CASE OF KRSTANOSKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

NORP In DATE several plots of land ( agricultural land at the time ) were expropriated from the applicants’ legal predecessors . The present cases concern restitution proceedings in which the applicants sought that the plots of land , which , at present , form part of a campsite on the shore of LOC , be restored to their possession .

On DATE the applicants instituted restitution proceedings . On DATE ORG ( “ the ORG ” ) granted the applicants’ claims and awarded them compensation , the form of which was to be determined by a separate decision . It established that according to an urban plan of DATE the land was designated as a public green zone in a tourist area . Relying on an on - site inspection ( увид ) of DATE , it further held that the land was developed ( уреден простор ) with access paths and supporting infrastructure .

On DATE the applicants appealed , arguing that , inter alia , the land was undeveloped and could be restored to their possession . Were the urban plan to be implemented in the future , the land could be expropriated anew .

On DATE the the Second - Instance Administrative - Procedure Commission in LOC ( Комисија за решавање во управна постапка во втор степен од областа на денационализацијата – “ the second - instance commission ” ) dismissed the applicants’ appeal finding no grounds to depart from the established facts and the reasons given by ORG . Relying on section CARDINAL of LAW ( see paragraph CARDINAL below ) , the second - instance commission held that the land in question was of public interest ( јавен интерес ) and could not be restored to the applicants’ possession , but that compensation should be awarded instead .

On DATE the applicants lodged an administrative - dispute claim with ORG reiterating that the land within the campsite was undeveloped and could therefore be restored to their possession . In submissions lodged subsequently , they further referred to decision no . DATE of DATE in which the second - instance commission had accepted a similar claim and ordered that a neighbouring plot of land located within the same campsite had been restored to possession of the claimants . In that case , the second - instance commission had held , unlike in the applicants’ case , that access paths and supporting infrastructure had not been sufficient for the land in question to be regarded as developed .

On DATE ORG , which had in the meantime become competent to decide administrative - dispute claims , dismissed the applicants’ claim and upheld the findings of the administrative authorities .

On DATE ORG upheld the applicants’ restitution claim and awarded them compensation in ORG bonds . Relying on an on - site inspection of CARDINAL DATE and a certificate of DATE issued by the competent Ministry , it established that the plot in question was located within the boundaries of the campsite ; that it had been designated as a public green zone and that pedestrian paths and other similar infrastructure were planned for construction . It concluded accordingly that the plot could not be restored to the applicants’ possession .

An appeal by the applicants of DATE was dismissed by the second - instance commission on DATE . The latter held that , inter alia , the findings of ORG had been based on section CARDINAL of LAW .

The applicants lodged an administrative - dispute claim in which , alike the applicants in application no . CARDINAL/CARDINAL , they referred to the second - instance commission ’s decision no . CARDINAL - CARDINAL/CARDINAL and asked ORG to ensure consistent application of the law .

On DATE ORG dismissed the applicants’ claim , finding no grounds to depart from the established facts and the reasoning given by the administrative authorities .


Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Violation of Article 14+10 - Prohibition of discrimination (Article 14 - Discrimination) (Article 10 - Freedom of expression-{General};Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicants were born in DATE , DATE , and DATE respectively . The first and the third applicants live in GPE , and the second applicant lives in GPE , PERSON .

The applicants are gay rights activists . They were each found guilty of the administrative offence of “ public activities aimed at the promotion of homosexuality among minors ” ( публичные действия , направленные на пропаганду гомосексуализма среди несовершеннолетних ) .

On DATE ORG adopted ORG in LOC , which prohibited public activities aimed at the promotion of homosexuality among minors .

On DATE ORG adopted ORG , which introduced administrative liability for public activities aimed at the promotion of homosexuality among minors .

On DATE the first applicant held a static demonstration ( “ picket ” , пикетирование ) in front of a secondary school in ORG , holding CARDINAL banners which stated “ Homosexuality is normal ” and “ I am proud of my homosexuality ” . He was charged with an administrative offence for doing so .

On DATE the ORG of ORG no . CARDINAL of LOC found the first applicant guilty of a breach of section CARDINAL of LAW . He was ordered to pay a fine of MONEY ( RUB , equivalent to MONEY ( ORG ) ) . On DATE ORG dismissed the first applicant ’s appeal .

On DATE ORG passed amendments to ORG in LOC . The amended law prohibited public activities aimed at the promotion of homosexuality among minors .

On DATE ORG passed amendments to LAW . The amendments introduced administrative liability for public activities aimed at the promotion of homosexuality among minors .

On DATE the second and the third applicants held a static demonstration in front of the children ’s library in GPE . The second applicant was holding a banner stating “ GPE has the world ’s highest rate of teenage suicide . This number includes a large proportion of homosexuals . They take this step because of the lack of information about their nature . Deputies are child - killers . Homosexuality is good ! ” The third applicant was holding a banner stating “ Children have the right to know . Great people are also sometimes gay ; gay people also become great . Homosexuality is natural and normal ” ; it went on to list the names of famous people who had contributed to GPE ’s cultural heritage and were believed to be gay . Both applicants were arrested and escorted to the police station , where administrative offence reports were drawn up .

On DATE the Justice of ORG no . CARDINAL of LOC found the second and the third applicants guilty of a breach of section CARDINAL § CARDINAL of LAW . The second applicant was ordered to pay a fine of RUB CARDINAL ( about EUR CARDINAL ) , and the third applicant was fined RUB CARDINAL ( about EUR CARDINAL ) . On DATE ORG dismissed both applicants’ appeals .

On DATE ORG passed amendments to ORG in GPE . The amendments introduced administrative liability for public activities aimed at the promotion of homosexuality , bisexuality and/or transgenderism among minors ; the same law introduced administrative liability for promotion of paedophilia .

On DATE the third applicant held a demonstration in front of GPE , holding up a banner with a popular quote from a famous DATE actress PERSON : “ Homosexuality is not a perversion . Field hockey and ice ballet are . ” He was arrested by the police and escorted to the police station , where an administrative offence report was drawn up .

On DATE the Justice of ORG no . CARDINAL of GPE found the third applicant guilty of a breach of section CARDINAL of ORG in GPE . He had to pay a fine of RUB CARDINAL ( about EUR CARDINAL ) . On DATE ORG of GPE dismissed the applicant ’s appeal .

On an unspecified date the first and the third applicants brought proceedings before ORG of GPE . They challenged the compatibility of CARDINAL of ORG in LOC with the provisions of the LAW , in particular with the principle of equal treatment and the freedom of expression enshrined in LAW and QUANTITY of the LAW , and also the provisions of LAW , setting out the conditions under which the constitutionally guaranteed rights and freedoms may be restricted .

On DATE ORG declared the complaint inadmissible , for the following reasons :

“ Section CARDINAL § CARDINAL of the Federal Law clearly sets out the responsibility of the ORG bodies of GPE to take measures for the protection of children from information , propaganda and activism which is harmful to their health and moral and spiritual development .

The laws of LOC “ On protection of the morality of children in the LOC ” and “ On administrative offences ” do not strengthen any measures which prohibit homosexuality or provide for its official censure ; they do not contain signs of discrimination , and there is no indication in their intent of superfluous actions by the ORG bodies . It follows that the provisions being challenged by the appellants can not be regarded as disproportionately restrictive of freedom of speech . ”

On unspecified date the third applicant brought proceedings before ORG of GPE . He challenged the compatibility of section CARDINAL of GPE in GPE with the LAW .

“ ... It follows that the given prohibition , determined by the fact that such promotion is capable of harming minors by virtue of the age - specific features of their intellectual and psychological development , can not be considered as permitting a limitation on the rights and freedoms of citizens exclusively on the basis of sexual orientation .

However , this does not rule out a need to define – on the basis of a balancing exercise with regard to the competing constitutional values – the limits of the given ORG effective practice of their rights and freedoms , in order not to infringe the rights and freedoms of others .

’s actions with regard to the targeted and unchecked dissemination of generally accessible information were capable of causing harm to the health and moral and spiritual development of minors , including creating a distorted impression of the social equivalence of traditional and non - traditional marital relations , does not come within the competence of ORG of GPE ; nor does verification of the lawfulness and validity of the judicial decisions issued in the appellant ’s case . ”

On DATE the Code of Administrative Offences of GPE was amended , introducing in Article CARDINAL administrative liability for the promotion of non - traditional sexual relations among minors .

