claim for the return of the property .

On DATE , having , in the meantime , received information from the NORP archives , according to which ORG ’s father had received compensation in DATE from GPE for his property left in GPE , the ORG invalidated its decision of DATE and dismissed ORG ’s request for the return of the property . The decision also contained a summary of the prior proceedings , similar to the decision of CARDINAL DATE ( see paragraph CARDINAL above ) .

On DATE the applicant challenged the ORG ’s decision of CARDINAL DATE before ORG .

On DATE ORG annulled the ORG ’s decision of CARDINAL DATE .

ORG , the ORG ’s legal successor , appealed .

On DATE ORG quashed ORG judgment and dismissed the applicant ’s complaint against the ORG ’s impugned decision . ORG upheld ORG finding that Y. ’s father had already received compensation for the property concerned from GPE . It also found that the ORG had been entitled to re - examine the case after the new facts had arisen and to take a new decision . The applicant did not appeal .

On DATE ORG declined to examine an appeal lodged by PERSON , another claimant in the proceedings alongside the applicant .

In the meantime , and parallel to the above - mentioned administrative court proceedings , the parties were involved in civil litigation . Following the annulment of certain administrative decisions , as a result of which ORG had acquired title to the property in question , GPE brought an action against DATE succeeded by the applicant . GPE claimed title to the property .

On DATE ORG found for GPE and recognised their title . Y. appealed .

On DATE ORG suspended the proceedings pending the outcome of the administrative court proceedings in case no . CARDINAL - CARDINAL - CARDINAL . On DATE the examination of the case was resumed .

On DATE ORG dismissed the appeal and upheld ORG judgment . It took note of the applicant ’s argument that the question of the return of the property had not been finally resolved in the context of the ownership reform and that the administrative courts had ordered GPE to re - examine the matter . Nevertheless , the court found that it was not within its jurisdiction to resolve administrative matters and that it was still for GPE to decide in administrative proceedings whether the property was to be returned to the applicant .


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 5-4 - Review of lawfulness of detention)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and is detained in Krems .

On DATE the applicant shot his cousin , PERSON , CARDINAL times in the chest and stomach . His victim died . The applicant then decapitated GPE and disposed of his head .

On DATE the applicant shot dead CARDINAL women , namely his former girlfriend , GPE , as well as her mother , PERSON , using the same gun as he had used for the previous murder .

The applicant was arrested on CARDINAL DATE and remanded in custody .

On DATE ORG ( Straflandesgericht – hereinafter , “ the Criminal Court ” ) , sitting as an assize court ( GPE ) , convicted the applicant of triple murder and disturbing the peace of the dead ( Störung der Totenruhe ) . He was found to be criminally responsible for his acts and was sentenced to DATE imprisonment . In addition to the sentence , ORG ordered his detention in an institution for mentally ill offenders in accordance with LAW of LAW ; see paragraph DATE below ) . A psychiatric expert , PERSON , had found in his expert opinion that the applicant presented a distinctive picture of secondary personality defence mechanisms , in the sense of suppression of fear , emotion and sexuality . His potential for aggression was increased and he was emotionally unstable and could easily become aggressive . Moreover , there were clear signs of an identity disorder .

The above judgment was upheld by ORG ) on DATE .

NORP The applicant has been detained in institutions for mentally ill offenders since DATE . He served his prison sentence until CARDINAL DATE ( as the time he had spent in pre - trial detention – see paragraph CARDINAL above – was counted towards his prison sentence ) . Thereafter , he remained in preventive detention , subject to yearly review proceedings in accordance with LAW of LAW ( see paragraph CARDINAL below ) . He was first detained in the units for mentally ill offenders of GPE and FAC ( GPE ) , and since DATE has been detained in the respective unit of FAC in GPE .

On an unknown date in DATE , the applicant applied for release from the institution for mentally ill offenders . He argued that he had completed individual therapy with Professor PERSON in the GPE - Mittersteig Prison as well as specialised therapy preparing him for his release with an external therapist . CARDINAL psychiatric experts had attested that the danger emanating from him had abated or was significantly reduced . Even though different entities had suggested that he be granted privileges ( PERSON ) under LAW ( Strafvollzugsgesetz – see paragraph CARDINAL below ) , he had not yet been granted any . The applicant claimed that his lawyer had offered him a job and a small apartment if he were released .

On DATE the Krems a.d . ORG ( PERSON – hereinafter , “ the ORG ” ) ordered the continuation of the applicant ’s detention in the institution for mentally ill offenders . It referred to an expert opinion of CARDINAL DATE by PERSON , who had stated that the applicant ’s condition had stabilised and that the danger emanating from him had considerably abated in respect of the closed and protected living environment of the prison . However , the same could not be said with certainty for a life outside prison . The director of the prison did not recommend releasing the applicant either , as the special therapy he needed in order to be prepared for release was only available in LOC . The applicant waived his right to appeal against that decision .

On DATE the applicant again applied for release , reiterating that PERSON in his expert opinion of DATE had attested that a process of mental stabilisation had taken place and that it was highly likely that the danger emanating from him was significantly reduced . The applicant claimed that he had successfully completed psychotherapy , which he considered as sufficient preparation for life outside of prison . He emphasised that he was willing to be treated , but that currently he was not receiving any therapy . Moreover , he reminded the court that his lawyer would be able to supply a flat and a job for him if he were released . He complained that the prison authorities had refused his requests to be granted privileges , and as a consequence the domestic courts had dismissed his previous applications for release as he had not been prepared for it .

On DATE ORG , having held an oral hearing , ordered the continuation of the applicant ’s detention . It confirmed that Dr L. , in his additional expert opinion of DATE , had referred to the fact that the applicant ’s condition had stabilised . Even though the applicant had developed an aversion to psychotherapy , he did not refuse to talk to psychiatrists . He was actively seeking a dialogue with them . However , PERSON also found that no protection and support would be provided for the applicant after his release . Without such support , conditional release would be too risky from a psychiatric point of view . The stress caused by the overwhelming feeling of unpreparedness for release could lead to near - psychotic or micropsychotic disorders , the danger of which was unpredictable .

ORG also referred to the expert opinion of PERSON of DATE and the forensic expert opinion by the GPE - Mittersteig Prison of DATE , as well as the most recent expert opinion by Dr B. ( the resident psychologist of FAC , where the applicant was held at that time ) of DATE . The latter had come to the conclusion that the applicant still suffered from a pronounced combined personality disorder with paranoid , schizoid , emotionally unstable and narcissistic elements . PERSON responded to the generally positive tenor of PERSON opinion and found that the stabilisation process was rather a reaction to the “ enemy ” institution , namely the prison , in which the applicant was being held , and was not to be considered real or rendering the applicant capable of surviving the challenges of DATE life outside prison . Moreover , at that time , PERSON did not recommend further therapy for the applicant , who was not prepared for any self - reflection and was not ready to process the experiences and challenges of normal social interaction , and thus was still likely to present a danger to others . The director of ORG also recommended the continuation of the applicant ’s detention , adding that his institution was not equipped to deal with the preparation of his release , which it considered to be a complex and risk - prone task . Only the GPE - Mittersteig Prison was capable of preparing the applicant for his release . The applicant in any event refused to undergo any more therapy .

ORG found that owing to the applicant ’s negative approach to therapy , it was impossible to prepare him for release , even though his counsel had confirmed the offer of a flat and a job , and the applicant appeared to be stable . In line with the argumentation of the expert opinions of PERSON and PERSON , the court held that in the light of the gravity of the underlying criminal offences , there was a danger that an unprepared release would overwhelm the applicant and could have unpredictable consequences . Therefore , the application for conditional release had to be dismissed .

