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

András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and is currently detained in FAC .

For DATE the applicant had been convicted several times and he had been detained in various prisons . For certain periods of time he had been held in the PERSON and NORP prison hospitals .

On DATE the applicant was convicted by ORG on CARDINAL counts of robbery and theft and was sentenced to DATE imprisonment . The court also ordered the applicant ’s committal to the psychiatric section of the Bucharest ORG until his recovery .

In his application forms and letters sent to the ORG since DATE , the applicant complained of the severe overcrowding he had had to endure in FAC , where CARDINAL detainees were held in a cell of CARDINAL sq . m , as well as in ORG and ORG .

The applicant also alleged that the quality of food and drinking water had been very poor in these prisons , that he had not always been served a diet in accordance with his NORP religious beliefs and that most of the time he had been starving as the portions had not been sufficient .

In all CARDINAL prisons hot water had only been provided for short periods of time in which there had not been enough time to brush his teeth . Furthermore , in FAC there had not been enough cold water provided .

The applicant further alleged that , although he had no financial resources and had had no family to help him , the prison authorities in all CARDINAL prisons had failed to provide him with the necessary clothes , toilet paper , soap or toiletries to brush his teeth .

In Galaţi Prison the applicant was held for DATE in CARDINAL different cells including in the infirmary and the “ hunger strike ” ( refuz de hrană ) cell . The cells in this prison are approximately QUANTITY . m with a maximum of QUANTITY beds . The applicant shared the cells with a maximum of QUANTITY other prisoners ( QUANTITY . m of space per person , including the space occupied by beds and other furniture ) .

Cold water was available at various intervals for a total of TIME and was not available TIME The quality of the drinking water was certified by ORG .

The applicant received a diet in accordance with his religious beliefs and the composition of the DATE menu was in line with the regulations .

Toiletries were provided as the budget allowed . During the period of DATE that the applicant spent in FAC he received the following : CARDINAL tubes of toothpaste , CARDINAL razors , CARDINAL tubes of shaving cream , CARDINAL bars of poor quality soap , CARDINAL rolls of toilet paper , CARDINAL toothbrushes and washing powder .

NORP Throughout his detention in FAC the applicant received no visits and was considered unfit for work . He did not have any income .

The applicant was held in LOC for DATE and DATE . He was placed in cells measuring QUANTITY . m which he shared with CARDINAL other prisoners ( QUANTITY . m of space per person including beds and other furniture ) . The cells had bathrooms equipped with CARDINAL sinks , a shower and a toilet . LOC water was constantly available and hot water was twice per week following a schedule .

Food was prepared in accordance with the standards and regulations . Renovation of the food preparation and storage areas were under way when the ORG ’s observations were being submitted .

The Government submitted that upon their placement in a detention facility , prisoners received CARDINAL set of bed linen .

NORP Throughout his detention in LOC the applicant received no visits , was considered unfit for work and did not have any income .

NORP The applicant was detained in PERSON for DATE . For DATE he shared a cell measuring QUANTITY . m with CARDINAL prisoners ; there were PERCENT as well as other items of furniture ( QUANTITY . m of space per person including beds and other furniture ) . This cell was equipped with CARDINAL toilets and CARDINAL sinks where cold water was constantly available . The rest of the time he was held in the infirmary where he had approximately QUANTITY . m of personal space .

Hot water was provided in common shower facilities according to a pre - established schedule for TIME on DATE for CARDINAL of the prison and DATE for DATE . In CARDINAL of the infirmary wards , where the applicant spent DATE , CARDINAL showers with hot water were available for CARDINAL prisoners , for the same periods as the general schedule ( TIME ) .

During DATE he spent in this prison , the applicant received one roll of toilet paper , a razor and CARDINAL tube of shaving cream .

The Government alleged that on CARDINAL DATE the applicant also received clothing that he could use during his stay in this prison but they submitted no documents in support of this claim .

The applicant received the “ NORP menu ” in accordance with the internal regulations .

The applicant had access to the exercise yard for TIME .

NORP Throughout his detention in FAC the applicant received no visits and did not have any income .

On DATE the applicant was transferred to FAC .

The applicant lodged numerous complaints with the prison authorities or the post - sentencing judge outlining his dissatisfaction with the overcrowding , the poor quality of the drinking water or the quality and quantity of the food he received . He asked on several occasions to be placed in a single occupancy cell and to be given certain foods such as fried eggs or fried potatoes .

These complaints were always rejected as being ill - founded .

On DATE , ORG rejected with final effect the applicant ’s complaint concerning the lack of adequate provision of drinking water in FAC , reasoning that this situation was a result of budgetary constraints . Another complaint lodged with the delegate judge while the applicant was being held in LOC has on its reverse side the note “ Transferred ” .

The complaints about overcrowding were always solved with the conclusion that the assignment of detainees to sections and cells was a function of the prison ’s administration and placement in individual cells was not possible and was not allowed by law .

On several occasions the applicant complained to the ORG post - sentencing judge that the food served in prison was of very poor quality and the portions were not adequate . All his complaints were rejected as ill - founded as the post - sentencing judge considered that the applicant ’s allegations had been contradicted by the information submitted by the authorities of the prisons concerned .

On DATE while he was held in LOC the applicant requested CARDINAL pair of shoes , CARDINAL pairs of socks and CARDINAL tracksuit . A note on the request says that it shall be examined depending on stocks , but there is no subsequent mention of whether the applicant received any of the items requested .

On DATE , following a dental examination in ORG , the applicant was diagnosed with periodontitis ( I and NORP degree ) and frontal , lateral and terminal edentulism . The doctor prescribed specific periodontitis treatment , a mobile prosthesis and a liquid or semi - liquid diet until the installation of the prosthesis .

Since then , the applicant had been taken to see a dentist on numerous occasions upon his requests following bouts of inflammation of the gums or pain . He was consistently prescribed symptomatic treatment with antibiotic or anti - inflammatory drugs . On these occasions the doctors would repeat the prescription for a liquid or semi - liquid diet .

In DATE the applicant was diagnosed with chronic generalised marginal periodontitis and was prescribed antibiotics , anti - inflammatory drugs and hygienisation of the oral cavity by a dentist within the prison system . On the same occasion he was also diagnosed with inflammation of the salivary glands and surgery was prescribed , which was performed on DATE .

On CARDINAL DATE the applicant was diagnosed with a duodenal ulcer and on CARDINAL DATE with chronic gastroduodenitis .

On DATE during a medical examination in FAC the applicant , who had been previously diagnosed with several personality disorders , was diagnosed as showing symptoms of paranoia ; it was recommended that he be committed to the psychiatric section of FAC .

DATE the applicant was hospitalised for an acute inflammation of the salivary glands and generalised stomatitis . He was released with a prescription to eat liquid and semi - liquid food , to brush his teeth CARDINAL times per day , to take antibiotics and to use mouthwash .

The applicant had CARDINAL tooth extracted on DATE .

On DATE the applicant was taken to the prison hospital with congestion and swelling of the gums . He was diagnosed with , among other conditions , chronic acute otitis , generalised stomatitis , chronic apical periodontitis , neurovegetative disorders , conjunctivitis and spondylosis .

On several occasions the applicant was taken to prison hospitals or to the emergency unit of public hospitals with a broken nose or ribs after having been assaulted by other prisoners .

NORP Throughout his detention the applicant refused treatment with drugs or , on a few occasions , to be transported to ORG for conditions not related to his dental problems . In DATE the applicant , who was in a nervous state , refused to be seen by the prison dentist . On DATE the applicant refused to have a tooth extracted .

On DATE the applicant complained before the prison authorities and the post - sentencing judge that he was not receiving the liquid and semi - liquid diet prescribed by the doctor . On DATE the post - sentencing judge in ORG rejected the complaint , agreeing with the prison authorities that there was no prescription from a doctor for such a diet in the applicant ’s medical file . Another similar complaint lodged by the applicant in DATE had been rejected by the post - sentencing judge for the same reason .

On DATE , in DATE and on DATE the applicant complained to the prison administration that he had toothache and that he could not eat as he had not been given a liquid diet , as requested . No replies to these complaints could be found in the applicant ’s prison file submitted by the Government .

In DATE the applicant complained before the post - sentencing judge of the poor quality of the food served in prison ; the vegetables were undercooked ; he received bones without meat . He further complained that he had not been given the liquid diet prescribed by the doctors and that he had thus constantly received food that he could not chew and eat . The prison administration averred before the judge that no special diet had been prescribed to the applicant by a doctor and that the food served in prison was in accordance with the regulations and within the limits of the budget of CARDINAL NORP lei per prisoner per day ( MONEY ) . On DATE the post - sentencing judge rejected the applicant ’s complaint as ill - founded , considering that the food received by the applicant had been in accordance with the regulations and the budget .

In DATE the applicant complained again before the post - sentencing judge . He alleged that , due to his dental problems , he could not eat the food served in prison . He mentioned that the meat was not cooked through and very often during transport he had received raw , unsliced bacon and biscuits that he could not eat . On DATE the post - sentencing judge rejected the applicant ’s complaint because the facts described by him had been refuted by the prison authorities . At that time , no doctor had prescribed that the applicant be given a liquid or semi - liquid diet . On CARDINAL DATE ORG rejected this complaint with final effect holding that the prison menus were prepared and administered in accordance with the internal regulations and within the limits of the budget .