On an unspecified date the third applicant and CARDINAL other persons brought proceedings before ORG of GPE . They challenged the compatibility of Article CARDINAL of LAW with the provisions of LAW .

On DATE ORG examined the complaint on the merits and dismissed it , for the following reasons :

“ ... Citizens’ enjoyment of the right to disseminate information concerning the question of an individual ’s sexual self - determination ought not to infringe the rights and freedoms of others ; in regulating of this right by means of legislation , it is necessary to ensure that a balance is struck between the values protected by LAW . Consequently , bearing in mind the sensitive nature of such questions , since they belong to the sphere of individual autonomy , and without encroaching on its very essence , the ORG is entitled to introduce , on the basis of the above - mentioned requirements of LAW , specific restrictions on activities linked with the dissemination of such information if it becomes aggressive [ and ] importuning in nature and is capable of causing harm to the rights and legal interests of others , primarily minors , and is offensive in form .

... In so far as one of the roles of the family is [ to provide for ] the birth and upbringing of children , an understanding of marriage as the union of a man and a woman underlies the legislative approach to resolving demographic and social issues in the area of family relations in GPE ...

Regulation of freedom of speech and the freedom to disseminate information does not presuppose the creation of conditions which would facilitate the formation of other interpretations of the family as an institution , and the associated social and legal institutions , which would differ from the generally accepted interpretations nor society ’s approval of them as being equivalent in value ...

These aims also determine the need to protect the child from the influence of information that is capable of causing harm to his or her health or development , particularly information that is combined with an aggressive imposition of specific models of sexual conduct , giving rise to distorted representations of the socially accepted models of family relations corresponding to the moral values that are generally accepted in NORP society , as these are expressed in the LAW and legislation .

In order to ensure the child ’s healthy development , GPE are required , in particular , to protect the child from all forms of sexual exploitation and sexual perversion .

The aim pursued by the federal legislature in establishing the given norm was to protect children from the impact of information that could lead them into non - traditional sexual relations , a predilection for which would prevent them from building family relationships as these are traditionally understood in GPE and expressed in LAW . ORG of GPE acknowledges that the possible impact on the child ’s future life of the information in question , even when delivered in a persistent manner , has not been proven beyond doubt . Nonetheless , in assessing the necessity of introducing one or another restriction , the federal legislature is entitled to use criteria that are based on the presumption that there exists a threat to the child ’s interests , especially as the restrictions introduced by it concern only the tendency of the information in question to target persons of a given age group , and can not therefore be regarded as excluding the possibility of exercising one ’s constitutional right to freedom of information in this area . ...

The prohibition on public activities in relation to minors is intended to prevent their attention being increasingly focused on issues concerning sexual relations , which are capable , in unfavourable circumstances , of deforming significantly the child ’s understanding of such constitutional values as the family , motherhood , fatherhood and childhood , and adversely affecting not only his or her psychological state and development , but also his or her social adaptation . The fact that this ban does not extend to situations concerning the promotion of immoral conduct in the context of traditional sexual relationships , which may also require ORG regulation , including through [ the existence of ] administrative offences , is not grounds for finding that the given norm is incompatible with LAW from the perspective of infringing the principles of equality as applied to the protection of LAW values , which ensure the uninterrupted replacement of generations ...

The imposition on minors of a set of social values which differ from those that are generally accepted in NORP society , and which are not shared by and indeed frequently perceived as unacceptable by parents – who bear primary responsibility for their children ’s development and upbringing and are required to provide for their health and their physical , psychological , spiritual and moral development – ... may result in the child ’s social estrangement and prevent his or her development within the family , especially if one considers that equality of rights as set out in the LAW , which also presupposes equality of rights irrespective of sexual orientation , does not yet guarantee that persons with a different sexual orientation are actually regarded in equal terms by public opinion ; this situation may entail objective difficulties when trying to avoid negative attitudes from individual members of society towards those persons on a day - to - DATE level . This is also true for instances where the very information that is banned from dissemination to minors may be intended , from the disseminator ’s perspective , to overcome such negative attitudes towards persons with a different sexual orientation ...

The prohibition on the promotion of non - traditional sexual relationships does not in itself exclude the information in question from being presented in a neutral ( educational , artistic , historical ) context . Such transmission of information , if it is devoid of indications of promotion , that is , if it is not aimed at creating preferences linked to the choice of non - traditional forms of sexual identity and ensures an individualised approach , taking into account the specific features of the psychological and physiological development of children in a given age group and the nature of the specific issue being clarified , may be conducted with the help of experts such as teachers , doctors or psychologists .

... does not signify a negative appraisal by the ORG of non - traditional sexual relationships as such , and is not intended to belittle the honour and dignity of citizens who are involved in such relationships ...

... can not be regarded as containing official censure for non - traditional sexual relationships , in particular homosexuality , far less their prohibition ...

... the person [ disseminating information ] must understand that what appears to him or her as the straightforward provision of information may , in a specific situation , resemble activism ( promotion ) , if it is shown that the aim was to disseminate ( or especially to impose ) information with the above - mentioned content . At the same time , only intentional commission by a person of the corresponding public activities , directly targeted at promoting non - traditional sexual relations among minors , or intentional commission of these actions by a person who was fully aware that there could be minors among those receiving the information , is punishable ... ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - finding of violation sufficient

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque

The applicant lives at GPE , GPE .

In DATE PERSON , who was then the applicant ’s wife , bought a property named Ekheim from him for MONEY ( ORG ) , currently corresponding to MONEY ( ORG ) . The couple drew up marital agreements ( “ ektepakt ” ) in DATE and DATE .

On DATE PERSON and the applicant concluded an agreement stipulating that they each owned PERCENT of the PERSON estate , regardless of what was stated or might follow from formal entitlements ( hereinafter referred to as the joint ownership agreement ) .

Subsequently , after their divorce , the applicant lodged an action against PERSON ORG ( tingrett ) , seeking a ruling to the effect that the marital agreements were invalid and that the joint ownership agreement was valid . By a judgment of DATE , ORG found against the applicant and in favour of the respondent , concluding that the marital agreements were valid and that the joint ownership agreement was invalid . The applicant did not appeal against this judgment , which gained legal force .

In DATE PERSON sold the PERSON estate to ORG , a limited liability company , for ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL,CARDINAL ) .

On DATE the applicant instituted civil proceedings before ORG against ORG claiming that he had title to PERCENT of the PERSON estate and seeking , firstly , an order that the latter convey PERCENT of the property to him and , secondly , that he held a pre - emption right with respect to PERCENT .

According to the summary of the applicant ’s submissions made by ORG in its judgment referred to below , the applicant argued in the main as follows :

( a ) The question was how to interpret the former spouses’ joint ownership agreement of CARDINAL DATE . In the case that had previously been decided by ORG on DATE , the subject - matter of the dispute had been whether the marital agreements from DATE and DATE were valid . The subject - matter in the present case was different . CARDINAL spouses having completely separate property had the opportunity to conclude a mutual agreement involving an obligation of performance for each party . According to legal doctrine , such a contract was not dependent on any condition as to form .

( b ) The contract had been a reality in the present case . ORG had purchased the CARDINAL of the Ekheim estate that had been in PERSON ownership , not the CARDINAL owned by the applicant , because PERSON had had no right to sell CARDINAL . Consequently , ORG ought to transfer by deed of conveyance CARDINAL of the PERSON estate back to the applicant .

( c ) The applicant further submitted that in its DATE judgment ORG had not reviewed the validity of the joint ownership agreement . In any event , the legal force of that judgment extended only to the relationship between PERSON and the applicant , not between ORG and the applicant . The applicant referred to legal doctrine , according to which a judgment as a main rule only had legal force in the relationship between the parties to the proceedings . Moreover , the parties’ arguments ought to be taken as a starting point in the assessment of whether any new factual circumstances had arisen .

( d ) The applicant ’s argument was that in the period since DATE the estate had increased so greatly in value that ORG now had to assess the ownership issue independently of the conclusion reached in the DATE judgment . At that time the mortgages on the property had clearly exceeded its value and it had therefore been unproblematic to hold that , in light of an on - going bankruptcy at the time , the applicant would not have been in a better position in the absence of the marriage settlement agreements . It would be unreasonable if PERSON or her successors should be able to profit from the tremendous increase in the property ’s value .

