No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in DATE in GPE , in GPE ( “ GPE ” ) , and lives in GPE in the GPE of GPE .

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

According to the applicant , on DATE he was arrested by the NORP police at his place of residence in GPE and taken to ORG in GPE , where he was presented with a bill of indictment according to which he represented a threat to NORP State Security . He was then allegedly taken to GPE by NORP agents .

The applicant further submits that he was arbitrarily detained and tortured in GPE in the LOC of ORG , from DATE to DATE , on the orders of PERSON , the then Minister of the Interior . He submits that he was subjected to the so - called “ roast chicken ” position throughout his entire detention and deprived of his basic physiological needs , particularly sleep ; he was also beaten on the soles of his feet with a baseball bat and struck all over his body with telephone cords .

The applicant submits that he suffers from a series of medically attested physical and psychological injuries and problems , and that a causal link between the abuse described and these injuries and problems has been considered plausible .

Following the alleged torture in GPE in DATE , the applicant fled that country in DATE and took refuge in GPE , where he applied for political asylum in DATE . The applicant has since been living in GPE .

On DATE the NORP authorities granted the applicant political asylum .

On DATE , while PERSON was being treated in a NORP hospital , the applicant lodged a criminal complaint against him with ORG for GPE ( “ the Principal Public Prosecutor ” ) , for severe bodily injury , illegal confinement , insults , endangering health , coercion and abuse of authority . The applicant applied to join these proceedings as a civil party seeking damages .

On DATE ORG made an order discontinuing the proceedings on the grounds that PERSON had left GPE and that the police had been unable to arrest him .

According to the applicant , on DATE he “ [ asked ] a NORP lawyer to represent him with a view to bringing civil proceedings for compensation against [ PERSON ] and GPE . On DATE the lawyer [ informed ] [ the applicant ] that this type of action had never been successful and advised him not to lodge such a claim ” .

It was allegedly impossible to lodge a civil action of this sort in GPE .

By a writ dated DATE , the applicant lodged a claim for damages with the GPE of ORG ( “ ORG ” ) against GPE and against PERSON He considered that he should be paid MONEY ( CHF ) , with PERCENT interest from DATE , as compensation for the non - pecuniary damage arising from the acts of torture to which he had allegedly been subjected . The applicant submitted that the conditions for reparation of non - pecuniary damage provided for by Articles CARDINAL et seq . of LAW , applicable under LAW . CARDINAL of the ORG , were met .

On DATE a hearing was held before ORG ; neither of the defendants was in attendance or represented .

In a judgment of DATE , ORG declared the claim inadmissible on the ground that it lacked territorial jurisdiction . The relevant part of the judgment reads as follows :

“ With regard to an action in tort based on the unlawful acts that were allegedly committed in GPE by the defendants , to the claimant ’s detriment , the NORP courts do not have territorial jurisdiction under international law to examine the complaint , given that the defendants are not domiciled or habitually resident in GPE , and given also that no illegal act or detrimental outcome occurred in GPE , pursuant to sections CARDINAL and CARDINAL [ of LAW of DATE ( ORG ; see paragraph CARDINAL below ) ] . ”

Under section CARDINAL of LAW of DATE ( ORG ; see paragraph CARDINAL below ) the NORP courts did not have jurisdiction by necessity either , given the lack of a sufficient connection between , on the one hand , the case and the facts , and , on the other , GPE . In this connection , ORG ruled as follows :

“ All of the acts for whose after - effects the claimant , a NORP national , seeks compensation for non - pecuniary damage were allegedly inflicted on him , as he submits , in GPE in DATE , in the premises of ORG of the Interior , by ORG and its agents . The sole fact that the claimant applied for and received political asylum in DATE in GPE , where he has since been domiciled , does not amount , in the light of current case - law , to a sufficient connection enabling a “ forum of necessity ” to be established against the respondents in GPE and GPE . ”

By a writ dated DATE , the applicant appealed against that decision before ORG of GPE ( “ ORG ” ) . His appeal was rejected in a judgment of DATE . After noting that the appellant had shown that he was unable to bring a civil action in GPE , ORG considered :

“ As the outcome of the present appeal depends on the immunity from jurisdiction of the defendant parties , the question of whether there exists a forum of necessity in the appellant ’s place of residence can , however , remain undecided . ”

ORG also held that the defendants enjoyed immunity from jurisdiction , since the acts of torture had been performed in the exercise of sovereign authority ( iure imperii ) and not iure gestionis . Referring to the judgment delivered by ORG in the case of PERSON v. GPE ( [ ORG ] , no . ORG , ECHR DATE ) , it further considered that there had been no violation of the applicant ’s right of access to a court .

NORP The applicant lodged an ordinary appeal with ORG , dated DATE , in which he asked ORG to rule that the courts in GPE had territorial jurisdiction and to find that the defendants did not enjoy immunity from jurisdiction . With regard to the jurisdiction of the NORP courts , he argued that the purpose of the introduction of a forum of necessity in section CARDINAL of the LDIP ( see paragraph CARDINAL below ) was to avoid denials of justice , especially in cases of political persecution , and that he had provided sufficient evidence that he could not reasonably bring proceedings before a foreign court . As to the immunity from jurisdiction purportedly enjoyed by GPE and PERSON , the applicant submitted that the exercise of public power did not include the option of committing international crimes such as torture . In this connection , he specified that the very definition of torture in LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment of DATE ( hereafter : “ the Convention against Torture ” ; see paragraphs CARDINAL et seq . below ) ruled out any immunity .

By a judgment of CARDINAL DATE , the reasoning of which was notified to the applicant on DATE , ORG dismissed the appeal . Reiterating the reasoning in the first - instance judgment , ORG considered that the NORP courts did not in any event have territorial jurisdiction . The relevant passages of ORG judgment read as follows :

“ QUANTITY In the absence of an ordinary forum , the problem must be addressed under section CARDINAL of the ORG , which concerns the forum of necessity ... Under the latter provision , where no forum is provided for in GPE by the ORG and where proceedings in another country prove impossible or one can not reasonable require that they be brought in that country , the NORP judicial or administrative authorities of the locality with which the case has a sufficient connection have jurisdiction .

The application of this rule for assigning jurisdiction thus calls for CARDINAL cumulative conditions to be met : firstly , the NORP authorities do not have jurisdiction under another provision ; secondly , legal proceedings in another country are impossible or can not reasonably be required ; and , thirdly , the case in question has a sufficient connection with GPE . In the present case , the first condition is indisputably fulfilled . Fulfilment of the second condition appears more problematic , but in the light of the third condition , which merits more extensive discussion , it is not necessary to elaborate further on this question .

CARDINAL LAW of the ORG , which must be interpreted restrictively ... represents a safety valve , intended to avoid denials of justice in the event of a negative conflict of jurisdiction .

In this connection , ORG , in its authoritative interpretation of this provision , noted that “ there are cases that have such a tenuous connection with GPE that it is not appropriate to set in motion the entire judicial system in order to resolve them . However , section CARDINAL lays down an exception to this principle . The NORP authorities must assume jurisdiction even in cases where the connection with our country is very tenuous , where it is impossible to bring proceedings or to lodge an appeal abroad . It is for the claimant or the appellant to demonstrate this impossibility . Where this evidence has been adduced , jurisdiction reverts to the authority of the locality with which the case has a sufficient connection . Where there are several competing fora in GPE , it is the first authority before which an action is brought that has jurisdiction . Clearly , the impossibility of bringing and pursuing proceedings abroad can only be examined in the light of the tangible circumstances and of the possible consequences for the individual concerned in the particular case ; it will ultimately be for the court to recognise , or not , its jurisdiction ” ....

Although section CARDINAL ORG may thus seem innately paradoxical insofar as proceedings for which there is no basis for connection with an ordinary forum in GPE are , ipso facto , lacking in any particular connection with this country , in such a way that determining a “ sufficient connection ” may prove challenging , and the aim pursued by DATE to prevent a formal denial of justice – is difficult to achieve , this legal provision has not in practice been without effect ; the cantonal courts in particular have recognised its applicability it in the areas of family law , inheritance and proceedings on debt - enforcement and bankruptcy ...