DATE . On DATE and DATE , DATE and DATE the applicant complained to the prison administration of toothache and requested treatment for his periodontitis . The authorities replied to these complaints that the doctor was on holiday and that an appointment would be scheduled in the future .

According to the applicant , on DATE when he was being transported to an infirmary outside the prison , he was ill - treated by a prison guard escorting him .

Immediately after the incident the applicant lodged a criminal complaint against the prison guard for ill - treatment and abusive behaviour .

On DATE ORG of ORG issued a decision not to commence criminal proceedings in the case . According to a copy of the prison ’s correspondence logbook , as submitted by the ORG , the applicant received a copy of the decision on DATE .

The applicant did not contest this decision before the superior prosecutor as provided for by LAW .


Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

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

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

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

In DATE , following a public tender for the purchase of real properties owned by a company , P .- d . ( hereinafter “ the company ” ) , the applicant bought a commercial property ( a retail store ) from the company .

On the basis of the purchase contract the applicant registered his ownership of the retail store in the land register .

NORP In DATE the applicant transferred his ownership of the retail store to his wife , ORG , who then duly registered her ownership in the land register .

On DATE the GPE ORG Attorney ’s ORG ( GPE državno odvjetništvo u GPE ) indicted CARDINAL managers of the company before ORG ( PERSON u GPE ) on charges of abuse of power and authority in connection with several disadvantageous contracts concluded by the company , including the CARDINAL concluded with the applicant .

The company joined the criminal proceedings by lodging a civil claim seeking the annulment of the contracts concluded by the alleged commission of a criminal offence .

During the proceedings before ORG the applicant was examined as a witness concerning the criminal charges against the accused . He explained that he had intended to start his own retail business and thus he had initially rented the retail store in question from the company . However , in DATE he had been offered the chance to buy the store , which he had accepted . The applicant also explained that subsequently , given that he had been unemployed and thus not eligible to take out a loan to pay for the renovation of the store , he had transferred his ownership of the store to his wife , who had been in a position to take out a loan .

On DATE the ORG found the accused guilty as charged and sentenced them to imprisonment . It granted the company ’s civil claim and declared the contracts concluded by the accused null and void , including the contract concluded with the applicant . It also held that the decision declaring the contracts null and void should not call into question the rights of parties who had bought the real properties from the company in good faith , as that would require further proceedings to establish whether they had acted in good faith when concluding the contracts , and that would be contrary to the principle of efficiency of criminal proceedings .

The accused and the GPE ORG Attorney ’s ORG appealed against the first - instance judgment before ORG ( PERSON ) alleging numerous substantive and procedural flaws in the findings of ORG concerning the criminal responsibility of the accused . The applicant and several other parties who had concluded contracts with the company also appealed against the first - instance judgment , challenging the annulment of the contracts on which they had based their property titles .

On DATE ORG dismissed the appeals by the accused and the GPE ORG Attorney ’s ORG as unfounded and declared the complaints lodged by the applicant and the other third parties inadmissible on the grounds that they did not have standing to lodge an appeal against the first - instance judgment .

The applicant then challenged the judgments of the lower courts by lodging a constitutional complaint with ORG ( Ustavni sud PERSON ) . He contended in particular that the decision to declare the real property purchase contract null and void had unlawfully and unjustifiably interfered with his property rights and that ORG had declined to examine his complaint in that respect .

On DATE ORG dismissed the applicant ’s constitutional complaint against the judgment of ORG as unfounded and ruled the complaints against the first - instance judgment of ORG inadmissible as they had been lodged outside the DATE statutory time - limit for lodging a constitutional complaint . In particular , ORG examined the applicant ’s complaint from the perspective of the right to a fair trial and found that there had been nothing unlawful or arbitrary in the decision of ORG ; in its view , no other issue arose with regard to the remainder of the applicant ’s complaints .

On DATE , relying on the final judgment of ORG by which the applicant ’s purchase contract had been declared null and void , the company instituted civil proceedings against the applicant and his wife , ORG , before ORG ( PERSON ) . It asked that the contract on the transfer of the property title from the applicant to his wife be declared null and void and that the successive entries in the land register of the applicant ’s and ORG ’s titles to the retail store be cancelled . Alternatively , the company claimed CARDINAL NORP kunas ( HRK ) ( MONEY ( ORG ) ) , plus statutory default interest .

During the proceedings the applicant and ORG , represented by a lawyer , contested the company ’s civil claim on the grounds that they had purchased the real property at issue in good faith and that there were no grounds for annulling their property title . They also pointed out that the final judgment of ORG by which the contracts concluded by the company ’s directors had been declared null and void did not call into question the rights of third parties who had obtained their property titles in good faith .

At a hearing on DATE ORG examined the relevant materials concerning the conclusion of the contracts and the transfer of title to the retail store from the company to the applicant and from the applicant to ORG It also heard the company ’s representative , the applicant and ORG , and read out the judgments of ORG and ORG .

On DATE ORG dismissed the company ’s civil action on the grounds that both the applicant and ORG had become owners of the real property at issue in good faith . It explained that whereas it was not possible to call into question ORG final judgment declaring the applicant ’s purchase contract null and void , that judgment had to be read in conjunction with the relevant provisions of LAW , which protected parties who had acted in good faith from being obliged to return that which they had acquired on the basis of an annulled contract . In the case at issue , ORG considered that there was nothing suggesting that the applicant , and subsequently ORG , had not acquired title to the retail store in good faith .

The company lodged an appeal against the judgment of ORG with PERSON ) . The company argued , in particular , that the first - instance court had erred in its findings concerning the question of whether the applicant and ORG had obtained title to the retail store in good faith .

The company ’s appeal was forwarded to the applicant ’s representative , who did not respond to the company ’s arguments .

On DATE PERSON dismissed the company ’s appeal as unfounded and upheld the first - instance judgment of ORG . In its reasoning , PERSON stated that there was nothing to call into question the findings of the first - instance judgment with regard to the question of whether the applicant and ORG had acquired title to the retail store in good faith .

On DATE the company lodged an appeal on points of law with ORG challenging the judgment of ORG . The proceedings before ORG are still pending .

The relevant provisions of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL , CARDINAL , DATE , ORG DATE , CARDINAL , CARDINAL , DATE and CARDINAL/CARDINAL ) read as follows :

“ In the determination of his rights and obligations or of any criminal charge against him , each person is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

“ The right of ownership shall be guaranteed ... ”

NORP The relevant provision of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) provides as follows :

“ If the civil claim concerns the annulment of a legal transaction , and the court finds that the request is well - founded , it shall declare the full or partial nullity of that legal transaction , including its effects , without interfering with the rights of third parties . ”

The relevant parts of LAW ( Zakon o obveznim odnosima , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL and CARDINAL ) provide as follows :

“ ( CARDINAL ) A contract that is contrary to the LAW , peremptory rules or morals shall be null and void unless the purpose of the breached rule indicates that some other sanction or the law in a particular case provides otherwise .

( CARDINAL ) If the conclusion of a contract is prohibited only in respect of CARDINAL party , the contract shall remain valid , unless the law in a particular case provides otherwise , in which case the party that has breached the statutory prohibition shall bear the relevant consequences . ”

“ ( CARDINAL ) Where a contract is null and void , each contracting party is bound to return to the other everything it has received on the basis of such a contract . If that is not possible , or if the nature of the obligation performed renders [ such return ] impracticable , an appropriate [ amount of ] monetary compensation shall be given , according to the value of the object in question at the moment at which [ the relevant ] court decision is passed , unless the law provides otherwise .

( CARDINAL ) However , if a contract is null and void because its substance or purpose is contrary to the LAW and peremptory rules , the court may dismiss , fully or partially , a request for restitution [ made by ] the party that has not acted in good faith ... ”


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo

NORP The applicant , Mr PERSON , is an NORP national , who was born in DATE and according to the most recent information available to the ORG is currently detained at FAC in GPE . He is represented before the ORG by PERSON , a law firm based in GPE .

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

DATE the applicant secured CARDINAL contracts to supply vehicles to ORG , then under the rule of FAC . He was paid MONEY ( “ USD ” ) for the first contract and MONEY for the second . He paid all sums into CARDINAL accounts in ORG in GPE ( “ BOIJ ” ) . He subsequently paid MONEY to accounts in GPE and elsewhere connected with LOC and Colonel PERSON , a close collaborator of FAC .

Following General PERSON ’s death in DATE , a ORG was set up in GPE to investigate the use of Government monies during General PERSON ’s regime . The Panel was chaired by the Deputy Commissioner of ORG , Mr PERSON

On DATE the applicant converted the balance of the CARDINAL ORG accounts into CARDINAL ORG drafts totalling almost ORG CARDINAL million . On DATE he couriered the ORG drafts to GPE . The ORG drafts were subsequently returned to GPE and , on DATE , the applicant deposited them into CARDINAL accounts at the BOIJ .

On an unknown date the GPE police commenced a criminal investigation into money laundering in respect of the applicant . On DATE the Attorney General of GPE sent a letter of request to ORG asking for assistance with the money laundering investigation . The NORP authorities instructed PERSON to gather relevant evidence . Mr PERSON and Colonel PERSON , a retired army officer who had worked closely with General PERSON , made witness statements to a GPE police officer in GPE and GPE . PERSON also gathered various business documents which he provided to the GPE authorities . The Attorney General of GPE provided an undertaking that ORG would use its best endeavours to ensure that the necessary witnesses travelled to GPE to give evidence at any future criminal trial against the applicant .