On DATE , ORG ( Oberlandesgericht – hereinafter , “ the ORG of Appeal ” ) dismissed an appeal lodged by the applicant . It referred to the expert opinions obtained in DATE , DATE , DATE , DATE and DATE , and confirmed the decision of the first - instance court . It also reiterated that ORG psychology service had recommended a transfer to FAC , where the necessary therapy was available .

The applicant lodged an application for release with ORG on DATE and submitted additional observations on DATE and DATE . In essence , he repeated the arguments he had made in the previous review proceedings ( see paragraphs CARDINAL and CARDINAL above ) . He also requested that a new expert opinion be obtained from Dr L.

On DATE ORG , ordered the continuation of the applicant ’s detention in an institution for mentally ill offenders , referring to the most recent expert opinion by Dr B. of DATE ( see paragraph CARDINAL above ) . It found that there had been no changes in his circumstances and therefore declined the request for a new expert opinion . Recently obtained information from ORG psychology service stated that the applicant still refused to undergo further therapy at their institution and requested preparation for his release . It reiterated that the necessary preparation was not available in FAC , but only in FAC . However , the latter had not yet responded to a request for the applicant ’s transfer . ORG further referred to the reasoning in previous review decisions to avoid repetition , in particular the one by ORG of DATE ( see paragraph CARDINAL above ) . It stressed that the applicant still refused to deal with his offences in a therapeutic setting , which in turn was a prerequisite for being granted privileges . In the light of the gravity of the underlying offence , the statements obtained from the various prison services as well as the recent expert opinions , ORG concluded that the applicant still presented a danger to society .

On DATE ORG dismissed an appeal lodged by the applicant as unfounded , as it was evident that there had not been a change in his negative attitude towards further therapy .

On DATE the applicant applied for conditional release from the institution .

On DATE ORG held an oral hearing and subsequently ordered an expert opinion in the framework of the yearly judicial review proceedings . On DATE the applicant submitted his observations on the review . He stated that the expert opinion of PERSON ( see paragraph CARDINAL above ) had been wrong and the court should therefore rather rely on PERSON expert opinion ( see paragraphs CARDINAL - CARDINAL above ) . As the applicant refused to be examined by any expert , the court held another hearing on DATE . On that occasion , the presiding judge reproached the applicant with the fact that he could not expect to be granted privileges if he did not collaborate with the experts and the authorities . The applicant replied that previously one of the experts had found that privileges were a prerequisite for his release , and that another expert had even come to the conclusion that he could already be released . He explained that he had refused to be examined by a psychiatrist because he was not suffering from a mental illness . The applicant repeated that his lawyer had offered him a small apartment and work in his law firm . He was not willing to live in an assisted - living facility or to follow psychotherapy after his eventual release , but would agree to work with a probation officer .

On DATE , ORG ordered the continuation of the applicant ’s detention . Based on the information on file , the latest expert opinion of PERSON of DATE and the information from the director of the prison , it concluded that the danger emanating from the applicant still persisted and therefore his application for release had to be dismissed .

That decision was upheld by ORG on DATE . The court summarised the genesis of the case so far and the applicant ’s complaints , and reiterated the lower court ’s findings . As to its own conclusion , it almost exclusively referred to its previous decisions in the applicant ’s case of CARDINAL DATE and DATE , holding that there had been no significant changes in the applicant ’s situation , in particular that he still refused any further therapy .

On DATE the applicant applied for release from the institution for mentally ill offenders .

On DATE ORG again ordered the continuation of the applicant ’s detention , essentially reiterating the reasoning it had given in its decision of DATE ( see paragraph CARDINAL above ) . It appears that ORG did not hold an oral hearing prior to that decision . It referred to the “ current ” expert opinion of PERSON of DATE ( see paragraph CARDINAL above ) and statements by the prison administration and the social service of the prison ( Maßnahmenteam ) that the applicant should not be released , as he refused to undergo therapy and still posed a threat . ORG reiterated that the applicant could only be prepared for his release at FAC , but found that it would be unreasonable to order his transfer because of his negative attitude towards therapy .

On DATE ORG dismissed an appeal lodged by the applicant as unfounded . It held that ORG had had no choice but to take into consideration the expert opinion of DATE , as in the course of the CARDINAL review proceedings the applicant had refused to be examined by an expert . ORG again referred to the reasoning it had given in its CARDINAL previous decisions relating to the applicant .

At the time of the above decision , the applicant was almost fortynine DATE old and had spent DATE of his life in different institutions for mentally ill offenders .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE . She has suffered from a psychotic disorder for a number of years and has been admitted to psychiatric hospitals for treatment several times since DATE . The present case concerns CARDINAL consecutive periods of confinement in such hospitals DATE .

On DATE the applicant ’s family physician received a telephone call from the local police informing him that the applicant had broken into an unoccupied house , apparently with the intention of sleeping there , and that they were having trouble communicating with her . He referred her to ORG , a public healthcare institution , indicating that she was disturbing the environment and behaving psychotically .

On DATE the applicant was admitted to the closed ward of ORG . On admission , she signed a consent form for confinement and psychiatric treatment . In her exchange with the hospital staff , the applicant said that she was “ possessed by energetic and physical people sent to her through the lens of cameras operated by President PERSON ” . The psychiatrists treating her diagnosed her with schizophrenia and noted that she exhibited “ delusional interpretations and perceptual anomalies as well as features of depersonalisation and derealisation ” . The applicant was started on medication consisting of DATE CARDINAL times a day , CARDINAL ORG tablets a day , QUANTITY of ORG CARDINAL times a day , and an ampoule each of GPE and ORG a day . No mention was made in her medical records of her having refused to take any medication .

On DATE the applicant started to ask how long she would have to stay in the hospital and told the psychiatrists that she would resist . The hospital notified ORG of her confinement , indicating the reasons given by the family physician for referring her to the hospital .

On DATE ORG appointed a lawyer , ORG , to represent the applicant in proceedings it had commenced in her respect . It also scheduled a confinement hearing for DATE . A notification of the hearing , addressed to the applicant , was sent to the hospital ; however , it is not clear when or whether it was received by the applicant .

On DATE a hearing was held regarding the applicant ’s confinement . The applicant and CARDINAL of the psychiatrists treating her were heard . The psychiatrist stated that the applicant had apparently been living in a garage and had broken into a house , and that she had been found wandering around and had been psychotic and uncontrollable . The applicant stated that she would rather be at home , that she did not understand why she had been taken to the hospital , but that other people she named , including a former politician , might have more of an idea . She provided an account of the events which had taken place prior to her confinement , in which she made no mention of having broken into a house . She also stated that she missed her father , and that she had been taking medication while at home .

In DATE that followed , the applicant continued her treatment and , according to the medical records , also continued to agree to therapy . On DATE the GPE was replaced with GPE and the dosage of ORG was reduced to CARDINAL mg a day . Eventually , the applicant was taken off the ORG altogether .

Meanwhile , on DATE the applicant gave PERSON , a lawyer from GPE , power of attorney . She told the representative that she was receiving treatment against her will , but was afraid to refuse it for fear that medication would be administered to her by force .

On DATE the applicant ’s representative PERSON notified the hospital that the applicant did not consent to her medical treatment and requested ORG to inform the applicant of her treatment and its side effects . She also pointed out that the applicant had the right to express her own free will and to refuse the treatment if she so wished .