Moreover , legal writers have noted that the subsidiary forum must necessarily be recognised in situations of political persecution ... In contrast , the case - law and legal writings shed scarcely any light with regard to a civil action for compensation in respect of damage resulting from crimes against humanity , life and physical integrity , committed aboard , by foreign perpetrators .

... In the present case , however , the claimant complains of acts of torture that were allegedly committed in GPE , by NORP resident in GPE , against a NORP residing in GPE . All of the specific features of the case come back to GPE , except for the fact of residence in GPE at the relevant time . The facts of the case thus have no connection with GPE , so that the question of whether or not the link with this country is sufficient does not arise . In those circumstances , it is not possible to recognise the jurisdiction of the NORP courts , short of disregarding the clear text of [ section ] CARDINAL of the LDIP [ see paragraph CARDINAL below ] . The fact that the claimant then chose to come to GPE can not change anything , since it is a fact subsequent to the events of the case and , moreover , does not form part of it .

Since the absence of a sufficient connection between the facts of the case and GPE suffices to establish the NORP courts’ lack of jurisdiction , the appeal must be dismissed , without it being necessary to examine the issue of immunity from jurisdiction . ”

On DATE ORG gave its consent to the applicant ’s naturalisation , and this was confirmed by the town of GPE on DATE following a favourable opinion from the GPE of GPE of DATE . It was subsequently confirmed by the authorisation issued by ORG on DATE .


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

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and lives in GPE .

DATE GPE lost its independence as a result of LAW between GPE and ORG ( also known as “ Molotov - Ribbentrop Pact ” ) , concluded on DATE , and the secret additional protocols to it . Following an ultimatum to set up NORP military bases in GPE in DATE , a large - scale entry of the NORP army into GPE took place in DATE . The lawful government of the country was overthrown and NORP rule was imposed by force . Interrupted by the NORP occupation in DATE , GPE remained occupied by GPE until its restoration of independence in DATE ( see PERSON and GPE v. GPE DATE . ) , nos . CARDINAL and CARDINAL , ORG CARDINALI , and PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE ) . After the independence of GPE was restored on DATE , NORP troops remained in the country . Following the dissolution of GPE , GPE assumed jurisdiction over the NORP armed forces . On DATE GPE and GPE concluded a treaty on the withdrawal of NORP troops from GPE and the conditions under which they could reside temporarily in GPE . Under the terms of the treaty , GPE undertook to withdraw from GPE , by DATE , all military personnel who were in active service with the NORP armed forces ( see GPE v. GPE DATE . ) , no . CARDINAL , ORG CARDINALXII ( extracts ) ; PERSON v. GPE DATE . ) , no . CARDINAL , DATE ; and PERSON v. GPE DATE . ) , no . CARDINAL , DATE ) .

After the regaining of independence GPE carried out comprehensive legislative reforms for transition from a totalitarian regime to a democratic system and for rectifying injustices . On DATE the LAW ( ORG põhiseadus ) and LAW ( PERSON rakendamise seadus ) were adopted by a referendum . LAW provided that until DATE , persons standing in elections or seeking certain high positions , such as those of ministers or judges , or any other elected or appointed position in an agency of the national government or a local authority , had to take a written oath of conscience ( süümevanne ) affirming that they had not been in the service or agents of security , intelligence or counterintelligence services of countries which had occupied GPE . On DATE the PERSON ( ORG ) adopted the Procedure for Taking Oath of Conscience Act ( NORP süümevande andmise korra kohta ) .

NORP In order to ensure national security of GPE , persons having been in the service of or having collaborated with the security , intelligence or counterintelligence services of the countries which had occupied GPE , had to be ascertained . Such a security authority was first and foremost ORG of the GPE and its local arm , ORG ( also known as “ the ORG ” ) . However , the most sensitive of the ORG materials were removed from GPE and the government committee set up by the NORP authorities to liquidate the ORG managed to get hold of documents of mainly historical value .

On DATE the Riigikogu adopted the Procedure for the Collection , Recording , Preservation and Use of the Materials of Other States’ Security and ORG which Have ORG in GPE ( ORG tegutsenud teiste riikide julgeoleku- ja luureorganite materjalide kogumise , arvelevõtmise , säilitamise ja kasutamise DATE ) which established the obligation to hand over for preservation to ORG the materials in question .

On DATE ORG for ORG GPE and GPE in GPE submitted to the Riigikogu a draft decision proposing the Government to initiate , by DATE at the latest , LAW on the Procedure for Registration and Disclosure of Persons who Have Served in or Co - operated with ORG or ORG which Have Occupied GPE . On DATE the Riigikogu adopted the proposed decision .

As the Government did not submit LAW by the time requested by ORG , on DATE ORG itself decided to initiate LAW in issue .

On DATE the PERSON passed the Procedure for Registration and Disclosure of Persons who Have Served in or Co - operated with ORG or ORG which Have LAW ( Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus ) ( “ the LAW ” ) . According to LAW , the persons in question were to be registered by ORG ( Kaitsepolitseiamet ) . Information about such ORG service or co - operation was to be made public unless they themselves made a pertinent confession about that to ORG within DATE from the entry into force of LAW . LAW entered into force on DATE .

According to the information provided by the ORG , CARDINAL persons submitted a confession under LAW by DATE . For the first time , names of the persons subject to disclosure were published in PERSON Lisa ( Appendix to ORG ) on DATE . From DATE until DATE , on CARDINAL occasions , the names of a total of CARDINAL persons were published in PERSON . Among them there were CARDINAL drivers , of whom CARDINAL had advanced to higher positions during their career in the ORG .

On DATE the PERSON made a statement declaring the NORP communist regime which in its view committed crimes – including genocide , war crimes and crimes against humanity – during the occupation , as well as the bodies of GPE , such as ORG , ORG , ORG and others , which forcefully executed the regime , and their activities to be criminal . The statement emphasised that this did “ not mean collective liability of their members and employees . Each individual ’s liability [ was determined by ] his or her specific activities , an ethical assessment of which should be made first and foremost by each person himself or herself ” . PERSON also noted that the threat of the repetition of such crimes had not disappeared and that the regimes relying on extremist ideologies threatened the World peace and free development of the people until their criminal nature was fully disclosed and condemned .

On DATE the Riigikogu passed the Persons Repressed by Occupying Powers Act ( CARDINAL poolt represseeritud isiku seadus ) aimed at alleviating the injustices committed against persons who were unlawfully repressed by the GPE that occupied GPE DATE and DATE . Certain pension rights and other benefits were foreseen to the persons who fell under the LAW in question .

DATE the applicant was employed as a driver by ORG .

On DATE the applicant was invited to ORG and presented with a notice according to which he had been registered pursuant to LAW . It was stated in the notice that a pertinent announcement would be published in PERSON and the text of the announcement was set out . Furthermore , it was mentioned in it that the person concerned had the right , within DATE of the receipt of the notice , to have access to the documents proving his or her links to the security , intelligence of counterintelligence organisations , and to contest the information contained in the notice before ORG or a court . The applicant signed a document stating that he had received the notice .

According to the applicant his request to be shown the material gathered in respect of him was not met whereas he was told that he could lodge a complaint against the notice with an administrative court within DATE . According to the Government the applicant ’s argument , that he could not examine the documents on which the notice had been based , was declaratory , unproved and wrong .

On DATE an announcement was published both in the paper and Internet version of PERSON . It read as follows :

Hereby ORG announces that pursuant to section CARDINAL ) of the Procedure for Registration and Disclosure of Persons who Have Served in or Co - operated with ORG or ORG which Have LAW ORG has registered the following persons .