By a judgment of DATE , ORG found in favour of the respondent PERSON , on the ground that the applicant did not have title to the property in question as the respondent company had derived its rights from PERSON and ORG had ruled in her favour in its DATE judgment . It rejected the applicant ’s argument based on legal doctrine that the DATE judgment only had legal force between the parties by referring to another passage in the legal manual in question from which it appeared that the point only applied to disputes between a private party and public authorities . The action brought by the applicant had no public - law aspects and ORG did not consider that the legal doctrine referred to had any bearing on the present case .

The applicant appealed against ORG judgment of CARDINAL DATE to ORG ( lagmannsrett ) . He argued in particular that ORG had confused his pleadings and references to legal doctrine made at the oral hearing and had shortened the overall duration of the hearing from DATE initially scheduled to TIME . TIME into the hearing ORG had truncated the hearing of the applicant ’s witnesses , including the presentation of documentary evidence regarding the disputed agreements . ORG hearing record had also been marred by formal mistakes .

On DATE ORG warned the applicant that it envisaged refusing admission of his appeal and gave him until DATE to comment . After an extension of this time - limit to CARDINAL DATE the applicant on the latter date requested that his appeal be admitted for examination or , in the alternative , that ORG quash ORG judgment and refer the case back to ORG for fresh examination . On CARDINAL and DATE he filed additional submissions .

In a unanimous decision ( beslutning ) of DATE ORG concluded that it refused to admit the appeal ( “ Anken nektes fremmet ” ) , giving the following reasons :

“ The High Court finds it clear that the appeal will not succeed , and that its admission should therefore be refused pursuant to LAW ) of LAW . ”

The applicant appealed against ORG decision to ORG , arguing notably that the refusal of admission of the appeal lacked reasons .

On DATE ORG ( Høyesteretts ankeutvalg ) , pointing out that its jurisdiction was confined to reviewing the High Court procedure ( LAW ( CARDINAL ) of LAW ) , unanimously found it clear that the appeal would not succeed and therefore rejected the appeal under LAW ) .


Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

Ms Damani Kaimova , Ms PERSON , and PERSON were born on DATE , CARDINAL DATE , and DATE , respectively . They live in GPE . The first applicant is the mother , the second applicant is a daughter , and the third applicant is the widow of the late Mr GPE .

On DATE Mr GPE was arrested for being a member of an illegal military organisation in GPE . He remained in detention throughout the investigation and trial . On DATE ORG of GPE found him guilty of charges related to the military organisation and illegal acquisition of weapons . He was sentenced to DATE imprisonment .

In the meantime , he was charged with attempted murder of lawenforcement officials , with making a homemade explosive , and other offences . He was convicted as charged by ORG of GPE on DATE and sentenced to DATE imprisonment .

Prior to his detention Mr GPE had been diagnosed with tuberculosis for which he had been receiving outpatient treatment in a local hospital .

On admission to a remand prison Mr GPE informed the custodial authorities of his history of tuberculosis . A chest X - ray in DATE examination revealed the signs of that disease . A standard treatment with first - line medication was prescribed .

NORP In DATE Mr GPE was sent to serve his sentence to GPE . In DATE he was admitted to prison medical institution no . CARDINAL in Nizhnekamsk , where his tuberculosis was cured as confirmed by a medical board on DATE .

On DATE Mr GPE was discharged from the prison medical institution to remand prison no . IZ-CARDINAL/CARDINAL in GPE . Shortly thereafter his health worsened .

On DATE the prison authorities ordered his admission to prison medical institution no . CARDINAL in PERSON ( “ the prison hospital ” ) where Mr GPE was diagnosed with tuberculosis of the right lung at the stage of tissue destruction . Treatment with second - line drugs was prescribed .

In DATE and DATE doctors noted progression of the disease . At that time Mr GPE started coughing up blood . An amended intense treatment brought his condition under control .

On DATE , in response to Mr GPE ’s “ negligent attitude towards his treatment ” , a doctor talked to him about the importance of taking his drugs regularly . On DATE and CARDINAL DATE the doctor had repeated talks with him on the issue .

In DATE , the first applicant visited her son . Mr GPE was in a poor health . He claimed that no treatment had been given to him and that “ the medical staff [ had ] paid absolutely no attention to his condition ” .

On DATE , CARDINAL TIME and DATE the doctor responsible for Mr GPE ’s treatment again noted in the medical file that the patient was not taking his drugs as prescribed and insisted that he should follow medical instructions properly . The medical records were not signed by PERSON .

By DATE Mr GPE ’s condition became serious . He was no longer able to leave his bed .

On DATE an inmate of the remand prison allegedly informed the first applicant that her son ’s condition had become very serious and that no medical care was being given to him .

DATE PERSON , a lawyer working with the NORP ORG , interviewed Mr GPE in the prison hospital . He said that he had not received the medicines , as the prison hospital did not have them . The prison hospital ’s management refused to accept parcels with drugs for detainees .

Mr GPE died of heart failure caused by tuberculosis on DATE . The first applicant did not allow an autopsy to take place .

According to the ORG , the investigating authorities carried out a criminal inquiry into the circumstances of Mr GPE ’s death , which ended with a decision of DATE not to open a criminal case .

On DATE PERSON asked the head of ORG to investigate the circumstances of Mr GPE ’s death . He pointed out that the detainee had complained of the lack of treatment in detention . A copy of the interview record of DATE was attached to the request .

The investigating authorities interviewed PERSON , who confirmed his statements , and PERSON , the head of the tuberculosis unit responsible for Mr GPE ’s treatment in DATE and DATE . The doctor stated that the patient had received tuberculosis treatment until DATE , when he had refused to take any drugs .

On DATE , citing statements by PERSON , the investigating authorities concluded that there had been no appearance of negligence on the part of the medical authorities . They decided not to open a criminal case .

DATE a higher - ranking investigator overruled that decision , noting that the investigation had not been thorough , in particular , because no medical documents had been collected .

The investigator again refused to open a criminal case on CARDINAL DATE . That decision was annulled by the higher - ranking authority on CARDINAL DATE for want of necessary investigative measures , in view of the investigator ’s failure to rectify the shortcomings already identified in the previous review decisions .

DATE after the annulment of his previous decision , the investigator again refused to open a criminal case , having based his new decision on the same evidence and arguments as before .

In the meantime , PERSON submitted a new criminal complaint to the ORG in GPE . The authorities were called on to verify whether the alleged inaction of the medical authorities had amounted to the deprivation of medical care , an offence under LAW . On DATE the case was forwarded to the GPE district police station in GPE .

A police investigator interviewed a tuberculosis specialist , who had treated Mr GPE , and a prison nurse . They unanimously stated that the patient had refused treatment .

On CARDINAL DATE the investigator refused to open a criminal case . Relying on the above statements and Mr GPE ’s medical history , he found that the latter ’s death had resulted from his own careless decision in not taking the prescribed drugs , and that the medical authorities had taken all reasonable steps to convince him to re - initiate the treatment .

The first applicant appealed against the decision of CARDINAL DATE . Her appeal was rejected , in the final instance , by ORG of GPE on DATE . The courts concluded that the investigation into Mr GPE ’s death had been thorough and comprehensive . The decision refusing the institution of criminal proceedings had been based on the examination of the medical file and statements by a number of witnesses , including the medical personnel of the prison hospital . The courts endorsed the investigator ’s conclusion that Mr GPE had refused treatment and had not followed the recommendations of the medical personnel . The courts also noted that the first applicant had been aware of Mr GPE ’s behaviour and had not made any complaints about the quality of the treatment at that time .

Following the communication of the application to ORG , they submitted that on CARDINAL and DATE the decisions of DATE and CARDINAL DATE , respectively , had been overruled by higherranking officials and additional investigative measures had been ordered . In particular , a medical expert examination was to be performed .

According to the applicants’ correspondence of DATE , the criminal investigation was pending . There is no further information about the outcome .


Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

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

On DATE the applicant ’s son , PERSON , participated in a public gathering in the village of GPE , in the GPE district of ORG . CARDINAL people took part , raising allegations of corruption against local public officials . At TIME officers of the special mobile unit encircled the participants and fired several warning shots in the air .

Thereafter , the gathering was dispersed by the authorities with the use of firearms ( see also PERSON and Others v. GPE , no . CARDINAL , § § DATE , DATE ) . PERSON was wounded by a tear gas grenade and died of his wounds . CARDINAL other people were seriously wounded ; a large number of people sustained injuries and were arrested .

On DATE , the prosecutor of GPE initiated criminal proceedings on charges of murder and illegally handling firearms ( Articles CARDINAL and CARDINAL of LAW ) and assigned the case to an investigator .

