András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

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

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

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

On DATE the applicant married NORP in a civil ceremony . In DATE the applicant and NORP married in church .

On DATE the applicant filed a petition for divorce . He asked for a no - fault divorce ( that is , for the court not to make any findings that either party was at fault for the breakdown of the marital relationship ) . The applicant stated that for DATE he could not agree with his wife on many issues touching on the basic aspects of everyday life , and that their life together had not been harmonious . This had caused a number of arguments and in DATE he had moved out of their flat .

In her reply to the petition , the respondent submitted that her marriage to the applicant was amicable , pleasant and that they used to be considered by other couples as having an exemplary relationship . She was of the opinion that the only reason the applicant had petitioned for divorce after DATE of married life was because he was having an affair with another woman . The applicant had moved out of their flat in DATE but had returned in DATE ( despite continuing his relationship with the other woman ) . The respondent was of the view that this was a brief period of foolishness and that she could forgive her husband for his affair .

NORP In pleadings dated DATE the applicant changed his claim . He applied for a divorce on fault - based grounds ( wina wyłączna ) . In his opinion , the respondent used to be controlling , incapable of reaching a compromise on any issue and unwilling to accept his arguments . This was , in his view , the main reason for the breakdown of their marriage .

During a hearing held on DATE the applicant ’s aunt , PERSON , testified . She said that NORP was a very good wife . She cared deeply about the applicant and was very conscientious about household tasks . The witness had never heard the applicant complaining about his marriage . A second witness , GPE , the parties’ friend , testified that the applicant and the respondent had complementary personalities and that she had never seen them fighting . A third witness , PERSON , also their friend , recalled that the applicant used to say that he had “ a wife and a mother in CARDINAL ” because of the good care the defendant had been taking of him . In his opinion , the applicant was satisfied with his marriage . A fourth witness , PERSON , the respondent ’s brother , said that in his view the marriage was good .

During a hearing on DATE the applicant ’s mother testified that she had considered her son ’s marriage to be good . The applicant had never complained about his wife , but she sometimes complained about his flaws . She was not convinced that her son had really carefully considered his decision about the divorce . The parties’ home had been clean and well - kept thanks to the respondent ’s efforts and work . She recalled only minor misunderstandings between the parties . The second witness , PERSON , the applicant ’s cousin , stated that the applicant had been deeply in love with the respondent . She had not heard the applicant praising the quality of his married life or complaining about it .

During a hearing on DATE CARDINAL witnesses expressed the opinion that the marriage was good .

The parties to the proceedings were also heard . The applicant testified that his new partner was against his divorce . Nevertheless , his new involvement had helped him to ponder carefully his decision to divorce . The applicant accused the respondent of infidelity , which had allegedly taken place during their engagement . He described his marriage as boring . The respondent did not agree to the divorce . In her opinion the applicant ’s affair was just a passing period of foolishness . She declared that she loved the applicant and her willingness to give him a second chance .

On DATE the ORG refused to grant the divorce . The court established that the applicant and NORP had married in DATE . They did not have children . In DATE they had married in church . Subsequently , the applicant had met another woman . In DATE he had informed NORP that he had fallen in love with someone else .

The court held , having regard to the evidence gathered in the proceedings , that the breakdown of the marriage was complete and irretrievable within the meaning of the provisions of LAW on divorce . The financial , emotional and sexual relations between the spouses had come to end , essentially because of the applicant ’s relationship with another woman . The court was of the view that there was no prospect of him returning to his wife .

The court further observed that NORP was a very good partner to him and was not at fault for the breakdown of the marriage . She still loved her husband and was ready to forgive him for his affair . The court stressed that the applicant was the only person responsible for the marital breakdown . He was at fault not only because he had failed to comply with the spousal obligations enumerated in LAW , but also because he had not been loyal towards the respondent . He had failed to respect his obligation of fidelity and had clearly stated during the proceedings his intention to continue his relationship with another woman . Having regard thereto , the court considered that the wife ’s refusal to give consent had to be considered to be legitimate and compatible with the principles of social coexistence within the meaning of LAW . In this regard the court referred to established case - law of ORG concerning situations where an innocent spouse refuses to consent to a divorce . The court stressed that a refusal of consent to a divorce was a right and could not as such be presumed to be against the principles of social coexistence ( ORG judgment nos . II CKN CARDINAL/CARDINAL of DATE and III CR CARDINAL/CARDINAL of CARDINAL DATE ) . Even considerable length of a separation between spouses did not override the presumption that a refusal to give consent to divorce complied with those rules ( ORG judgment no . III CR CARDINAL/CARDINAL of CARDINAL DATE ) .

The applicant appealed , challenging the findings of fact made by the court . He argued that his relationship with his wife had never been good . The fact that he had entered into a new relationship had been precisely because of the poor quality of their marriage . The court had been wrong in finding that his involvement with another woman had caused the marital problems . His relationship with her was viable as they had been living together for DATE over DATE . The applicant referred to a new factor he had not raised before , namely that the respondent had not wanted to have sex with him . He changed his claim once again , asking this time for a divorce where both parties were considered at fault .

On DATE the ORG upheld the first - instance judgment . It considered that the applicant ’s wife was not at fault for the breakdown of the marriage and that her refusal to consent therefore had to be regarded as legitimate . The court noted that even the witnesses called by the applicant had testified that their marriage had been good and generally amicable .

The applicant and his legal representative were present at the hearing and during the oral pronouncement of the judgment . The president of the court read out the operative part and afterwards orally explained the main grounds for the decision .

On DATE the applicant ’s legal representative asked for the written grounds of the appellate judgment . On DATE they were served on him .

Pursuant to LAW ( ORG rodzinny i opiekuńczy ) , either spouse may file a petition for divorce if there has been a complete and irretrievable marriage breakdown ( zupełny i trwały rozkład pożycia ) . For the purposes of establishing whether a complete breakdown has occurred , the established judicial practice is to examine ex officio whether the financial , emotional and sexual ties between the spouses have ended ( ORG decision no . III CKN CARDINAL/CARDINAL of DATE , and ORG of Appeal decision no . I ACa DATE ) . The courts establish it applying the general procedural rules governing the taking of evidence , in addition to certain specific rules provided for by LAW for the purposes of divorce proceedings .

NORP In particular , under LAW , a decision in a divorce case can not be based exclusively on the admission of the claim or of certain facts by the respondent . LAW provides that both parties to a divorce case are to be heard in person . Under LAW , if the respondent admits the divorce claim and the spouses have no minor children , the court may limit the taking of evidence to hearing the parties .

Under LAW and CARDINAL of LAW , a divorce may not be granted even where there has been a complete breakdown of the marriage , if :

“ ( CARDINAL ) ... it would be detrimental to the well - being of [ the ] minor children [ of the marriage ] or if , for other reasons , granting the divorce would be contrary to the principles of social coexistence ( zasady współżycia społecznego ) ;

( CARDINAL ) ... it has been requested by the spouse who is at fault for the breakdown of the marriage , unless the other spouse has expressed his or her consent thereto , or the refusal of such consent by the other spouse is – in the circumstances at issue – contrary to the reasonable principles of social coexistence ... ”

DATE the Civil Code reads :

“ No one shall exercise any right of his in a manner contrary to its socio - economic purpose or to the principles of social coexistence ( zasady współżycia społecznego ) . An act or omission [ fulfilling this description ] on the part of the holder of the right shall not be deemed to be the exercise of the right and shall be protected [ by law ] . ”

The courts have developed ample case - law addressing situations where a respondent spouse refuses to consent to a divorce . In particular , they have held that an innocent respondent has a right to refuse to consent . A presumption of good faith was therefore applicable to such a refusal , until it was demonstrated , with reference to the specific circumstances of a case , that the refusal ran counter to the principles of social coexistence within the meaning of LAW ( ORG decision nos . II CKN CARDINAL/CARDINAL of DATE and I CKN CARDINAL/CARDINAL of DATE ) . In particular , the respondent spouse ’s intention to frustrate the petitioner ’s plans to formalise his or her extramarital relationship should not , by itself , be regarded as being incompatible with these principles , if it has been shown that the refusal was inspired by a wish to continue the marriage , consistent with ethical and social standards ( ORG decision no . CKN CARDINAL/CARDINAL of DATE ) .