On DATE the applicant obtained declarations from ORG ( “ the NORP judgment ” ) that ORG was unconstitutional and that all investigatory actions undertaken by it in respect of the applicant were “ null and void , and lacking any valid or legal effect whatsoever ” .

Meanwhile , the applicant was charged with CARDINAL counts of converting the proceeds of criminal conduct and CARDINAL count of removing the proceeds of criminal conduct from the jurisdiction .

Following delivery of the NORP judgment , the applicant made CARDINAL applications to the court .

In the first , he sought a stay on proceedings on grounds of abuse of process . He contended that the use of the business documents by the Attorney General of GPE was an abuse of power because the NORP court had ruled that they had been unlawfully obtained and because they had been obtained for an “ investigation ” only , so that there had been no consent to their use at trial . On DATE the ORG delivered its ruling on this application , declining to stay proceedings . It held that there was no evidence of an abuse of power and that since the purpose of an investigation into a criminal offence was to prosecute that offence , there would be little point in providing the information for the former but not the latter . The court noted that the defence conceded that the admission of the relevant NORP evidence did not prejudice the fairness of the applicant ’s trial . The judge said :

“ DATE ... [ I]t follows that I would not exercise my discretion under LAW of [ the DATE Law ] to exclude it on the grounds set out in this application . ”

In his second application , the applicant relied on LAW ( “ the DATE LAW – see paragraph CARDINAL below ) , which allowed the court to exclude admissible evidence “ in the interests of justice ” . He argued that since the case was focused on alleged corruption at the highest level of government in GPE at the relevant time , it should not be assumed that the business documents were reliable . On DATE ORG allowed the admission of the business documents . It noted that there was nothing on the face of the documents to indicate that they were not authentic . While it was true that the applicant could not controvert the documents , it was necessary to balance the competing interests . There were a substantial number of documents that the applicant was in a position to controvert and he was also able to give evidence as to the nature of his involvement with LOC and Colonel PERSON . It was in the interests of justice that the business documents be admitted .

NORP The prosecution subsequently applied under LAW ( see paragraph CARDINAL below ) to read the witness statements by PERSON PERSON and Colonel PERSON The defence argued that further steps should be taken by the prosecution before the judge could conclude that it was “ not reasonably practicable ” , in terms of LAW , to secure the attendance of the witnesses .

On DATE the court held that the witness statements were admissible . It was satisfied “ to the criminal standard ” that it was not practicable to secure the attendance of the witnesses . It further rejected the applicant ’s argument that the admission of the statements would breach his rights under LAW and CARDINAL ( d ) of the LAW . The court recognised the conflict between the approach of the LANGUAGE courts , as outlined in NORP v. PERSON and Others [ DATE ] ORG , with the approach of a Chamber of this Court in PERSON and PERSON v. GPE , nos . CARDINAL and ORG , DATE . It concluded that the “ sole and decisive ” test had no application in GPE . There was nothing inherently unreliable on the face of the statements and it would be in the interests of justice to admit them .

Meanwhile the Attorney General of GPE wrote to the Attorney General of GPE requesting that NORP witnesses attend in GPE to give their evidence . The Attorney General of GPE replied that , following the NORP judgment , he was unable to accede to the request for NORP witnesses to testify at the trial in GPE “ as the crux of the matter is centred on the national interest and I have a constitutional duty to protect the judicial integrity of ORG ” . He asked for the business documents to be returned to GPE .

On DATE the applicant applied to have the NORP evidence excluded and his prosecution stayed on grounds of breach of international law and comity , based on developments since DATE ruling of ORG ( see paragraph CARDINAL above ) . On DATE , with reasons delivered on DATE , ORG refused the applications . It noted that the defence did not contend that the admission of the NORP evidence would adversely affect the fairness of the proceedings and that the application to exclude was not therefore brought under LAW DATE PERSON ( see paragraph CARDINAL below ) but was brought instead under the court ’s inherent jurisdiction to exclude evidence as a matter of comity . The court considered that the only conduct being impugned by the defence was the decision of the Attorney General to lead admissible evidence at trial . The only remedy available to a defendant whose complaint was based solely on the merits of the decision to lead admissible evidence was the exclusion of the evidence under LAW of the DATE Law .

The trial subsequently commenced in ORG before the Commissioner and CARDINAL jurats ( professional judges of fact ) . On DATE , the applicant was convicted of money laundering . On DATE he was sentenced to CARDINAL years’ imprisonment .

The applicant sought permission to appeal against his conviction and sentence . He raised CARDINAL grounds of appeal , dated DATE . Ground CARDINAL , which it was stated was intended to be taken together and supplemented by matters addressed in grounds CARDINAL to CARDINAL , related to the admission into evidence of “ the whole of part of the NORP evidence ” , namely , the business documents and the witness statements . The grounds explained that the applicant ’s grounds of appeal in relation to the NORP evidence under grounds CARDINAL proceeded on the premise that it was open to him to challenge the admissibility of evidence either by an application for a stay on the basis of abuse or an application for the court to exercise its statutory discretion under LAW DATE PERSON to exclude the evidence .

The applicant ’s challenge in ground CARDINAL was to the decision of the trial judge of CARDINAL DATE not to stay proceedings as an abuse of process ( see paragraph CARDINAL above ) . Ground CARDINAL was also a challenge to the decision of CARDINAL DATE , this time on the basis that the use of the business documents at trial breached the applicable law on mutual legal assistance because they had been used for a purpose other than that for which they had been provided . Ground CARDINAL was a challenge to the decision of DATE to admit the witness statements ( see paragraph CARDINAL above ) . It explained that their admission had resulted in unfairness in that the applicant had been denied the opportunity to test and controvert that evidence in circumstances where it was the sole and decisive evidence relied on by the prosecution to prove a part of its case . The ground referred to the trial judge ’s finding that the “ sole or decisive ” test had no application in GPE ’s law and that the admission of the statements would not breach Articles QUANTITY ( d ) . Ground CARDINAL concerned the judgment of DATE to refuse to exclude the NORP evidence on grounds of breach of international law and comity and the refusal to stay proceedings on that basis ( see paragraph CARDINAL above ) . Ground CARDINAL concerned the admission of a statement made by the applicant which he does not challenge in the present application .

The applicant subsequently prepared a written skeleton argument dated DATE , which ran to CARDINAL paragraphs , and a bundle of authorities placing before the court CARDINAL case - law authorities . In his skeleton argument , he explained that in grounds CARDINAL , CARDINAL and DATE , he contended that the exercise by the trial judge of his discretion to stay the proceedings as an abuse of process was flawed ; that the judge had erred in the exercise of his discretion to exclude evidence under his inherent jurisdiction to uphold comity and international law ; that the judge had erred in not excluding the evidence under the “ overlapping jurisdiction between stay for abuse of process and LAW the DATE PERSON ; and that the judge had erred in admitting the NORP evidence when it had been obtained for a different purpose . He contended that his challenge to the prosecution application in DATE ( see paragraph CARDINAL above ) had included an argument that , if it failed to grant a stay , the court should exclude the evidence under LAW DATE PERSON , but that this argument had not been addressed by the trial judge . He further elaborated on his LAW submission , referring to authority on the exclusion of unlawfully - obtained evidence .

NORP In further developing ground CARDINAL in his skeleton argument , the applicant challenged the trial judge ’s decision that the admission of the witness statements was not unfair . He relied on LAW ( see paragraph CARDINAL below ) . He criticised a number of determinations by the trial judge , including that the prosecution had done all that it practically could to ensure the attendance of the witnesses , that the inability to controvert the evidence of PERSON gave rise to only a minimal risk of unfairness , that there was no unfairness in admitting Colonel PERSON ’s statement and that the applicant ’s actions in seeking the NORP judgment were the direct cause of the non - attendance of the witnesses and should be taken into account . He referred to the LANGUAGE law equivalent of LAW as well as relevant LANGUAGE authorities as to the interpretation of the provision . He made no reference in his skeleton argument to LAW or to relevant case - law .

NORP In its skeleton argument in response , the prosecution said :

“ The ORG assumes that the Appellant has abandoned its challenge to the learned [ trial judge ’s ] conclusion that the ‘ sole or ORG test has no application in GPE ... This challenge is not mentioned in the Appellant ’s skeleton argument . It would also require the court to come to a different conclusion to ORG in NORP v. PERSON [ DATE ] CARDINAL WLR CARDINAL . ”

At the subsequent hearing , the applicant ’s counsel argued , in respect of grounds CARDINAL of the grounds of appeal , that the use of the evidence was an abuse of executive power because the Attorney General knew that it had been obtained unlawfully , the NORP authorities did not consent to its use and the NORP authorities had asked for the return of the evidence . There had also been a breach of NORP sovereignty , international law and comity for these reasons .

On DATE the appeal was refused by ORG . The court considered whether unlawfully obtained evidence could be fairly admitted and concluded that it could . It noted that “ additional grounds relied on in the skeleton argument were not developed in oral argument ... We list them only for completeness and deal with them briefly ” . It then addressed the witness statement argument in Ground CARDINAL as follows :

“ ORG . It was contended that the evidence of Commissioner [ PERSON ] and Colonel [ B. ] should have been excluded as hearsay when it was reasonably practicable to have secured their attendance , and its admission was unfair to Mr PERSON who , accordingly , could not cross - examine them . We note that Mr PERSON objected to the Commissioner ’s decision that he had been responsible for the absence of the CARDINAL witnesses in GPE by instructing the claim for declarations before ORG : and Advocate PERSON sought to explain the dilemma in which his client was placed by the possibility of prosecutions in CARDINAL jurisdictions .