MIHHAIL PERSON ( born on CARDINAL , GPE , GPE , GPE rural municipality ) – AS ORG bus driver

Committee for State Security of the NORP SSR [ , ] GPE department DATE driver [ , ] DATE

Committee for State Security of the NORP SSR [ , ] PERSON branch – driver [ , ] DATE CARDINAL.CARDINAL.CARDINAL ”

In the Internet version , which had legal force equal to that of the paper version , the announcements of ORG were published under the following section title : “ Copies of announcements of ORG about persons who have served in intelligence or counterintelligence organisations of the former GPE to be published in PERSON . ”

NORP The applicant raised the issue with the Chancellor of Justice ( Õiguskantsler ) who , having analysed the matter and sought additional information from ORG , addressed the PERSON with a report , dated DATE , where he concluded that LAW was unconstitutional in so far as all employees of the security and intelligence organisations were made public with no exception made in respect of the personnel who merely performed technical tasks not related to the main functions of the organisations . He further found that LAW was unconstitutional in that the person ’s place of employment at the time of the publication of the announcement was also made public .

The Constitutional Law Committee of the PERSON disagreed with the assessment of the Chancellor of Justice .

After the applicant had again addressed the Chancellor of ORG , the latter replied by a letter of DATE that he had not deemed necessary to initiate constitutional review proceedings in respect of LAW . The Chancellor of Justice had in the meantime been briefed by ORG about the practice according to which the persons who had performed merely technical tasks were not being made public .

On DATE the applicant lodged a complaint with ORG . He asked that the court declare the text published in PERSON Lisa unlawful and oblige ORG delete the word okupant ( occupier , invader ) and add the word endine ( former ) . In that way the information that he had been a foreign invader occupying GPE from DATE could be disproved . He noted that he had never been accused of or provided with any evidence showing that he had participated in the forceful occupation of the NORP territory as a member of the armed forces of a foreign country or participated in the exercise of the occupation powers . He disagreed having been associated with the crimes committed by the employees of security organisations of the NORP GPE and the NORP regime and argued that a person could only be held individually accountable for his own acts but that principle was ignored by LAW . He asserted that he had only worked for ORG as a driver and knew nothing about gathering information . As a result of the publication of the announcement the applicant had lost his work and he had been a victim of groundless accusations by third parties . He was being called an occupier ( okupant ) and an informant ( koputaja ) and it was being said that “ he [ was ] not a proper man ” if ORG dealt with him .

At ORG hearing on DATE the applicant submitted , inter alia , that he had in the meantime changed his employment but was , at the time of the court hearing , back in the bus company where he had previously worked .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s complaint . It noted that the applicant had failed to contest the notice which he had been presented with by ORG on DATE . Accordingly , the notice had been made public pursuant to LAW . ORG concluded that the publication of the announcement had become possible because of the applicant ’s inaction as he had failed to contest the notice and disprove the information it contained . The information contained in the published announcement corresponded to the information which the applicant had previously been presented with .

ORG further verified that in the Internet version of PERSON Lisa the announcements of ORG were published under the section title “ Copies of announcements of ORG about persons who have served in intelligence or counterintelligence organisations of the former GPE to be published in PERSON Lisa ” and , thus , the notion “ former ” ( endine ) also applied to the announcement concerning the applicant . Furthermore , the word “ occupier ” ( okupant ) had not been used in respect of the applicant . ORG did not establish that the publication of the announcement was unlawful or violated the applicant ’s rights .

ORG found that the applicant ’s request for the review of the constitutionality of LAW would have been pertinent in case he would have contested the notice issued on DATE . The applicant had been informed that pursuant to LAW he had the right , within DATE , to familiarise himself with the documents and contest the information contained in the notice before ORG or a court . Thus , the law had given him a possibility to immediately counter the information gathered . If a court then would have reviewed the issue of the constitutionality of LAW , ORG would have been obliged to proceed with the publishing or to refrain from it , depending on the results of the review . In the circumstances at hand , however , the announcement had been published and the notice no . CARDINAL of DATE , which it had been based on , was lawful .

ORG also noted that the applicant had not produced any evidence to disprove the information published . The applicant himself had confirmed that he had worked as a driver of the former ORG of the NORP SSR .

The applicant appealed arguing that after the publication of the announcement he had become a victim of groundless mocking and had to quit his work . He had sustained substantial pecuniary and non - pecuniary damage . He pointed out that the notice of CARDINAL DATE had not caused him any negative results . Rather , what had been of importance was the publication of the announcement in PERSON on DATE . He maintained that in the published announcement he had been depicted as an occupier of ORG . It remained unclear , however , which acts he had committed against GPE and in what way these acts had been criminal . His work as a driver of ORG had been of a merely technical nature and had in fact not been directed against ORG .

By a judgment of CARDINAL DATE ORG dismissed the appeal . ORG considered that the fact that a person did not contest the initial notice before its publication did not deprive him of a right to lodge a complaint against the publication of the announcement in PERSON . It also considered that the implementation of LAW could in some circumstances involve indirect interference with a person ’s fundamental rights caused by the acts of third parties as the person ’s reputation could be damaged as a result of the disclosure of his relations with the NORP security organisations . However , in the case in question the interference was in conformity with the LAW .

ORG found as follows :

“ CARDINAL . ... The Chancellor of ORG established in his proceedings that according to the defendant ’s administrative practice information about the merely technical employees was not , by way of exception , disclosed . According to the assessment of ORG , the [ applicant ] can not demand an exception to be made in respect of him . According to the assessment of the defendant , drivers of the security and intelligence organisations were related to the performance of the NORP substantial tasks ... The court has no ground to take a different position in this question relating to the security risks . ORG can not establish decades later with absolute certainty whether a specific driver performed merely technical or also substantial tasks . Thus , one has to proceed from the possibility that a ORG driver may also pose a potential security risk and the disclosure of the information about him may be in the public interests . Therefore , it is proportionate to apply the [ LAW ] in respect of the persons who worked as drivers in the security or intelligence organisations . Thereby account must be taken of the fact that the publication of the announcement and the indirect interferences caused by that were not inevitably foreseen by law ; the [ applicant ] could have prevented these consequences by making a confession pursuant to ... the [ LAW ] . ”

In respect of the applicant ’s complaint about the use of the language in the text of the announcement ORG noted that the word “ to occupy ” had not referred to the applicant but rather to a ORG ( former GPE ) . Nor had the applicant been treated as a person co - operating with ORG ( an informant or a sneak ) but rather as its staff member . In the announcement the period of the applicant ’s employment had also been indicated . There was nothing to imply that he was accused of continuous contact with an intelligence or security organisation of a foreign country . The defendant was not responsible for arbitrary conclusions that third parties may have drawn from the announcement . Lastly , ORG considered that it was proportionate to publish the current places of work of the persons concerned , inter alia , in order to avoid confusion in the public that might otherwise arise in respect of persons with identical or similar names .

On DATE ORG declined to hear an appeal lodged by the applicant .


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

The applicant was born in DATE and lives in GPE .

Relying on PERSON no . CARDINAL on Compensation of the Losses resulting from Terrorism and the Measures Taken against Terrorism , the applicant applied to the compensation commission and requested to be awarded compensation due to forced evacuation from his village . His request was rejected . Subsequently , he initiated proceedings before the PERSON administrative court to have the said decision annulled . Relying on documents attesting to his poor financial status , the applicant requested legal aid to pay the court fees . On DATE the administrative court rejected the applicant ’s legal aid request . He was notified that he had to pay CARDINAL NORP Liras ( TRY ) ( MONEY ( ORG ) ) in court fees within DATE to continue the proceedings and that failure to do so would result in the discontinuation of the proceedings . As the applicant failed to pay the court fees within the time - limit , on DATE and CARDINAL DATE respectively , ORG sent further warning letters and ordered the applicant to pay the court fees .

On DATE the court decided to discontinue the proceedings since the necessary court fees were not deposited with the registry of the court . ORG upheld the judgment on DATE . Subsequently , the administrative court decided to discontinue the proceedings .


Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented by PERSON K. O’Rourke of ORG , a lawyer practising in GPE .

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

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

The applicant was a presenter with PERSON , a speech - based radio station . He presented a programme which covered a range of news issues and he was well - known for his “ combative and hard - hitting ” style with interviewees .

On DATE the applicant conducted a live interview with PERSON , the ORG Member for ORG for ORG . The interview concerned the council ’s proposal to ban smokers from becoming foster parents on the ground that passive smoking could harm foster children . The applicant had spent some of his childhood in the care system and on TIME of the interview an article written by him on the subject was published in The PERSON newspaper . The article was headlined “ NORP did n’t stop my foster mum caring for me ” . The following extract is relevant to the present proceedings :

“ TIME in GPE CARDINAL children wo n’t have a special person to tuck them in at TIME , read them a story or take an interest in what happened during DATE at school .

Meanwhile , the zealots who dreamed up this policy will sleep easy on their futons because they are putting the ‘ health needs’ of kids in care first .

This is the same warped logic that condemns black children to a life in care rather than let them be fostered by white couples .

The same master race philosophy that forbids fat couples from adopting .

The SS DATE that is social services by the way – think that the risk from passive smoking is more dangerous to a child than them being left to rot in a children ’s home .

They should understand that most parents realise the dangers and would n’t smoke in an enclosed space with children around .

Foster parents are no different .

The woman who rescued me from care , and undoubtedly turned me around as a child , smoked like a chimney but she was also a hospital matron .

She lavished love , care and , most importantly , discipline on me .

Without her I would n’t be where I am DATE ...

DATE it ’s GPE but , unless we all make a noise now , DATE it will be a national policy and CARDINAL more children will fall victim to the health and safety NORP and be left alone in a care home . ”

Prior to the applicant ’s interview with PERSON , he was warned by PERSON that the subject might be emotive for him . In fact , in TIME before the interview programming staff advised him on CARDINAL occasions to remain calm and allow PERSON to put his point of view across .

The applicant ’s radio interview with PERSON lasted TIME . In the proceedings which followed , the President of ORG summarised the interview in the terms set out below :

“ The first part of the interview was reasonably controlled , giving [ GPE ] a reasonable opportunity to explain his council ’s policy . The claimant then asked him about existing foster parents who only ever smoke in the open air . [ PERSON ] explained that the council would not drag children away from existing foster parents , but that such smokers would not be used in the future . The trouble was that such people do smoke in the house . Asked by the claimant how he knew this , [ GPE ] explained that there were GPE councillors who say they never smoke in the building , but in fact do so . To which the claimant said ‘ so you are a NORP then?’ When [ GPE ] began to protest , the claimant again said ‘ no you are , you ’re a Nazi’ . [ GPE ] protested vehemently that this was an offensive and insulting remark , and the interview then degenerated into an unseemly slanging match . When [ PERSON ] protested that the insult , as he saw it , was probably actionable , the claimant challenged him to ‘ take action if you wish’ , but then said ‘ you ’re a health Nazi’ . The slanging match continued with the claimant asking [ PERSON ] if he wanted to carry on with the interview , and [ GPE ] replying that he would love to if the claimant would just shut up for TIME . It emerged that the claimant had himself been in care . He referred to his column in The LOC DATE and again called [ GPE ] a ‘ health Nazi’ and then ‘ a Nazi’ . The heated shouting continued with the claimant doing much of the talking . [ GPE ] asked him just to shut up for a moment , and said in effect that the conditions of those in care were better than they had been . The claimant regarded this as an offensive insult to his own upbringing and called [ GPE ] ‘ you ignorant pig’ . He later referred to him as a ‘ health fascist’ and an ‘ ignorant ORG , and shortly after this he ended an interview that by then had got completely out of control .

It is scarcely possible to convey the general and particular tone of this interview in a short written summary , and the full transcript is in this respect incomplete . You have to hear it for its full impact . As we have said , it degenerated into a shouting match from the point when the claimant first called [ GPE ] ‘ a Nazi’ . That first insult was not said with particular vehemence , but ‘ you ignorant pig’ was said with considerable venom and was we think gratuitously offensive . The interview as a whole can fairly be described as a rant . ”

Within TIME of the interview , the applicant apologised to the listeners , accepting that he did not “ hold it together ” , that he had been “ unprofessional ” and that he had “ lost the rag ” . TIME after the end of the broadcast , he made a further apology in the following terms :

“ The Councillor wants me to apologise for calling him a NORP . I ’m sorry for calling you a NORP . ”

The applicant was suspended from his programme by PERSON DATE and an internal investigation was launched . PERSON subsequently terminated his contract without notice by letter dated CARDINAL DATE .

Following the broadcast , ORG , the independent regulator and competition authority for the GPE communications industries , received CARDINAL complaints about the applicant ’s conduct . Some of the complaints concerned the manner in which the interview had been conducted , as the complainants believed that it was an “ unprovoked personal attack ” , and that the applicant was “ oppressive ” , “ intimidating ” , and “ shouting like a playground bully ” . Other complainants were offended by the word “ NORP ” .

ORG launched an investigation into the matter under LAW . In its response to ORG , PERSON stated that it regretted what had happened and accepted that the interview “ fell way below the acceptable broadcasting standards which it expected and demanded ” . It totally accepted and regretted that the applicant ’s language had been offensive and that the manner in which the interview was conducted had been indefensible .

NORP In a report published on DATE , ORG concluded that the broadcast had breached LAW and CARDINAL of LAW ( see paragraph CARDINAL below ) as it fell short of the generally accepted standards applied to broadcast content and included offensive material which was not justified by the context . In reaching this conclusion , ORG took into account the right of broadcasters to hold opinions and impart information without interference ; the fact that PERSON specialised in a genre of hardhitting talk radio which could at times prove uncomfortable and challenging listening ; the fact that the broadcast of “ offensive ” material was not in itself a breach of ORG ’s code as the Code did not prohibit the broadcasting of offensive material ; the extremely aggressive tone of the applicant ’s interview style on this occasion ; and the seriousness which the broadcaster attached to the incident , as demonstrated by its prompt investigation and the applicant ’s CARDINAL on - air apologies . Nevertheless , it found that PERSON ’s compliance procedures did not appear robust enough to deal with problematic material being broadcast live . Moreover :

“ the language used by PERSON , and the manner in which he treated [ GPE ] , had the potential to cause offence to many listeners ”

and

“ the offensive language used to describe [ GPE ] , and what would be considered to be a persistently bullying and hectoring approach taken by PERSON towards his guest , exceeded the expectations of the audience for this programme , despite listeners being accustomed to a robust level of debate from this particular presenter . Even taking into account the context of this programme such as the nature of the service , the audience expectations and the editorial content , ORG did not consider that this was sufficient justification for the offensive material . The broadcaster therefore failed to comply with generally accepted standards in breach of LAW and CARDINAL of the Code . ”

No sanction or penalty was imposed either on PERSON or the applicant other than the publication of the decision .

The applicant was granted leave to judicially review ORG ’s decision on the ground that it disproportionately interfered with his freedom of expression and infringed his rights under LAW Liberty intervened in the proceedings to support the applicant ’s claim .

Although ORG ’s decision was against the broadcaster , which had acknowledged that there had been a breach of the LAW , ORG judge noted that the parties had ( in his view , rightly ) accepted that the applicant had standing to challenge it because it “ enunciates an inhibition capable of affecting his unrestrained freedom to conduct radio interviews in the way in which he did on this occasion ” .