The courts are obliged to assess whether or not a refusal to consent to a divorce amounts to an abuse of rights in the light of the spouses’ situation and conditions caused by the breakdown of their marriage , both of the innocent respondent and the petitioner . It is only in the light of these findings that a thorough assessment can be made whether a refusal is consonant with universally accepted morality rules ( reguły moralności ) and whether or not it is detrimental to other interests worthy of legal protection ( ORG decision no . I CKN CARDINAL/CARDINAL of DATE ) . The factors to be taken into account include , inter alia , the spouses’ health , age and ability to earn a living and the length of the marriage ( ORG decision nos . I CR CARDINAL of CARDINAL DATE and III CKN CARDINAL/CARDINAL of DATE , and ORG of Appeal decision no . I ACa CARDINAL of DATE ) . The fact that the petitioner has children born from an extramarital relationship is also of relevance ( ORG decision no . C CARDINAL of DATE ) .

The refusal of an innocent spouse should be overridden if it is shown that the respondent is motivated merely by a wish to harass the petitioner and to prevent him or her from formalising his or her new relationship ( ORG decision no . III CKN CARDINAL/CARDINAL of DATE ) .

The respondent ’s conduct after the marriage breakdown also has to be taken into consideration ; if it is spiteful and reprehensible , the refusal of consent can be overridden ( ORG decision no . II CKN CARDINAL/CARDINAL of DATE ) . Likewise , the causes of the breakdown and the circumstances which have arisen thereafter , including the existence of other relationships and extramarital children , have to be taken into consideration by the court ( ORG decision no . III CKN CARDINAL/CARDINAL of DATE ) .

Under LAW of LAW , the president of a judicial panel reads out the operative part of the judgment in open court . Afterwards the president or judge rapporteur orally explains the main grounds for the decision ( podaje ustnie zasadnicze powody rozstrzygnięcia ) .

Under LAW , written grounds for a judicial decision may be prepared at a party ’s request submitted within DATE of its delivery . Written grounds must consist of a summary of the facts established by the court , refer to the evidence relied on by the court , indicate the reasons why the court considered that evidence to be credible and give legal reasons for the decision adopted .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in DATE and lived in GPE before the arrest .

On DATE the applicant was remanded in custody on suspicion of rape .

DATE and DATE the applicant was held in remand prison IZ-CARDINAL/CARDINAL in GPE . The parties submitted differing information about the material conditions of his detention .

The applicant claimed that the facility was overcrowded . Cell CARDINAL , in which he stayed throughout his detention , measured CARDINAL sq . m and accommodated CARDINAL inmates . Walls were mouldy and the lavatory pan was not separated from the rest of the cell . Ventilation did not function ; no toiletries were distributed and the bedding was ragged . The food was of low quality . The detainees were allowed to take a shower only once per week . In support of his allegations , the applicant submitted CARDINAL identicallyworded statements by his cellmates , who – without further detail – declared that they “ fully support[ed ] Mr PERSON ’s complaint to ORG ” .

The Government submitted a number of certificates issued by the director of remand prison IZ-CARDINAL/CARDINAL on DATE , which demonstrated that the applicant was held in CARDINAL cells having the following characteristics :

cell CARDINAL , which measured CARDINAL sq . m , was equipped with CARDINAL sleeping places and actually hosted DATE inmates ;

cell CARDINAL , which measured QUANTITY . m , was equipped with CARDINAL sleeping places and accomodated between CARDINAL and CARDINAL detainees ;

cell CARDINAL , which measured CARDINAL sq . m , was equipped with CARDINAL sleeping places and hosted DATE inmates ;

cell CARDINAL , which measured QUANTITY . m , was equipped with CARDINAL sleeping places and held the same number of detainees .

It follows from the certificates that the applicant was provided with bedding and toiletries and afforded DATE TIME - long outdoor exercise , a DATE shower and access to washing facilities . There was forced ventilation and artificial lighting in the cells . In addition , the windows were not covered by shutters , allowing natural light to penetrate into the cells , and were equipped with a small opening pane that provided access to fresh air . Lavatory pans were separated from the rest of the cells by a brick partition and were located QUANTITY away from dining tables . In addition , all CARDINAL cells were equipped with a water tap with hot and cold running water . Heating was provided during DATE .

The ORG also submitted copies of the prison population register which covered DATE out of DATE during DATE the applicant ’s detention and presented the following information about the numbers of sleeping places in the cells and their actual occupancy :

cell CARDINAL was equipped with CARDINAL sleeping places and held a maximum of CARDINAL detainees ;

cell CARDINAL was equipped with CARDINAL sleeping places and held CARDINAL inmates ;

cell CARDINAL was equipped with CARDINAL sleeping places and held QUANTITY inmates .

It appears that the applicant complained to the GPE city prosecutor about the conditions of his detention . In his reply of DATE the prosecutor acknowledged that “ not every detainee was afforded the [ statutory ] standard of QUANTITY due to overpopulation of the prison ” .

NORP Some time later the applicant brought a civil claim for compensation in connection with inadequate conditions of detention in remand prison IZCARDINAL/CARDINAL . On DATE , ORG of GPE examined the claim and held that :

“ According to a prison population certificate issued by the director of remand prison IZ-CARDINAL of GPE , cell CARDINAL measures QUANTITY m and is equipped with CARDINAL sleeping places . Cell CARDINAL measures QUANTITY m and is equipped with CARDINAL sleeping places . Cell CARDINAL measures QUANTITY m and is equipped with CARDINAL sleeping places and cell CARDINAL measures QUANTITY . m and is equipped with CARDINAL sleeping places .

It follows from the case file that Mr PERSON was always provided with a separate sleeping place and that the number of detainees never exceeded that of sleeping places .

It was established ... that the applicant ’s argument about the overpopulation of the cells he had been held in , [ affording as a result ] CARDINAL sq . m per person , had been substantiated .

However , considering that Mr PERSON did not complain that he had been afforded personal space below the sanitary standard ( QUANTITY ) ... and was always provided with a separate sleeping place ... the court considers it appropriate to reject Mr PERSON ’s claim . ”

On CARDINAL DATE the ORG of GPE found the applicant guilty and gave him a custodial sentence . The applicant appealed , complaining about an erroneous interpretation of law and improper assessment of evidence by ORG .

On DATE ORG upheld the conviction on appeal .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction)

The applicant was born in DATE and is currently in detention at HMP ORG .

On DATE , after pleading guilty to counts of rape , indecent assault and robbery , the applicant was sentenced to an indeterminate sentence for the public protection ( “ IPP ” ) . The minimum term that the applicant had to serve before being eligible for release ( the “ tariff ” ) was set at DATE . His tariff was due to expire on DATE .

On DATE the applicant completed alcohol in cell work and on DATE he completed an alcohol awareness course .

In DATE the applicant was transferred to GPE . DATE to DATE he participated in the Enhanced Thinking Skills ( “ ORG ” ) course .

In DATE the applicant completed the Living with Loss course .

On DATE the applicant completed ORG ( “ SOTP ” ) . In a post - programme progress review dated DATE , further work to reduce his risk of reoffending was identified , namely full engagement in the Structured Assessment of Risk and Need ( “ SARN ” ) process and full engagement in further assessments for sexual offending programmes .

A SARN Report dated DATE prepared by a forensic psychologist in training noted that the applicant was assessed at a high statistic and high dynamic risk of sexual reoffending . It recommended personality and psychiatric assessments followed by completion of the extended Sex Offenders Treatment Programme ( “ ORG ” ) in order to reduce his risk . It concluded that the risk presented by the applicant was not low enough for him to be transferred to open conditions . The applicant was placed on a waiting list for the ORG .

On CARDINAL DATE the applicant was informed by ORG that it had not directed his release on licence or transfer to open conditions as some risk factors were outstanding . It noted that the Secretary of ORG had identified the need for sex offending and alcohol awareness work to reduce the level of risk . The applicant ’s next parole process was to commence in DATE , with an oral hearing in DATE .

On DATE the applicant made a formal application to GPE , where he was then detained , to ask whether it intended to run the ESOTP . He was advised in reply that the prison planned to run the ORG in DATE . The applicant was not selected to participate in the course .

On DATE the applicant completed a further alcohol awareness course .

On DATE ORG decided , on the papers , not to direct the applicant ’s release . It noted that the applicant had completed an accredited alcohol course , the ORG course and the ORG and that he hoped to complete the Thinking Skills Programme ( “ NORP ” ) and ORG in the near future . It concluded :

“ You have been consistently well motivated to engage with all work identified as necessary for you . This is to your credit , as is your calm and personable approach . You have made some progress in that you now talk more openly and in more depth about your sexual offences . This has enabled you to work constructively with programme facilitators , and has provided a foundation on which to build in the ORG . You are motivated to complete that programme , and it is only available in the closed estate – any move to open conditions would therefore be premature . Release is , at present , out of the question . There is some lack of clarity around some of the risk factors in your case , and you yourself recognise that there is more to be done in terms of addressing risk ... ”

NORP In DATE the applicant completed the FAC .