In our view the attribution of responsibility was a finding of fact open to the Commissioner , and the admission of hearsay evidence was a matter for his discretion which there is no basis to impugn . ”

Leading NORP counsel provided advice on appeal in writing on DATE . While the advice referred to the invitation to counsel to consider whether there were arguable grounds for leave to appeal sentence , the advice also appeared to address grounds for appeal against conviction . Counsel referred to various “ significant and unusual ” features of the case , but noted that these did “ not necessarily found compelling matters of law of general public importance ” , which , counsel said , was the test applied by ORG for granting leave .

As regards grounds of appeal CARDINAL to CARDINAL , counsel referred to the submission to ORG that use of the unlawfully - obtained evidence without the consent of ORG was an abuse of executive power and a breach of NORP sovereignty , international law and comity . He discussed at some length the position as regards use of unlawfully - obtained evidence . As to the specific comments on Ground CARDINAL , counsel said :

“ I am unimpressed by the observations at paragraph ORG of the judgment that the failure of witnesses to attend was the ‘ responsibility’ of Mr PERSON . This implies that he was at fault in circumstances where he merely sought a declaration from ORG upon the lawfulness of what had occurred . There was a basis for impugning the exercise of the Commissioner ’s discretion but I do not consider that ORG [ of ORG ] will find this an argument involving matters of law of general public importance . In any event , the evidence given by Commission [ PERSON ] and others which was read was not determinative of guilt . ”

Counsel concluded his advice by emphasising the difference between advising on the merits of an appeal to ORG and seeking the special leave of the judicial committee of ORG . He explained :

“ In the latter case it is necessary to identify a point or points of law of general public importance , in the former there is I understand an appeal as of right on matters of law . I would be failing in my responsibility if I encouraged hopes of success when my view was that no such hopes exist . Considering the case objectively as an outsider who was not involved in the trial or first - tier appeal process I am able to stand back and consider the grounds of appeal dispassionately and I have no hesitation in concluding that there is no prospect of leave being granted in this case . ”

The DATE Law deals with the admissibility of evidence in criminal proceedings . LAW provides , inter alia , that a statement made by a person in a document shall be admissible in criminal proceedings if the person who made the statement is outside of GPE and it is not “ reasonably practicable ” to secure his attendance . DATE allows documents to be admitted provided that certain conditions are satisfied .

Article CARDINAL ) provides that if a court is of the opinion that in the interests of justice a statement which is admissible by virtue of Article CARDINAL or Article CARDINAL ought not to be admitted , it may direct that the statement should not be admitted . Article CARDINAL ) provides that the court must have regard :

“ ( a ) to the nature and source of the document containing the statement and to whether or not , having regard to its nature and source and to any other circumstances that appear to the court to be relevant , it is likely that the document is authentic ;

( b ) to the extent to which the statement appears to supply evidence which would otherwise not be readily available ;

( c ) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings ; and

( d ) to any risk , having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings , that its admission or exclusion will result in unfairness to the accused . ”

Article CARDINAL allows the court to exclude evidence if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would so adversely affect the fairness of the proceedings that the court ought not to admit it .

The Human Rights ( Jersey ) Law CARDINAL ( “ LAW ” ) incorporates the LAW into GPE law . Article CARDINAL provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account relevant case - law from this ORG . Article CARDINAL provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right . Under article CARDINAL , a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention right or rights concerned in any legal proceedings .

In GPE and ORG v. Attorney General DATE ORG CARDINAL , ORG was asked to consider whether hearsay evidence at a criminal trial had been “ sole and decisive ” evidence against the appellant and had thus breached his right to a fair trial under LAW . On DATE it dismissed the appeal . It considered the ORG ’s judgment in PERSON and PERSON and the subsequent judgment of PERSON in which ORG had declined to apply it ( both judgments cited above ) . ORG concluded that it was not necessary for it to decide , for the purposes of the case before it , whether PERSON should be followed . It therefore proceeded on the basis that the ORG judgment in PERSON and PERSON represented “ the law of this Island ” .

The Judicial Committee of ORG is composed of Justices of ORG of GPE and other senior GPE and ORG judges . It is the court of final appeal for GPE . In criminal cases from GPE there is no appeal as of right and special leave from ORG of ORG is required . ORG Practice Direction CARDINAL on “ ORG to Appeal ” provides that , for criminal appeals against conviction and sentence , permission will be granted only in respect of “ applications where , in the opinion of ORG , there is a risk that a serious miscarriage of justice may have occurred ” . Further information concerning appeals to ORG is set out in GPE v. GPE DATE . ) , no . ORG , § § CARDINAL , DATE .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer

The applicant , PERSON , is an NORP national who was born in DATE and lives in GPE . She is a psychiatrist and has been registered since DATE as a psychological expert for court proceedings in custody and contact - rights - related disputes and decisions on public care as well as child abuse . Specialised in the psychological examination of children and adolescents , her focus is mainly on custody and contact - rights - related disputes .

The online publication “ meinbezirk.at ” was published and edited by the “ Print ” ORG , a private company which had its registered office in GPE .

NORP The regional DATE print publication PERSON , which was sent to every household of the district free , was published and edited by the “ Print ” PERSON , a private company which had its registered office in GPE .

On DATE an article was published in “ meinbezirk.at ” as well as in the print version of PERSON , which stated as follows :

“ The quality of experts in the spotlight ( ORG i m Visier )

Disclosed : Court Expert for custody proceedings a case for therapy

( Aufgedeckt : ORG Sachverständige selbst ein Therapie - Fall )

Suffering from up - and - down mood swings , panic attacks , suicidal thoughts and hallucinations , together with paranoid ideas – but working as a court - appointed expert . In DATE she has examined over CARDINAL married couples in custodyrelated disputes . Now it seems , it gets rough for [ the applicant ] as an expert report about her psychological condition has been disclosed ...

A psychological expert report by Dr. PERSON was commissioned in DATE in the course of civil proceedings ( action because of an alleged breach of promise of marriage ) which unearthed the deficiencies of [ the applicant ] described above . Moreover , Dr. PERSON came to the conclusion that the applicant ’s impairments were hereditary , as the history of her family showed an accumulation of these impairments . DATE , the applicant was introduced to the “ expert community ” at ORG , and her integrity was beyond reproach for DATE until now . ”

The passage was followed by comments by a member of ORG , who had made a criminal complaint against the applicant with ORG office , ORG at ORG of GPE , and the Vice - President of ORG , who was responsible for managing the list of experts at the court . At the end of the article it was mentioned that the applicant was no longer answering her phone and had withdrawn from all her cases .

As a result of the article the applicant was confronted with questions related to it from colleagues and patients , and proceedings were initiated at ORG to clarify whether she was still fit to work as a court - appointed expert . In the course of those proceedings the applicant ’s mental status was also set to be examined .

On DATE the applicant lodged an action with the St. ORG . She sought damages under section CARDINAL of LAW ( Mediengesetz ) and the publication of the judgment claiming that the article and in particular the passages dealing with the psychological expert report on the applicant had violated her intimate personal sphere and compromised her publicly . However , she did not argue that the expert report had been obtained unlawfully .

On DATE the ORG ( FAC Pölten ) allowed the applicant ’s action , ordered the publisher to pay damages in the amount of MONEY ( ORG ) and the operative part of the judgment to be published . Furthermore , the publisher was to bear the costs of the proceedings . The court found that an average reader would understand the article as putting the expert opinion from DATE in direct relation to the applicant ’s work as an expert now , thus questioning the quality of her work . The article , that also featured the applicant ’s full name and the description of her psychological impairment , touched her intimate personal sphere , since it created a link between her mental state and the quality of her work . However , the information itself did not allow for such a link , especially since the expert opinion dated from DATE and dealt only with a very specific question in the context of civil proceedings at the time . The incomplete and manipulative content of the article was not able to meet the standards of reporting on matters of fact . Furthermore , the court did not consider that there was a direct link between the contents of the article and the applicant ’s public position , given that she mainly worked as an expert in custody cases , which were not usually heard in public . Furthermore , it could be assumed that the applicant , a psychiatrist herself and a medical doctor , was managing her illness well and was able to do her work without any impairments .

The publisher appealed on points of law and fact , as well as against the sentence ( GPE wegen GPE , PERSON ) .

Thereupon , on DATE , ORG ( Oberlandesgericht Wien ) heard the appeal , set aside the judgment of the lower court , and dismissed the applicant ’s action . ORG confirmed that the article and the impugned passages giving opinions on the applicant ’s mental state affected her intimate personal sphere and were capable of compromising her . However , the content of the article was true , as it only repeated true information that had not been disputed by the applicant . Furthermore , the court did not find the article to be incomplete or manipulative , but sufficiently well - balanced and faithful to the different sides of the story in that it also referred to the fact that the applicant ’s integrity had never been questioned in DATE ; the court also asked for statements from the Vice - President of ORG , a member of ORG , and ORG of ORG of GPE .

