Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Preliminary objection joined to merits and dismissed (Article 35-3 - Manifestly ill-founded);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Positive obligations) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Karel Jungwiert;Krzysztof Wojtyczek;Mark Villiger;Nebojša Vučinić;Nona Tsotsoria;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

The following facts were not contested by the parties .

The applicant attended ORG from DATE . The school was owned , through trustees , by ORG of the Diocese of Cork and PERSON who was recognised by ORG and ORG ( “ the GPE ” ) as the school ’s patron . The manager ( S. ) , acting on behalf of the bishop , was the local parish priest . The latter being elderly and infirm , a local priest ( Ó. ) was the de facto manager who acted on behalf of , and in the interests of , S. The term “ manager ” used below refers both to PERSON and to the management function he performed . ORG had CARDINAL teachers , CARDINAL of whom ( L.H. ) was the school ’s principal , a married man . PERSON was CARDINAL of CARDINAL national schools in the applicant ’s parish .

NORP In DATE a parent of a child complained to the manager that ORG had sexually abused her child . That complaint was not reported to the police , to the ORG or to any other ORG authority and was not acted upon by the manager .

During DATE the applicant was subjected to CARDINAL sexual assaults by PERSON during music lessons in his classroom . During the time she attended those lessons , the applicant and her parents were unaware of the allegation made in DATE about ORG

In DATE other parents brought to the applicant ’s GPE attention similar allegations concerning PERSON Following a meeting of parents chaired by the manager about this , L.H. went on sick leave . In DATE he resigned from his post . Those allegations were not reported at that time to the police , to the ORG or to any other ORG authority . In a brief conversation , the applicant ’s mother asked her whether ORG had touched her . The applicant responded to the effect that something of a sexual nature had happened but she did not recall the conversation going any further . In DATE the manager notified the ORG that ORG had resigned and named his replacement . Soon thereafter PERSON took up a position in another national school where he taught until his retirement in DATE .

DATE , the inspector assigned to the region visited ORG on CARDINAL occasions which was , as he later stated in evidence , an above average number of visits . He met with PERSON and PERSON He attended parent meetings on the question of ORG ’s amalgamation with other schools . No complaint about PERSON was made to him . He observed the teaching work of LOC and considered it satisfactory .

The applicant suppressed the sexual abuse . While she had significant psychological difficulties , she did not associate those with the abuse . In DATE she was contacted by the police who were investigating a complaint made in DATE by a former pupil of ORG against L.H. The applicant made a statement to the police in DATE and was referred for counselling . During the investigation a number of other pupils made statements . PERSON was charged with CARDINAL criminal offences of sexual abuse involving CARDINAL former pupils of the school during a period of DATE . In DATE he pleaded guilty to CARDINAL sample charges and was sentenced to imprisonment . His licence to teach was withdrawn by the Minister for Education ( “ the Minister ” ) under LAW of ORG DATE ( “ the DATE Rules ” ) .

NORP In or around DATE , and as a consequence of the evidence of other victims during the criminal trial and subsequent medical treatment , the applicant realised the connection between her psychological problems and the abuse by LAW and understood the extent of those problems .

NORP In DATE the applicant applied to the CICT for compensation . An initial award ( MONEY ( ORG ) ) was made by a single judge . The applicant appealed to a ORG panel . She claimed that the ORG gave her the option of continuing her appeal ( at the risk of finding that her LOC application would be rejected as out of time ) or of accepting the initial offer of the LOC with some additional expenses ( EUR CARDINAL,CARDINAL.CARDINAL , the non - pecuniary aspect being LAW ) . The applicant accepted the offer by letter of DATE and gave the standard undertaking to repay the CICT award from any other award she may receive , from whatever source , in relation to the same injury . The award was made on an ex gratia basis . Since the ORG is never a party to LOC proceedings , it became aware of this award later before ORG ( see directly below ) .

On DATE the applicant instituted a civil action against ORG and the Minister , as well as against GPE and the Attorney General , claiming damages for personal injuries suffered as a result of assault and battery including sexual abuse by PERSON Her claim against the latter CARDINAL defendants ( “ the State Defendants ” ) was threefold : ( a ) negligence by the ORG arising out of the failure of ORG in relation to the recognition , examination and supervision of the school and in failing to put in place appropriate measures and procedures to protect against , and put a stop to , the systematic abuse by ORG since DATE ; ( b ) vicarious liability of ORG for the acts of LAW since , inter alia , the true relationship between him and the ORG was CARDINAL of employment ; and ( c ) liability given the applicant ’s constitutional right to bodily integrity , the responsibility of ORG to provide primary education under LAW and the measures put in place to discharge that responsibility .