By letter dated DATE , the applicant was informed that the Secretary of ORG had considered the ORG recommendation and agreed that the applicant was not suitable for release or transfer to open prison conditions . The next review period was set at DATE , allowing DATE for completion of CARDINAL , DATE for completion of ORG and DATE for production of a further SARN report . The review would therefore commence in DATE with a view to completion by DATE .

In a Sentence Planning and Review Report dated DATE , it was recognised that ORG was a course that the applicant should concentrate on as part of his sentence plan . The report observed that the applicant ’s need to improve his use of alternative styles of thinking had been addressed through his attendance at the FAC . The report further noted :

“ Alcohol was an area that was problematic before his incarceration ... He has completed an accredited alcohol course ( TADS ) and continues to work with CARDINAL to address this issue . Mr PERSON has completed ORG and reports following completion were positive ... His sentence plan also recommends that he is assessed for ORG . I understand from the programmes department that due to lack of resources this remains an objective . However , I am confident that subject to local prioritization strategy this should be completed in DATE . ”

The applicant ’s tariff expired on DATE .

On DATE ORG notified the applicant ’s solicitors that the applicant was listed on their database “ as a priority for assessment ” prior to the next ORG scheduled to commence in DATE . The applicant was not selected to participate in the course .

On DATE the applicant completed a “ Change is Possible ” group work session . On an unknown date , he attended a brick - laying course .

On DATE the applicant made a formal application to GPE to ask for an assurance that he would have a place on the next ESOTP . He was advised in reply that no such assurance could be given but that he was a “ high priority ” .

On DATE ORG advised the applicant ’s solicitors that he would continue to be considered for the next group to participate in the ORG , in line with the prioritisation strategy .

On DATE the applicant ’s ORG commented on the work done to date and noted :

“ Unfortunately , PERSON has yet to get a place on the [ ORG ] and it is hoped that he will in DATE . ”

In its recommendation , the report stated :

“ It is hoped that [ the applicant ] will be able to participate in the ORG ( DATE in duration ) that is scheduled for DATE . Until that programme is completed and a further ORG written to identify whether further intervention is required to manage risk , there can be no change to his current assessments and there is no support for a move to less secure conditions at this time ... ”

On DATE ORG decided on the papers not to direct the applicant ’s release , deeming him still a risk to the public until he completed the ORG . Its report stated :

“ Through no fault of your own , you have been unable to complete ORG but it is anticipated that you will have the opportunity to do so in DATE . ”

On DATE the applicant was informed by ORG programmes team that his placement onto the ORG expected to run in DATE would depend on the assessment process , which was ongoing , and on his level of priority .

On DATE the applicant ’s solicitors advised him that HMP Bure had informed them that the applicant would be assessed for a place on the ORG to commence in DATE .

On DATE the applicant was informed that the ORG decision of DATE was final and that the next review would commence in DATE , with a view to a hearing in DATE .

On DATE the applicant was assessed as being suitable for the ORG .

On DATE the applicant ’s solicitors advised him that they had been informed by GPE that he was a “ relatively high priority ” to complete the next ORG running at FAC in DATE .

In DATE the applicant was transferred to PERSON . In DATE he underwent further assessments for the ORG in order for prison staff to decide whether he could access the ORG at another prison or whether he should undertake the course at PERSON .

On an unknown date in DATE the applicant commenced the ESOTP at ORG . He was due to complete the course in DATE .


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;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 ORG by Mr PERSON , 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 .

The applicant was a soldier in ORG . He was wounded in the war in DATE but continued to serve in the army until he was honourably discharged in DATE .

On DATE a medical board of ORG ( ORG obrane PERSON ) declared the applicant medically unfit for military service . The decision was based on his medical records . He was informed that he could appeal against that decision to the ORG ’s second - instance medical board .

The applicant appealed . On DATE he was summoned to appear before the second - instance medical board and to submit further medical documentation concerning his condition . The applicant failed to appear and did not provide any further medical documentation .

On DATE the second - instance medical board dismissed his appeal as unfounded , on the grounds that given his failure to appear before the board and in view of the available documentation , there was no reason to call into question the existing medical assessment of his condition . The applicant was informed that he could challenge the ORG ’s decision by lodging an administrative action with ORG , which , however , did not have suspensive effect .

The decisions of the ORG ’s medical board became final and enforceable on DATE .

On DATE the applicant lodged an administrative action with ORG ( GPE ) challenging the decision of the ORG ’s medical board of DATE . He argued that the ORG ’s assessment of his fitness for military service was flawed and unfounded . He contended in particular that he had never been properly summoned or examined by the ORG ’s medical board and that their findings contradicted the fact that he had carried out all his military assignments efficiently and had even participated in a mission to GPE .

On DATE , after hearing the parties’ arguments and examining further submissions from them , ORG declared the applicant ’s administrative action inadmissible on the grounds that the ORG ’s medical board was not a public authority against whose decisions an administrative action could be lodged , and that the applicant could only lodge an action against the ORG ’s decision to terminate his employment in the army .

The applicant then lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) complaining , in particular , that he did not have access to court concerning the assessment of his fitness for military service .

On DATE ORG declared the applicant ’s constitutional complaint inadmissible as manifestly ill - founded . That decision was served on the applicant on DATE .

On DATE the ORG ’s department for human resources terminated the applicant ’s service in the army by an honourable discharge . It ordered that the discharge would take effect on DATE . The ORG relied on section CARDINAL(CARDINAL ) of LAW , providing that military service would terminate ex lege DATE after the decision of a medical board declaring a soldier medically unfit for military service became final ( see paragraph CARDINAL below ) .

NORP The decision on the applicant ’s discharge from the army was confirmed on appeal by a second - instance administrative body within the Ministry on DATE .

On DATE the applicant lodged an administrative action in the ORG challenging the decision on the termination of his military service . He contended in particular that he had not been able to participate effectively in the proceedings before the ORG ’s medical board concerning the assessment of his fitness for military service . He also reiterated his complaints concerning the alleged failures of the medical board to properly assess his medical condition .

During the proceedings , ORG heard the applicant and obtained the parties’ further written submissions on the matter of the termination of the applicant ’s employment in the army . Concerning the applicant ’s allegations of inadequacy of the assessment of his fitness for military service , ORG heard PERSON , who had presided over the ORG ’s first - instance medical board . PERSON was also questioned by the applicant and his representative . He explained the methodology and procedures applied for the assessment of the applicant ’s fitness for military service , and stressed that the available medical documentation in the applicant ’s case had suggested that he was not medically fit for military service .

On DATE ORG dismissed the applicant ’s administrative action . It examined in detail the manner in which the applicant ’s unfitness for military service had been established and found that there was nothing in the procedure or findings of the medical board which would raise doubt as to the necessity of the applicant ’s discharge from the army .

The relevant Military Service Act ( Zakon o službi u oružanim snagama PERSON , ORG nos . ORG , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , DATE and DATE ) provided in section CARDINAL(CARDINAL ) that the military service could terminate only in the following circumstances : ( CARDINAL ) ex lege under the conditions provided for in that LAW ; ( CARDINAL ) on the basis of a personal request ; ( CARDINAL ) by the expiry of a term for which an individual was recruited ; ( CARDINAL ) by dismissal ; ( CARDINAL ) by the expiry of the probationary period ; and ( CARDINAL ) on the basis of an agreement .

In section CARDINAL(CARDINAL ) LAW provided :

“ ( CARDINAL ) Military service shall terminate ex lege ... by a decision of a medical board declaring [ a soldier ] medically unfit for military service DATE after the decision becomes final . ”

The Government provided several decisions of ORG declaring inadmissible administrative actions against decisions of the ORG ’s medical board on the assessment of appellants’ fitness for military service ( Us-CARDINAL/CARDINAL - CARDINAL of DATE ; CARDINAL of CARDINAL DATE ; CARDINAL of DATE and UsI-CARDINAL/CARDINAL - CARDINAL of DATE ) .

These decisions of ORG are based on findings that the ORG ’s medical board was not a public authority against whose decisions an administrative action could be lodged , and that further administrative actions could be lodged against any further administrative decisions based on the findings of the medical board .

The parties also provided several decisions of ORG upholding the findings of the ORG ’s medical board in administrative proceedings against decisions terminating appellants’ employment in the army ( Us-CARDINAL/CARDINAL - CARDINAL of DATE ; UsI-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE and UsI-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ) .


CASE OF GUMENIUC v. THE REPUBLIC OF MOLDOVA

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was stopped by the traffic police for speeding .