The Court of Appeal further found that the publication in issue was directly linked to the applicant ’s public status . She had been included in the list of experts to be appointed by the courts since DATE and had been appointed in several cases . This regular work as an expert in court proceedings belongs beyond doubt to the public sphere ( “ ... ist zweifellos dem öffentlichen PERSON zuzuordnen ... ” ) as she took part in association with the ORG - organised judiciary and held an important position in connection with the decision - making process of judges . Even though the impugned expert opinion dated from DATE and concerned a period in the applicant ’s life prior even to that date , the reporting in question touched sufficiently upon the present public activities of the applicant . Considering the importance and sensitivity of the area of custody proceedings and the dominant role of experts in the field , the psychological integrity of an expert assigned to those cases had to be beyond doubt . Any reservation in relation to the mental health of experts – if based on sufficient reasons – had to be met with a thorough investigation in the interest of good conduct of the administration of justice , which was what had happened as the next step in the present case . According to ORG , the article took up doubts arising from the neurologist opinion in DATE without denying the applicant ’s abilities as an expert in the area . The truthful information in the article and the public interest in the subject matter justified the article ’s critical questioning of exactly those abilities .

That judgment was served on the applicant ’s representative on CARDINAL DATE .

In the meantime the applicant lodged an action with ORG on DATE . She sought damages under section CARDINAL of LAW ( Mediengesetz ) and publication of the judgment claiming that the article , and in particular the passages dealing with the psychological expert report on her , violated her intimate personal sphere and compromised her publicly .

On DATE the Innsbruck ORG ( Landesgericht Innsbruck ) granted the applicant ’s action , ordered the publisher to pay damages in the amount of CARDINAL ( ORG ) and the publication of the operative part of the judgment . Furthermore , costs were awarded against the publisher . The court found that the average reader would understand the article as stating that the applicant was incapable of being an expert in custody proceedings because of her own mental health impairments in DATE and that this placed in question the quality of the applicant ’s work so far . That the applicant ’s psychological illness was directly linked to the intimate personal sphere was beyond doubt . The present article not only mentioned the applicant ’s mental health status , but also grossly exaggerated individual symptoms , which was also capable of compromising her . The article was so incomplete and distorted that it could not be considered a report of matters of fact . ORG in particular noted that the article did not mention that the period of examination was even DATE and that only certain aspects of the expert opinion had been published , while others had not . Scandalously the article created the impression that the applicant had rendered decisive opinions in custody proceedings for DATE while herself suffering from the symptoms described above . Furthermore , the publication was not linked in any way to the applicant ’s public status ( “ ... steht [ ... ] in keinem unmittelbaren PERSON öffentlichen LOC ) . There was no connection between the applicant ’s work at present and her mental health status DATE . Her work in the context of custody proceedings was also not conducted in public .

Thereupon , on DATE , ORG ( GPE ) granted the appeal , set aside the judgment of the lower court , and dismissed the applicant ’s action . In contrast to ORG it found that the average reader would understand from the article at issue that in DATE an expert opinion was rendered in respect of the applicant that showed the above - mentioned psychological impairments . However , the article also stated that the applicant ’s integrity had not been questioned for DATE . The article , while focusing on the applicant ’s work in custody proceedings , gave space to comments from ORG of ORG of GPE , a member of ORG , and the Vice - President of ORG . The article did not indicate however that the applicant was not competent to exercise her profession as a psychological expert . Furthermore , the published information was true . The fact that only parts of the expert opinion were repeated in the article did not render the article distortive , nor the relevant information untrue .

As regards the connection to the public sphere and public interest , ORG found that the ORG administration , together with the administration of justice , belonged to the public sphere . The applicant had been included in the list of court - commissioned experts since DATE , and her repeated work as an expert in court proceedings must be considered as belonging to the public sphere . The activity was closely linked to the administration of justice , and had a considerable influence on judges’ decision - making processes . The impugned article concerned the applicant ’s activity as an expert in custody proceedings . Considering the importance and sensitivity of the area of custody proceedings and the dominant role of experts in the field , the psychological integrity of an expert assigned to those cases had to be beyond doubt . Any reservation in relation to the mental health of experts – if based on sufficient reasons – had to be met with a thorough investigation in the interest of the proper administration of justice , which had happened as a next step in the present case . Insofar , a truthful report linked to a person ’s public status , which also contained information belonging to the intimate personal sphere must be permitted to be published . ORG concluded that the article , by way of an appropriate commentary , critically examined a matter of public interest and therefore exercised its role as a “ public watchdog ” .

That judgment was served on the applicant ’s representative on DATE .


Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković

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

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

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

The applicant held a specially protected tenancy ( stanarsko pravo ) of a flat in GPE measuring QUANTITY . The flat was located in a socially - owned building in the centre of GPE built in DATE .

By a decision of CARDINAL DATE the local authorities decided to demolish the building because it was so dilapidated that it risked collapsing at any time and thus posed a risk to life and property . The decision specified that the building would be demolished once all the tenants ( CARDINAL at the time , including the applicant ) had vacated it , after being provided with replacement flats pursuant to the law , in particular section PERSON ) of LAW ( see paragraph CARDINAL below ) .

On the basis of that decision CARDINAL of the tenants living in the building were subsequently allocated replacement flats .

On DATE ORG entered into force ( see paragraph CARDINAL below ) . It entitled holders of specially protected tenancies to purchase the flats in respect of which they held such a tenancy under favourable conditions . In that way , a large majority of specially protected tenancies became a right of ownership for those tenants .

On DATE an explosive device was detonated in front of CARDINAL of the flats in the building , which caused further damage .

On DATE the applicant and another tenant who were still living in the building , wrote to the local authorities housing department asking it to allocate them urgently replacement flats , as after the explosion the building was no longer suitable for habitation .

On DATE the local authorities held an on - site inspection and established that due to the damage caused by the explosion , the building was indeed no longer habitable and that the CARDINAL remaining tenants ( of which CARDINAL was the applicant ) had moved in with their friends .

On DATE the applicant was offered a replacement flat in GPE measuring QUANTITY . He refused the flat , stating that it “ was damp and had rotten floors ” and was therefore uninhabitable .

On DATE the applicant , relying on LAW ( see paragraph CARDINAL below ) , brought a civil action against the local authorities , in particular GPE , before ORG ( PERSON ) , seeking to be provided with a replacement flat . More specifically , he asked to be awarded a specially protected tenancy of such a flat .

At the hearing held on DATE the applicant stated , inter alia , that the building in which his old flat was located had been demolished .

On DATE ORG entered into force ( see paragraph CARDINAL below ) . It repealed LAW , abolished the legal concept of the specially protected tenancy and provided that the remaining holders of such tenancies were to become “ protected lessees ” ( zaštićeni najmoprimci , see paragraphs CARDINAL and CARDINAL below ) . Under the Act such lessees are subject to a number of protective measures , such as the duty of landlords to conclude a lease of indefinite duration ; payment of protected rent ( zaštićena najamnina ) , the amount of which is set by the Government and is significantly lower than the market rent ; and better protection against termination of the lease ( see paragraph CARDINAL below ) .

Accordingly , in his written submissions of CARDINAL DATE the applicant amended his action and sought to be awarded a replacement flat under the protected lease scheme , with an option to purchase it under the conditions set forth in ORG ( see paragraph CARDINAL below ) .

On DATE the applicant deregistered his domicile at the address at which his old flat was located and registered it at the address where his stepson was living .

By a judgment of CARDINAL September CARDINAL the Municipal Court dismissed the applicant ’s action . The court established , on the basis of a witness testimony , that the replacement flat the applicant had been offered but had refused ( see paragraph CARDINAL above ) had indeed been unsuitable for habitation because it was shabby and had flooded floors and damp walls . It held , however , that while the local authorities had indeed been bound under LAW ( see paragraph CARDINAL below ) to provide the applicant with a replacement flat , that obligation had been extinguished with the entry into force of ORG , which had repealed LAW and abolished the specially protected tenancy as such .

On DATE ORG ( Županijski sud u GPE ) dismissed an appeal lodged by the applicant and upheld the first - instance judgment by endorsing the reasons given therein . The first - instance judgment thereby became final .

The applicant then , on DATE , lodged an appeal on points of law ( revizija ) against the second - instance judgment . Aware that the value of the subject matter of the dispute , amounting to CARDINAL NORP kunas ( HRK ) , which he had set when bringing his action did not reach the statutory threshold ( HRK CARDINAL,CARDINAL ) for lodging an ordinary appeal on points of law , the applicant lodged a so - called extraordinary appeal on points of law under section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) , stating that the main issue in his case was important for the uniform application of the law .

By a decision of DATE ORG ( PERSON ) declared inadmissible the applicant ’s appeal on points of law . It found that the applicant had not complied with the formal requirements for lodging an extraordinary appeal on points of law , as stipulated in section ORG ( see paragraph CARDINAL below ) , because he had not specified the legal issue for which he had lodged the appeal or explained why it was important for the uniform application of the law .

On DATE the applicant lodged a constitutional complaint against ORG decision , alleging violations of his constitutional rights to equality before the law , equality before the courts , fair procedure and the right of ownership .

By a decision of CARDINAL DATE ORG ( Ustavni sud PERSON ) declared inadmissible the applicant ’s constitutional complaint and served that decision on his representative on CARDINAL DATE . It held , inter alia , that ORG decision was not arbitrary and that it did not raise a constitutional law issue .