On DATE the applicant , through her representative PERSON , lodged a constitutional complaint against the “ material act ” of her involuntary confinement and an application for a review of the constitutionality of section CARDINAL of ORG , and of sections CARDINAL of ORG . She alleged , inter alia , that she was unable to effectively enforce her right to judicial review in the involuntary confinement proceedings , as no formal decision had been rendered until that time . She therefore argued that ORG should examine the alleged violations of her human rights committed through the “ material act ” of her confinement , as any other interpretation would constitute a breach of her right to judicial review within the meaning of LAW . In addition , she requested that the disputed legislation be repealed with immediate effect , and that she be released from the hospital pending a decision on her confinement .

On DATE PERSON wrote to the hospital again , asking it to stop forcibly administering medication to the applicant .

On DATE the applicant was transferred from the closed to the open ward of ORG . On DATE ORG was informed of the applicant ’s transfer and terminated the proceedings regarding her confinement .

On DATE the applicant was discharged from ORG at her own request . In this regard , it was noted by her psychiatrists that she no longer exhibited any manifestly psychotic symptoms , but that she should continue medical treatment to prevent herself from having a psychotic relapse with violent outbursts . The final diagnosis listed in the applicant ’s medical records was disorganised ( hebephrenic ) schizophrenia .

On DATE ORG rejected the applicant ’s constitutional complaint of CARDINAL DATE against her involuntary confinement in ORG for failure to exhaust the available remedies . It also rejected a further constitutional complaint she had lodged on DATE relating to her confinement in ORG on the same grounds ( see paragraph CARDINAL below ) . It found that these complaints had been lodged even before the first - instance decisions on the involuntary confinement were rendered . As regards the applicant ’s application for a review of the provisions of ORG , ORG reiterated its findings in an earlier decision ( no . ORG ) that the DATE time - limit for issuing a court order for confinement could be too long ( see paragraph QUANTITY below ) . However , it was not possible to repeal the disputed legislation with immediate effect , as that would leave a sizeable gap in the legal system , so the application was dismissed .

On DATE the applicant was taken to the emergency medical services by the police . On arrival , she stated that she was being “ raped by the police , the emergency medical technicians , everybody ” . The emergency physician referred her to ORG , a public healthcare institution , where she was taken by ambulance . It was noted in her admission record that her speech was dissociated and that she exhibited signs of paranoia and megalomaniac delusions . Under the heading “ the degree of the patient ’s rejection of hospitalisation ” the emergency psychiatrist circled the statement that the applicant “ accepted hospitalisation owing to the situation ( the staff being present ) ” . Under the heading “ the need to use compulsory measures on patients rejecting hospitalisation ” the psychiatrist circled the statement “ negative attitude , no compulsory measures necessary ” . It is evident from the applicant ’s medical records that during DATE of her admission , she was restless , talkative and unable to follow the activity programme . She spent DATE of her treatment in the admission ward .

As of CARDINAL DATE the applicant was placed in the closed ward . Based on her medical records , it appears that she remained talkative but found it somewhat difficult to engage in meaningful discussion . She still exhibited delusions of persecution and was convinced that her father had bribed the doctors and the police to keep her in the hospital . She was also convinced that the garage where she had been living was bugged by the ORG . On DATE the applicant was visited by her representative PERSON

NORP The applicant was given CARDINAL drops of GPE CARDINAL times DATE , CARDINAL ORG tablets a day and CARDINAL mg of GPE CARDINAL times a day . The GPE was subsequently replaced with QUANTITY of ORG CARDINAL times a day . In the latter stages of her treatment , the applicant received ORG and CARDINAL mg of GPE CARDINAL times a day . Eventually , the applicant was only treated with GPE . During the treatment she often complained of various physical pains and discomfort , in particular painful muscle spasms and toothache .

On DATE the applicant informed ORG of her confinement and lodged an application for an interlocutory order that her medical treatment be discontinued and that she be released from the hospital pending a final decision on the matter . On DATE the applicant also lodged a constitutional complaint against the “ material act ” of her confinement and an application for a review of the constitutionality of section CARDINAL of ORG and of sections CARDINAL of ORG . The applicant ’s notification of involuntary confinement was received by the local court on DATE .

On DATE ORG appointed a lawyer , GPE , to represent the applicant in the involuntary confinement proceedings . On DATE a hearing was held which took TIME . The applicant ’s court - appointed representative was present , but , according to the applicant , did not participate actively . At the hearing , the applicant was examined by an expert from another healthcare institution , who immediately upon examination submitted an opinion stating that the applicant ’s narrative showed signs of a paranoid delusional system which had probably lasted for a long time and to which she was uncritical . She considered that the applicant needed treatment in a closed ward for DATE .

Based on this expert opinion , ORG ordered that the applicant be confined in the closed ward of ORG until DATE .

On DATE the applicant ’s application for an interlocutory order was dismissed by ORG on the grounds that personality rights could not be protected by injunctive relief .

On DATE the applicant was visited by her court - appointed lawyer GPE , who wanted her to give him the power of attorney . According to the applicant ’s medical records , the psychiatrist on duty was informed of the visit and gave his consent for the applicant to sign the document .

On DATE the applicant appealed against ORG order regarding her continued confinement and the dismissal of her application for an interlocutory order .

On DATE the applicant spoke to the then head of the hospital , complaining that there was no reason for her to remain there . She also stated that she did not understand why she was on medication , although she did confirm that she was taking ORG as part of her outpatient treatment .

According to the ORG , which relied on her medical records , later that day the applicant was transferred to the open ward of ORG . The applicant , however , maintained that the transfer took place on DATE . On DATE the applicant ’s representative PERSON notified ORG of the applicant ’s transfer .

During the course of her stay in the open ward of the hospital , on DATE the applicant was allowed by her psychiatrist to withdraw some of the money she had received as social assistance . In addition , on CARDINAL DATE she was permitted to recover her clothes . She was allowed to leave the hospital LOC for TIME several times during her stay , on CARDINAL , DATE , DATE and DATE , and CARDINAL , DATE , DATE and DATE . Her psychiatrists noted that she was disciplined in her outings and always returned to the hospital at the designated time .

On DATE ORG allowed the applicant ’s appeal against ORG decisions of CARDINAL and DATE and remitted the case to the first - instance court . The higher court pointed out that the court ’s reasoning lacked reference to the decisive factors which would indicate that it was necessary to deprive the applicant of her liberty . As regards the dismissal of the applicant ’s application for an interlocutory order , the higher court rejected the lower court ’s interpretation that no legal basis existed for an interlocutory order for the protection of the applicant ’s personality rights . The court also pointed out that the applicant ’s request for her medical treatment to be stopped warranted separate consideration .

On DATE the applicant lodged a constitutional complaint against ORG decision and a request for a procedure to be initiated for the review of the constitutionality of section DATE of ORG and of sections CARDINAL of ORG . She insisted that remitting her case to the first - instance court without ordering her release from the hospital had violated her right to personal freedom .

As already stated ( see paragraph CARDINAL above ) , on DATE ORG rejected the applicant ’s constitutional complaints of CARDINAL and CARDINAL DATE against both periods of her confinement .

On DATE the applicant lodged a supervisory appeal with ORG regarding the proceedings before ORG . On DATE the Ministry informed the applicant that the local court had set the date of the hearing for DATE . The summons to the hearing was sent to the applicant ’s home address .

On DATE the father of the applicant , PERSON , informed the local court that he had been served a summons addressed to the applicant for a hearing scheduled for DATE . The judge agreed to allow the applicant ’s father to attend the scheduled hearing .