Since ORG did not file a defence , on DATE the applicant obtained judgment in default against him . On DATE ORG assessed and awarded damages payable by LAW in the sum of ORG CARDINAL , comprising ORG CARDINAL,CARDINAL in general damages , LAW in aggravated damages , LAW in exemplary damages , and ORG CARDINAL,CARDINAL in special damages . The applicant took enforcement proceedings . PERSON claimed he had insufficient means and she obtained an instalment order of LAW per month . The first payment was received in DATE so that she has been paid in the region of ORG DATE . She registered a judgment mortgage against that part of the family home owned by ORG

As regards her case against ORG , she requested a Professor PERSON to advise her on the question of the adequacy of child - protection mechanisms in GPE in DATE . He responded by letter of DATE . Professor PERSON agreed that , if the child - protection protocols existing in DATE had been in place in DATE , it was very likely that the applicant ’s abuse would have been acted upon in a manner which would have ensured the promotion of her welfare . He feared that pleading the case on the basis of what the ORG should have known at the time would be unsuccessful because it would not be possible to project onto the past the knowledge and systems of accountability that existed in DATE .

The High Court hearing against ORG began on DATE . On DATE , while the applicant was presenting her evidence , the High Court judge , in response to the applicant ’s complaint regarding the absence of a ORG system for adverting to and addressing sexual abuse in national schools , asked Counsel for the applicant as follows :

“ What evidence do I have , or what should I have deduce[d ] from the evidence that has been given that either the system in operation was a bad system , and I will come back to that , or that there was an alternative system that should have been applied , and what that alternative system might have been . ”

When the applicant ’s case concluded , ORG applied for a direction to strike out the case on the basis that no prima facie case had been made out by the applicant as regards all CARDINAL grounds , submitting , inter alia , that there was no evidence of negligence . On DATE ORG accepted the GPE application , the court being “ satisfied that the plaintiff had not established a case in negligence against the [ State Defendants ] ” ( the “ non - suit ” order ) . The court did not and was not called upon to distinguish between the CARDINAL bases of the negligence claim . However , a prima facie case had been made out on the questions of vicarious and constitutional liability and evidence would be called from the defendants on those matters . The trial finished on DATE .

On DATE the High Court delivered judgment . It found that the action was not statute barred . It also concluded that the ORG was not vicariously liable for the sexual assaults perpetrated by ORG given the relationship between the ORG and the denominational management of national schools . Although counsel for the applicant had orally suggested that the ORG should be vicariously liable for the inaction of the manager , ORG judgment did not address this point . Finally , ORG found that no action lay for a breach of a constitutional right where existing laws ( in this case , tort ) protected that right . The costs of the proceedings against ORG were awarded against the applicant .

In DATE the applicant appealed to ORG . Her Notice of Appeal challenged the finding on vicarious liability and referred to CARDINAL matters : the absence of reasons for the interim ruling of DATE and the ORG judgment ’s failure to rule on the vicarious liability for the inaction of the manager . Mr Justice PERSON described the appeal as limited to the ORG ’s vicarious liability for the acts of ORG and the manager , although he commented in his judgment on the other CARDINAL initial claims of the applicant ( direct negligence and the constitutional claim ) . Mr Justice PERSON also considered that the appeal concerned only vicarious liability for the acts of L.H. , although he refused to accept that the ORG was vicariously liable for the manager .

The appeal was heard from DATE . By a majority judgment of DATE ( PERSON and PERSON , with whom Chief Justice PERSON and Mr Justice PERSON concurred and Mr Justice PERSON dissented ) , ORG dismissed the appeal .

Hardiman J described in detail the legal status of national schools . While the arrangements for national - school education might “ seem rather odd DATE ” , they had to be understood in the context of NORP history in DATE . Following denominational conflict and the later concession of NORP emancipation in DATE , the dissenting churches and ORG wished to ensure that children of their denominations be educated in schools controlled by the denomination and not by the ORG or the established ( NORP ) Church . Those churches were “ remarkably successful ” in achieving this aim : from the very beginning of the NORP system of national education ( encapsulated in the “ PERSON letter ” of DATE ) , ORG authorities paid for the system of national education “ but did not manage it or administer it at the point of delivery ” . The latter function was left to the local denominational manager . While ORG funding was accorded on a proportionate basis to all denominational schools , the population was at the time overwhelmingly NORP so that the majority of national schools had NORP patrons and managers .