The relevant provisions of LAW ( Zakon o parničnom postupku , ORG of ORG no . CARDINAL/CARDINAL with subsequent amendments , and ORG no . CARDINAL/CARDINAL , with subsequent amendments ) , which has been in force since DATE , read as follows :

“ ( CARDINAL ) NORP Parties may lodge an appeal on points of law ( revizija ) against a second - instance judgment :

- if the value of the subject matter of the dispute of the contested part of the judgment exceeds HRK CARDINAL,CARDINAL ,

- [ in certain employment disputes ] ,

- [ if the second - instance court assessed the evidence and/or established the facts differently from the first - instance court or held a hearing ] .

( CARDINAL ) NORP In cases where parties are not entitled to lodge an appeal on points of law in accordance with paragraph CARDINAL of this section , they may [ nevertheless ] do so if a decision in the dispute depends on the resolution of a substantive or procedural legal issue [ that is ] important for ensuring the uniform application of the law and equality of citizens , for example :

- if ORG has not yet ruled on that issue ... in respect of which there is divergent case - law of the second - instance courts ,

- if ORG has not yet ruled on that issue and the second - instance court may develop divergent case - law in respect of it , for example , because of possible different interpretations of certain statutory provisions ,

- if ORG has already ruled on that issue but the decision of the second - instance court is not in conformity with that ruling ,

- if ORG has already ruled on that issue and the decision of the second - instance court is in conformity with that ruling but ... the case - law should be revisited in view of changes in the legal system occasioned by new legislation , international treaties or decisions of ORG or ORG .

( CARDINAL ) In the [ extraordinary ] appeal on points of law referred to in paragraph CARDINAL of this section , the appellants must specify the legal issue for which they are lodging the appeal and give reasons as to why they find that issue important for ensuring the uniform application of the law and equality of citizens .

( CARDINAL ) An appeal on points of law must be lodged within DATE of the service of the second - instance judgment . ”

“ A belated , incomplete or inadmissible [ in the strict sense ] ( section CARDINAL ) appeal on points of law shall be declared inadmissible by a decision of the judge rapporteur of ORG , unless the first - instance court ... has not already done so . ”

NORP The relevant provision of LAW ( Zakon o stambenim odnosima , ORG nos . DATE , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL ) , which was in force between DATE and CARDINAL DATE , read as follows :

“ ( CARDINAL ) A specially protected tenancy shall be terminated if , on the basis of a decision issued by the relevant authority or in the proceedings for enforcement of a decision on expropriation , the building or part of the building in which the flat is located has to be demolished .

( CARDINAL ) NORP If , in the case referred to in paragraph ( CARDINAL ) of this section the tenants have to move out , on the basis of a decision [ issued ] by the housing authority , the municipality or the person to whose benefit the building is being demolished shall provide them with another [ replacement ] flat which does not significantly reduce the quality of their housing .

( CARDINAL ) If the relevant authority establishes that a building has to be demolished or reconstructed because it poses a risk to life or property , or for other reasons specified in separate legislation , the specially protected tenancy of flats in such a building shall be terminated and the provider of the flats ... shall provide the tenants with other [ replacement ] flats which do not significantly reduce the quality of their housing . ”


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä

A list of the applicants is set out in the appendix .

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

The applicants stated that they are nationals of the “ GPE ” . Their names , dates of birth and places of residence are set out in the Annex . They are represented before the Court by Ms Y. PERSON , a lawyer practising in GPE .

The facts of the case may be summarised as follows . The applicants are relatives of a NORP - Cypriot man who went missing from hospital in GPE on DATE at a time of mounting tension and violence in which NORP or NORP - NORP villages were targeted .

Their relative was listed as a missing person , the information being given to the NORP authorities , ORG and ORG .

The remains of the missing man were found in DATE during exhumations carried out by ORG for Missing Persons ( “ CMP ” ) . The remains were identified in DATE .

NORP By letter dated DATE , the Attorney - General instructed the police to carry out an investigation into the circumstances of the death of the applicants’ relative .

By report dated DATE , the Attorney - General informed the applicants that police had submitted in the investigation file in DATE . He had returned it , indicating further steps to be taken . In DATE , the file had been re - submitted . On the basis of the information obtained and analysis of the file , the Attorney - General had come to the conclusion that the investigation had reached a point where it could not proceed further as all leads had been pursued exhaustively , the evidence concerning the core facts was scanty and did not lead to persons who could be considered as possible suspects . He listed the investigative steps taken , which included

The police searched for any evidence in the hospital files to identify anyone who might have been in the same ward or who might have taken the deceased away ; they found the name of CARDINAL person admitted at the same time but this person had since died ;

The police made enquiries at the state prison where the deceased had been a warder to find information about the persons who might have accompanied the deceased to the hospital or might have come to take him away ; CARDINAL name PERSON was identified as a person who had come to the hospital to take the deceased away ; enquiries revealed that H.F had moved to GPE and had since died ; of QUANTITY persons who had been working at the prison at the time , they identified that CARDINAL were still ;

The police interviewed all CARDINAL ex - prison staff . CARDINAL said that they had known the deceased ; none admitted having any information about how he had gone missing from the hospital , save for a rumour that his family had gone to pick him up .

The police also interviewed police officers who were in service at the relevant time but no relevant information was forthcoming about the deceased .

The Attorney - General concluded that the passage of time since events had rendered unfeasible the questioning of the persons who might have been able to shed light on the investigation . As there were no remaining leads , the investigation could not be pursued further . However , if any new evidence or information did come to light in the course of other ongoing investigations into events in DATE , he had instructed the police to bring it to his attention for evaluation and further directions . He would keep the applicants updated in such event .


CASE OF VASILE VICTOR STANCIU v. ROMANIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The applicant was born in DATE and lives in GPE .

On DATE of the applicant ’s neighbours called the police to complain about the fact that the applicant had stored personal items in the common space of their apartment building .

At TIME on DATE QUANTITY police officers arrived at the applicant ’s door and asked for his identification papers without giving their names or informing him of the purpose of their visit . The applicant asked them what the purpose of their request was but they did not answer . For that reason , the applicant refused to present his papers , telling the police officers to come “ some other time ” ( altădată ) .

NORP The police officers immobilised the applicant , threw him to the ground and then handcuffed him . Noting the escalation of events , the applicant ’s partner , PERSON , searched for his identification papers and handed them all to the police officers : identity card , pension benefits slip and a certificate that he had been a fighter in the CARDINAL Revolution .

NORP The police officers took the papers without looking at them and took the applicant to police station no . CARDINAL to be identified .

At the police station the applicant was struck with fists , feet and truncheons . The pain was so intense that the applicant soiled himself . During the beating , the applicant ’s mobile phone and still camera were destroyed and his clothes were torn .

When the beating ended , the police officers checked the applicant ’s papers and then left him alone for TIME in a room . When they returned they informed him that they were leaving on a mission . After being again left alone , the applicant managed to find the officer on duty at the police headquarters ( ofiţerul de serviciu ) to ask permission to use the toilet . The police officer sent him home to clean himself up .

NORP The applicant went home and then returned to the police section to recover his identity papers .

On DATE the applicant was examined by a forensic doctor at ORG ( “ the ORG ” ) . The doctor drafted a medical report dated DATE ; a copy of the report was given to the applicant on DATE . It noted that the applicant had borne traces of violence on his wrists , arms and legs as a consequence of having been hit with a hard object ; that he had complained of chest pains ; and that the injuries could have dated from CARDINAL DATE and had needed DATE of medical care .

DATE after the incident , the applicant received by mail an offence report ( proces verbal de contravenţie ) drafted by the police officers on DATE in his absence , whereby he was fined CARDINAL NORP lei ( PERSON ) for “ refusal to present data necessary for his identification ” .

On DATE CARDINAL police officers were directed by the officer on duty at police station no . CARDINAL to settle a conflict between the applicant and a neighbour . Upon arrival , the police officers asked the applicant to present his identity papers , but he became violent and refused to comply . When the applicant tried to return to his apartment the police officers handcuffed him and transported him to the police station . After his identity had been established , the applicant left the police station .

The applicant lodged a criminal complaint against the CARDINAL police officers , accusing them of unlawful deprivation of liberty , unlawful investigation and torture , and seeking compensation . The complaint was registered with police station no . CARDINAL on DATE . On DATE the file was sent for investigation to the internal investigations department of ORG , and police officers from that department were delegated to conduct all relevant investigations .

These investigators heard evidence from the QUANTITY police officers , from the officer on duty on DATE of the events and from the neighbour ’s husband ( see below ) .

On DATE the investigating police officers heard evidence from the neighbour ’s husband , who declared that when the applicant , “ known as a mentally ill person ” , had refused , in inappropriate and disrespectful language , to present his identification papers and had attempted to return to his apartment , the police officers had immobilised him on the ground and handcuffed him , without ill - treating him in the process .

The officer on duty declared on DATE that he had not spoken at all to the applicant on the night in question and had only seen him when the police officers had brought him in to establish his identity ; those same officers had subsequently advised him to leave the police station – the officer on duty stated that he had seen the applicant again when he was leaving the building . He added that as he had been very busy in his office he had seen the applicant only for TIME , and had thus not been in a position to see whether the applicant had been injured .

Lastly , the QUANTITY police officers gave their statements on respectively CARDINAL and CARDINAL DATE .