A forensic expert examined the deceased ’s body and extracted the objects that killed him .

On DATE , the investigator commissioned a ballistics report from ORG of ORG of the ORG to determine the type of the grenade , the type of rifle used to fire it and whether the grenade had striae that could be used for identifying the rifle .

On CARDINAL DATE the ballistics expert issued a report and concluded as follows :

“ CARDINAL . The forensic expert was given the following CARDINAL objects for examination : a grenade with a special charge ; and an obturator with a special charge ( a QUANTITY cartridge used with a carbine type KS-CARDINAL ( KS-CARDINAL M ) ) . It has not been possible to determine the exact make of the tear gas grenade .

NORP ... It would not be possible to use the obturator on the body of the grenade to identify the specific weapon used . It would however be possible to use the separate obturator to identify the weapon used , if the weapon were provided for examination . ”

On DATE the investigating authority commissioned another ballistics report to identify the rifle used to fire the grenade extracted from the body of the applicant ’s son . On DATE the Forensic Expert Centre of the Dagestan Ministry of the ORG declined to carry out an examination , referring to the absence of “ facilities or equipment for testshooting CARDINAL PERSON canisters with special gases ” .

On an unspecified date , a number of carbines used by officers of the special mobile unit on DATE were seized .

In DATE and DATE the investigating authority commissioned ballistics reports from ORG of ORG of the ORG and another local expert institution . However , the reports were not produced , apparently , on account of lack of sufficient technical facilities .

On DATE ORG of ORG was asked to prepare a ballistics report in order to determine which carbine had been fired at the victim . The investigating authority submitted the objects extracted from the victim ’s body , as well as CARDINAL carbines .

On DATE the authorities took the decision to open another criminal case concerning the charge of abuse of power by a public official causing death ( Article CARDINAL of LAW ) . It appears from the decision that it concerned other people rather than the applicant ’s son . The decision read as follows :

“ It was established that police officers had had recourse to firearms ... Officers of the special mobile unit fired gunshots , using QUANTITY , and tear gas grenades violating a directive dated DATE and acting in excess of their competence ... It is prohibited to fire these tear gas canisters at a person . As a result , Mr N. and Mr A. sustained injuries . ”

Later on , the above - mentioned cases were joined to be investigated together .

On DATE ORG issued a report , which reads as follows :

“ ... As the relevant QUANTITY had not been submitted for test shots , a request for CARDINAL PERSON cartridges was made with the relevant department of ORG of GPE ... [ Footnote : PERSON cartridges are used for training purposes relating to the use of KS-CARDINAL and KS-CARDINAL M carbines . These cartridges are similar to those normally used with these carbines . The only difference is that they do not contain the irritating chemical substance . ] ...

The research part

NORP ... I note that the tear gas grenade has no striae left by the carbine used to fire it . This may be explained by the fact that the grenade could not have had contact with the interior of the carbine as it had been loaded into it with the aid of CARDINAL obturators ...

Test shots have been done in respect of the KS-CARDINAL and KSCARDINAL M carbines that were submitted for the examination . The purpose of the test shots was to observe the striae left on the obturators of the grenades fired from these carbines , and to compare the striae with the striae left on the obturator of the grenade used against the victim . I have used CARDINAL PERSON cartridges for the test shots . These cartridges are similar to those that were submitted for the examination ...

NORP ... In view of the variance of the results of the test shots , it was impracticable to identify the relevant carbine on the basis of the striae left on the obturators ... in particular , on account of the elasticity and low thermo - resistance of the material used in the obturators ... ”

On DATE another ballistics report was sought from ORG ( “ the Institute ” ) . ORG was likewise provided with CARDINAL carbines and the objects extracted from the victim ’s body .

On DATE the expert from the ORG issued a report stating that it was not practicable to determine which of the examined carbines had been used to shoot the cartridge . The forensic expert explained that she had been provided with PERSON cartridges for the purpose of her research and for test shots , whereas the elements extracted from the victim ’s body were parts of a grenade . The forensic expert specified that PERSON cartridges and tear gas grenades had “ different geometric parameters and are made of materials with different characteristics ” .

On DATE the investigating authority suspended the investigation .

On DATE the applicant ’s son , Mr PERSON , brought court proceedings challenging the alleged inaction of the investigating authority . In a judgment of CARDINAL DATE ORG of PERSON dismissed the complaint . The court held as follows :

“ Over seventy people were interviewed in the course of the investigation . The necessary ( medical , ballistics , criminological ) examinations were carried out ... All carbines , which had been used by the officers , were seized ... All relevant officers were identified ... The logbooks concerning distribution of weapons and ammunition were examined ... On CARDINAL occasions CARDINAL different expert institutions were asked to submit ballistics reports . The requests were not complied with on account of the absence of the necessary equipment ... Attempts were made to identify the relevant rifle in other expert institutions ... Those were not equipped for this kind of forensic examination ... Subsequently , ORG was not able to identify the weapon ... Another request is pending before ORG ... So , the investigating authority has carried out all the investigative measures that were possible in the absence of an identified suspect . ”

On DATE ORG upheld the judgment .

NORP The applicant ’s son , Mr PERSON , also sought a judicial review of the suspension decision of CARDINAL DATE . On DATE ORG held that the suspension of the investigation was justified . However , on DATE the appeal court quashed the judgment and ordered a re - examination of the complaint . In a judgment of DATE ORG granted the complaint , considering that by failing to submit appropriate comparative material to the forensic expert , the investigating authority failed to take “ exhaustive measures aimed at identifying the perpetrator ” .

On an unspecified date , the applicant became aware that the evidence extracted from the body of his son had been lost .

In DATE the applicant requested that the authorities commission an additional ballistics report and complained about the loss of the evidence .

On DATE the investigation was resumed . It appears that the investigating authority took some measures to clarify what had happened to the evidence . In particular , armourers from the special mobile unit were interviewed . The investigator also made an enquiry with the ORG referring to his difficulties in interpreting the report of CARDINAL DATE . It remains unclear what reply was received to this enquiry .

According to the Government , the enquiry about the loss of evidence yielded no specific results , in particular on account of the death of the investigator in the case and the redeployment of the investigation unit .

On DATE the investigator again suspended the investigation .

On DATE the acting prosecutor of GPE determined that this decision was unlawful and ordered a resumption of the investigation . The decision reads as follows :

“ Having examined the file , I conclude that the investigation did not exhaust the measures aimed at establishing the circumstances of the crime , at collecting the evidence and identifying the rifle used to cause the victim ’s death ... In particular , the request for a ballistics report to ORG was submitted with PERSON cartridges instead of the type of cartridges used for causing the victim ’s death . The different geometric parameters of these cartridges prevented the experts from identifying the carbine used against the victim ...

Following the resumption of the investigation in DATE the investigator merely made an enquiry instead of actually submitting grenades for comparative research ...

It does not follow from the expert report of CARDINAL DATE that it was impossible to identify the rifle , on the condition that cartridges of the relevant type were provided .

The evidence extracted from the victim ’s body was examined for the purposes of the above expert report . Thus , the current unavailability of this evidence is not an obstacle for seeking a new ballistics report from the same institution . ”

Following the resumption of the investigation the investigator made enquiries with the ORG about the possibility of carrying out a ballistics examination in the absence of the evidence extracted from the victim ’s body . Whereas it remains unclear what reply was received from the ORG , it does not appear that any new ballistics examination was carried out .

On DATE the investigating authority issued a decision suspending the investigation . This decision reads as follows :

“ It follows from the evidence in the case file that on DATE inhabitants of nearby villages and other people blocked the road with stones and logs ... In reply to lawful orders from the police requiring them to disperse , unidentified people threw stones at the police , causing various physical injuries to CARDINAL officers . To retaliate , the police officers used firearms ...

Officers of the special mobile unit fired shots with their pump - action shotguns towards the crowd , using QUANTITY , and a tear gas grenade . Thereby they violated a directive dated DATE ... and acted in excess of their competence . As a result , [ the applicant ’s son ] and others sustained shotgun wounds ... causing [ him ] to die on the spot .

It is impossible to commission another ballistics report in the absence of the cartridge . It has not been possible to identify the person who shot [ the applicant ’s son ] . ”

The applicant did not challenge this decision .


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

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

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award;Respondent State to take individual measures (Article 46-2 - Individual measures)

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in DATE and lives in Sombor .