Hardiman J went on to describe as “ remarkable ” the fact that , whilst in DATE LOC firmer distinctions were being drawn between ORG and ORG and ORG influence in the provision of public services ( including education ) was ebbing , in GPE the position of the ORG became stronger and more entrenched . He adopted the evidence of CARDINAL expert witness ( in the history of education in GPE ) who described the position after the inception of ORG in DATE and noted that the NORP managers in this “ managerial ” system

“ were very clearly articulate and very absolutely ... precise in how they interpreted what the situation was for national schools in the new GPE ... It had to be NORP schools under NORP management , NORP teachers , NORP children ” .

That expert witness went on to describe the answer of ORG in DATE to a request by a ORG trade union to have local committees deal with maintaining and repairing school buildings . ORG had responded that there could be no interference whatever with the “ inherited tradition of managerial rights of schooling ” . The limited proposal of the union was considered to be the thin edge of the wedge because , in due course , the request might be to interfere with “ other aspects of the manager ’s authority vis - à - vis the appointment and dismissal of teachers which was of course the key concern that had been fought for and won over the years ” . PERSON referred to the “ urgent desire ” of the denominations to maintain their role in primary education .

As PERSON explained , the LAW reflected this managerial structure : the obligation in LAW ) on the ORG to “ provide for ” free primary education reflected a largely ORG - funded , but entirely clerically administered , system of education . As a result there were CARDINAL national schools in GPE : most were under the control of NORP patrons and managers , a few were under the control of other denominations and even fewer were controlled by non - denominational groups .

Hardiman J noted that , in recent times and after DATE , the provision of education was belatedly and at least partially placed on a statutory basis by LAW ; prior to that LAW the system had been administered by LAW as well as by other ministerial letters , circulars and notes .

As to what could be gleaned from DATE , PERSON noted :

“ The Minister laid down rules for national schools but they were general in nature and did not allow him to govern the detailed activities of any individual teacher . He inspected the schools for their academic performance , other than religious instruction , but it did not go further than that . He was ... deprived of the direct control of the schools , and of the enormous power which that brings , because ‘ there was interposed between the ORG and the child the manager or the committee or board of management’ . Equally , the Minister did not appoint the manager or the teacher or directly supervise him . This , indeed , was the essence of the ‘ managerial system’ . I can not see , on the evidence , that he had any scope whatever to make a personal judgment about either of these CARDINAL individuals . Moreover , it seems to have been instinctively recognised by the parents who complained about the first defendant that the person with direct authority to receive the complaint and do something about it was the clerical and clerically appointed manager . No complaint , on the evidence , was directed to the Minister or to any State body . The matter was handled , so to speak , ‘ in house’ at the election of the complainants . The end result of the process was a voluntary resignation followed by the employment of [ L.H. ] in another school in the vicinity .

All these factors tending to distance the Minister and the ORG authorities from the management of the school and the control of the first defendant are direct consequences of the long established system of education , described above and mandated in the LAW whereby the Minister pays and , to a certain extent , regulates , but the schools and the teachers are controlled by their clerical managers and patrons . It is not the concern of the ORG either to endorse or to criticise that system but merely to register its existence and the obvious fact that it deprives the Minister and the ORG of direct control of schools , teachers , and pupils . ”

Hardiman J observed that the sexual abuse of a pupil was the negation of what ORG was employed to do but he also found that in DATE it “ was an unusual act , little discussed , and certainly not regarded as an ordinary foreseeable risk of attending at a school ” . He considered it “ notable ” that she did not sue the patron , the diocese of which he was bishop , his successors or his estate , the trustees of the property of the Diocese of Cork and PERSON ( owners of the school ) , the manager or his estate or successors .