CARDINAL of the officers declared that at the time of the events in question , the applicant had been under the influence of alcohol , because he had smelled of alcohol and had displayed a defiant attitude towards the police officers .

Both officers mentioned in very similar terms that when asked to present his identification papers , the applicant had tried to evade the measure ( “ se sustrage măsurii legitimării ” ) and had attempted to re - enter his apartment by using physical force ; for this reason , they had proceeded to handcuff him and had taken him to the police station . Both officers denied having inflicted any harm on the applicant , claiming that they had acted proportionately in view of the applicant ’s opposition to their request .

G.C. , the applicant ’s partner , was never heard by the investigators .

On DATE the prosecutor ’s office attached to ORG decided not to prosecute . On the basis of the evidence in the file , attesting , inter alia , to the fact that the applicant was known as a person who engaged in violent behaviour and who was frequently under the influence of alcohol , the prosecutor decided that the injuries suffered by the applicant had been superficial and that the use of force had been proportionate and necessary in order to immobilise him and take him to the police station , as provided for by Articles CARDINAL § CARDINAL ( CARDINAL ) and LAW and b ) of PERSON no . CARDINAL/CARDINAL on ORG ( see paragraph CARDINAL below ) .

The applicant lodged an objection . The prosecutor ’s decision was upheld on DATE by the head of the above - mentioned prosecutor ’s office , who considered that the police intervention had been rendered necessary by the applicant ’s violent behaviour and had not been excessive , as demonstrated by the fact that the injuries suffered had been insignificant .

NORP The applicant lodged a complaint with ORG against the CARDINAL decisions . He mainly argued that the investigation had been superficial , and that the conclusions of the investigation had been based exclusively on the statements given by the QUANTITY police officers who had behaved aggressively towards him , while his partner , for instance , had never been heard . He contested the prosecutor ’s opinion that the injuries incurred had been superficial . He referred to the ORG ’s relevant case - law , which required a plausible explanation for any traces of violence sustained while a person had been under police supervision . He also contested the proportionality of the police reaction , pointing out that he had merely refused orally to show his identification and that the police officers could not claim or prove that they had sustained any traces of violence during that intervention .

On DATE ORG dismissed the complaint and consequently upheld the ORG decisions . The court considered that the police intervention had been lawful . It further held that the applicant ’s minor lesions had been caused when he had fallen at the moment of his being immobilised by the police , which had been necessary because of the applicant ’s verbal and physical resistance . The court considered that the applicant had not been kept unlawfully in the police station but had been released as soon as his identity had been established , and that the consequences of the police intervention had not been serious enough to constitute the crime of torture , as alleged by the applicant . The decision was final , no further appeal being possible .


Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

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

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

Notified under LAW CARDINAL § CARDINAL ( a ) of the Rules of Court of their right to intervene in the present case , ORG expressed no wish to do so .

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

On an unspecified date the applicant ’s wife filed divorce papers with the competent court in GPE , also seeking the division of property .

On DATE she applied to ORG ( PERSON ) in GPE ( GPE ) for an interim measure prohibiting the applicant from disposing of CARDINAL apartments ( zabranjuje otuđenje i opterećenje nepokretnosti ) in GPE ( GPE ) until the proceedings in GPE had ended .

On DATE the court , in the absence of both the applicant and his representative , approved the measure , which was duly registered in the ORG real estate register . On DATE the applicant received the relevant decision , which also contained information that he could appeal to ORG , through the court in GPE , within DATE .

On DATE the applicant allegedly sent his appeal by express mail and it was received at ORG ( ORG ) in GPE on DATE by a named court officer . The applicant submitted a copy of a ORG delivery company envelope to the ORG with a date of CARDINAL DATE . It was addressed to ORG in GPE , with a waybill number of CARDINAL - CARDINAL - CARDINAL marked on it .

On DATE ORG found that the applicant had sent his appeal on CARDINAL DATE and rejected it ( odbacio ) as out of time .

On DATE , the proceedings in GPE ended with a friendly settlement .

On DATE the applicant wrote to ORG , maintaining that he had appealed on DATE and had therefore been in time . He enquired about the basis for ORG conclusion that the appeal had been sent on DATE .

On DATE of the CARDINAL ORG judges dealing with the applicant ’s case informed the president of ORG that there was proof in the case file that the appeal had been sent on CARDINAL DATE and that ORG had not taken other documents submitted by the applicant into account , namely “ a receipt , a bill and a fax sent on CARDINAL DATE ” .

On DATE the applicant ’s ex - wife waived her rights in respect of the property in GPE and requested that the interim measure be revoked and deleted from the real estate register .

On DATE the applicant informed the courts in GPE and GPE about the termination of the proceedings in GPE and requested that the interim measure be revoked .

On DATE the court in GPE revoked the measure ( ukida se privremena mjera ) .

On DATE the applicant tried to sell his property in GPE , but could not as the interim measure was still in the register . It transpired that the court in GPE had not transmitted the relevant decision to the ORG real estate registry .

On CARDINAL DATE ORG in GPE requested that the real estate registry in GPE delete the measure .

On DATE the registry issued a decision to strike out the interim measure in respect of CARDINAL of the apartments , which was executed on DATE . On DATE the registry issued a decision to strike out the interim measure in respect of the other apartment , which was executed on DATE .

Section CARDINAL(CARDINAL ) of LAW ( Zakon o parničnom postupku ; published in ORG . CARDINAL , CARDINAL and CARDINAL , and ORG no . CARDINAL ) provides , inter alia , that submissions sent by post are considered as having been lodged with the relevant court on DATE of posting .


Violation of Article 14+P1-2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 of Protocol No. 1 - Right to education-{general};Right to education);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in GPE .

On DATE she applied to take part in the entrance competition for ORG attached to ORG ( “ the ORG ” ) for the DATE academic year .

On DATE and DATE she took the practical selection tests performing on the bağlama .

On DATE the music section of the ORG administration published a list of successful candidates in the entrance examination , which included the applicant .

The applicant immediately applied to a medical board at ORG for a medical report certifying her fitness to study at ORG .

On DATE that medical board drew up a report stating that the applicant had been diagnosed with hypermetropia with nystagmus and severe bilateral amblyopia . ORG concluded that the applicant should be referred to a higher medical authority .

On DATE a medical board at ORG ( “ ORG ” ) prepared a medical report finding that the applicant could receive education and instruction in the sections of ORG where eyesight was unecessary .

On DATE the Director of ORG sent a letter to the applicant stating the following :

“ As we have explained on several occasions to your mother , your father and yourself , since you have failed to provide a report from a fully equipped public hospital ( tam teşekküllü PERSON hastanesi ) confirming that you can study at ORG ... we have been unable to enrol you ... We look forward to receiving your report from a public hospital mentioning your admission to ORG as a student as soon as possible ... ”

On DATE the applicant ’s father wrote to the Director of ORG to inform him that the medical report had been forwarded to ORG that DATE , as requested .

Also on DATE , the Director of ORG wrote to the Chief Medical Officer of ORG . Referring to the report issued by that hospital ’s ORG on DATE , he informed the Chief Medical Officer that none of the CARDINAL sections of ORG could be deemed not to require eyesight . The letter stated that in order to be able to be educated in any section of the ORG , a student had to submit a medical report stating that he or she was fit for the task . The Director of ORG asked the Chief Medical Officer to prepare a fresh medical report taking account of the fact that no section of ORG could be considered as not necessitating eyesight , and accordingly to specify whether or not the applicant was capable of being educated in ORG .

On an unspecified date ORG rejected the applicant ’s request for enrolment .

On DATE the applicant ’s parents , acting in her name and on her behalf , lodged with ORG ( “ ORG ” ) an action against the administration of ORG to set aside ORG decision not to enrol their daughter . That action was accompanied by a request for a stay of execution of the impugned decision . In his pleadings , counsel for the applicant argued that his client had passed the entrance examination to ORG on DATE , appearing before a panel of CARDINAL teachers , and that on DATE she had passed the final entrance competition with full marks , appearing before a panel of CARDINAL teachers . Quoting the criteria for admission to ORG , that is to say being under DATE , holding a certificate of primary education , having the requisite physical abilities for playing the chosen instrument in respect of which enrolment has been requested , not having a physical disability such as to prevent her from receiving an education in the chosen section , and passing the talent and technical standard competition . Counsel for the applicant submitted that she had satisfied all those criteria . Her enrolment in ORG had been refused on the sole ground that she was blind , which was contrary to law and the equality principle . In support of her application , counsel for the applicant relied on LAW , Articles CARDINAL , DATE , DATE and DATE of Basic Law No . DATE on national education ( “ Act No . CARDINAL ” ) and LAW . CARDINAL on specialised education . He also cited the names of former blind students who had graduated from the same ORG .

In a statement of defence of CARDINAL DATE the administration of ORG submitted that when filing her application for enrolment the applicant ’s father had provided no document referring to her blindness . It contended that he had concealed that fact , had behaved as if his child were disability - free and had therefore attempted to deceive the enrolment office . It stated that LAW admissions and enrolment in ORG set out the “ no disability ” criterion . Furthermore , the applicant had failed to provide a medical report certifying that she could study at ORG , which requirement applied to all applicants for admission . The statement therefore affirmed that the refusal to enrol the applicant had not been due to her blindness but stemmed from her failure to submit all the requisite documents for her enrolment , within the stipulated time - limit . It added that even though the medical report submitted by the applicant had stated that she could study in the sections of the ORG where eyesight was unnecessary , there were in fact no such sections . Finally , it pointed out that in the absence of appropriate facilities and teaching staff with the requisite expertise , ORG was not in a position to provide education for blind students , or indeed for persons with any kind of disability . In that connection it explained that in DATE , when it had opened , ORG had hoped to introduce facilities for teaching blind students , but the lack of teachers with a command of braille had forced it to abandon those efforts .