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

On DATE the applicant , a practising lawyer , filed a civil claim with ORG in ORG , seeking payment of fees from a private insurance company ( “ the respondent ” ) for the service rendered on account of a legal fee agreement concluded in DATE .

On DATE ORG ordered that payment ( izdao platni nalog ) . The respondent objected to this order .

On DATE , in the course of a hearing , the respondent filed a counter - claim , requesting ORG to declare the DATE contract null and void .

On DATE ORG decided to join the proceeding initiated by the claim and the counter - claim .

On DATE ORG quashed the payment order of CARDINAL DATE , rejected the applicant ’s claim , declared a part of the contract void and decided that the other part of the contract remained in force .

On an unspecified date the applicant appealed against this judgment .

On DATE ORG in ORG upheld this judgment on appeal .

On an unspecified date in DATE , the applicant filed an appeal on points of law ( revizija ) .

On DATE ORG returned the file to ORG , which had apparently failed to adjudicate a part of the applicant ’s appeal .

On DATE ORG adopted a supplementary judgment ( dopunska presuda ) , rejecting that part of the applicant ’s appeal .

On DATE ORG dismissed the applicant ’s appeal on points of law ( odbacio reviziju kao nedozvoljenu ) , stating that the applicant was not entitled to lodge it , given that LAW prescribes that an appeal on points of law may only be submitted by an attorney at law , not the plaintiff personally . ORG specified that , according to this LAW , parties to the proceedings had lost the legal capacity to file an appeal on points of law individually , even if they were themselves attorneys at law .

The decision of CARDINAL DATE was served on the applicant on DATE .

On DATE the applicant lodged an appeal with ORG .

On DATE ORG requested the applicant to specify his complaint .

On DATE the applicant filed his amended constitutional appeal .

On DATE ORG dismissed the applicant ’s appeal as incomplete .


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Josep Casadevall;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s daughter , PERSON . , and her child NORP , when crossing a road , were hit by a car driven by PERSON It appears that the driver called an ambulance and the police . According to her statements to the police , PERSON . and the child had stopped at first in the middle of the road giving her the impression that they would wait until the car passed , but then had unexpectedly started running further across the road making the collision inevitable .

On DATE the police inspected the site and questioned some witnesses . They submitted that Ms. PERSON . and her daughter had been crossing the road at some distance from the marked pedestrian crossing .

On DATE the applicant ’s daughter died in hospital . As to the injuries of his granddaughter , they were not dangerous for life .

On DATE a forensic medical examination of the body of PERSON . , which had been started on DATE , was completed . It established that she had died from the injuries sustained in the accident . The expert also established the victim ’s position in respect of the car at the collision .

On DATE another expert report was issued . It stated that it had been technically impossible for PERSON to avoid the accident .

On DATE an investigator of ORG of ORG of ORG ( слідчий відділу розслідування дорожньо-транспортних пригод GPE в Одеській області ) delivered a ruling refusing to initiate criminal proceedings in respect of the accident . It was established that PERSON . and her daughter had been crossing the road unexpectedly and not on a pedestrian crossing , and when the driver , PERSON , had seen them , it had been technically impossible for her to avoid the accident .

NORP On unspecified dates thereafter CARDINAL additional witnesses of the accident , whom the applicant had identified in the meantime , stated that the collision had taken place at the pedestrian crossing .

The Government submitted to ORG a copy of the notarised agreement of DATE signed by PERSON and her father , for CARDINAL part , and the applicant , his wife , PERSON . ’s widower Mr Dr. ( the applicant ’s son - in - law ) and PERSON , another daughter of PERSON . , for the other part . Its contents are as follows . PERSON and her father undertook to pay the other party ORG CARDINAL,CARDINAL ( then equivalent of QUANTITY ( ORG ) ) “ in respect of pecuniary and non - pecuniary damage caused by the traffic accident ” . This obligation would be considered discharged if the payment was made to anyone of the cosignatories for the other party . It was additionally noted that , by that time , PERSON had also paid UAH CARDINAL,CARDINAL ( then equivalent of ORG CARDINAL,CARDINAL ) in respect of the GPE medical treatment . In exchange , the ORG family undertook not to seek initiation of criminal proceedings and not to lodge any claims or complaints against PERSON In case they did not comply , they would have to pay back to PERSON , within DATE , the amount of the compensation received . As an attachment to the agreement , there was a receipt signed by PERSON , the applicant ’s son - in - law , in confirmation that he had received the money in question .

The case file did not contain any further information or documents regarding the aforementioned agreement or any follow - up to it . The applicant neither mentioned it in any of his submissions to the ORG nor commented on it in reply to the Government ’s observations . Accordingly , on DATE the ORG sent a factual request to the applicant with a view to clarifying the matter . More specifically , the applicant was requested to comment on the agreement of DATE , namely , to specify whether his family had received the amounts in question and , if so , whether he had had to recover them to the other party given his subsequent criminal complaints in her respect . The applicant replied that he had signed the agreement in question without reading it while being affected by the stress and sorrow caused by the death of his only child . He further noted that it was not him , but his son - in - law , who had received the money from the driver ’s family ( see also paragraph CARDINAL below ) .

On DATE the applicant complained to ORG of ORG that the investigation of the traffic accident , which had caused the death of his daughter , had been lengthy and ineffective .

On DATE ORG replied to him that the investigation had been entrusted to the GPE law - enforcement authorities .

On DATE the ORG further informed the applicant that it remained open for him to challenge the decision of DATE refusing to initiate criminal proceedings in respect of the accident ( see paragraph CARDINAL above ) .

On DATE the applicant complained to ORG ( “ the city prosecutor ” ) about the ineffectiveness of the investigation into the death of his daughter .

As a result , on DATE the city prosecutor quashed the decision of CARDINAL DATE as premature and based on incomplete investigation . He ordered additional investigation , which was to include , in particular , the following measures : establishing the gravity of the child ’s injuries and considering the possibility of her questioning in a pedagogue ’s presence ; questioning the applicant as to how he had identified some additional eye - witnesses of the accident , of whom he had informed the investigation ; questioning those witnesses ; and considering the possibility of an additional on - site inspection .

On DATE another decision not to open a criminal case in respect of the accident was delivered .

On DATE ORG ( “ the regional prosecutor ” ) quashed the decision of DATE as premature and remitted the case to the traffic police for additional investigation .

On DATE another forensic technical expert examination report was issued . This time the expert had , in particular , to assess the conflicting accounts of the events given by the witnesses ( some of them submitted that the accident had taken place at an unregulated pedestrian crossing , while others maintained that the victims had been crossing the road at some distance from that crossing ) . It was found impossible to reconcile those CARDINAL versions .

On DATE the investigator again refused to initiate criminal proceedings having found that there was no case to answer .

On DATE the regional prosecutor quashed the above decision and opened a criminal case against PERSON on suspicion of a breach of traffic rules causing the death of the applicant ’s daughter . The investigator previously dealing with the case was disciplined for the inadequate and lengthy investigation .

On DATE the applicant was attributed the status of an aggrieved party .

On DATE the applicant signed a statement in confirmation that his right to lodge a civil claim had been explained to him . He noted that he intended to lodge such a claim later in the course of the pre - trial investigation once he decided on the amount of the damages .

On DATE a forensic medical expert established that the death of PERSON . had resulted from the injuries sustained by her in the accident .

On DATE the investigator ordered a complex forensic medical and technical expert examination . On DATE it was completed . Having analysed the injuries sustained by PERSON . and her daughter , as well as the damages to the car of PERSON , the expert established the position of the victims at the time of the accident .

In DATE the applicant complained to the regional prosecutor once again that the investigation was not progressing .

On DATE yet another technical examination was assigned , and on DATE it was completed . The expert concluded that , if the victims had been crossing the road not on the pedestrian crossing , it had been technically impossible for the driver to avoid the accident . If , however , they had been on the pedestrian crossing , it had been possible for her to avoid the accident .

On DATE the father of the driver involved in the accident , Mr M. , lodged a civil claim against the applicant and his family seeking the termination of the agreement of DATE and the recovery of the amounts paid under that agreement ( see paragraph CARDINAL above ) . On DATE Mr M. , however , withdrew that claim for unknown reason . The information about these events has been provided to the ORG by the applicant in his reply to the factual request of DATE ( see paragraph CARDINAL above ) , without any further details .

On DATE the investigator requested the GPE transport police to establish the whereabouts of the car involved in the accident and to find who its owner was at that time .

On DATE the car involved in the accident was attached as material evidence in the criminal investigation .