Hardiman J concluded that , having regard to the relevant test for vicarious liability and to the above - described arrangements for the control and management of national schools , ORG were not liable to the applicant for the wrongs committed against her . In particular , even applying the wider form of vicarious liability invoked , the Minister ’s absence of direct control over LAW , long since ceded to the manager and the patron , prevented a finding against the Minister . The relationship of LOC and the State – a “ triangular one with the NORP ” DATE was entirely sui generis and a product of GPE ’s unique historical experience . The manager was

“ the nominee of the patron , that is of a power other than the Minister and he did not inform the Minister of any difficulties with , or complaints about , [ L.H. ] or of his resignation and appointment to teach elsewhere until they were faits accomplis . He was the agent not of the Minister , but of ORG , the power in whose interest the Minister was displaced from the management of the school ” .

PERSON commented on CARDINAL of the applicant ’s original claims which had “ not been proceeded with ” .

As to the claim of negligence by the ORG , he remarked

“ ... this is a claim which could more appropriately be made against the manager . It was he who had the power to put in place appropriate measures and procedures governing the running of the school . The Minister can hardly be responsible for a failure to ‘ ORG a course of action of whose existence he was quite unaware ” .

As to the claim about the responsibility of the ORG in the provision of primary education under LAW and the measures put in place to discharge that responsibility , PERSON stated :

“ I have already analysed the terms of LAW from which it will be seen that the Minister , in the case of this national school , was simply providing assistance and subvention to private and corporate ( i.e. NORP ) endeavour , leaving the running of the school to the private or corporate entities . The Minister is thereby , as PERSON pointed out in PERSON v. GPE [ DATE ] ORG , deprived of the control of education by the interposing of the patron and the manager between him and the children . These persons , and particularly the latter , are in much closer and more frequent contact with the school than the Minister or ORG .

I do not read the provisions of LAW as requiring more than that the Minister shall ‘ endeavour to supplement and give reasonable aid to private and corporate educational initiative’ , to ‘ provide for free primary education’ . ... In my view the LAW specifically envisages , not indeed a delegation but a ceding of the actual running of schools to the interests represented by the patron and the manager . ”

Hardiman J concluded by pointing out that nothing in the judgment could be interpreted as suggesting liability on the part of the ORG and , in any event , it was quite impossible to do so because those authorities had not been heard by ORG since the applicant had not sued them .

Fennelly J , who delivered the other majority judgment , began by noting that the “ calamity of the exploitation of authority over children so as to abuse them sexually ” had shaken society to its foundations . Cases of sexual abuse had preoccupied the criminal courts and ORG for DATE and it was surprising that that court was confronted for the first time with questions relating to the liability of institutions including the ORG for sexual abuse of schoolchildren in a national school by a teacher .

Fennelly J also described in some detail the history and consequent legal status of national schools , which system had survived independence in DATE and the enactment of the LAW in DATE . He accepted the expert ’s evidence that it was not a ORG system but rather a “ ORG - supported system ” . He noted the clear division of power between the ORG ( funding and fixing the curriculum ) and the manager ( day - to - DATE running of the school including hiring and firing teachers ) , noting that the different religions were determined to preserve and guard their own distinct religious education so that national schools developed on a denominational basis .

He considered inspectors to be a crucially important part of the system of ORG oversight and maintenance of standards which enabled the Minister to be satisfied about the quality of the system . However , he noted that the inspection regime did not alter the division of responsibilities between the ORG and the manager , the inspectors having no power to direct teachers in the carrying out of their duties . The DATE Rules reflected this allocation of responsibilities between the ORG and ORG authorities . Even if , in modern times , the ORG played a more intrusive role , responsibility for DATE management remained with the manager . He concluded that the ORG was not vicariously liable for the acts of L.H. or , for the same reasons , for the failure of the manager to report the DATE complaint to the ORG . ORG was not employed by the ORG but , in law , by the manager . While ORG had to have the qualifications laid down by the Minister and had to observe the DATE Rules and while the ORG had disciplinary powers in those respects , ORG was not engaged by the ORG and the ORG could not dismiss him .

Referring back to the reference in the Notice of Appeal to the ORG ’s liability for the failure of the manager to report the DATE complaint , ORG concluded that “ [ CARDINAL the same reason , insofar as it is necessary to say so , there can be no liability for the failure of [ the manager ] to report the DATE complaint . [ The manager ] was not the employee of the second defendant . ”

PERSON dissented . He accepted that neither the ORG nor its inspectors had any knowledge of the assaults . He noted that , for all practical purposes , most primary education in GPE took the form of a joint enterprise between ORG and he considered that that relationship was such that there was a sufficient connection between the ORG and the creation of the risk as to render the ORG liable . PERSON relied , notably , on the role of school inspectors . He examined in some detail the evidence given by , and concerning the role of , school inspectors noting , inter alia , that if an allegation of sexual assault by a teacher on a national - school pupil was considered well - founded by an inquiry set up by ORG , it could lead to the withdrawal of recognition or to a police investigation and , if the police found the complaint justified , to the withdrawal of the teacher ’s licence to teach .