On DATE ORG dismissed the request for a stay of execution of the decision on the grounds that the conditions set out in DATE § CARDINAL of Act No . CARDINAL on Administrative Procedure ( “ Act No . CARDINAL ” ) as amended by Act No . CARDINAL had not been met .

On DATE , acting in her name and on her behalf , the applicant ’s parents appealed against that decision to ORG . They argued that pursuant to section CARDINAL LAW Act No . CARDINAL , there had been CARDINAL preconditions for obtaining a stay of execution : the existence of damage which was irreparable or difficult to repair , and the apparent unlawfulness of the administrative Act in question . The parents stated that under the circumstances of the present case it was obvious that the refusal to enrol their daughter in ORG would cause her damage which would be difficult to repair . They also submitted that such refusal was unlawful . Their memorial pointed out that the applicant held a primary school certificate and , apart from her blindness , had all the requisite physical capacities for playing the bağlama . Furthermore , she had passed the entrance examination for ORG , and a medical report had established that she had no disability such as to prevent her from receiving education in the music department . They submitted that the merits of that medical report could not be contested , that other students had provided medical reports from institutions similar to that which had drawn up the applicant ’s report , and that ORG had accepted those reports . In their view , the fact that the report had not specifically mentioned that the applicant could study at the ORG could not invalidate it . Moreover , they argued that the respondent administration ’s argument that the medical report had not been submitted in time was fallacious , as that report had been submitted to ORG on DATE , that is to say on DATE after receipt of the letter from the ORG requesting the report . The parents further affirmed that the applicant had met all the conditions for enrolment and submitted the requested documents within the stipulated time - limits . The only reason for the refusal of enrolment had been her blindness . In reply to the respondent administration ’s plea that ORG had no sections where eyesight was not required , the applicant ’s parents provided the names of CARDINAL blind graduates of ORG . Those former students had asserted that blindness was no obstacle to playing a musical instrument , that there were many blind musicians and that ORG argument that none of the teachers knew braille was invalid in the light of advanced technology and computer systems capable of converting braille . Finally , the applicant ’s parents submitted that the impugned measure was contrary to the constitutional principle of equality and all the relevant international legal instruments .

On DATE ORG dismissed that appeal on the grounds that the conditions for a stay of execution set out in section CARDINAL LAW No . CARDINAL had not been fulfilled since the execution of the impugned decision was not such as to cause damage which was irreparable or difficult to repair and was not unlawful .

On DATE the Chief Medical Officer of ORG wrote to the administration of ORG to inform it that the medical report du DATE had been revised . The original sentence “ can receive education and instruction in the sections of ORG where eyesight is unnecessary ” had been replaced by : “ can not receive education or instruction ” .

On DATE , acting in the applicant ’s name and on her behalf , her parents submitted a complaint to ORG against ORG , its Chief Medical Officer and the other doctors who had amended the medical report of DATE , accusing them of abuse of office . They argued that the doctors had amended the medical report arbitrarily , without examining their daughter . They affirmed that the purpose of the amendments had been to ensure that the proceedings against the administration of ORG concluded in the latter ’s favour .

On DATE they applied to ORG for an inquiry into the events in question .

On CARDINAL DATE ORG attached to ORG adopted a decision refusing to authorise the prosecution of the Chief Medical Officer in question . That decision mentioned that the findings of the report had been amended at the request of the administration of ORG and that there had been no wrongdoing or abuse of office .

On DATE the applicant ’s parents , acting in her name and on her behalf , appealed to ORG to set aside that decision and authorise proceedings against the Chief Medical Officer in question . That appeal was unsuccessful .

On DATE they lodged an appeal with ORG requesting the setting aside of the decision not to enrol the applicant . They relied on LAW Act No . CARDINAL of DATE on persons with disabilities ( “ Act No . CARDINAL ” ) , which had , in their view , put an end to all forms of discrimination in the educational sphere .

On DATE ORG dismissed the applicant ’s appeal . The relevant sections of the court ’s reasoning read as follows :

The principles governing entrance competitions and enrolments at ORG attached to ORG were adopted by ORG ... at the request of the section assembly , after having been debated in ORG assembly and deemed lawful by ORG . ... Those principles include the condition that applicants who have passed the competition for enrolment in ORG should not suffer from any physical disability impeding education in the section [ to which they have been admitted ] . Furthermore , that condition is mentioned on the form distributed to applicants listing the documents required for final enrolment . The submission of a report drawn up by a fully equipped hospital and stating ‘ is capable of studying at the Music Academy’ is mandatory .

It transpired from the assessment of the application that [ the applicant ] passed the entrance examination and secured the right to be enrolled . However , whereas the report prepared by ORG had concluded that a report should be requested from a higher medical board , she requested a report from an equivalent medical board , namely ORG . It transpires from the defence of the respondent administration that in DATE , when ORG was set up , it had enrolled a number of blind students on a trial basis , but , in the absence of teaching staff conversant with the braille alphabet and having regard to the various difficulties encountered , that experiment was discontinued . No further blind students were admitted . It has been established that the administration wrote to the Chief Medical Officer of ORG requesting information on the interpretation of the medical report which it had issued and that the conclusions of that report had subsequently been amended . The respondent administration ’s decision to refuse to enrol the applicant was not unlawful as she had been unable to provide a report drawn up by a fully equipped public hospital and stating that she was capable of studying at ORG . The applicant ’s allegations to the contrary are ill - founded ... ”

ORG adopted that decision on a majority vote , contrary to the recommendation of the President of the court , who adopted a dissenting opinion stating , with reference to LAW No . DATE , that no one could be deprived of his or her right to education and instruction . In his view , it was beyond doubt that it was incumbent on government departments to put in place an environment conducive to education and instruction and meeting the needs of blind persons . Referring to the defence put forward by the respondent administration , which had attempted to incorporate blind students in DATE , he noted that it had been possible at the time to provide blind persons with musical education . He emphasised that there were many famous blind musicians . To deprive individuals of their right to education was incompatible with a social and democratic ORG governed by the rule of law . He consequently held that the impugned administrative measure had been unlawful .

On DATE ORG wrote a letter to the applicant ’s father in reply to his request of DATE ( see paragraph CARDINAL above ) . The relevant parts of the letter read as follows :

“ CARDINAL . The CARDINAL reports covered by the inquiry are similar in content .

However , the hospital administration ’s failure to defend the initial report and its decision to make the requested amendments , on the instructions of the administration of ORG ... can not be considered as an appropriate attitude .

The letter of CARDINAL ( no . CARDINAL ) sent by the administration of ORG ... to the Chief Medical Officer of the hospital ... states that ‘ inasmuch , moreover , as the teaching administered in those sections is intended for sighted students , we have no suitable educational environment for blind students ( in terms of resources , equipment , technical facilities or teachers ) . For those reasons it is out of the question for sighted and blind students to follow common GPE .

... Having regard to the relevant international agreements and legislative provisions , the course of action expected of the administration was not to force through amendments to a report drawn up by a hospital , thus impeding a blind citizen ’s right to education ... In conclusion , the Chief Medical Officer amended the form of the report , [ but ] its content remained the same , such that he can not be accused of negligence . The available administrative and judicial remedies should be used to aasert the right in question ... ”

On DATE the applicant ’s parents , acting in her name and on her behalf , lodged an appeal on points of law with ORG against the DATE decision of ORG ( see paragraph CARDINAL above ) . They submitted that that decision was contrary to the LAW , to LAW No . DATE , to LAW . DATE and to several international instruments and declarations . They submitted that the respondent administration ’s defence plea that eyesight was required in all the sections of ORG was fallacious , citing the names of blind former music students who held diplomas from the ORG . They requested the invalidation of the first - instance decision in accordance with the arguments set out in the opinion of the President of ORG .

On DATE the administration of ORG filed its defence . It submitted that the applicant ’s medical report had mentioned that she could study in the sections of ORG which did not require eyesight , but that in fact the ORG had no such sections . Lastly , it affirmed that the applicant had not met all the requisite conditions for enrolment .

By judgment of DATE , served on counsel for the applicant on DATE , ORG dismissed the appeal on points of law and upheld the impugned decision , having found that the latter had fallen within the jurisdiction of the administrative court , had not been unlawful and had complied with the procedural rules . Moreover , it transpired from the judgment of ORG that the reporting judge had come down in favour of admitting the appeal on points of law . In his opinion on the appeal on points of law , ORG with ORG , referring to LAW and sections CARDINAL , CARDINAL and CARDINAL of Act No . DATE , also stated that educational establishments were required to take into account persons who required specialist teaching and to adopt the necessary measures to guarantee their education . In the circumstances of the present case , he considered that the decision not to enrol the applicant – who had passed the entrance examination for ORG and met all the legal conditions – flouted the relevant constitutional and legislative provisions and should therefore be set aside .

According to information transmitted to the ORG by the applicant , after the rejection of her application to ORG , she continued her education in an ordinary school before joining ORG of ORG .