On DATE the applicant ’s representative PERSON informed the local court that the summons to the hearing of DATE was unclear as to whether the representative herself had been summoned , or whether the applicant had been summoned by way of her representative . In addition , she proposed that a new summons be served in which the reasons for the hearing be set out .

DATE the applicant ’s court - appointed representative GPE , the applicant ’s father GPE and her chosen representative PERSON were present at the hearing . PERSON proposed that the hearing be rescheduled since the applicant had not been properly summoned . She also informed the local court that the applicant was being held in the open ward of ORG but that the hospital was refusing to release her , or to discontinue her medical treatment . On DATE the local court appointed another expert to give an opinion on the applicant ’s condition .

On DATE ORG again ruled on the applicant ’s application for an interlocutory order concerning the termination of her medical treatment and her immediate release from the psychiatric hospital . Contrary to the reasoning of ORG decision of DATE , the application was again dismissed on the grounds that no legal basis existed for an interlocutory order for the protection of a person ’s personality rights . The applicant appealed against this decision .

On DATE the applicant requested that the judge sitting on the case be removed on the grounds , inter alia , that he had refused to adjourn and reschedule the hearing of DATE despite the fact that she had not been properly summoned . Furthermore , she alleged that the judge had violated her right to privacy by allowing her father to attend the hearing . She also requested that the appointed expert be withdrawn . She further requested the court to decide on her immediate release and to exclude her father from the proceedings . On DATE the applicant ’s request for the withdrawal of the judge was dismissed .

On DATE ORG amended its decision of DATE by also including in its operative part the dismissal of the applicant ’s application that her father be prevented from participating in the hearing .

On DATE ORG again allowed the applicant ’s appeal against the decision of DATE and remitted the case to the first - instance court . It reiterated that a valid legal basis did exist for an interlocutory order for the applicant ’s release from the psychiatric hospital and that her request for her medication to be stopped deserved separate consideration . Moreover , the court took note of information in the case file that the applicant had meanwhile been transferred to the open ward . Accordingly , it pointed out that the rules of non - contentious procedure regarding involuntary confinement only applied to closed wards of psychiatric hospitals . It ordered the lower court to examine the question of whether the conditions for continuing the non - contentious proceedings still applied . Otherwise , the applicant was supposed to apply for injunctive relief against infringement of her personality rights .

On DATE the applicant , through her representative PERSON , lodged an appeal against the decision of CARDINAL DATE on the dismissal of the application concerning her father ’s participation in the hearing . The court - appointed representative GPE responded to the appeal lodged by PERSON , arguing that it should be dismissed . On DATE ORG upheld the decision of DATE .

On DATE ORG sent a letter to ORG , requesting information about when the applicant had been transferred to the open ward .

On DATE the local court received a reply from the hospital stating that the applicant had been transferred to the open ward on DATE .

On DATE ORG terminated the proceedings regarding the applicant ’s involuntary confinement in the psychiatric hospital because of her transfer to the open ward .

Meanwhile the applicant renewed contact with her father , who arranged for her to spend TIME at his home . Arrangements were subsequently made for the applicant to move in with him after her release from the hospital .

On DATE the applicant and her father visited the ORG , where the applicant declared that she wished her father to act as her guardian in financial and health matters , and her father declared himself willing to provide her with a home and to assume responsibility for her medical treatment and finances . A record was made of the applicant and her father ’s declarations and they were informed that they could address any possible disagreements regarding the arrangement to the centre .

On DATE ORG rejected the applicant ’s constitutional complaint against the decision of DATE and her application for constitutional review ( see paragraph CARDINAL above ) for lack of legal interest . It observed that the applicant was no longer confined in the closed ward of the psychiatric hospital .

DATE . On DATE the applicant lodged an appeal against the decision of CARDINAL DATE , stressing , inter alia , that her transfer to the open ward of the hospital did not change the fact that she was confined there against her will . She also complained about the lack of an effective remedy . Moreover , she pointed out that no decision had been made regarding the necessity of her confinement and that she had not been informed of the grounds on which her continuing confinement was based . She further lodged an application for her court - appointed representative GPE to be taken off the case for failure to act in her interests .

On DATE ORG dismissed the applicant ’s appeal . It held that , since the applicant had been placed in an open ward , the rules of non - contentious procedure were no longer applicable . The court referred the applicant to the rules of contentious procedure , under which it was possible to apply for injunctive relief against infringement of personality rights .

On DATE the applicant was released from ORG . The diagnosis listed on her release form was paranoid schizophrenia .

On DATE ORG rejected the applicant ’s application for an interlocutory order owing to the fact that the proceedings on the merits had been terminated .

On DATE the applicant lodged an appeal on points of law against the decision of DATE . She invoked , inter alia , LAW , and maintained that the fact that she had been placed in the open ward did not imply that she was held there voluntarily . She alleged that any attempt on her part to leave the hospital , while in the open ward , could result in her being brought back to the hospital by force and placed back in the closed ward , as in practice the transfer to the open ward constituted a privilege enjoyed by compliant patients . In this regard the applicant pointed out , relying on section CARDINAL of ORG ( see paragraph CARDINAL below ) , that the legal basis for involuntary admission and treatment in a psychiatric hospital did not specify in which ward patients are to be placed . She also pointed out that psychiatric hospitals were not required to notify the competent courts of ORG possible readmission to the closed ward in cases such as her own , where they had already been transferred to the open ward while the order of confinement was still in effect . In her opinion the provisions on involuntary confinement in a psychiatric hospital and the related procedure were still applicable and she was entitled to obtain a decision on the lawfulness of her earlier confinement .

On DATE ORG rejected the applicant ’s appeal on points of law on the grounds that the applicant lacked legal interest , since the confinement proceedings had been terminated and she had been released from the hospital .

On DATE the applicant lodged a constitutional complaint against ORG decision to reject her appeal on points of law in connection with ORG decision of DATE and ORG decision of DATE to terminate the proceedings regarding her involuntary confinement in ORG . She reiterated the complaints made regarding her stay in the open ward of ORG and those relating to the alleged breaches of procedural rules in the confinement proceedings . Further , she pointed out that she was entitled to obtain a decision on the merits with regard to her complaints , having regard to the importance of her constitutionally guaranteed right to personal liberty .

On DATE ORG dismissed the applicant ’s constitutional complaint against ORG decision as unfounded , and rejected her complaint against ORG decision on the grounds that it had been lodged out of time . The court pointed out that the lodging of an inadmissible appeal on points of law had not suspended the time - limit for lodging the constitutional complaint .


George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a citizen of GPE and GPE , who was born in DATE . He was represented before the ORG by Mr PERSON and PERSON , lawyers practising in ORG and GPE , respectively .

The Government of GPE ( “ the Government ” ) were represented by their Deputy Agent , PERSON .

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

On DATE the applicant killed his mother .

On DATE the ORG found the applicant not guilty by reason of insanity ( paranoid schizophrenia ) and referred the case to ORG ( “ the ORG ” ) . The judgment took effect on or DATE ( the applicant has not indicated the exact date ) .

On DATE ORG provisionally placed the applicant in FAC ( “ the Psychiatric Annex ” ) as from DATE .

NORP In his application to the Court , the applicant claimed that he was still detained in FAC on the basis of the administrative decision , despite the fact that the social work centres did not have jurisdiction to order psychiatric detention .

The Government disputed the facts as submitted by the applicant as incomplete and misleading . They informed ORG following facts .

On DATE the ORG initiated proceedings before ORG on the necessity of the applicant ’s detention .