By a judgment of CARDINAL DATE ORG vacated the ORG order for costs against the applicant since it was not disputed that hers was an important and complex test case . It determined that each party had to bear its own costs related to the action against ORG .

The applicant was legally represented throughout the civil proceedings , although she did not have legal aid .


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

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


Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of conviction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On DATE the applicant stood trial before ORG , charged with unlawful purchase and possession of large quantities of narcotic drugs , an offence under LAW . A prosecutor was present . The applicant was unrepresented .

It appears from the trial court judgment that when questioned in the course of the trial , the applicant stated that he had been feeling unwell so had been taking ORG to relieve the pain . He admitted that on DATE he had bought CARDINAL blisters of Tramadol , a narcotic - like pain reliever , from a stranger in the street for the equivalent of about EUR CARDINAL and had been arrested shortly afterwards . He expressed remorse and asked for leniency in sentencing . In view of those admissions the trial court , relying on LAW ( “ ORG ” ) ( see paragraph CARDINAL below ) , ruled it unnecessary to examine the evidence related to the “ circumstances ” , which were “ not contested by any party ” . On DATE the trial court convicted the applicant of illegal purchase and possession of drugs , an offence under LAW , and sentenced him to DATE and CARDINAL months’ imprisonment .

The applicant appealed , arguing that his admissions before the trial court had related only to the facts and not to the legal classification of the offence , which he maintained was erroneous . He argued that mere possession of ORG was not unlawful as such , except where it was in breach of the applicable regulations . For this reason , his acts should have been classified not under LAW as drug possession but rather under LAW , namely breach of the rules related to the purchase and circulation of drugs and analogous products .

On DATE ORG , sitting as a singlejudge formation , denied the applicant leave to appeal . The court stated that the applicant had admitted the circumstances of the offence and the trial court had then proceeded under LAW of the ORG . However , in his appeal the applicant was contesting his conviction under LAW and the legal classification of his actions . The court held that , because of the applicant ’s admission and the procedure used at the trial under LAW CCP ( see paragraph CARDINAL below ) , the decision was not amenable to appeal on the grounds invoked by the applicant .

On DATE ORG dismissed an appeal on points of law lodged by the applicant , holding that ORG decision had complied with the rules of criminal procedure .


CASE OF LOPES DE SOUSA FERNANDES v. PORTUGAL

Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;András Sajó;Angelika Nußberger;Ganna Yudkivska;Georgios A. Serghides;Guido Raimondi;Helen Keller;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Pauliine Koskelo;Paulo Pinto De Albuquerque;Robert Spano;Vincent A. De Gaetano;Yonko Grozev;Gabriele Kucsko-Stadlmayer;Ksenija Turković;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE . The applicant ’s husband , Mr PERSON , was born in DATE . He died on DATE following a series of medical problems that occurred after he had undergone minor surgery for the removal of nasal polyps .

On DATE Mr PERSON was admitted to the ear , nose and throat ( ENT ) department of ORG ( “ the CHVNG ” ) for a nasal polypectomy . He underwent the operation on DATE and was discharged from hospital on DATE at TIME

NORP On DATE , at TIME , the applicant took her husband to the emergency department of the CHVNG because he was suffering from violent headaches and was in an agitated state . There he was examined by the doctors on duty , in particular by a neurologist . The doctors considered that Mr PERSON was suffering from psychological problems and prescribed tranquilisers . The applicant claims that they recommended her husband ’s discharge but that she objected .

In TIME Mr PERSON was examined by the new medical team on duty . At TIME he underwent a lumbar puncture which revealed that he had bacterial meningitis . He was transferred to the hospital ’s intensive care unit .

On DATE a scan revealed a cerebral oedema . On DATE another scan revealed that the cerebral oedema had diminished .

On DATE , following an improvement in his clinical condition , PERSON was transferred to the hospital ’s general NORP ward , where he was under the care of PERSON He was diagnosed with CARDINAL duodenal ulcers on DATE .