On DATE a reconstruction of the circumstances of the accident was conducted with the applicant ’s participation . He showed where his granddaughter and the body of his daughter had been found .

Having regard to those statements of the applicant , on DATE the investigator assigned another forensic technical expert examination . On DATE it was completed . The expert found it impossible to establish the exact place of the accident owing to the absence of the documentation regarding the car ’s brake trace . Nor could the expert establish whether it had been technically possible for the driver to avoid the accident .

On DATE the investigator terminated the proceedings for want of evidence of the driver ’s guilt . As noted in his decision , CARDINAL witnesses stated that the accident had taken place on the pedestrian crossing , while other CARDINAL witnesses stated that it had been outside the crossing , and it appeared impossible to establish the truth .

On DATE the regional prosecutor quashed the above decision and ordered additional investigation . He noted that the initial investigative measures , such as the accident reconstruction , had not reflected all the issues essential for the subsequent technical expert evaluations to establish the pertinent facts with precision . Furthermore , the inquiry authorities had inadequately complied with the assignments given by the investigator .

On DATE the investigator ordered an additional forensic medical and technical expert examination . On DATE it was completed . It established , in particular , the position of the victims in relation to the car . The examination also confirmed that the applicant ’s daughter had died as a result of the accident . Lastly , the expert found it impossible to establish at what speed PERSON had been driving at the time of the accident .

On DATE , following the entry into force of the new Code of Criminal Procedure , the information on the case was entered in ORG .

On DATE the investigator repeatedly questioned a number of witnesses .

On DATE another technical expert examination was assigned . Its results are unknown .

According to the most recent information from the Government , as of CARDINAL DATE the investigation was ongoing .


Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer;Judge or other officer exercising judicial power)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev

The applicant was born in DATE .

In connection with an investigation into an international prostitution ring , measures were taken to intercept telephone conversations in accordance with Article CARDINAL of LAW , on CARDINAL mobile telephone line in particular : from TIME on DATE until CARDINAL p.m. on DATE , on the basis of an order of CARDINAL DATE by the ORG judge responsible for matters concerning civil liberties and detention ( “ the liberties and detention judge ” ) , authorising interceptions for DATE ; and from CARDINAL DATE until DATE , on the basis of an order of CARDINAL DATE by the same judge . CARDINAL conversations with a person using a mobile phone belonging to a certain PERSON , which were recorded on CARDINAL DATE , appeared to incriminate the applicant : CARDINAL between a woman identified as ORG and a man known as PERSON , later identified as the applicant , and the other between the same woman and another man , in which the same PERSON was referred to in terms suggesting that he was involved in the prostitution ring .

A judicial investigation was opened on DATE into alleged offences of living on the earnings of prostitution with aggravating circumstances , committed as part of an organised gang ; trafficking in human beings , committed as part of an organised gang ; and criminal conspiracy . A warrant for the applicant ’s arrest was issued on DATE by Judge GPE , the vice - president responsible for the investigation at the LOC tribunal de grande instance . After being arrested in GPE pursuant to the warrant , which had in the meantime been converted into a NORP arrest warrant , the applicant was handed over to the NORP authorities at TIME on DATE ; he was then brought before the GPE public prosecutor and immediately placed in administrative detention in GPE . At TIME on DATE he was brought for the first time before PERSON , the investigating judge dealing with the case , who placed him under formal investigation for the above - mentioned offences . At TIME on DATE , the PERSON liberties and detention judge , to whom the matter had been referred by the investigating judge , interviewed the applicant and remanded him in custody pending trial .

Although the alleged offences were classified as serious crimes , the interviews and confrontations carried out during the investigation were not recorded , by virtue of the exception provided for in the seventh paragraph of LAW , as applicable at the material time .

On DATE the applicant applied to ORG of ORG to have various procedural steps declared void , including the order for his detention , the interviews and confrontations carried out during the investigation and the interception of various telephone conversations . He submitted CARDINAL requests for preliminary rulings on constitutionality , concerning respectively the seventh paragraph of LAW and the seventh paragraph of LAW , pursuant to which no video recording had been made of the interviews and confrontations .

On DATE ORG dismissed most of the application to have the procedural steps declared void ( except for CARDINAL point concerning the interception of telephone conversations ) , in particular restating the reason given in its previous decision of CARDINAL DATE . In CARDINAL further judgments delivered on DATE , it referred the requests for preliminary rulings on constitutionality to ORG .

On DATE the applicant lodged an appeal on points of law , relying in particular on LAW , LAW and LAW and the constitutional principle of equality .

On DATE ORG referred the requests for preliminary rulings on constitutionality to ORG and deferred judgment pending the ORG ’s decision .

In a decision of DATE ( no . DATE - CARDINAL/CARDINAL ORG ) ORG declared the seventh paragraphs of ORG CARDINAL - CARDINAL and CARDINAL of LAW unconstitutional , holding that by providing for an exception to the rule of compulsory video recording of interviews in connection with serious offences where such interviews were carried out during preliminary or judicial investigations into serious offences relating to organised crime or undermining the fundamental interests of the nation , the impugned provisions infringed the principle of equality . It pointed out that the abrogation of those provisions would take effect from the publication of its decision and would apply in the case of persons in police custody or under formal investigation who were questioned or interviewed from DATE .

In a judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal on points of law . ... It rejected his argument that there had been violations of the Convention ( he had relied on Articles CARDINAL and CARDINAL of the LAW and , more broadly , the right to a fair trial and the prohibition of discrimination ) and the LAW as a result of the application of the seventh paragraphs of ORG CARDINAL - CARDINAL and CARDINAL of LAW in his case . Firstly , it held that ORG had specified that the abrogation of the provisions in question would apply only in the case of persons in police custody or under formal investigation who were questioned or interviewed following the publication of its decision , so that his argument had in that respect become devoid of purpose . Secondly , it observed that the applicant had not been questioned in police custody and that , although his interviews by the investigating judge had not been recorded on video , “ this did not result in any infringement of his rights under the LAW , be it his defence rights or the right to a fair trial , seeing that he was given the option of receiving legal assistance , and had the opportunity to review the manner in which the questions and answers had been transcribed in the record , which had been approved by a registrar , to ask for any corrections to be made and to challenge , at any stage of the proceedings , the meaning and scope of his statements as transcribed ” .

... Lastly , it held that “ it is not possible for anyone other than the party concerned to complain of a breach of the substantive requirements governing police custody , or of the lack of a video recording of police questioning or interviews by the investigating judge , in support of an application to have a procedural step or document declared void ” ; accordingly , the applicant was not entitled to object that the judgment appealed against had stated that there was no cause to declare void any police questioning or interviews by the investigating judge concerning individuals other than himself .

In a judgment of CARDINAL DATE ORG found the applicant guilty of the alleged offences , although it dismissed the charge of trafficking in human beings . It sentenced him to CARDINAL years’ imprisonment and a fine of MONEY ( ORG ) .

In a judgment of DATE ORG upheld the judgment as to the issue of guilt and sentenced the applicant to CARDINAL years’ imprisonment with a minimum term of CARDINAL of the sentence , as well as imposing a fine EUR CARDINAL,CARDINAL and a DATE exclusion order from the départements of ORG .

An appeal on points of law by the applicant – whose sole argument was that NORP criminal law was not applicable – was rejected by ORG in a judgment of DATE .

The applicant was released on DATE after serving his sentence .


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in DATE and lives in GPE .

NORP In DATE , the applicant published an article in a local newspaper concerning the political orientation of the Berger-CARDINAL-e . V. association ( “ the association ” ) . Subsequently , the newspaper published the association ’s response to that article describing the applicant ’s statements as “ intellectually weak and crude ” ( “ geistig schwach und primitiv ” ) and as “ pamphlets constituting a public danger ” ( “ gemeingefährliche NORP ” ) . The newspaper also published CARDINAL letters to the editor . CARDINAL of them was written by ORG , an elected town councillor , who contended that the association had no extreme right - wing tendencies ( “ keine rechtsradikale Vereinigung ” ) . He expressed that it was “ unfortunate that [ the applicant ] again and again manages to publicize his false accusations and to show himself as a pitiful victim ” ( “ [ ... ] bedauerlich , dass es ORG Dr. PERSON immer wieder gelingt , seine falschen Anschuldigungen öffentlich zu machen und sich als bedauernswertes ‘ Opfer’ darzustellen [ ... ] ” ) . He contended that “ he [ the applicant ] had evoked the current situation in particular by his constant spying and false accusations ” ( “ Die derzeitige Situation hat er insbesondere durch seine ständigen ORG und Falschbehauptungen heraufbeschworen [ ... ] . ” ) .