By an order of CARDINAL DATE the traffic police fined the applicant CARDINAL NORP lei ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) . The applicant did not challenge the police order .

As the applicant failed to pay the fine , on an unspecified date a bailiff applied to ORG to have the fine converted into CARDINAL days’ administrative detention , under LAW ( see paragraph CARDINAL below ) . According to the bailiff , the applicant had been ordered to pay the fine by DATE ; however , he had failed to do so and had thus acted in bad faith .

On DATE , at a hearing conducted without the presence of the parties , ORG accepted the bailiff ’s request and ordered the applicant ’s administrative detention for DATE . The document constituting the court ’s decision was a pre - printed template which the judge had completed by hand with the specific details of the case , such as the names of the judge , the applicant and the bailiff , the relevant dates , the amount of the fine , the applicant ’s address and DATE of detention to be served by the applicant . It did not contain any indication that the applicant had been summoned to appear at the hearing .

At TIME on DATE the applicant was arrested at home and placed in detention . At TIME DATE he suffered a heart attack and was taken by ambulance to a hospital . He recovered shortly thereafter and was soon discharged from hospital .

On DATE the applicant lodged an appeal against ORG decision of CARDINAL DATE , arguing , inter alia , that he had not been summoned to appear at the hearing of CARDINAL DATE , that he had had no knowledge of the decision of CARDINAL DATE prior to his arrest , and that he had not been given a chance to contest the court ’s decision before being placed in detention . The applicant also argued that the traffic police ’s order of CARDINAL DATE imposing a fine on him for speeding had been abusive because the police had no evidence to prove that it had been his car which had been caught speeding and not other cars on the road .

On DATE ORG dismissed the applicant ’s appeal , finding that the applicant had not challenged the traffic police ’s order of DATE within the statutory time - limit . ORG did not respond to the applicant ’s argument about the failure to summon him to the hearing of CARDINAL DATE .

It does not appear from the materials of the case that the applicant served the rest of the detention term .


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

Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The details concerning the applicants may be found in the LOC .

In DATE these CARDINAL applicants , who were in a committed stable relationship with each other , declared their intention to marry , and requested ORG of ORG to issue the relevant marriage banns .

On DATE their request was rejected .

NORP The CARDINAL applicants challenged the decision before ORG ( in accordance with LAW ) . They argued that NORP law did not explicitly prohibit marriage between persons of the same sex , and that , even if that were the case , such a position would be unconstitutional .

By a decision of CARDINAL DATE ORG rejected their claim . It noted that the LAW did not establish the requirements to contract marriage , but LAW did and it precisely provided that CARDINAL such requirement was that spouses be of the opposite sex . Thus , a marriage between persons of the same sex lacked one of the most essential requirements to render it a valid legal act , namely a difference in sex between the parties . In any event there was no fundamental right to marry , neither could the limited law provisions constitute discrimination , since the limitations suffered by the applicants were the same as those applied to everyone . Furthermore , it noted that ORG ( “ GPE ” ) law left such rights to be regulated within the national order .

The applicants appealed to ORG . While the court reiterated the unanimous interpretation given to NORP law in the field , namely to the effect that ordinary law , particularly LAW , did not allow marriage between people of the same sex , it considered it relevant to make a referral to ORG in connection with the claims of unconstitutionality of the law in force .

ORG in judgment no . CARDINAL of DATE declared inadmissible the applicants’ constitutional challenge to Articles CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL bis and CARDINAL of the NORP Civil Code , as it was directed to the obtainment of additional norms not provided for by LAW ( diretta ad ottenere una pronunzia additiva non costituzionalmente obbligata ) .

The Constitutional Court considered Article CARDINAL of LAW , which provided that the GPE recognises and guarantees the inviolable rights of the person , as an individual and in social groups where personality is expressed , as well as the duties of political , economic and social solidarity against which there was no derogation . It noted that by social group one had to understand any form of community , simple or complex , intended to enable and encourage the free development of any individual by means of relationships . Such a notion included homosexual unions , understood as a stable cohabitation of CARDINAL people of the same sex , who have a fundamental right to freely express their personality in a couple , obtaining DATE in time and by the means and limits to be set by law – juridical recognition of the relevant rights and duties . However , this recognition , which necessarily requires general legal regulation aimed at setting out the rights and duties of the partners in a couple , could be achieved in other ways apart from the institution of marriage between homosexuals . As shown by the different systems in LOC , the question of the type of recognition was left to regulation by ORG , in the exercise of its full discretion . Nevertheless , ORG clarified that without prejudice to ORG ’s discretion , it could however intervene according to the principle of equality in specific situations related to a homosexual couple ’s fundamental rights , where the same treatment of married couples and homosexual couples was called for . The court would in such cases assess the reasonableness of the measures .

It went on to consider that it was true that the concepts of family and marriage could not be considered “ crystallised ” in reference to the moment when the LAW came into effect , given that constitutional principles must be interpreted bearing in mind changes in the legal order and the evolution of society and its customs . Nevertheless , such an interpretation could not be extended to the point where it affected the very essence of legal norms , modifying them in such a way as to include phenomena and problems which had not been considered in any way when it was enacted . In fact it appeared from the preparatory work to LAW that the question of homosexual unions had not been debated by the assembly , despite the fact that homosexuality was not unknown . In drafting LAW of the LAW , the assembly had discussed an institution with a precise form and an articulate discipline provided for by LAW . Thus , in the absence of any such reference , it was inevitable to conclude that what had been considered was the notion of marriage as defined in LAW , which came into effect in DATE and which at the time , and still DATE , established that spouses had to be of the opposite sex . Therefore , the meaning of this constitutional precept could not be altered by a creative interpretation . In consequence , the constitutional norm did not extend to homosexual unions , and was intended to refer to marriage in its traditional sense .

Lastly , the court considered that , in respect of LAW regarding the principle of equality , the relevant legislation did not create unreasonable discrimination , given that homosexual unions could not be considered equivalent to marriage . Even Article CARDINAL of LAW and LAW did not require full equality between homosexual unions and marriages between a man and a woman , as this was a matter of NORP discretion to be regulated by national law , as evidenced by the different approaches existing in LOC .

In consequence of the above judgment , by a decision ( ordinanza ) lodged in the relevant registry on DATE ORG rejected the ORG claims in full .

NORP In DATE these CARDINAL applicants met and entered into a relationship with each other . In DATE Mr ORG decided to undertake further studies ( and thus stopped earning any income ) , a possibility open to him thanks to the financial support of Mr GPE .

On DATE the couple moved in together . In DATE and DATE the applicants wrote to the President of the Republic highlighting difficulties encountered by same - sex couples and soliciting the enactment of legislation in favour of civil unions .

In DATE the applicants’ physical cohabitation was registered in the LOC records . In DATE they designated each other as guardians in the event of incapacitation ( amministratori di sostegno ) .

On DATE they requested their marriage banns to be issued . On DATE their request was rejected on the basis of the law and jurisprudence pertaining to the subject matter ( see Relevant domestic law below ) .

The CARDINAL applicants did not pursue the remedy provided for under LAW , in so far as it could not be considered effective following the ORG pronouncement mentioned above .

In DATE these CARDINAL applicants met and entered into a relationship with each other . In DATE they started cohabiting and since then they have been in a committed relationship .

In DATE they opened a joint bank account .

NORP In DATE the applicants’ physical cohabitation was registered in the authorities’ records .

On DATE they requested that their marriage banns be issued . The person in charge at the office did not request them to fill in the relevant application , simply attaching their request to a number of analogous requests made by other couples .

Mr PERSON and PERSON challenged the decision before ORG .

By a decision ( decreto ) of DATE lodged in the relevant registry on DATE ORG rejected their claim , considering that it was legitimate for ORG to refuse a request to have marriage banns issued for the purposes of a marriage between persons of the same sex , in line with the finding of the ORG judgment no . CARDINAL of DATE .

The applicants did not lodge a further challenge ( reclamo ) under LAW , in so far as it could not be considered effective following the ORG pronouncement .


CASE OF SATAKUNNAN MARKKINAPÖRSSI OY AND SATAMEDIA OY v. FINLAND

Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Final domestic decision);No violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom to impart information);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

Alena Poláčková;Aleš Pejchal;András Sajó;Angelika Nußberger;Armen Harutyunyan;Carlo Ranzoni;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Kristina Pardalos;Krzysztof Wojtyczek;Lech Garlicki;Luis López Guerra;Marko Bošnjak;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Päivi Hirvelä;Pauliine Koskelo;Paulo Pinto De Albuquerque;Síofra O’Leary;Vincent A. De Gaetano;Yonko Grozev

NORP Since DATE the first applicant company , PERSON collected data from the NORP tax authorities for the purpose of publishing information about natural ORG taxable income and assets in the PERSON newspaper . Several other publishing and media companies also publish such data which , pursuant to NORP law , are accessible to the public ( see paragraph CARDINAL below for an explanation of the NORP access to information regime ) .