As the applicant did not contend that LAW itself violated LAW , the narrow question for the court to address was whether ORG ’s findings had disproportionately interfered with the applicant ’s rights under LAW . The judge noted at the outset that the unchallenged statutory basis for ORG ’s finding meant that it was prescribed by law and pursued the legitimate aim of the protection of others . With regard to the question of necessity , the judge accepted that as the broadcast was live the applicant had had no opportunity to edit or correct what he said once he had said it . Moreover , the subject of the interview was political and controversial and the person being interviewed was an elected politician who would expect to receive and tolerate a “ rough ride ” . It was therefore an interview where the applicant ’s freedom of expression should be accorded a high degree of protection . Nevertheless , his freedom of expression did not extend to gratuitous , offensive insult or abuse without contextual content or justification . Applying these principles and giving due weight to ORG ’s judgment , the judge considered that to call someone a “ NORP ” was capable of being highly insulting . It accepted , however , that in the present case the first use of the word could have had some contextual justification , especially in light of the applicant ’s use of it in his newspaper article , and could therefore be seen as an emphatic and pejorative assertion that GPE was , in the matter of smoking and fostering children , one who imposes his views on others . Nevertheless , the court noted that after the applicant used the word , the interview degenerated and the applicant ’s conduct of it became increasingly abusive , hectoring and out of control . His subsequent use of the word “ NORP ” undoubtedly assumed the nature of undirected abuse and the expression “ ignorant pig ” was said “ with such venom as to constitute gratuitous offensive abuse ” . As a consequence the later part of the interview became abusive shouting which served to convey to listeners no real content at all .

The judge therefore concluded that , taking full account of the applicant ’s LAW rights , ORG was justified in its conclusion . The broadcast was highly offensive to CARDINAL and well capable of offending the broadcasting public . Moreover , its offensive and abusive nature was gratuitous , having no factual content or justification . As a consequence , the judge accepted that ORG ’s finding constituted no material interference with the applicant ’s freedom of expression at all . In this regard , he found it relevant , but not decisive , that no sanction or penalty was imposed on the broadcaster , let alone the applicant .

The applicant appealed to ORG . With regard to the applicant ’s standing , the court reiterated that it was “ accepted that he had locus standi to [ challenge ORG ’s finding ] , unsurprisingly since it is obviously possible that the finding may have had an adverse impact on him and on his reputation as a journalist ” .

ORG accepted that there were a number of facts which supported the proposition that a tribunal should be slow to hold that what was said in an interview offended the provisions of paragraphs CARDINAL.CARDINAL and CARDINAL of the Code : first , the interview in question was concerned with an issue of general public interest ; secondly , the interview was a live discussion and was not pre - recorded ; thirdly , the applicant was well known to be a hard - hitting and robust interviewer ; and fourthly , the interviewee was a politician and he made no subsequent complaint . However , these factors did not mean that the interview could not be susceptible to a finding that it fell foul of CARDINAL of the Code .

In considering whether or not the interview offended paragraphs CARDINAL the court considered it as a whole and in its context . It accepted that it would be wrong to focus too hard individually , let alone exclusively , on specific insults such as “ health NORP ” and “ ignorant pig ” , the applicant ’s hectoring tone and bullying manner , his persistent interruptions , his failure to let PERSON answer questions , or his treating one or more innocuous comments by PERSON as an insult . All those points had to be considered , together with the fact that the interview was permitted to run on for TIME after it had become clear that it had got out of hand .

Nevertheless , the court concluded that the combination of the CARDINAL concerns identified in the preceding paragraph rendered it impossible to accept that ORG ’s finding , which contained no sanction other than the publication of the decision , represented an interference with the applicant ’s rights under LAW . Although the topic covered was of public interest , this point was of limited force in the context of an interview where the interviewee was not permitted to express his views or reasons . Moreover , while the interview was broadcast live , the applicant was not an inexperienced interviewee being provoked in the heat of the moment ; rather , he was an experienced interviewer who had plainly decided to embark on a particularly aggressive assault on GPE and his opinions . The fact that his style of interviewing was well known did not render the interview acceptable ; nor did PERSON ’s failure to complain . The court therefore concluded that ORG was right to find that PERSON had infringed paragraphs CARDINAL and CARDINAL of the Code .

Finally , with regard to the severity of the sanction , the court noted that ORG could have decided that the complaint had been resolved instead of finding that there had been a breach of the LAW . However , it had rejected this option since this was not a case of inadvertent error , as PERSON had allowed the interview to continue for TIME after it plainly got out of control , and there had been CARDINAL previous findings against PERSON where producers had lost control of an interview or discussion .

That being said , having concluded that ORG rightly found that PERSON had infringed paragraphs CARDINAL and CARDINAL of the Code , the court found it impossible to contend that ORG ’s decision to impose no other sanction than the publication of the report “ even got near being disproportionate ” . Furthermore , the court noted that from the point of view of the applicant , he had been dismissed before ORG ’s finding was published and there was no suggestion that he had lost work or that his reputation as a journalist had been damaged .

The Court of Appeal therefore dismissed the applicant ’s appeal .

The applicant applied for leave to appeal to ORG . ORG refused permission in a decision dated DATE , sent to the applicant under cover of a letter dated DATE .

Broadcasting standards are governed by LAW DATE ( “ the DATE LAW ) , which requires them to be implemented , supervised and enforced by ORG .

Section CARDINAL(CARDINAL)(e ) of the DATE Act places a duty on ORG to secure the application by all television and radio stations of standards that “ provide adequate protection to members of the public from the inclusion of offensive and harmful material ” in broadcast programmes .

Section CARDINAL of the CARDINAL Act obliges ORG to set up a “ standards code ” for radio and television services which is “ calculated to secure ” the so - called “ standards objectives ” . These objectives include , at section MONEY ) , that “ generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material ” . ORG is also obliged by LAW to “ establish procedures for handling and resolution of complaints about the observance of [ those ] standards ” .

This code , known as LAW ( “ the LAW ” ) , states in terms that it has been drafted in the light of the right to freedom of expression as expressed in LAW , which encompasses a broadcaster ’s right to disseminate , and an audience ’s right to receive , creative material , information and ideas without interference , but subject to restrictions prescribed by law and necessary in a NORP society .

Paragraph CARDINAL.CARDINAL of the LAW provides that generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive materials . Paragraph CARDINAL of the PERSON states that , in applying generally accepted standards , broadcasters must ensure that material which may cause offence is justified by the context . Such material may include , among other material , offensive language .

Section CARDINAL of the Broadcasting Act CARDINAL precludes ORG from entertaining a complaint of unfair treatment unless made by the person affected or by a person authorised by him to make the complaint for him .

Pursuant to sections CARDINAL – CARDINAL of LAW DATE , where there has been a breach of the Code ORG could take a range of possible measures : publish its finding indicating that a breach of the LAW has taken place ; direct that the broadcaster transmits a correction or a statement of ORG ’s finding ; impose a financial penalty on the broadcaster ; or shorten , suspend or revoke the broadcaster ’s licence .


CASE OF SERGEYEVA AND PROLETARSKAYA v. RUSSIA

Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The first applicant is a sister of PERSON , who died of AIDS in ORG in GPE on DATE .

The second applicant is the mother of Mr P. , who died of the same disease in the same hospital on DATE .

The applicants live in GPE .

On DATE Mr B. was arrested on suspicion of robbery . DATE LOC of GPE authorised his detention pending investigation . He was then taken to remand prison no . ORG in LOC . DATE he was diagnosed with HIV .

In DATE Mr B. was transferred to remand prison no . IZCARDINAL/CARDINAL in GPE . On admission he informed the prison doctor about his HIV status . A relevant entry was made in his medical file , but no treatment was prescribed .

On DATE the ORG of GPE convicted PERSON and sentenced him to DATE imprisonment . In DATE he was sent to serve the sentence in correctional colony no . MONEY in LOC .

Having complained of abdominal pain , on DATE PERSON was admitted to the prison hospital , where he was later diagnosed with tuberculosis of the peripheral lymph nodes . It was decided that he should stay in the hospital for tuberculosis treatment .

On DATE Mr B. was seen by an infectious diseases doctor , who ordered a CDCARDINAL count to be conducted . The test , performed DATE , showed that the level of CDCARDINAL cells was CARDINAL cells / mmCARDINAL , which corresponded to an advanced stage of the disease .