F.G. was also running for the office of town mayor . In the run - up to the elections the applicant then distributed a leaflet with the headline : “ Do n’t vote for an agitator ” ( “ PERSON ” ) . The text on the leaflet maintained : “ GPE is the seat of several neo - NORP organisations . Particularly dangerous is the Berger-CARDINAL-e . V. , for which ORG [ last name written out ] is providing a cover . ” ( „ Amöneburg ist Sitz mehrerer NORP - Organisationen . PERSON die Berger-CARDINAL-e . ORG , die ORG . “ ) . The leaflet also showed photos of ORG son , the association ’s chairman at the time , taken by a security camera on the applicant ’s property TIME . The applicant explained that he had previously been attacked and that his door had been smashed repeatedly at TIME .

On DATE ORG , at ORG request , issued a civil injunction prohibiting the applicant from distributing the leaflet and making other assertions of fact ( ORG ) which might depict PERSON as a supporter of neo - NORP organisations . Any contravention was punishable by a fine of up to CARDINAL,CARDINAL euros ( ORG ) or by imprisonment of DATE . The court reasoned that the assertion that ORG had covered for a particularly dangerous neo - NORP organisation had infringed his personality rights . Because of the upcoming elections , the court found that there was a risk that the applicant might continue to distribute the leaflet or disseminate the allegations in another form .

The applicant lodged an objection with ORG . He submitted , inter alia , that the designation “ CARDINAL ” , standing for the eighth letter of the alphabet [ H ] as a reference to “ PERSON ” , was displayed by members of the association in runes and thus in a form attributed to neoNazism by the NORP federal domestic intelligence service ( GPE für GPE ) . In addition , the association had held a ceremony on DATE after PERSON ’s birthday using the colours black , white and red – the national colours of the NORP empire DATE for the invitation . In support of his allegations , the applicant referred to the association ’s statutes and an incident in which members of the association had shouted “ PERSON ” on the occasion of an GPE bonfire organised by the association . Lastly , he contended that there was no longer any reason for upholding the injunction , as the mayoral elections had taken place in the meantime .

In its judgment of CARDINAL DATE ORG upheld the injunction . It found that to claim that someone was supporting a neo - NORP organisation amounted to an infringement of that individual ’s honour and social reputation and thus his or her personality rights ( allgemeines PERSON ) .

The court held that the applicant had failed to provide sufficient evidence to support his allegation that ORG had covered for a neo - NORP organisation . His submissions were mere conjectures and subjective interpretations . As a consequence , the court held , the applicant could not rely on the notion of freedom of expression enshrined in LAW ( see paragraph CARDINAL below ) .

NORP The court reasoned , inter alia , that in accordance with its rules , the association had been founded in DATE , even though it had not been registered until DATE . Hence , the reference to the number CARDINAL in the name of the association could not be interpreted as support for neo - Nazism . As regards the PERSON salute on the occasion of the LOC bonfire , the applicant had failed to show that the individuals concerned were “ without doubt ” members of the association . The court acknowledged that the use of runes might indeed refer to neo - Nazism , but held that that did not suffice to prove that the association was of such a character . Lastly , the court emphasized that the applicant had “ confirmed his determination not to let himself be silenced as a critic of the plaintiff ” . Hence , the court found that the injunction needed to be maintained despite the fact that the mayoral elections had taken place in the meantime .

On DATE ORG dismissed the applicant ’s appeal against ORG judgment . The court noted , however , that there was no longer a need to adjudicate on the prohibition of further dissemination of the leaflet , as the elections had taken place in the meantime .

ORG explained that the leaflet contained CARDINAL different allegations of fact : firstly , that the association was a particularly dangerous neo - NORP organisation ; and secondly , that ORG had been aware of that fact but had nevertheless publicly supported the organisation . The applicant had failed to prove that those allegations were true . The court acknowledged that there were several indicators of the association ’s neo - NORP character “ which , all in all , may lead to the assumption that this is not a mere coincidence ” . The association therefore had to put up with critical questions . The aforementioned indicators were , however , not “ compelling proof ” ( zwingender PERSON ) of the association ’s political orientation .

In any case , the court reasoned , the applicant had failed to provide any evidence for the allegation that ORG had covered for the association . The court interpreted the applicant ’s statement as an allegation that ORG had knowledge of the association ’s neo - NORP orientation and endorsed it . Referring to the case - law of ORG , ORG acknowledged that allegations of fact may fall , as a matter of principle , under the notion of freedom of expression of LAW to the extent that they were aimed at forming public opinion ( meinungsbezogene ORG ) . The protection provided by LAW required , however , that the allegations required substantial justification . The letter to the editor written by ORG did not suffice in that regard .

On DATE the applicant complained that his right to be heard before ORG had been breached . He complained , inter alia , that the court had failed to examine the criminal files against members of the association in order to establish whether they had committed crimes of an extremist political nature .

On DATE ORG dismissed the applicant ’s complaint . It held , inter alia , that the applicant had not sufficiently substantiated which files should have been examined and in which regard . Where the applicant had offered evidence by specifying a particular file , ORG had not denied that members of the association , wearing pullovers with the association ’s insignia , had been present at an election campaign event organised by him . Nor had ORG denied that certain members of the association had committed crimes , although they were not necessarily of an extremist political nature . Lastly , the court emphasized that according to an assessment by the ORG domestic intelligence service ( PERSON für GPE ) , the association was a “ fraternity ” ( “ PERSON ” ) , which the service would nonetheless “ keep an eye on ” . ORG thus concluded that the applicant might have raised a suspicion at the most , but had failed to prove the association ’s neoNazi orientation .

On DATE the applicant lodged a constitutional complaint with ORG . He complained that his freedom of conscience , his freedom of expression and his right to a fair trial had been violated . He claimed in particular that the courts had put the onus of proof on him , whereas in the context of the expression of one ’s opinion it was impossible to provide evidence .

On DATE ORG , without giving reasons , refused to admit the applicant ’s constitutional complaint for adjudication ( file no . DATE ) .


CASE OF VERLAGSGRUPPE DROEMER KNAUR GMBH & CO. KG v. GERMANY

No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary

The applicant company is a prominent NORP book - publishing house with its registered office in GPE . In DATE it was ranked among the CARDINAL publishing firms generating the highest turnover in the NORP publishing sector .

In DATE the applicant company published a book entitled “ ORG ” written by PERSON , an author internationally renowned for her anti - Mafia publications . The book was reprinted in several editions and also published in GPE . It deals , in its CARDINAL pages , with the ORG ’s ties to GPE , its inner structures and its various branches . The book also recounts an event which took place in DATE in GPE where CARDINAL people of NORP nationality were killed by CARDINAL bullets in front of the NORP restaurant “ ORG ” . The killings were supposed to be the culmination of a vendetta between CARDINAL ‘ PERSON families which had started in DATE in GPE . The incident received national and international media attention .

On pages CARDINAL and CARDINAL the book referred , by his full name , to a person called PERSON , an NORP national residing in GPE . The relevant part reads as follows ( translated , names abbreviated and emphasises added by ORG ) :

“ ... The public prosecutor ’s office of GPE investigated the NORP [ L ] for drug dealing and money laundering – he is said to have contributed to financing the electoral campaign of [ O ] with his funds . This was not to remain the sole link existing between a presumed member of the ORG and a NORP politician : in the city of GPE , the NORP [ GPE ] , who had been mentioned already in DATE in a report prepared by ORG , gained notoriety . [ PERSON ] runs the restaurant ‘ [ Pa]’ in GPE : a restaurant seating CARDINAL guests , not a bad rise for someone like [ GPE ] , who , according to statements of the investigators , had started out as a pizza baker in the pizza restaurant ‘ Da Bruno’ . After all , having contacts can be very helpful , even if , following the massacre of GPE , the pizza restaurant ‘ Da Bruno’ no longer serves as that great a reference . In any case , [ PERSON ] continued to maintain his network of relationships in GPE by generously sponsoring the local golf club . When the police performed a search of the restaurant ‘ [ Pa]’ because of [ GPE ] ’s alleged involvement in a murder , it ran into the then Prime Minister of GPE , [ GPE ] , and his Secretary of the ORG , [ PERSON ] – both of whom had been dining there purely as a matter of chance , as [ PERSON ] asserted . He , by the way , had excellent relations with the police : when a further search was performed , the police found an identity card in his LOC , which had been issued to him in his purported capacity as interpreter for the NORP delegation at an ORG conference in GPE . The identity card , it was stated , had been issued by the Secretary of ORG GPE . ... ”

As regards PERSON ’s presumed membership of the ‘ PERSON , the applicant company relied on , inter alia , reports by ORG and DATE . Neither report had been made public .