On DATE the ORG established that the applicant ’s mental disorder warranted continued detention in FAC , for a maximum period of DATE . The court further held that the applicant would eventually be transferred to the new psychiatric clinic PERSON in GPE , once it was ready and functional .

On DATE , CARDINAL May and DATE , and DATE , respectively , ORG extended the applicant ’s detention . The applicant did not appeal against any of these decisions .

The Government submitted a copy of the decision of DATE as well as the copies of the subsequent decisions .

It would appear that the applicant is still detained in LOC .

Under LAW DATE of ORG ( NORP zakon PERSON i ORG ; ORG GPE , nos . CARDINAL , CARDINAL , DATE , CARDINAL/CARDINAL , CARDINAL , CARDINAL ) , an offender who has been acquitted on the grounds of insanity can be placed in psychiatric detention only by the competent civil court if this is considered necessary for the protection of the offender and/or the public from serious harm . Any such acquittal is therefore reported to the competent social work centre which must initiate the appropriate procedure in which the competent civil court would decide whether to prolong the detention of any such mental health patient ( Article CARDINAL of LAW DATE and LAW ; PERSON o krivičnom postupku PERSON i ORG ; ORG GPE , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) .


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani

The applicants were born in DATE , DATE and DATE respectively . The first and second applicants live in GPE , while the third applicant lives in PERSON ( GPE ) . The applicants are the wife , the daughter and the niece of ORG respectively .

On DATE a criminal investigation was opened by the prosecutor ’s office attached to ORG and ORG ( “ the prosecutor ” ) against ORG , a medical doctor and employee of a State pension office , on suspicion of bribe - taking . On DATE a search was conducted at the common residence of GPE and the first applicant , in the first applicant ’s presence , accompanied by her lawyer . Documents and money found on that occasion were seized . The first applicant objected to that measure , claiming that some of the assets seized did not concern the ongoing investigation . The objection was included in the search record drawn up by the police on the spot and signed by the first applicant and her lawyer .

According to the prosecutor ’s decision of CARDINAL DATE the movable assets taken away at the search of CARDINAL DATE , as well as other movable and immovable assets belonging to ORG and his wife ( the first applicant ) , had been seized under LAW ( see paragraph CARDINAL below ) for the purpose of subsequent special and extended confiscation provided for by LAW ( see paragraph CARDINAL below ) . The decision listed , among the assets found during the searches conducted in the case , the sum of MONEY ( ORG ) found in cash . Cash in other currencies had also been seized as well as several items belonging to the second applicant . The prosecutor based the decision on the nature of the crimes under investigation and the need to recover the damages , as well as on the need to investigate possible money - laundering crimes .

On DATE PERSON was handed a copy of the seizure decision of DATE in the presence of his lawyer . On that occasion , after he had been informed of his rights and obligations , he stated that he had no observations or objections in connection with the seizure .

On DATE the second applicant , represented by her lawyer , was informed of her rights and obligations in connection with the seizure of her property and received a copy of the decision of CARDINAL DATE .

On DATE the second applicant , represented by CARDINAL lawyers of her choice , lodged a complaint with the Caraş - Severin County Court against the prosecutor ’s decision of CARDINAL DATE . She claimed that the seizure of assets for the purpose of subsequent special or extended confiscation provided for by LAW , taken together with CARDINAL and ORG , could be ordered only with respect to assets belonging to a suspect or accused . She further explained that the assets listed in the prosecutor ’s seizure decision included CARDINAL flats , CARDINAL garages and CARDINAL cars , which had been lawfully acquired by her with money lent by members of her family and should not have been seized . She joined copies of sale contracts and a written statement given by a member of the family .

On DATE the Caraş - Severin County Court decided with final effect that the seizure decision of CARDINAL DATE had been in compliance with the provisions of LAW ( see paragraph CARDINAL below ) , which clearly stipulated that measures such as seizure may be ordered with respect to assets belonging not only to the suspect or accused , but also to any other person . Furthermore , the second applicant had not proved that she had an income or that she had purchased the assets in question with her own money . Therefore , taking into account also the fact that the prosecutor mentioned in the impugned decision that there were suspicions of money laundering , the court concluded that the seizure measure had been lawful and justified for all the assets concerned .

On DATE PERSON was indicted on CARDINAL counts of bribe - taking committed between CARDINAL DATE and DATE in his capacity as an employee in a public institution , more specifically the chief expert on matters regarding capacity to work and invalidity at the Caraş - Severin County State Pension Office ( Casa Judeţeană de Pensii Caraş - Severin ) .

On DATE PERSON admitted his guilt in a statement before ORG . He chose to benefit from the special fast - track procedure provided for by LAW for such situations .

In his written plea submitted to the court , ORG explained that some of the assets seized by the prosecutor belonged to his wife and daughter ( the first and second applicants ) , who had not committed any criminal acts . In addition , he alleged that his family ’s assets had been acquired with funds obtained from real - estate transactions in DATE and DATE , and that the prosecutor had failed to prove that the seized assets had been unlawfully acquired . He also mentioned that out of the money seized in cash , the sum of EUR CARDINAL had come from the sale of a flat in DATE . A copy of a contract had been submitted in support of that allegation , showing that a flat owned jointly by ORG together with the first and third applicants had been sold for ORG CARDINAL . In conclusion , he asked the court to exclude the assets belonging to his family from the confiscation order .

On DATE the Arad County Court found ORG guilty on all counts of bribe - taking and sentenced him to DATE imprisonment , the minimum sentence applicable in the light of his admission of guilt .

On the basis of the provisions of LAW of LAW ( see paragraph CARDINAL below ) , the court also ordered the confiscation of various amounts of money and goods received by ORG as bribes during the above - mentioned period and which had been seized during the investigation .

In addition , the court decided to apply the provisions of LAW § CARDINAL ( m ) , CARDINAL of LAW ( see paragraph DATE below ) and to confiscate , on the grounds that they had been acquired as a result of ORG criminal activity , additional money and property belonging jointly to ORG and the first applicant ( the equivalent of ORG CARDINAL in cash in various currencies , a dental practice , a flat and a vehicle ) , as well as property belonging to the second applicant ( a flat and CARDINAL vehicles ) . All confiscated property had been previously seized by virtue of the prosecutor ’s decision of DATE .

In reply to ORG arguments concerning the assets belonging to his family , the court held that the total value of the seized property could not be justified by the lawful income earned by ORG together with the first applicant in DATE before the commission of the crimes in question . In addition , the second applicant was a student and did not have any income . An analysis of the documents and expert reports included in the file showed that the DATE income of ORG and his wife , the first applicant , amounted to ORG CARDINAL,CARDINAL , whereas the value of the assets acquired by the family in DATE the equivalent of ORG CARDINAL in bank accounts or in cash , CARDINAL flats and plots of land , CARDINAL garages and CARDINAL vehicles – grossly exceeded their lawful income . However , referring to Decision no . CARDINAL of DATE of ORG ( see paragraph CARDINAL below ) , ORG explained that the confiscation measure would apply only to the assets acquired after DATE . The court therefore decided to lift the seizure order in respect of the assets belonging to the family which did not fall within the scope of the case , having been acquired before DATE .

S.T. and all the applicants lodged appeals against the judgment of DATE .

In her reasons for appeal , the third applicant explained that she had asked her uncle , ORG , to keep for her the ORG CARDINAL,CARDINAL she had obtained from the sale of her flat in DATE . She claimed that that amount had been found in ORG residence during the search of CARDINAL DATE and had been wrongfully confiscated by ORG .