On DATE and DATE the infectious diseases doctor visited Mr B. According to the medical records , the latter asked for antiretroviral therapy . In response , the doctor “ gave him a talk ” . No HIV treatment was prescribed .

On DATE Mr B. was discharged from the prison hospital . Until DATE he was transferred from CARDINAL prison medical facility to another for anti - tuberculosis treatment . Although the treatment was successful , the patient ’s overall medical condition continued to deteriorate . Medical specialists interpreted that as a sign of progressing HIV .

On DATE Mr B. was admitted to prison hospital no . RB-CARDINAL in GPE . At that time he was unable to walk , was feverish and extremely emaciated . DATE he was transferred to an infectious diseases unit . His doctor alleged that his grave medical condition resulted from a lack of highly active antiretroviral therapy ( ORG ) . Mr B. was prescribed antibacterial and disintoxication therapy .

On DATE the medical authorities applied for PERSON early release on medical grounds . DATE the Medvezhyegorsk Town Court of GPE granted the request . On DATE Mr B. was released from detention .

On DATE Mr B. was admitted to ORG in GPE . He did not regain consciousness and died there on DATE .

On DATE Mr P. was convicted of theft and sentenced to a term of imprisonment . He was taken into police custody and DATE sent to remand prison no . IZ-CARDINAL/CARDINAL in GPE .

During the admission procedure he told the resident doctor that in DATE he had been diagnosed with HIV , which by DATE had progressed to AIDS . Before his arrest he had been receiving antiretroviral therapy . He was also suffering from hepatitis B , C , and D and a skin disease .

Having undergone a routine medical examination , on DATE Mr P. was diagnosed with infiltrative tuberculosis of the right lung . A standard drug regimen was prescribed and administered to him in the prison medical unit . A chest X - ray examination carried out on DATE showed a decrease in the area of the lung affected by the tuberculosis .

PERSON was convicted of robbery in another set of criminal proceedings and on DATE he was sentenced to CARDINAL years’ imprisonment . He was sent to prison medical facility no . CARDINAL in GPE .

PERSON medical condition worsened . The result of a sputum culture test performed on DATE was smear - positive . By DATE Mr P. ’s tuberculosis had developed resistance to CARDINAL of the drugs he had been taking . Following a decision of the prison medical board on DATE , his drug regimen was adjusted .

On DATE PERSON was admitted to prison hospital no . RB-CARDINAL in GPE , where the tuberculosis treatment continued as prescribed . It appears that the change in medication improved the patient ’s lung condition . However , doctors noted a further development of opportunistic infections . A viral load test was performed , the results of which , as alleged by the second applicant , were not given to PERSON

On DATE PERSON returned to the prison medical facility . PERSON examinations carried out on DATE and CARDINAL DATE showed that the condition of PERSON lungs had improved . The results of a smear test proved negative . On DATE PERSON was sent back to a regular prison ward . His treatment continued .

On DATE at the request of PERSON , ORG of GPE ordered his release on parole . Having been released on DATE , PERSON was taken to ORG . He died in the hospital on DATE from “ an illness caused by the HIV infection ” .

On DATE and DATE a NORP non - governmental organisation , ORG , complained to ORG of the lack of HIV treatment for detainees , including PERSON and PERSON The complaint was referred to the prosecutor ’s office in GPE .

In a letter to ORG dated DATE the prosecutor ’s office in GPE observed that in DATE and DATE prison authorities in GPE had experienced difficulties with providing medical assistance to HIV - infected convicts in view of the fact that a large number of infected inmates had been sent to the Republic from other regions . The prosecutor ’s office said that the supply of drugs had been limited and the number of medical professionals had been insufficient , and acknowledged that the medical care of PERSON and PERSON had fallen short of the domestic standards . In particular , they had not received ORG . The prosecutor ’s office had sent the evidence it had gathered to the investigative committee in GPE to determine whether a criminal case should be opened .

On DATE the investigative authorities refused to open a criminal case into the deaths of Mr B. and Mr P. Citing the difficulties encountered by the prison authorities of GPE in DATE , including the large number of HIV - positive inmates , a lack of specialists trained to treat inmates suffering from that infection , the absence of an immunological laboratory and the lack of medication , the investigators concluded that the prison authorities had taken all possible measures to provide medical assistance to HIV - infected inmates . No causal link between the absence of HIV therapy and the deaths of PERSON and PERSON was established . The investigative authorities stressed that PERSON had managed to live in detention without the antiretroviral therapy for DATE and that PERSON had died DATE after his release . The conduct of the prison and medical authorities , in the ORG opinion , did not reveal any signs of a criminal offence .

The above decision was not challenged .

In DATE the applicants lodged a claim for non - pecuniary damages against ORG , arguing that their relatives’ death from HIV had been caused by the authorities’ failure to provide appropriate medical care .

On DATE the ORG of GPE examined the claim . It found that the burden of proof was on the applicants , who had to prove the unlawfulness of the prison officials’ conduct , the alleged damage , and the causal links between the officials’ conduct and that damage . Having noted the absence of a decision establishing a breach of the law by the prison authorities , and having referred to the decision not to open a criminal case into the deaths of the applicant ’s relatives , the court dismissed the claim as unsubstantiated .

On DATE ORG upheld the judgment on appeal , fully endorsing ORG reasoning .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE . He is currently serving a prison sentence .

On DATE the applicant , who was serving his sentence in FAC , took a walk together with other detainees . When he entered the accommodation block , CARDINAL prison guards searched him in the stairwell of the building . According to the applicant he was requested to lower his trousers and underpants twice and lift his sexual organ . A guard felt his underpants to find out whether any tobacco products had been hidden therein . According to the applicant he was in the sight of other detainees , since the door to the stairwell where the search was carried out had a transparent window . Another door leading from the stairwell to a corridor of the accommodation block also had a transparent window and detainees or female prison officers could have seen him through it or entered the stairwell at any time .

The applicant claimed from the prison administration CARDINAL kroons ( EEK ) ( corresponding to MONEY ( ORG ) ) for the non - pecuniary damages he had allegedly sustained . He named CARDINAL of the detainees who had been behind him when he had entered the building and had been searched .

NORP The prison administration rejected the applicant ’s claim . Relying on the statements of CARDINAL of the prison guards involved , the administration found that the search had been conducted in private and not in the sight of other detainees . According to the prison guard ’s written statements , the detainees had entered the stairwell CARDINAL by CARDINAL . CARDINAL guard had searched their jackets and the other one had searched the detainees . In the event that they suspected a detainee , they had closed the door in order to create a private space and the detainee in question had been requested to lower his trousers . Only the detainee to be searched and CARDINAL guards had been in the stairwell .

The applicant lodged a complaint with ORG . He reiterated his claim , named CARDINAL detainees who had seen his search and included written statements from CARDINAL of them .

By a judgment of CARDINAL DATE ORG rejected the applicant ’s claim . It found reliable the statements of the prison guard , according to whom the applicant ’s privacy had been respected .

The applicant appealed to ORG . At ORG hearing he submitted that the windows of the doors to the stairwell had measured QUANTITY and that DATE after his complaint to ORG they had been covered by metal sheets to prevent other detainees from seeing the searches .

By a judgment of DATE ORG dismissed the applicant ’s appeal . It established that the search had lasted for TIME at most and noted that the applicant had not been sure whether any other detainees had been in the stairwell . He had been unable to explain from where exactly the detainees named by him had seen his search . ORG concluded that his privacy had not been violated . It further found that in order to effectively manage a large number of detainees , the prison also had to have the possibility of carrying out a body search of a detainee , when necessary , in a location other than a private room designated for that purpose . In order to conduct such a search it was sufficient that the authorities had a suspicion that a detainee re - entering the building after a walk had hidden cigarettes – which were prohibited in prison DATE in his underwear .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal . It upheld ORG finding that the applicant ’s privacy had not been infringed and his dignity had not been diminished . CARDINAL of the CARDINAL judges delivered a separate opinion . He considered that it was not decisive whether the third persons had in fact seen the detainee ’s body search . It could not be presumed that a person who was being searched was able to establish at the same time whether the search had been seen , what exactly had been seen and by whom . When a body search was carried out in a situation and location where it was not guaranteed that third persons would not see the person ’s nudity , the person concerned was bound to feel that his privacy had not been respected and that other persons might have seen the procedure being performed . Such a situation damaged the person ’s dignity and could cause feelings of insecurity , anguish and degradation .