In DATE PERSON appeared CARDINAL times , with each issue concentrating on a certain geographical area of the country . The data published comprised the surnames and forenames of CARDINAL natural persons whose DATE taxable income exceeded certain thresholds , mainly from MONEY ( CARDINAL ( ORG ) ) , as well as the amount , to the nearest LAW , of their earned and unearned income and taxable net assets . When published in the newspaper , the data were set out in the form of an alphabetical list and organised according to municipality and income bracket .

The first applicant company worked in cooperation with the second applicant company , PERSON , and both were owned by the same shareholders . In DATE the first applicant company started to transfer personal data published in PERSON , in the form of CD - ROM discs , to the second applicant company which , together with a mobile telephone operator , started a text - messaging service ( SMS service ) . By sending a person ’s name to a service number , taxation information could be obtained concerning that person , on the requesting person ’s mobile telephone , if information was available in the database or register created by the second applicant company . This database was created using personal data already published in the newspaper and transferred in the form of CD - ROM discs to the second applicant company . DATE the second applicant company also published PERSON .

It transpires from the case file that in DATE the Minister of ORG requested that the police instigate a criminal investigation into the publishing activities of the applicant companies . No information is contained in the file as to the outcome of this request or of any subsequent investigation .

NORP In DATE , the applicant companies ordered taxation data from ORG ( verohallitus , skattestyrelsen ) . Following the first order , ORG requested an opinion from ORG , on the basis of which ORG invited the applicant companies to provide further information regarding their request and indicating that the data could not be disclosed if PERSON continued to be published in its usual form . The applicant companies subsequently cancelled their data request and paid people to collect taxation data manually at the local tax offices .

On an unspecified date , probably in DATE , ORG ( tietosuojavaltuutettu , dataombudsmannen ) contacted the applicant companies and advised them that , although accessing and publishing taxation data were not prohibited as such , they had to cease publishing such data in the manner and to the extent that had been the case in DATE , when they had published data concerning the DATE tax year . The applicant companies refused to abide by this request , which they considered violated their right to freedom of expression .

By a letter of DATE the ORG Ombudsman asked ORG ( tietosuojalautakunta , datasekretessnämnden ) to prohibit the applicant companies from processing the taxation data in the manner and to the extent that had been the case in DATE and from passing those data to the SMS service . He claimed that under LAW the companies had no right to collect , store or pass on personal data and that the derogation provided by that LAW concerning journalism did not , in his view , apply to the present case . The collecting of taxation information and the passing of such information to third parties were not for journalistic purposes and therefore were not covered by the derogation in LAW , but rather constituted the processing of personal data in which the applicant companies had no right to engage .

On DATE ORG dismissed ORG request . It found that the derogation laid down in LAW concerning journalism applied to the present case . As regards the SMS service , the data used in the service had already been published in PERSON and therefore the LAW did not apply to it .

NORP By letter dated CARDINAL DATE ORG appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) reiterating his request that the applicant companies be prohibited from processing taxation data in the manner and to the extent that had been the case in DATE and from passing such data to the SMS service .

On DATE ORG rejected the appeal . It found that the derogation laid down in LAW concerning journalism , which had its origins in Directive PERSON of ORG and of the ORG on the protection of individuals with regard to the processing of personal data and on the free movement of such data was adopted ( OJ DATE L CARDINAL , p. CARDINAL , hereafter “ ORG Directive ” ) , should not be interpreted too strictly , as an overly strict interpretation would favour protection of privacy over freedom of expression . That court considered that PERSON had a journalistic purpose and that it was also in the public interest to publish such data . It emphasised , in particular , that the published data were already accessible to the general public . The journalism derogation thus applied in the circumstances of the present case . As regards the SMS service , ORG agreed with ORG that , as the information had already been published in the newspaper , the LAW did not apply to it .

By letter dated DATE ORG lodged an appeal with ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , reiterating the grounds of appeal already presented before ORG .

On DATE ORG decided to request a preliminary ruling from ORG of ORG ( which became ORG of ORG on DATE , hereafter the “ CJEU ” ) on the interpretation of Directive CARDINAL .

On DATE ORG of the CJEU handed down its judgment ( see Case C-CARDINAL/CARDINAL Tietosuojavaltuutettu v. PERSON and PERSON , ORG : C:CARDINAL:CARDINAL ) . It found , first of all , that the activities in question constituted “ processing of personal data ” within the meaning of Article CARDINAL ) of Directive CARDINAL . According to the ORG , activities involving the processing of personal data such as those relating to personal data files which contained solely , and in unaltered form , material that had already been published in the media , also fell within the scope of the Directive ( see paragraphs CARDINAL and DATE of the judgment ) . The object of the derogation in LAW personal data carried out solely for journalistic purposes was to reconcile the protection of privacy with freedom of expression . In order to take account of the importance of the latter in every democratic society , it was necessary to interpret notions relating to that freedom , such as journalism , broadly . However , in order to achieve a balance between those CARDINAL fundamental rights , the protection of the fundamental right to privacy required that the derogations and limitations in relation to the protection of data had to apply only in so far as were strictly necessary ( see paragraphs CARDINAL of the judgment ) . Journalistic activities were not limited to media undertakings and could be undertaken for profit - making purposes ( see paragraph CARDINAL ) . Furthermore , when interpreting the journalistic purposes derogation , account must be taken of the evolution and proliferation of methods of communication and the dissemination of information . Activities such as those involved in the domestic proceedings , relating to data from documents which were in the public domain under domestic legislation , could be classified as “ journalistic activities ” if their sole object was the disclosure to the public of information , opinions or ideas , irrespective of the medium which was used to transmit them . Whether or not that was the case , was for the national court to determine ( see paragraphs CARDINAL of the judgment ) .

On DATE ORG , applying the ruling of the LAW and with reference to the case - law on LAW , quashed the impugned decisions of ORG and ORG and referred the case back to ORG for a fresh examination with a view to issuing an order pursuant to section CARDINAL(CARDINAL ) of LAW . ORG requested ORG to prohibit the processing of taxation data by the applicant companies in the manner and to the extent carried out in DATE .

In its legal assessment , ORG gave the following reasoning :

“ Scope of the matter

The present case does not concern the question of the extent to which taxation data and official documents concerning taxation are public under LAW on ORG and ORG .

Nor does it concern the right to publish taxation data as such but only the processing of personal data . Therefore , there is no issue of possible prior interference with the content of the publications , but rather an assessment of whether the legal conditions set for personal data processing and protection of privacy are fulfilled .

The reconciliation of protection of privacy with freedom of expression is part of the legal assessment of personal data processing in the matter .

Reconciliation of the protection of privacy and freedom of expression

Interpretation of the exception concerning journalistic purposes in ORG . ORG of ORG emphasised that the purpose of ORG is to ensure that when processing their personal data , the Member GPE guarantee ORG fundamental rights and freedoms , and in particular their right to privacy , while allowing the free movement of such information . The ORG further emphasised that these fundamental rights must be reconciled to a certain extent with the fundamental right to freedom of expression , and that this task belongs to GPE .

It therefore appears from the aforementioned ruling of ORG of ORG that the concept of journalism must , as such , be interpreted broadly within the meaning of LAW , that , on the other hand , the protection of privacy can be derogated from only in so far as it is strictly necessary , and that this task of reconciliation of the CARDINAL fundamental rights is the task of GPE . Ensuring proper balance between the rights and interests at stake , including the fundamental rights guaranteed in the GPE legal order , is the task of the domestic authorities and courts ( see also case C-CARDINAL/CARDINAL PERSON ) .

Interpretation of the exception in LAW concerning journalistic purposes . ... It transpires from the preparatory work on LAW ( HE CARDINAL/CARDINAL vp ) that the purpose of the adoption of LAW was to maintain the existing situation in respect of journalistic files kept by the media , provided it remained within the limits imposed by ORG . Therefore , in order to conclude that processing of personal data is conducted for journalistic purposes within the meaning of LAW , inter alia , that data must be used solely for journalistic activities and the data must not be made available to persons other than those involved in those journalistic activities .

When interpreting section CARDINAL(CARDINAL ) of LAW , particular regard must be had to the fact that it concerns the reconciliation of CARDINAL fundamental rights , namely the freedom of expression and the protection of privacy .