Mr PERSON was discharged from hospital on DATE as his condition was considered to be stable . A follow - up scan as an outpatient was recommended .

On DATE Mr Fernandes , who was suffering from vertigo and headaches , was admitted to the emergency department of the CHVNG . He was examined by PERSON , who kept him under observation because he had acute diarrhoea , abdominal pain and severe anaemia . PERSON PERSON received blood transfusions .

On DATE an endoscopy was performed on Mr PERSON , confirming that he had a gastroduodenal ulcer .

On DATE Mr PERSON was discharged from hospital . He was prescribed a special diet and medication . A medical appointment was fixed for DATE .

The applicant ’s husband continued to suffer from severe abdominal pain and diarrhoea . On DATE he returned to the emergency department of the CHVNG . He was examined by PERSON , who did not consider it necessary to admit him . Mr PERSON therefore returned home DATE .

On DATE Mr PERSON was readmitted to the CHVNG . A colonoscopy revealed infectious ulcerative colitis . Bacteriological tests showed the presence of the Clostridium difficile bacterium . Mr PERSON was placed on a drip and treated with antibiotics .

At the request of the applicant and her husband , PERSON discharged the latter on DATE . Dr J.V. prescribed oral treatment and referred PERSON PERSON for further treatment in the hospital ’s outpatient department .

On DATE Mr PERSON was admitted to ORG in GPE after he was found to be suffering from chronic diarrhoea and microcytic anaemia . He underwent various examinations including a colonoscopy , an endoscopy and blood tests . The medical team considered several possible causes , including an infection with the Clostridium difficile bacterium , but all these possibilities were subsequently ruled out . However , a cytomegalovirus was detected and treatment was given .

On DATE Mr Fernandes was examined by a doctor who judged the situation to be under control .

On DATE Mr Fernandes ’s condition deteriorated . He was examined by a doctor who suspected a possible perforated viscus . An ORG and an abdominal ultrasound were carried out . The latter showed ascites in the abdomen but did not confirm the initial diagnosis . At CARDINAL p.m. the applicant ’s husband was examined by another doctor who detected some resistance to abdominal palpation . A gas analysis showed metabolic alkalosis , but there were no signs of hypocalcaemia . A sigmoidoscopy was performed which showed that the applicant ’s husband had rectocolitis .

On DATE at TIME the applicant ’s husband was placed on oxygen because he had difficulty breathing . At TIME was examined by a general physician and subsequently by a surgeon . The latter decided that urgent surgery was needed as there was widespread peritonitis . Mr PERSON was taken to the operating theatre at TIME and was brought out again TIME in order to be prepared for surgery , in particular by being given a blood transfusion . He re - entered the operating theatre at TIME He died DATE at TIME

According to the death certificate issued by ORG , the applicant ’s husband died from septicaemia caused by peritonitis and a perforated viscus .

On DATE the applicant wrote a joint letter to ORG , the regional health authority for the LOC region and ORG , stating that she had received no response from the hospitals to explain the sudden deterioration in her husband ’s health and his death .

On DATE and DATE the regional health authority for the LOC region sent the applicant copies of the reports drawn up by the GPE and ORG on the basis of her husband ’s medical records .

On DATE the applicant requested an update on progress in the proceedings from the regional health authority , stating that she had still received no clear explanations concerning the events preceding her husband ’s death . In a letter of CARDINAL DATE the authority informed her that the file had been sent to ORG – “ the IGS ” ) with a view to the opening of an investigation .

By an order of DATE the Inspector General for Health ordered an investigation ( processo de averiguações ) .

On DATE an inspector was appointed to head the investigation .

On DATE the ORG informed the applicant that evidence would be taken from the members of the medical team which had treated her husband and that an expert medical report would be prepared .

The applicant gave evidence on DATE .

On DATE expert medical reports were requested . Reports prepared by experts in the fields of internal medicine , gastroenterology and general surgery were submitted in DATE . According to the reports , in view of the deterioration in his state of health after the nasal polypectomy , it would not have been possible to save the applicant ’s husband ’s life .

The report of the investigation was submitted on DATE . It found , on the basis of the expert medical reports received , that the treatment administered to the applicant ’s husband had been appropriate .

In an order of CARDINAL DATE the Inspector General for Health declared the investigation closed , finding that there had been no medical negligence and that there were no grounds for instituting disciplinary proceedings against the doctors who had treated the applicant ’s husband .