According to information provided by the ORG , the applicant had CARDINAL reprimands on record at the time of the search in question , including for unauthorised possession of a cigarette . From the date of the events at issue until DATE , CARDINAL further disciplinary punishments had been imposed on him , primarily for violations related to the possession of unauthorised items , mainly cigarettes .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) read in the light of Article 10 - (Art. 10) Freedom of expression-{general} (Article 10-1 - Freedom to hold opinions)

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

The applicant was born in DATE and lived in GPE until his arrest .

The background facts relating to the planning , conduct and dispersal of the demonstration at FAC are set out in more detail in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) , and GPE v. GPE ( nos . CARDINAL and QUANTITY , DATE ) . The parties’ submissions on the circumstances directly relevant to the present case are set out below .

On DATE a public demonstration entitled the “ DATE of CARDINAL ” was held in central GPE to protest against the allegedly rigged presidential elections . The event had been approved by the city authorities in the form of a march followed by a meeting at FAC , which was supposed to end at TIME The march was peaceful and held without any disruptions , but when the marchers arrived at FAC it became apparent that barriers installed by the police had narrowed the entrance to the meeting venue , allegedly restricting the space allocated for the meeting . To control the crowd the police cordon forced the protestors to remain within the barriers ; there were numerous clashes between the CARDINAL sides . At TIME the police ordered the meeting to finish early and began to disperse the participants . It took them TIME to clear the square .

On DATE the GPE city department of ORG opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ) . On CARDINAL DATE the file was transferred to the headquarters of ORG for further investigation . On DATE an investigation was also launched into the criminal offence of organising acts of mass disorder ( LAW ) . The CARDINAL criminal cases were joined on DATE .

At the time of his arrest the applicant was a DATE student at ORG and worked part - time as a courier for an insurance company . According to him , on DATE he arrived at FAC to take part in the march and walked with other participants to FAC . Upon arrival there he discovered that the police cordon had blocked access to the square . When passage to the stage of the rally taking place along the embankment was opened , the applicant went in that direction . The police started to disperse the protesters , using excessive force and beating them with truncheons . In response , the protesters dragged metal barriers in place to protect themselves from the police . At CARDINAL point the applicant observed a protester in a green T - shirt , who CARDINAL or QUANTITY police officers were holding and beating with truncheons . He grabbed the protester and pulled him back , trying to protect him from the blows . The applicant was later arrested by the police and taken to a police station before being released shortly after . After the events in question he continued to live at his usual address and pursue his studies .

On DATE the applicant was arrested on suspicion of having participated in acts of mass disorder on DATE .

On DATE ORG ordered that the applicant be placed in pre - trial detention until DATE . It referred to the gravity of the charges and information about the applicant ’s character , including a report by ORG chief of department at ORG . According to that report , the applicant was an active member of organisations of a destructive character . If he were to stay at liberty , he planned to threaten witnesses , abscond and obstruct the investigation . The court concluded that those circumstances gave sufficient grounds to believe that the applicant was likely to flee to avoid the investigation and trial , destroy evidence or otherwise obstruct the investigation of the criminal case , which was still at an initial stage .

On DATE charges were brought against the applicant under LAW ( participation in acts of mass disorder accompanied by violence ) . He was accused , in particular , of resisting police officers by pushing them away when they were arresting other protestors and by trying to liberate the latter .

On DATE ORG upheld the detention order of DATE .

On DATE ORG examined an application from the investigator for an extension of the applicant ’s pre - trial detention . The applicant asked for the preventive measure to be changed to house arrest , a written undertaking not to leave a specified place , bail or personal guarantees . On DATE ORG granted the investigator ’s application and extended the applicant ’s detention until DATE . It considered that the circumstances justifying the detention order had not changed .

On DATE Police Officer T. identified the applicant during an identification parade as a participant in mass disorder who had used violence against him . In particular , when ORG and other officers had been arresting a protester , the applicant had grabbed his hand and pulled it off the protestor , thereby causing the police officer pain . Another police officer , PERSON , also identified the applicant as a participant in acts of mass disorder who had tried to prevent the police arresting another protestor .

On DATE ORG dismissed the applicant ’s appeal against the extension order of DATE .

On DATE ORG granted an extension of the applicant ’s detention until DATE , essentially on the same grounds as earlier , noting that the circumstances justifying the detention order had not changed . In particular , it dismissed an objection from the applicant to the use of the operational - search reports concerning his character and rejected his contesting of the alleged membership of any organisations of a destructive nature .

On DATE and DATE the charges against the applicant were reformulated . It was stated that the applicant , who had been wearing a surgical mask to conceal his face , had used violence against the police while trying to liberate protestors who had been arrested and that he had pushed police officers away . In particular , he had grabbed Officer T. ’s hand and pulled it off a protester , thereby preventing his arrest . He had also built a line of metal barriers to block the police and had tried to repel the police with them . The applicant ’s alleged offences were classified additionally under LAW ( use of violence against a public official ) .

On DATE ORG granted a new extension of the applicant ’s detention , until DATE , essentially on the same grounds as before . On DATE ORG upheld the extension order .

On DATE the applicant ’s criminal case was transferred to the ORG of GPE for the determination of criminal charges .

On DATE that court granted another extension of the applicant ’s detention , until DATE . The decision concerned CARDINAL defendants . Along with the gravity of the charges , the court based its decision on the findings that “ the reasons which initially warranted the detention have not changed ” and that “ no other measures of restraint would secure the aims and goals of the judicial proceedings ” . The applicant ’s request for an alternative preventive measure was dismissed on the grounds that no other measure could secure the proper course of justice in the case . ORG upheld the extension order on DATE .

On DATE the ORG granted another extension of detention in respect of CARDINAL defendants , including the applicant . It ordered their detention until DATE on the grounds of the gravity of the charges and the nature of the offences imputable to them . On DATE ORG upheld that extension order .

The applicant was held in GPE for the whole period of his pre - trial detention from DATE . According to him , the conditions of his detention had been poor . The applicant referred to cases against GPE in which the ORG had previously found a breach of LAW because of overcrowding in GPE in DATE ( see PERSON v. GPE , no . CARDINAL , § § CARDINAL and DATE , DATE ; ORG and Others v. GPE , no . CARDINAL , § § CARDINAL and DATE , DATE ; and PERSON GPE , no . CARDINAL/CARDINAL , § § DATE and CARDINAL - CARDINAL , DATE ) . The applicant submitted that his conditions of detention had been similar .

NORP The applicant ’s description of the conditions of detention during his transfer from the remand prison to court and back and the Government ’s submissions in that regard were identical to those in the case of GPE ( cited above , § § CARDINAL ) .

As regards the conditions of detention in the convoy room of ORG , the applicant submitted that it was poorly lit and that access to the toilet was limited to once TIME . In addition , he had been required to strip naked and to perform sit - ups during the body search conducted in the convoy room .

On DATE court proceedings began in hearing room no . CARDINAL at ORG , moving at DATE to hearing room no . CARDINAL . The defendants , including the applicant , were held in glass cabins in both hearing rooms . From DATE to DATE the hearings continued at ORG of GPE in hearing room no . CARDINAL , while in DATE and DATE they took place at FAC in hearing room no . CARDINAL . Those hearing rooms were equipped with metal cages in which CARDINAL defendants ( CARDINAL from DATE ) , including the applicant , sat during the hearings .