The first CARDINAL hearings were scheduled for DATE and CARDINAL DATE . The ORG lawyer requested the postponement of the trial because she could not be present . The next hearing was scheduled for DATE .

On DATE the prosecutor submitted to the file a report prepared by ORG ( PERSON ) , verifying the assets statements submitted by the first applicant , on the basis of PERSON no . CARDINAL/CARDINAL on integrity in the exercise of functions in public office . The report concluded that there were serious discrepancies between the first applicant ’s lawful income and her assets , and said that the information would be sent to the commission for the verification of assets of ORG for a decision on the further steps to be taken .

The applicants submitted to the file an accountant ’s report which provided a calculation of the net income earned by ORG and the first applicant from their salaries DATE . The total amount determined by the accountant was ORG CARDINAL . They also submitted numerous copies of sale contracts for various properties , as well as a written statement from PERSON , a family member who declared that he had lent money to the second applicant .

At the hearing of DATE the ORG lawyer requested that another person be invited to testify as a witness before the court that he had also lent money to the second applicant . With respect to the first applicant , the lawyer applied to the court for an accountant ’s report in order to establish the exact difference between her lawful income and the value of the property confiscated from her , taking into account the family ’s expenses .

The requests were discussed during the hearing , in the presence of all parties . The prosecutor argued that the request to hear a witness should be rejected , since the family ’s income could not be established with witness statements .

The court of appeal decided to refuse the requests , holding that there were enough elements in the file allowing for the exact calculation of both the family ’s income and the value of their assets . In any case , the court held that several hearings had taken place in the appeal proceedings and the applicants had had enough time at their disposal to prepare their defence and submit written evidence .

On the merits of their appeal , the ORG lawyer argued that all property confiscated had been acquired from the legal income earned jointly by ORG and the first applicant . In this connection , he referred to the accountant ’s report included in the file . As regards the sum of ORG CARDINAL,CARDINAL , the lawyer explained that it had been confiscated by mistake , since it belonged in fact to the third applicant , who had asked her uncle , ORG , to keep it for her . The money had come from the sale of a flat belonging to the third applicant . The lawyer concluded that the confiscation of property belonging to the applicants had been an unlawful and excessive measure .

The court postponed the pronouncement of the judgment to DATE .

In the meantime , the first and second applicants submitted written pleadings complaining that the second applicant had never been summoned to appear before ORG and had never been asked by the courts to submit evidence on how she had acquired the confiscated property . They also claimed that all their assets had been acquired through the efficient management of the family ’s lawful income .

On DATE ORG dismissed the applicants’ appeal . The court held that from the high number of criminal acts committed by ORG it could be inferred that he had established a habit in taking bribes which could have started long before the period that had been investigated . At the same time , PERSON and his family , the first and second applicants , had accumulated a considerable fortune in DATE . ORG further observed that it was clear from the evidence in the file that part of the confiscated goods were the direct proceeds of ORG ’s crimes , whereas other assets belonged to the first and second applicants . The court concluded that it could be inferred from an analysis of the lawful income of the first applicant and the lack of income of the second applicant that the assets found in their names had also been acquired through ORG criminal activity .

ORG observed that there was a considerable discrepancy between the family ’s lawful income and its assets , and that GPE and the applicants had not supplied proof that the confiscated assets had been lawfully acquired . The court reasoned as follows :

“ Between CARDINAL.CARDINAL.CARDINAL and CARDINAL.CARDINAL.CARDINAL while the defendant was under surveillance he received various sums of money and other goods from CARDINAL people who had come to his office for a medical examination in order to obtain a decision on retirement due to loss of capacity to work or to obtain an official certification of their degree of disability in order to benefit from social security benefits . As the lower court also held , the defendant has confessed to all the charges against him and he has been convicted to CARDINAL GPE imprisonment .

As a result of this criminal conviction , the first - instance court considered that the requirements of LAW had been fulfilled and ordered the extended confiscation of money , flats and vehicles , items which had a value exceeding the income of the defendant and his family in DATE ....

As regards the income of the defendant and his family , the court observes that he submitted an accountant ’s report showing the family ’s income starting with DATE , but without mentioning their expenses for DATE .

In order to establish whether there was a discrepancy between the family ’s income and their properties and other goods acquired , the court must compare the amounts of money spent during the period of the acquisition of the properties in question with the income . Based on the documents submitted to the file , including an evaluation report submitted by ORG on DATE , the court concludes that there is a significant difference between the income and the assets accumulated . The above - mentioned report evaluated especially the assets acquired by the defendant ’s wife [ the first applicant ] mostly from her salary . Even if this salary had been higher than the defendant ’s and even assuming that they also had earnings from real - estate transactions , they could not have accumulated enough money to acquire such a large number of properties and vehicles . ”

As regards the second applicant , the court held that she was currently a student and there was no proof in the file to show that she had ever had an income . Her allegations that the property found in her name had been acquired from donations from other members of the family had not been proved . Therefore , the conclusion of the first - instance court that the property she owned had been purchased with money from her parents was considered correct .

As regards the appeal submitted by the third applicant , the court held that no evidence had been submitted to the file to show that ORG CARDINAL,CARDINAL belonged to her and had been given to LOC for safekeeping .

NORP ORG concluded with final effect that the first - instance court had correctly applied the legal provisions in the case and had even decided to lift the seizure order in respect of certain items .


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

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in DATE and lives in NORP .

The applicant served as a member of parliament DATE , and he served as a government minister DATE . Even before he was elected to ORG he had already established himself as a political commentator in the media and regularly authored opinions related to national politics which were published in national newspapers . Upon his retirement from ORG the applicant began writing DATE opinion columns in the newspaper DATE and another DATE paper .

On DATE Dr PERSON ( referred to hereinafter as PERSON , for ease of reference – as he has the exact same name as the applicant ) , the deputy leader of ORG ( ORG ) , delivered a speech in public , which was reported on the national media . During the speech he informed the public that he had received an anonymous email and threatening letters , in respect of which he had complained directly to the Commissioner of Police ( CoP ) . He furthermore referred to the discussion he had had with the latter during which he had asked him to investigate the issue .

The most relevant parts of the speech read as follows ( translation done by ORG ) :

“ ... But the fact that DATE , CARDINAL opens the newspaper ORG , front page , and reads the editorial by ORG , who chose to speak about a pending police investigation , about an anonymous email that I received and about a threatening letter that I received ... this is a level which should not be acceptable in our country . And whoever is behind these stories – wherever he might be – and let me be clear – wherever he might be – he should be ashamed ... ashamed !

Yes I received an anonymous email ... and I received threatening letters DATE . I did not disclose this to my family . DATE they were told by GPE ... I can tell them myself ... But when something illegal occurs , I go to the police . And that ’s what I did . And I went to the CoP , since people who put forward such stories can disclose them I can also do so now for everyone to know . So I went to the ORG I will tell you what I told him ... and he will confirm it . He told me : ‘ What will we do , PERSON , if it were to [ turn out to ] be X or PERSON I told him : ‘ I am telling you as of now , PERSON it whosoever in this country , I am authorising you as from now , in advance , even before you start the investigation , to proceed . Because what is illegal , I condemn it , and we as a party always condemned illegality .

And we come to [ the subject of ] the anonymous email [ U wasalna fuq email anonima ] .