The case - law of ORG has also adopted a position on reconciling freedom of expression with the protection of privacy . The ORG has held , inter alia in its PERSON judgment of DATE , that the press plays an essential role in a NORP society . Although it must not overstep certain bounds , in particular in respect of the reputation and rights of others , its duty is nevertheless to impart , in a manner consistent with its obligations and responsibilities , information and ideas on all matters of public interest .

On the other hand , the ORG also held in the above - mentioned judgment that increased vigilance as regards the protection of private life was necessary in order to contend with the new communications technologies which make it possible to store and reproduce personal data .

According to the ORG , when balancing the protection of private life against freedom of expression , the decisive criterion had to be the contribution made by publishing the data to a debate of public interest . If a publication is only meant to satisfy the curiosity of a certain audience , freedom of expression must be interpreted more narrowly .

In the present case , it must be assessed to what extent the impugned processing of personal data as carried out in the course of the ORG activities falls within the scope of the exception concerning journalistic purposes that is provided for in section CARDINAL ) of LAW . The starting point is whether the aim of their activities was to disclose information , opinions or ideas to the public . In this assessment , account must be taken of whether or to what extent those activities can be seen as contributing to a debate in a NORP society rather than solely satisfying the curiosity of certain individuals .

Processing of personal taxation data in the background file of PERSON and in the PERSON newspaper

PERSON collected for the PERSON newspaper taxation data from different tax offices in which ORG names appear together with information on their taxable income .

As mentioned above , the case concerns the processing of personal data to which the general requirements in LAW of LAW are applicable , unless the LAW allows for an exception from the application of these provisions . It must first of all be assessed whether the processing of personal data in the company ’s background file before the publication of such data in the PERSON newspaper falls within the scope of the exception concerning journalistic purposes .

From the preparatory work on the amendment of LAW ( HE CARDINAL vp ) , which was the LAW in force before LAW , it transpires in particular that the press considers that the right to freely disclose information also requires journalists to be able , in advance , to freely collect and store information . Restricting the processing of personal data at this stage , that is to say before publication , could in practice mean that a prior decision is taken on what can be published . Such an outcome would be incompatible with the fundamental right guaranteeing freedom of expression .

The issue at stake in the present case concerns publicly accessible personal data received from the tax authorities . The collection and processing of such data in the company ’s internal files for the purpose of the company ’s publishing activities can , on the basis of above - mentioned grounds , be regarded as processing of personal data for journalistic purposes . The processing of large quantities of such data from the various municipal taxation records may well be necessary as background information for the purpose of the editing of a publication concerning taxation and from the point of view of free communication and open debate . At this stage of activities the protection of the privacy of the persons concerned can also be sufficiently secured , provided that the data collected and stored in the file are protected against unlawful processing as required by section CARDINAL of LAW .

PERSON has published the personal data collected from the tax offices as wide - ranging municipality - based catalogues in the PERSON newspaper . As already stated above , in this regard too it is a question of processing personal data within the meaning of section CARDINAL(CARDINAL ) of LAW . As part of the case file , ORG had at its disposal PERSON newspaper no . CARDINAL , published by PERSON and covering the GPE metropolitan area .

In this respect it must be decided whether a derogation is possible from the requirements relating to the processing of personal data on the basis of section CARDINAL(CARDINAL ) of the LAW , that is to say whether the impugned processing of personal data by publishing those data in the PERSON newspaper came within the scope of the exception provided for journalistic purposes .

It transpires from the preparatory work on LAW ( HE PERSON ) that the processing of data in the background file referred to in LAW must relate solely to journalistic activities and that the processed data must not be made available to any persons not engaged in journalistic activities . The purpose of section CARDINAL(CARDINAL ) of LAW was to maintain the existing situation in respect of journalistic files kept by the media , within the limits allowed by ORG . Therefore , the purpose of LAW in this respect can be seen as guaranteeing the possibility for free journalistic work prior to the publication of information .

The term “ processing of personal data for journalistic purposes ” can not be regarded as covering the large – scale publication of the journalistic background file , almost verbatim , as catalogues , albeit split into different parts and sorted by municipality .

Since the disclosure of registered data on such a scale is equivalent to the disclosure of the entire background file kept for journalistic purposes by the company , such disclosure does not represent solely an expression of information , opinions or ideas . As stated above , with a view to reconciling the requirements of freedom of expression with the protection of privacy , the collection of data before publication has been made permissible under section CARDINAL(CARDINAL ) of LAW without any requirement of compliance with general conditions set out in LAW . By contrast , the processing of personal data collected in the company ’s background file by publishing it and by rendering it available to the general public to the extent that has been done in the present case , and beyond the scope of the minimum requirements set out in section CARDINAL(CARDINAL ) of the LAW , can not be regarded as compatible with the purpose of LAW .

Open public - interest debate , the monitoring of the exercise of power in society and the freedom to criticise , which are necessary in a NORP society , do not require the disclosure of the personal data of specific individuals in the manner and to the extent described above . When regard is also had to the foregoing comments on the narrow interpretation of section CARDINAL(CARDINAL ) of LAW and the fact that a strict literal interpretation of that provision would result in a situation incompatible with the purpose of the LAW as regards protection of personal data , the processing of personal data with a view to publishing them in the PERSON newspaper , and as far as the contents of this publication itself are concerned , was not conducted for journalistic purposes within the meaning of LAW .

Having regard to sections CARDINAL(CARDINAL ) and CARDINAL of LAW and LAW , as interpreted by ORG of ORG in its preliminary ruling , the collection of personal data prior to its publication in the PERSON newspaper and its processing in the background file of PERSON can not as such be regarded as contrary to the regulations concerning the protection of personal data , provided that , inter alia , the data have been protected properly . However , with reference to all the clarifications on how and to what extent the personal data in the background file were further processed in the PERSON newspaper , PERSON did in fact process personal data concerning natural persons in violation of LAW .

Handover of data in a CD - ROM

PERSON handed over a CD - ROM containing the published data to PERSON so that the latter could start up an SMS service using that data . As mentioned above , that action amounts to the processing of personal data within the meaning of section CARDINAL(CARDINAL ) of LAW .

Having regard to the preliminary ruling of ORG of ORG and its effect on the interpretation of section CARDINAL(CARDINAL ) of LAW , as well as all that has been said above about the processing of personal data in the PERSON newspaper , the handover to PERSON of personal data collected in the background file of PERSON , even though they were published in the PERSON newspaper , can not be regarded as processing of personal data for journalistic purposes within the meaning of LAW . Nor can the processing of personal data in such a manner be regarded as having been effected for journalistic purposes within the meaning of LAW . Therefore , in that regard too , PERSON processed personal data in violation of LAW .

Processing of personal data for the realisation of a SMS service by ORG

As stated above in the “ Facts ” section , PERSON handed over the above - mentioned personal data to a third company in order to start up a SMS service , which company operated the SMS service on behalf of PERSON .

It was pointed out above that PERSON had no right under LAW to process the personal data at issue by handing it over to PERSON . Consequently , PERSON also had no right under LAW to process personal data received in this manner .

In addition , it follows from the preliminary ruling of ORG of ORG that the exception provided for in ORG , which concerns the processing of personal data for journalistic purposes , requires the disclosure of data to the public . According to section CARDINAL(CARDINAL ) of the LAW on the Exercise of Freedom of Expression in ORG , the term “ the public ” in that Act refers to a group of freely determined message recipients . ORG SMS service involves the company processing personal data relating to the taxation of a specific individual on the basis of a request by another individual . It therefore does not concern disclosure of data to the general public , as explained above , but replying to a request by an individual concerning the personal data of another individual .

Open public - interest debate , the monitoring of the exercise of power in society and the freedom to criticise , which are necessary in a NORP society , do not require the possibility of processing the personal data of specific individuals as has been done in this case . Freedom of expression does not require any derogation from the protection of privacy in such a situation .

ORG further stated in its preliminary ruling that the technical means used for the transfer of information is not relevant when assessing whether there is any question of activities undertaken solely for journalistic purposes . As regards the SMS service operated by PERSON , it is irrelevant that the data were transferred via mobile phones and text messages . Therefore , this is not a case of treating this mode of transmission of data differently from other modes of transmission . The assessment would be the same if the company processed , on the basis of a request by an individual , the personal data of another individual by using some other mode of transmission . ”

Pursuant to the above - mentioned judgment of ORG , on DATE ORG prohibited the first applicant company from processing taxation data in the manner and to the extent that had been the case in DATE and from forwarding that information to an SMS service . It found that the collection of personal data prior to its publication in PERSON and its processing in the background file of the first applicant company could not as such be regarded as contrary to the data protection rules , provided , inter alia , that the data had been protected properly . However , considering the manner and the extent to which the personal data in the background file had been published in PERSON , the first applicant company had processed personal data concerning natural persons in violation of LAW . The second applicant company was prohibited from collecting , storing or forwarding to an SMS service any data received from the first applicant company ’s database and published in PERSON .