The relevant passage in the report of DATE reads :

“ If CARDINAL takes account of the enormous reputation that [ GPE ] has and the esteem in which he is held by the NORP community , one forms the opinion that [ PERSON ] is a defacto fully - fledged member of the ‘ PERSON clan . ”

The relevant parts of the report of DATE read :

“ According to NORP colleagues from GPE and GPE , this connection could have contributed to [ PERSON ] becoming a member of the PERSON alias ‘ Staccu’ clan . Owing to the prestigious reputation [ PERSON ] enjoys in the ‘ NORP PERSON , he has to be a full member of the ‘ PERSON .

Direct relatives of the clan live in GPE and run pizza restaurants . Their main bases are in the cities of GPE , GPE , and GPE . These bases are led by [ TIME ] , [ ORG ] and [ PERSON ] , with [ D.G. ] taking the role of the so - called ‘ capo locale’ .

[ ORG ] and [ PERSON ] could be in charge of investing the proceeds of drug trafficking . This theory is corroborated by the high number of good restaurants and statements from various sources that [ PERSON ] is said to have invested in several restaurants and acquired real estate in GPE and the surrounding areas . ”

In DATE PERSON had already been mentioned by name in the context of organised crime . He had been interviewed in a television report regarding the ‘ PERSON in GPE and had denied any membership of or connection to the ‘ PERSON .

After publication of the book , PERSON applied to a court for an injunction against the dissemination of the passages highlighted in the above excerpt of the book ( see paragraph CARDINAL above ) . On DATE , ORG issued the injunction and confirmed it on DATE after hearing both parties . It held that even though there was a public interest in reporting about organised crime , the author had acted in breach of her journalistic duties . The internal reports of ORG constituted an insufficient source for the allegations made in the book , since the reports were not intended for publication . The investigating authorities themselves had not come to the conclusion that there was sufficient evidence of an offence having been committed by the plaintiff . Moreover , ORG stated , a report on a suspicion also had to include the circumstances exonerating the party affected . Accordingly , the book should have stated that the investigating authorities had not obtained any indications which would have served as a basis for filing an indictment , much less a sentence , and that in fact the investigations pursued against the plaintiff had not resulted in any such bringing of charges or in any sentencing . In addition , the court held , the publication had not made it clear that the pizza restaurant “ ORG ” , in which the murders had been perpetrated , was not identical to the pizza restaurant of the same name in which the plaintiff had worked as a pizza baker DATE prior to those deeds . Lastly , the court continued , the book had been published unlawfully because the plaintiff had not been given any opportunity to make a statement regarding the suspicion prior to publication .

On DATE ORG dismissed the applicant company ’s appeal against ORG judgment of DATE . It held that the book expressed a serious allegation that the plaintiff was a member of a criminal organisation and therefore seriously interfered with his personality rights . The section of the book dealing with the plaintiff did not allow an average reader to infer that the plaintiff ’s membership of the criminal organisation ‘ PERSON could only be assumed vaguely . Rather , the court continued , the interplay of the many individual statements in the book created the impression that there was a very strong suspicion that the plaintiff was a member of the ‘ PERSON . The evidentiary facts researched by the author and published by the applicant company did not constitute sufficient proof of the exceptionally grave suspicion raised in the book . The court established that even the internal report by ORG only mentioned a number of vague suspicious circumstances , for the most part without providing any details or naming any specific sources . For example , it said that because of the high respect in which the plaintiff was held in the “ NORP milieu ” , he must be a fully fledged member of the ‘ PERSON . The internal reports only showed that owing to certain information compiled in them , some of which had not been corroborated by evidence , assumptions had been made as to the existence of certain connections . This did not seem to be a sufficient basis for publicly branding the plaintiff as a presumed ʽNdranghetista . Moreover , the court continued , certain statements in the book were incorrect , such as the region in which the plaintiff had been born . Other statements were fragmentary , as the investigation during which the plaintiff ’s restaurant was searched by the police had been discontinued . In that regard , the court held that the book had failed to report exonerating circumstances . Even though authors did not have to await the outcome of an investigation before reporting on a corresponding suspicion , if the reporting on a suspicion was reliant on investigations that had been carried out DATE previously , the author could not ignore the fact that the investigation proceedings had come to an end without any charges having been brought .

In the main proceedings , in addition to his request that the injunction be upheld , PERSON applied for damages in the amount of LAW .

On DATE , ORG upheld the injunction , but dismissed the plaintiff ’s application for damages . ORG reiterated the reasoning it had given in the judgment of DATE and that given by ORG in its judgment of DATE ( see paragraphs CARDINAL - CARDINAL above ) . The court further reiterated that the author had not sufficiently researched the basis for the allegation that PERSON was a member of the ORG , since all the sources only indicated vague suspicious circumstances pointing at FAC Secondly , the author had not complied with the “ absolute requirement ” of presenting exonerating circumstances . Lastly , the court held that the publication was unlawful as the author had not given the plaintiff the possibility to comment on the allegation prior to publication .

ORG dismissed the plaintiff ’s application for damages as being ill - founded . It held that even though the applicant company had breached the permissible boundaries of reporting on suspicions as well as its journalistic diligence , it had not done so in a serious manner . Accordingly , it sufficed to stop the dissemination of the impugned statements but did not require a payment of damages .

During the proceedings before ORG the applicant company offered to furnish certain evidence supporting the suspicion published in the book . In particular , it offered to provide the names of witnesses who could allegedly confirm the statements made in the internal report of ORG and the suspicion published in the book . ORG refused to hear the witnesses as it found that they would be unable to give evidence regarding the alleged membership and that the applicant company had failed to identify the specific issues on which the witnesses could testify .

The applicant company did not appeal against the judgment of ORG . The plaintiff , however , appealed against the dismissal of his claim for damages . Consequently , in so far as the judgment ordered the injunction , it became final .

On DATE , ORG , in addition to the injunction , sentenced the applicant company to pay damages in the amount of ORG CARDINAL and dismissed the plaintiff ’s further claim for damages . The court stated that the prerequisite for any entitlement to pecuniary compensation was a serious violation of personality rights which could not be compensated in any other way . It found that that prerequisite had been met in the plaintiff ’s case . As far as the violation of the plaintiff ’s personality right was concerned , ORG endorsed the reasoning of ORG . It expressly conceded to the applicant company that there was great public interest in obtaining information about criminal organisations and “ that the motivation of the author and of the defendant [ in the instant case : applicant company ] for informing the public on the activities pursued by the ‘ PERSON in GPE was commendable and honest ” . However , ORG continued , the applicant company had acted culpably to a significant extent . It had been grossly negligent on the part of the applicant company to disseminate an allegation based on a suspicion which seriously interfered with the plaintiff ’s personality right in spite of the fact that the plaintiff had obviously not been given an opportunity to be heard and that the allegation had been disseminated without including the necessary information that the murder investigation addressed by the book subsequently had been discontinued . This charge of gross negligence could not be put aside because the author had tackled a subject of strong public interest . The applicant company should have realised that the information compiled about the plaintiff was not corroborated by evidence and that there were insufficient evidentiary facts to support the allegation reported in the book . The applicant company could not argue that it had not acted culpably , as it had based its publication on information obtained from a governmental authority . That principle , the court held , had been developed by the courts in adjudicating for official press releases issued by NORP authorities . However , the author had relied solely on internal analyses prepared by ORG as well as evaluation reports and documents generated in the course of intra - agency communications between NORP government authorities .

The Court of Appeal further reasoned that the injunction was not sufficient redress for the plaintiff , as it was not an adequate means of reaching the readers of a book that had already been published . Consequently , it found that the payment of damages was required . The court held that compensation in the amount of EUR CARDINAL,CARDINAL , instead of the EUR CARDINAL claimed by the plaintiff , was both sufficient and adequate .

On DATE ORG dismissed as illfounded a complaint lodged by the applicant company that it had been denied the right to be heard .

On DATE , ORG refused to admit a constitutional complaint ( CARDINAL ) lodged by the applicant company , without providing reasons .