And DATE ... ORG [ a journalist ] , this person phoned me DATE as well , told me ‘ But you know , this is an innocuous email , it contains nothing.’ And I tell ORG and [ other purveyors of ] this type of journalism , that when they saw [ that ] there is a police investigation , is it you , you decide what is illegal and what is not [ ? ]

Because [ he was ] an admirer . And [ the sender ] of this email , true . I will speak to him , of course . But note , that he sent it anonymously ! Generally admirers tell you , ‘ Hi , PERSON , is everything alright?’ They do not write anonymously . And ORG said other things as well , and so did PERSON [ the editor of GPE ] . Among other things he said because he knows a lot he also phoned me DATE , and I told him . I told him : ‘ You are breaking the law . It is now up to the police’ . He also said that apparently apparently from the investigation into the email conducted by the police , nothing had emerged , and that it will stop there . And I will tell him now in public : ‘ Mr ORG and PERSON , you have not discovered America!’ PERSON to that effect have been said by an employee of our party for DATE ... at FAC for DATE . And he told me that I will make a fool of myself . I will not interfere . I will not interfere with the police investigation . That is for them to see .

But DATE I told the CoP , and Inspector C. , that such discourse had long been doing the rounds at FAC . I gave [ them ] the names , and it is now up to the police to decide whether to find out where this information originated from , and who is deciding matters in this country . ”

On DATE ORG , a journalist , published an article in the newspaper ORG , entitled “ Email sent to PERSON brings admirer before the Police ” . The article started off by stating that an innocent email sent to the deputy leader of the ORG had been passed on to the police , who in turn had identified the sender and subsequently questioned him . It concluded with the statement that when PERSON was asked about him reporting the matter to the police , the deputy leader of the ORG ( that is to say PERSON ) replied that “ he would not confirm nor deny ” that he was aware of the case .

On CARDINAL DATE ORG published an opinion by the applicant entitled “ Policing one ’s enemies ” , prompted by the above - mentioned speech , in which the applicant queried the manner in which the CARDINAL main political parties perceived the police force . The article ’s opening paragraphs read as follows :

“ During a recent short visit to GPE , I had the opportunity to watch the film ‘ The Lives of Others’ ( original title : PERSON [ sic ] ) an ORG NORP movie , set in the DATE cultural scene of GPE , monitored by secret agents of the PERSON : the secret police of the former GPE ( GPE ) . The film puts the methods of the PERSON at the centre of the plot and as a result clearly exposes their repulsive behaviour .

The police force , I believe , is simply responsible for making sure that people obey the law , for protecting people and property and for arresting criminals . Using the police in a different context and for the purpose of controlling people ’s freedoms is the basic notion of the typical police state , even if you insert the word ‘ democratic’ in your country ’s official title .

For me , the biggest unease was caused by the realisation that the film was set in a period that is only DATE , which in GPE corresponds to the PERSON [ former ORG leader and Prime Minister ] years when I was already active in politics . Little did I think that events that were to unfold when I was back in my country would make me wonder whether the ORG [ ORG ] and the ORG look at the duties of the police in somewhat different manner . ”

Other relevant parts of the article , read as follows :

“ I say this with deep regret , but I can only be seriously perturbed by the ease with which ORG Deputy Leader PERSON [ ORG ] persuaded the Commissioner of Police to investigate the source of a trivial and unimportant anonymous e - mail that he had received . More so , when this e - mail could only have been misguidedly considered ‘ suspicious’ , and even then in an absolutely far - fetched way , in the context of the infighting and internal feuds within the ORG .

According to what Dr. PERSON [ M.F. ] said , the Police Commissioner who apparently is on familiar first name speaking terms with Dr. PERSON [ M.F. ] asked whether he would proceed in the same fashion whether the culprit eventually proved to be X or Y ; implying that the Commissioner was offering to act in a discriminatory way according who the ‘ guilty’ person was .

Matters are even more worrying because when the police successfully traced the original writer and dispatcher of the e - mail , they impounded his computer and obliged him to go and sign DATE at ORG even though he was not accused of any crime .

Has not ORG Deputy Leader PERSON [ M.F. ] successfully used ORG to control the freedom of an innocent , law - abiding private citizen whom he suspected could be a political enemy ? And has not somebody in the police force abused of his powers by condescending to do this for the advantage of the faction led by PERSON [ M.F. ] in the ORG ’s internal squabbles ? Why should the police force interfere in ORG ’s internal politics where , it is obvious , there are too many cooks spoiling the broth ? ”

“ Yet the ease with which the ORG Deputy Leader phones him up to complain , and even worse the ease with which this leading politician is provided with a service that can not be linked in any way with the pursuit of ‘ criminality’ as we know it makes CARDINAL wonder . ”

“ These events seem to indicate that within Labour there are people who can influence and interfere in decisions taken by ORG . This is happening when they are still in Opposition . Asking what would happen in this area , once they are in government is , therefore , a legitimate question . ”

“ So what is the ORG doing about this ? Does the ORG Deputy Leader who happens to be my namesake , carry more weight and influence with the Commissioner of Police than the Deputy Prime Minister who is politically responsible for ORG ? ”

“ I firmly believe that PERSON [ then Minister of Interior ] should set up a high powered inquiry with the specific task of getting to the bottom of this sordid soap opera . He owes it to those who dedicated DATE of their life to ensure the personal freedom of each and every citizen of GPE . He owes it to all present and future NORP citizens who did not live the past so that they will live in a future where no one controls their freedom and hence their lives . ”

On DATE PERSON , the deputy leader of the ORG , instituted libel proceedings against the applicant ( and against the editor of the newspaper ) LAW ( see the “ Relevant domestic law ” section below ) , and sought damages , claiming that the abovementioned extracts of the article had been defamatory .

By way of defence the applicant claimed that ( a ) the published article had contained his opinion and had consequently constituted a fair comment and the expression of a value judgment , ( b ) any facts had been substantially correct and based on what had been declared publicly by PERSON himself DATE prior to the impugned publication , and ( c ) the claimant was a person occupying a public office and was consequently bound to accept a wider level of criticism .

During the proceedings ORG heard the testimony of the plaintiff ( PERSON ) , the CoP , the applicant , the editor ( PERSON ) , and CARDINAL other journalists ( A.B.D. and ORG ) . It saw documentation submitted consisting of an email exchange between the ORG deputy leader and a third person ( PERSON ) , as well as the transcript of the deputy leader ’s speech and copies of CARDINAL articles , both entitled “ Email sent to deputy leader brings an admirer before the Police ” ( CARDINAL having been published online and CARDINAL in print ) .

The CoP testified as follows ( as summarised by the firstinstance court ) :

- He denied that PERSON had persuaded him or influenced him in respect of his doing his job in connection with the case at issue ;

- PERSON had requested and obtained a normal appointment with the CoP ; when they met PERSON had showed him a letter which the CoP considered to be “ injurious and full of threats ” towards PERSON ; the latter requested the CoP to investigate the contents of the letter ;

- PERSON also informed the CoP that he had received an email , which was later passed on to the CoP , following an invitation to do so by the same CoP ;

- The CoP asked PERSON whether he intended to initiate proceedings against the person who should result to be responsible , given that the prosecution of such a crime would require the injured party to lodge a complaint ;

- The documents which had been passed on to the CoP had in turn been passed on to ORG ( C.I.D. ) for further investigation , and the CoP had had no further contact with PERSON concerning the case , which had not been given any particular priority on his part .

The applicant failed to make written submissions within the stipulated timeframe , and his late submissions were not accepted by the court that proceeded to judgment .

By a judgment of CARDINAL DATE ORG found the applicant guilty of having defamed the deputy leader of the ORG and was ordered to pay him MONEY ( ORG ) in damages . Costs were also to be paid jointly by the applicant and the editor ( who was also ordered to pay LAW in damages ) .