NORP By letter dated DATE , after ORG had made its decision , ORG asked the applicant companies to indicate what action they were envisaging in response to the ORG ’s decision . In their reply , the applicant companies asked for ORG views on the conditions under which they could continue to publish public taxation data at least to a certain extent . In his reply ORG stated , with reference to the decision of ORG of CARDINAL DATE , that “ when data on taxable income were collected in a database and published in large catalogues almost as it stood , LAW was applicable ... ” . He reminded them of his duty to report any breach of LAW to the police .

NORP By letter dated DATE the applicant companies appealed against the decision of ORG to ORG , which transferred the case to ORG . They complained that the decision violated the LAW prohibition of censorship as well as their right to freedom of expression . According to the applicants , under domestic law , it was not possible to prevent publication of information on the basis of the amount of information to be published or of the means used for its publication . Nor was it possible to rely on the “ public interest ” as a criterion for preventing publication where preventive restriction of freedom of expression was concerned . Accepting that would mean that the authorities would be able to prevent publication if they thought that the publication did not promote discussion of a topic of public interest .

On DATE ORG rejected the applicant ORG appeal . It found that ORG had stated in its decision of DATE that the case concerned neither the public accessibility of taxation data nor the right to publish such information per se . As the court was now examining only the DATE decision rendered by ORG , it could not examine the issues which ORG had excluded from the scope of its DATE decision . As the ORG ’s decision corresponded to the content of the latter decision , there was no reason to change it .

NORP By letter dated CARDINAL DATE the applicant companies further appealed to ORG .

On DATE ORG upheld the judgment of ORG , reiterating that the case concerned neither the right to publish taxation information as such , nor preventive censorship .

According to the information submitted by the applicants , the SMS service was shut down after the DATE decision of ORG was served on the applicant companies . The newspaper continued publishing taxation data in DATE when its content was CARDINAL of the previous content . Since then the newspaper has not appeared . The Government , on the other hand , submitted that , according to the applicant ORG website , PERSON was still being published on a regional basis in DATE and DATE . Moreover , an Internet service continued to operate allowing anyone to request a natural person ’s tax data concerning DATE by filling in a form on the website in question . The requested tax information would then be delivered to the customer by phone call , text message or e - mail .

The editor - in - chief of ORG lodged an application with the ORG in DATE , complaining that the impugned decision of ORG violated his right to freedom of expression . On DATE the application was declared inadmissible as being incompatible ratione personae with the provisions of the Convention ( see PERSON v. GPE ( dec . ) , no . CARDINAL , DATE ) .

The first applicant company was declared bankrupt on DATE . The bankruptcy administration did not oppose the continuation of the present proceedings before ORG ( see paragraph CARDINAL below ) .


Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in DATE and lives in GPE .

On DATE ORG remanded the applicant in custody for TIME on suspicion of intellectual forgery ( fals intelectual ) and use of forged documents ( uz de fals ) .

By an order of CARDINAL DATE ORG detained the applicant for DATE pending trial on account of the seriousness of the offences and the need to protect public order .

By an order of CARDINAL DATE ORG extended the applicant ’s pre - trial detention by DATE on account of the seriousness of the offences , the need to protect public order , and the need to prevent him from destroying evidence .

The applicant challenged the order before the domestic courts and requested to be released under judicial supervision .

By a final interlocutory judgment of DATE ORG allowed the applicant ’s challenge . It held that the applicant ’s arrest had been lawful ; however there was no lawful reason concerning the applicant that would prevent the court from releasing him under judicial supervision .

On DATE ORG indicted the applicant and other co - accused for bribery , influence peddling , complicity in fraud , intellectual forgery , and use of forged documents , and referred the case to ORG .

On DATE , CARDINAL May , DATE and CARDINAL DATE the ORG heard the applicant , his co - accused and the witnesses in the case . In addition it allowed the applicant ’s and his co - accuseds’ request for documentary evidence , and ordered an expert financial report to be produced in the case . The applicant submitted that he did not agree that a financial expert report should be produced in the case , and refused to submit observations on the report ’s objectives following the court ’s request .

On DATE the applicant informed ORG that he had no objections in respect of the financial expert report .

On DATE the applicant ’s chosen legal representative submitted oral observations to the court in respect of the merits of the case .

On DATE the ORG acquitted the applicant on the basis of documentary , testimonial and expert evidence in addition to the applicant ’s statements , on the ground that no unlawful act had been committed .

ORG appealed against the judgment .

On DATE ORG allowed ORG appeal on the merits , quashed the judgment of DATE , convicted the applicant of bribery , trafficking influence , complicity in fraud , and forgery of privately signed documents ( fals ȋn ȋnscrisuri sub semnătură privată ) which following changes to the relevant domestic legislation had absorbed the offences of intellectual forgery ( fals intelectual ) and use of forged documents ( uz de fals ) , and sentenced him to CARDINAL years’ imprisonment .

The applicant appealed on points of law ( recurs ) against the judgment .

On DATE ORG allowed the applicant ’s appeal on points of law , quashed the judgments of DATE and DATE , and referred the case back to ORG for the entire criminal investigation of the case to be carried out again . The court held that the prosecutor ’s office had failed to observe the lawful requirements for investigating the case , had established the facts of the case superficially , and had breached procedural rules which affected the very existence of the criminal investigation and the lawfulness of the referral of the case to the court . It noted that the investigation had been carried out mainly by the police , and not by the prosecutor as required by the applicable rules of criminal procedure ; the prosecutor ’s office had failed to produce all the relevant evidence in the case concerning the existence of the offences and of the GPE guilt , and had not clarified the contradictions in the available evidence , in particular between the expert opinions produced in respect of the case . The domestic courts which had examined the case had also been unable to clarify the existence or inexistence of the alleged damage caused by the defendants , or to quantify it .

On DATE ORG referred the applicant ’s case to ORG . It held that given the applicant ’s status and the nature of some of the offences ORG was competent to carry out the criminal investigation in respect of the case .

From DATE to CARDINAL DATE the prosecutor attached to ORG heard the applicant and his co - accuseds

On DATE ORG discontinued the criminal proceedings opened against the applicant for bribery and influence peddling on the ground that no unlawful act had been committed . The prosecutor ’s office relied on testimonial evidence , including statements by the applicant produced both before the courts and before the prosecutor ’s office after the case had been referred back there by the courts . In addition , it referred the case to ORG in order to carry out the criminal investigation opened against the applicant for complicity in fraud and forgery of privately signed documents , on the ground that it was not competent to carry out the investigation in respect of those offences .

On DATE ORG discontinued the criminal investigation initiated against the applicant . It held on the basis of the documentary , testimonial and expert evidence available in the file that although the applicant ’s criminal liability was undeniable , the criminal action initiated against him was time - barred .

NORP The applicant challenged that decision , and on the basis of LAW requested that the authorities continue the criminal investigation initiated against him to enable his innocence to be established .

On DATE ORG allowed the applicant ’s challenge and reopened the criminal investigation against the applicant .

On DATE the prosecutor attached to ORG heard the applicant . On DATE the applicant stated that he did not have any more evidence to request , and that the evidence already produced fully proved his innocence . In addition , he asked the authorities to examine the circumstances of his case by relying on the evidence produced at the pre - trial and trial stages of the proceedings .

On DATE ORG discontinued the criminal investigation initiated against the applicant . It held on the basis of the testimonial , documentary and expert evidence available in the file , as well as the applicant ’s own statements , that although the applicant ’s unlawful acts had been proven , the criminal action initiated against him was time - barred .

The applicant appealed against the order before ORG . He argued that the prosecutor ’s office ’s order was unlawful , because the criminal investigation against the applicant had been carried out by the same prosecutor who had previously confirmed the applicant ’s indictment . In addition , he denied committing the impugned offences .

On DATE the ORG held that it was not competent ratione materiae to examine the applicant ’s action , and referred the case to ORG .

On DATE the GPE ORG allowed the applicant ’s action , quashed the prosecutor ’s office ’s order of CARDINAL DATE , and referred the case back to the prosecutor ’s office for the criminal investigation against the applicant to be reopened . It held that the criminal investigation against the applicant had been carried out by the same prosecutor who had previously confirmed the applicant ’s indictment . In addition , by declining to examine the remaining arguments raised by the applicant , it had instructed the prosecutor ’s office to assess if the applicant ’s complaint concerning the merits of the case was founded . Lastly , it instructed the prosecutor ’s office to clearly determine the extent of the applicant ’s involvement in committing the impugned offences and also whether he had been indicted for the same unlawful acts of which he had been informed .