For a detailed description of the conditions in those hearing rooms see GPE ( cited above , § § CARDINAL ) .

On DATE the ORG of GPE began a preliminary hearing in a criminal case against CARDINAL participants in the demonstration at FAC , who were charged with participation in acts of mass disorder and committing acts of violence against police officers . On DATE the same court began the trial on the merits .

On DATE Police Officer T. , the alleged victim of the applicant ’s assault , was examined as a witness . He testified that the applicant had impeded him and CARDINAL other police officers from arresting a protester by grabbing T. ’s hand and pushing the officers away . The applicant had caused him pain but had not inflicted any injuries . During the hearing the applicant and his lawyers applied to deprive T. of victim status because no harm had been caused to him , but the court refused that request as unsubstantiated .

On DATE the Zamoskvoretsky District Court of GPE found the applicant guilty as charged . It held , in particular , as follows :

“ TIME on DATE ... at FAC ... unidentified persons ... called those present [ at the venue ] to move outside the agreed meeting venue , to defy the lawful orders of the police ... , to use violence ... which led to mass disorder accompanied by the use of violence against public officials in connection with the performance of their duties [ and ] the destruction of property .

On DATE at TIME at the latest [ the defendants ] acquired the criminal intent to participate in mass disorder and to use violence against ... police officers ...

Moreover ... the participants of the acts of mass disorder threw chunks of tarmac , stones , sticks and other objects at the police ... which hit them on various parts of their body , and [ the defendants ] ... [ who ] participated in the acts of mass disorder ... implemented their criminal intent to use violence against public officials ... applied physical force which was not a danger to the life or health of those [ officials ] ...

[ The applicant ] ... who was wearing a surgical mask to hide his face , together with unidentified persons ... tried to liberate those arrested by the police for a breach of public order and pushed the police officers away ...

... [ the applicant ] used violence against Police Officer [ T. ] which did not endanger his life or health ...

[ The applicant ] ... from TIME to TIME ... when unidentified participants of acts of mass disorder tried to break the police cordon , acting intentionally and using force , grabbed [ T. ’s ] hand and then pulled it off the person whom [ T. ] was arresting , thus impeding his apprehension , which caused [ T. ] pain .

In addition , [ the applicant ] together with unidentified persons ... built a line of metal barriers blocking the police ’s movements , and ... tried to repel the line of police officers ... with the help of those barriers .

[ The applicant ] pleaded not guilty and testified that ... he had decided to attend the public gathering on DATE ... for the purposes of personal security he wore a surgical mask ... [ The applicant ] was at the bridge when a blockage occurred . He did not see what was happening , but at CARDINAL point ... he had been able to proceed with the flow of people towards the stage . There [ the applicant ] saw the mass beating of people by police officers and participants of the rally starting to bring forward metal barriers ... and to put them close to the police officers , trying to protect themselves from the latter . [ The applicant ] was standing close to the barriers , taking his hands off when the police officers used their truncheons to hit over the barriers . Then ... [ the applicant ] saw a group of CARDINAL or QUANTITY police officers who were trying to seize a young man in a green T - shirt . They hit the man with their truncheons , and [ the applicant ] , considering that the man was in danger because the police actions were unlawful , tried to snatch him from the ORG hands . He grasped the young man ’s waistband , pulled it and turned his back to protect him from the truncheon blows . [ The applicant ] finds it conceivable that in this turmoil he might unintentionally have pushed someone and asks for attention to be paid to [ T. ’s ] statements that the latter did not feel any pain . Then [ the applicant ] was arrested and taken to a police vehicle .

... the court considers the [ defendants’ ] arguments that they were protecting somebody from police officers or happened to be victims of the police ’s use of force as farfetched and aimed at the mitigation of their responsibility ... ”

The applicant was sentenced to DATE and CARDINAL months’ imprisonment , calculated on the basis of a DATE prison term under LAW , partly concurrent with a term of DATE and DATE under LAW . The applicant ’s pre - trial detention counted towards the prison sentence .

The applicant appealed . He complained that the same acts imputed to him had been classified under both LAW and LAW . He insisted that he had not used violence against T. because the latter had not suffered any pain or injuries .

On DATE ORG upheld the first - instance judgment .


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

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

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

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

The applicants were transferred to an Early Reception and Aid Centre ( Centro di Soccorso e Prima Accoglienza – “ ORG ” ) at PERSON where , after giving them first aid , the authorities proceeded with their identification .

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

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

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

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

The applicants remained on the ships until CARDINAL and DATE , respectively , when they were taken to GPE airport pending removal .

Before being put on the aircraft , the migrants were received by the NORP Consul . According to the applicants , the Consul merely recorded their identities in accordance with agreements between GPE and GPE of DATE ( see paragraphs CARDINAL below ) .

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

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

“ The Commissioner of Police ( Questore ) for GPE

Having regard to the documents in the file , showing that

( CARDINAL ) on CARDINAL [ DATE members of the police force found in the province of GPE , near the border of island of GPE , PERSON [ surname and forename ] born ... on [ date ] ... NORP national ... not fully identified , being undocumented ( sedicente ) ;

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

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

WHEREAS none of the cases [ indicated in ] LAW no . CARDINAL of DATE is at issue ;

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


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

Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos

The applicant was born in DATE .

In DATE the applicant was convicted of manslaughter and sentenced to life imprisonment . He was held in a number of different detention centres . No information is available in respect of his places of detention before DATE . From the latter date until DATE he was detained in PERSON . On DATE he was transferred to FAC .

The applicant and the Government disagreed as to most aspects of the conditions of detention in PERSON .

The applicant alleged that he had occupied overcrowded cells , without providing details about the surface area and the number of cellmates .

He also complained of unsatisfactory sanitary conditions . The cells did not have any furniture in which to keep personal objects and food , therefore the prisoners were forced to keep them under their beds where there were CARDINAL of insects .

The temperature in the cells was very low in DATE .

The applicant claimed that for DATE , from DATE until DATE , they had not had hot water . The prisoners were confronted with the same situation in DATE when they had to live without hot water from DATE until CARDINAL DATE .

He also contended that even though he was a non - smoker , he had had to share the cell with smokers . He further claimed that in his cell there were prisoners who frequently consumed drugs and that the smoke from the cigarettes combined with the smoke released from the drugs made the air in the cell unbreathable .

The Government supplied the following details concerning the cells in which the applicant has been detained in PERSON :

- Between DATE and CARDINAL DATE the applicant was detained in cell no . CARDINAL , measuring QUANTITY m. The cell was occupied by CARDINAL inmates .

- Between DATE and DATE the applicant was detained in cell no . CARDINAL , measuring CARDINAL sq . m , which he shared with CARDINAL or CARDINAL other inmates .

- DATE and DATE the applicant was detained in cell no . CARDINAL , measuring CARDINAL sq . m. The cell was occupied by CARDINAL inmates .

- DATE and DATE the applicant was detained in cell no . CARDINAL , measuring CARDINAL sq . m , which he shared with CARDINAL other inmates .

- DATE and CARDINAL September CARDINAL the applicant was detained in cell no . CARDINAL , measuring CARDINAL sq . m , which he shared with CARDINAL other inmates .

- DATE and DATE the applicant was detained in cell no . CARDINAL , measuring CARDINAL sq . m , which he shared with CARDINAL or QUANTITY inmates .

The applicant was detained in smoking cells and he had not asked to be transferred to a non - smoking cell .

As regards cleanliness and hygiene , the ORG submitted that every year the prison authorities signed contracts for rodent and pest control with companies specialising in this work . Disinfection of the cells was carried out at least once DATE . Moreover , the quality of the drinking water was tested regularly by the prison authorities , with the aid of a specialised laboratory . Furthermore , the food was fresh and of good quality .


András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants , Mr PERSON and PERSON , are NORP nationals , who were born in DATE and live in GPE . They were represented before the Court by Ms C. Turhallı Balsak , a lawyer practising in GPE .