The court referred to the CoP ’s witness testimony to explain the factual situation . In its view , while noting that public figures such as politicians were subject to wider limits of acceptable criticism , they were nevertheless protected under LAW their protection having to be weighed in relation to the interests of the open discussion of political issues . The court considered the article defamatory as it had tarnished and impinged on the claimant ’s reputation . It rejected the applicant ’s defence , noting that it had not been proved that : i ) PERSON had manipulated the CoP due to the political office that he held in the party in which he militates ; ii ) that with his actions PERSON had offended ORG since he used ORG for his personal aims ; iii ) that PERSON was some deus ex machina who pulls the strings of ORG , from behind the scene , to reach his goals .

The applicant appealed .

By a judgment of DATE ORG ( in its inferior jurisdiction ) rejected the appeal and confirmed the firstinstance judgment . It considered it appropriate to analyse and mention all the relevant evidence that had not been referred to by the firstinstance court :

- M.F. , as plaintiff and now respondent , submitted that the reader had been induced to believe that he had persuaded the police to harm someone , when all he had done was to file a report requesting that the anonymous letters and emails he had received be investigated .

- The court also referred to the statements made by the CoP ( see above ) .

- The applicant ( appellant before ORG ) explained that in his view the email received by PERSON had been innocuous and that PERSON had thus reacted disproportionality . According to the applicant , from the speech delivered by PERSON publicly ( at FAC in GPE ) , it transpired that there was a certain familiarity between him and the CoP ; indeed if that had not been so PERSON would have reported the incident at a police station like an ordinary citizen , and not with the CoP. In his view it was natural to question whether PERSON had used the CoP in connection with the internal affairs of the party . Even when cross - examined , he reiterated that influence had been exerted by PERSON on the ORG

- The editor testified that in his opinion the speech delivered by the deputy leader of the ORG indicated that the latter had put pressure on the CoP to investigate the matter when he had met up with him to discuss the emails and the anonymous letters .

- In reply to a question , while being cross - examined , as to whether PERSON had put pressure on the CoP , ORG replied that he was aware that a report had been filed concerning the email and that on DATE of publication , PERSON had declared that he was authorising the CoP to institute proceedings against whomever turned out to be the culprit .

ORG was of the view that , having examined all the relevant evidence and thus gaining an understanding of the circumstances preceding and surrounding the article , the applicant ’s assumption could not be considered as constituting fair comment . In the eyes of the ordinary reader , the comments and criticism made by the applicant could not be considered as objectively reasonable , made in good faith and balanced , given that they were based on a certain assumption – that PERSON had exercised influence over the CoP with the aim of controlling people ’s freedom ; the attack on PERSON had thus exceeded the limits of just criticism . PERSON had had every right to file a report , and the fact that he was politically active had not justified such an attack , which had not been corroborated by factual evidence . It considered that even though the manifestation of free expression was an established principle , that freedom was to be exercised within those just limits of the canon of objective veracity of facts and restraint ( entro l - limiti ġusti ta’ dak ilkanoni tal - verita’ oġġettiva tal - fatti u tal - kontinenza ) , as elaborated by the most progressive doctrine and jurisprudence on topical issues and the exercise of criticism .

On DATE the applicant instituted constitutional redress proceedings complaining that he had suffered , inter alia , a breach of LAW as a result of the judgments in the libel proceedings . He argued , in substance , that his opinion piece had consisted of criticism , which was a legitimate manner of expressing an opinion about the work of a public figure and was allowed in a NORP society noting that the extensive protection given to such a public figure served to silence free expression . He further claimed that the ordinary courts had referred to insinuations and allegations which had not been made or implied by the applicant in his article , such as the statement by ORG to the effect that PERSON had “ manipulated ” the CoP or that the latter had been subjected to pressure which had “ impeded the exercise of his function ” as well that PERSON “ was a deus ex macchina pulling the strings of the Police Force ” . The applicant emphasised that these were gratuitous inventions by the ordinary court which had not been mentioned in the article .

By a judgment of CARDINAL DATE ORG ( FAC ) in its constitutional competence dismissed the applicant ’s claims .

It considered that the applicant was attempting to obtain a revision of the ordinary proceedings and noted that it was not quite true that the applicant had never implied that PERSON had “ manipulated ” the CoP indeed his article had precisely questioned “ has not the ORG deputy leader ORG successfully used ORG to control the freedom of an innocent lawabiding private citizen whom he suspected could be a political enemy ? ” . In any event , even if the applicant considered the statements made by ORG in its reasoning to be invented , this had not constituted a breach of his LAW .

The court noted the reference to the ORG with which the applicant had started his article and his narrative of PERSON ’s actions , which had resulted in an individual being investigated and subsequently having his computer seized . In that context he had asked whether PERSON had “ used ” the police against a political opponent . The applicant criticised the CoP for following up on the indications given by PERSON , to the extent that the applicant had called on the Minister of the Interior to look into the matter . Indeed , the CoP was also an object of the applicant ’s criticism .

According to the court , the word “ uses ” did not mean “ manipulate ” , as implied by ORG , but within the context of the article at issue , it nevertheless implied an element of abuse . The criticism against PERSON was that he had taken advantage of his political position to put pressure on the police in order that the latter would take action in persecuting an innocent citizen . The court considered that it was legitimate for a victim of a crime to complain to the police , and then it was for the police to act on the matter . Further , the initial reference to the “ NORP ” in the opening of the article had been regrettable ; even if it was not intended to do so , it had given the impression of a comparison being made .

In its view , even accepting that a public person was subject to greater limits of acceptable criticism , given the article at issue , the ordinary courts had not failed to strike a fair balance between the competing rights .

The applicant appealed .

By a judgment of CARDINAL DATE ORG dismissed his appeal .

It noted that the ordinary court judgments and the penalty inflicted constituted an interference with the applicant ’s rights under LAW , which had been prescribed by law ( LAW ) . It emphasised the importance of free expression for the press ; nevertheless , it noted that the press could not exceed certain limits and had to exercise its function in a manner consistent with its obligations and responsibilities particularly as regards the reputation and rights of others . Acknowledging that politicians were subject to wider limits of acceptable criticism , it nevertheless noted that they remained holders of their right to the protection of their reputation . The quest for reasonableness and proportionality in such circumstances had to be seen against the background of the importance of public debate .

Noting the difference between facts and value judgments ( the latter not being subject to the need for proof ) , it considered that a person could not hide behind an opinion or value judgment to impute untrue facts in respect of other persons . It considered that ORG had reached a legitimate conclusion in finding that the applicant ’s opinion piece had contained declarations which assumed as a fact that the ORG deputy leader had illegitimately and abusively influenced the police and also that the exercise of illegitimate and abusive pressure on the CoP had not been proved as a fact .

ORG noted that while the article had contained a series of questions ( in respect of which the applicant argued that it was for the reader to answer ) , it had also contained assertions , some of which had not reflected the real facts , according to ORG . Further , ORG considered that just because an alleged fact was given the form of a question , this did not entail that it was no longer a factual assertion but rather became a value judgment . Even the way in which the question was posed , namely “ Has not PERSON ... ” clearly included a factual affirmation and clearly invited a positive reply . Similarly , the quest “ Does the ORG Deputy Leader , who happens to be my namesake , carry more weight and influence with the Commissioner of Police than the Deputy Prime Minister , who is politically responsible for ORG ? ” was nothing but an allegation of fact in the form of a question .

Lastly , ORG noted that the amount of the fine had not been particularly severe , so much so that the quantum had not been appealed . There was therefore no violation of LAW .