The applicant appealed on points of law against the judgment , without providing any arguments .

On DATE the ORG dismissed the applicant ’s appeal on points of law as ill - founded , and upheld the judgment of the first - instance court . The court noted that the applicant had submitted the grounds for his appeal on points of law after the debates on the merits of the case had been closed .

On DATE ORG discontinued the criminal investigation initiated against the applicant . It held on the basis of the documentary , testimonial and expert evidence available in the file produced both during the previous investigation and during the trials that , although the applicant was guilty of the impugned offences , the criminal proceedings initiated against him were time - barred . In addition , it described the applicant ’s involvement in committing the unlawful acts and noted that after its reopening the criminal investigation against the applicant had been carried out by a different prosecutor from the one who had confirmed his indictment . Furthermore , the applicant had been indicted for the same unlawful acts of which he had been informed . In this connection , the prosecutor ’s office noted that some of the offences had been examined by the prosecutor ’s order of DATE . Also , following some amendments to the relevant legislation , the domestic legal practice had changed : the offences of intellectual forgery and use of forged documents had been absorbed by the offence of forgery of privately signed documents .

The applicant appealed against the decision before the GPE ORG by relying on Article CARDINAL § CARDINAL ( c ) of LAW . He argued that the domestic court should quash the prosecutor ’s decision , retain the case for examination , and acquit him . In addition , he contended that the prosecutor ’s order had been unlawful because it concerned acts with which the criminal investigation was not concerned , and was in any case not supported by the evidence available to the file . Also , without providing any grounds the investigating authorities had ceased to accuse him of intellectual forgery or use of forged documents . Furthermore , ORG did not follow the mandatory instructions received from the court . There was no evidence in the file that he had been an accomplice to an offence . Lastly , he had disagreed with being charged with forgery of privately signed documents ; he had argued that the parties had not been allowed to submit observations in respect of the requalification carried out .

On DATE the applicant and his chosen legal representative informed ORG that he did not have other requests in respect of the judicial investigation of the case . They further argued , among other things , that although in DATE the GPE ORG had ordered the prosecutor ’s office to reopen the criminal proceedings against him and had given the investigating authorities several instructions , none of those instructions had been followed . In particular , no evidence was adduced , and they were not called to take part in the production of evidence . Also , the investigating authorities did not clarify any of the issues identified by the court . Consequently , they requested that on the basis of Article CARDINAL § CARDINAL ( c ) the court should quash the prosecutor ’s order and , given that the production of other evidence was not necessary , acquit the applicant in respect of the merits of the case .

By a judgment of DATE the ORG dismissed the applicant ’s appeal and upheld the prosecutor ’s decision , relying on the available evidence . It held that the investigating authorities had not ceased to accuse him of intellectual forgery or use of forged documents , but had requalified those offences as forgery of privately signed documents . Also , ORG had observed the mandatory instructions received from the court . In particular , the criminal investigation had been carried out by a different prosecutor from the one who had indicted the applicant , the prosecutor had explained in detail how the applicant had helped and contributed to the commission of the offences , and had verified that the acts for which the criminal investigation had been opened were identical to those indicated by the prosecutor ’s order . Furthermore , the prosecutor ’s order had clearly described in detail , by relying on evidence , why the applicant had been an accomplice to an offence . Lastly , the applicant ’s own statements amounted to an acknowledgment that he had forged privately signed documents .

The applicant appealed against the judgment on points of law . He argued that the domestic court should quash the prosecutor ’s decision , retain the case for examination , and on the basis of the same evidence available in the file acquit him of fraud and forgery of privately signed documents . He further contended that the evidence in the file and the examination carried out by the prosecutor ’s office did not prove that he had committed the offences . Also , the parties had not been allowed to submit observations following the requalification of CARDINAL of the offences he had been charged with to forgery of privately signed documents .

By a final judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal on points of law and acknowledged the lawfulness of the prosecutor ’s order of CARDINAL DATE and of the firstinstance court ’s judgment . It so held on the basis of the available documentary , testimonial and expert evidence produced both during the criminal investigation and before the domestic courts that the applicant had committed the offences of complicity in fraud and forgery of privately signed documents . In addition , the prosecutor ’s office had examined the applicant ’s guilt on the merits , and had established that the acts had existed and therefore the criminal proceedings against the applicant could not have been discontinued on the ground that no unlawful act had been committed . Therefore , the prosecutor ’s office had correctly held that the criminal proceedings initiated against him had been time - barred .

In a letter of CARDINAL DATE the applicant informed the ORG that the criminal proceedings initiated against him had destroyed his reputation , and that a virulent press campaign had been initiated against him and his company at the time of his arrest . The applicant submitted CARDINAL articles published in local and national newspapers DATE describing the events which led to the charges being brought against him and a chronological narration of the criminal proceedings initiated against him .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 6 - Right to a fair trial (Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in DATE and lived in GPE prior to her arrest .

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

On DATE the applicant , together with B. , travelled to GPE by car . At about PERSON TIME the police stopped the car ; CARDINAL men from the narcotics unit approached the car and asked the passengers to step out and produce their identity documents and luggage for inspection . An officer opened the sports bag which , according to the applicant , her friend had asked her to take to another friend in GPE , and found a black plastic bag . The applicant stated that she was not aware of its contents . The officers then put the black bag into the trunk of the police car and took the applicant and PERSON to the LOC of the narcotics unit .

The applicant and PERSON were interviewed in separate rooms . In TIME the applicant was taken to another office , in which one female officer , a forensics expert and CARDINAL individuals who were introduced as “ attesting witnesses ” ( понятые ) were present . The applicant was told to open the black bag and to show its contents . CARDINAL plastic bags containing yellow and green herb and cash money were found inside . At TIME the police drafted a report on the seizure of objects and substances . The expert later determined that the herb was marijuana having a total weight of QUANTITY .

At TIME a senior investigator of the narcotics unit instituted criminal proceedings against the applicant and PERSON on suspicion of attempted largescale sale of drugs .

At TIME the investigator compiled the record of the applicant ’s arrest . The time of arrest was given as TIME on DATE .

On DATE the applicant was formally charged and the investigator applied to a court for a detention order .

The detention hearing before ORG in GPE began at TIME on DATE . Counsel for the applicant submitted that , in view of the actual time of the applicant ’s detention , the maximum statutory period of TIME had already expired . However , the court did not heed that argument and ordered that the applicant be remanded in custody because the gravity of charges against her .

On DATE counsel for the applicant filed an appeal . On DATE copies of the appeal were forwarded to the applicant and to the prosecutor for comments . The appeal hearing was initially scheduled for CARDINAL DATE but subsequently adjourned for DATE because CARDINAL of the applicant ’s representatives did not show up .

On DATE ORG rejected the appeal against the detention order in a summary fashion , noting that “ the pre - trial investigation authorities did not commit any substantial breaches of the rules of criminal procedure ” .

The case against the applicant was referred for trial to the Babushkinskiy ORG in GPE .

The defence claimed that the attesting witnesses who had been present during the opening of the bag were in fact employees of the narcotics unit rather than independent observers as required by law . Both of those witnesses – PERSON and PERSON did not appear before the trial court . Instead , a court bailiff submitted reports about his unsuccessful attempts to ensure their attendance . The reports contained the same text to the effect that the witnesses could not be reached on the phone , that no one opened the door at their residence and that neighbours had told the bailiff that they had not seen them for a long time .

Counsel for the applicant requested the court to obtain the visitors journal from the reception of the narcotics unit . Since the unit was located within a security perimeter , all civilian visitors were to be recorded in the journal . The trial court refused the motion , without giving any reasons . It further held that there existed “ exceptional circumstances ” for the absence of the witnesses PERSON and PERSON and allowed their pre - trial statements to be read out , overriding the objections from the defence .

The trial court also authorised the reading - out of the pre - trial statement of PERSON , the driver of the car , of which the applicant and PERSON had been passengers . The bailiff submitted similarly worded reports to the effect that PERSON was unavailable on the telephone or at his residence .

By judgment of DATE , ORG found the applicant and PERSON guilty as charged and sentenced each of them to CARDINAL years’ imprisonment in a high - security correctional colony . It held in particular that the applicant ’s claim that she did not know she was carrying marijuana in her friend ’s bag was refuted by the seizure report of DATE and the statements by the witnesses PERSON and PERSON

On DATE ORG examined and rejected her appeal against the conviction .