In a letter of CARDINAL DATE the applicant appealed against the order . She argued that the final report had not answered her questions , complaining about areas of uncertainty and about the duration of the investigation and its findings .

On DATE the Inspector General for Health informed the applicant that he had set aside the order of CARDINAL DATE and ordered the reopening of the investigation .

On DATE , in view of the questions raised by the applicant , the medical experts were requested to provide additional information .

A new investigation report was submitted on DATE , clarifying the facts and taking account of the answers provided by the CARDINAL medical experts . The report stated that there were no grounds for criticising the health - care personnel who had been involved in the care of the applicant ’s husband in the GPE and ORG , as the patient had received proper and appropriate medical assistance in terms of his diagnosis , supervision and treatment . The report further noted that his discharge had been justified on each occasion in view of the improvement in his state of health . The report concluded as follows :

“ The results of the investigation ... following the reopening of the proceedings and the fresh inquiries and medical reports do not indicate that there was any negligent or careless conduct in breach of good medical practice . There is therefore no need to take legal or disciplinary action against any persons involved in the [ patient ’s ] care ... ”

Taking this report into account , the Inspector General for ORG made a fresh order discontinuing the proceedings on DATE .

In a letter of CARDINAL DATE the applicant appealed against that order , complaining of unclear points and omissions . She also raised the possibility that the sudden deterioration in her husband ’s health and his eventual death might have been caused by bacteria present in the operating theatre on DATE of the nasal polypectomy , that the diagnoses may have been made in haste and that there may have been negligence and carelessness in the medical treatment administered to her husband . She further complained that the internal medicine and gastroenterology reports had been prepared each time by the same experts . The applicant therefore requested the reopening of the investigation and the preparation of a fresh expert medical report .

The Inspector General for ORG wrote to the applicant on DATE informing her that he had set aside his previous order and ordered fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology .

The applicant gave evidence again on DATE .

The medical experts submitted their reports on DATE and DATE . The expert in gastroenterology stated that it was possible , albeit rare , for a nasal polypectomy to cause meningitis . He further considered that the applicant ’s husband had received appropriate treatment but that his discharge on CARDINAL DATE may not have been wise in view of his clinical condition . The expert concluded that the applicant ’s husband had suffered a series of complications which were uncommon but could occur , and that he had received proper medical care at the GPE . As to the care in ORG , the expert considered that the condition of the applicant ’s husband had been extremely complicated and had given rise to doubts as to the best way to proceed . In his report , the expert in internal medicine rejected the idea of a hospital - acquired infection on the grounds that , had that been the case , the antibiotics administered to the patient would have had no effect . In his view , the meningitis had developed unexpectedly . He further took the view that the applicant ’s husband ’s discharge on DATE had been appropriate but that he should have continued to be monitored as an outpatient .

On DATE a report was drawn up on completion of the investigation , which concluded as follows :

The content of the most recent expert medical reports shows ... that there are no grounds for a finding of disciplinary liability for negligence against any of the healthcare professionals involved in DATE ’s medical treatment ...

... the decision by the assistant doctor [ J.V. ] to refer the patient for outpatient treatment was not appropriate and sufficient from a clinical viewpoint in so far as , in order to prevent a recurrence of the colitis caused by Clostridium difficile ... , the patient should have remained in hospital under close medical supervision ...

Hence , the doctor in question did not act with the necessary care and diligence , thereby incurring disciplinary liability on account of his negligent conduct in the medical assistance provided ... in NORP ward of the GPE ’s medical department DATE and DATE .

The medical opinions make no criticisms of the assistance provided in the gastroenterology department of ORG in GPE ... ”

In the light of this report the Inspector General made an order on DATE for the opening of disciplinary proceedings against Dr J.V.

By a letter dated DATE the applicant was informed that the disciplinary proceedings initiated against Dr PERSON would be stayed pending the outcome of the criminal proceedings ( see paragraphs DATE below ) .

In the meantime , on DATE , ORG acknowledged receipt of the applicant ’s letter of CARDINAL DATE , informing her that steps would be taken in response to it .

The case was referred to ORG regional disciplinary council for the NORP region . The latter obtained the patient ’s medical records and sought the opinions of CARDINAL specialist panels : gastroenterology , infectious diseases , general surgery and ear , nose and throat ( ENT ) .

In its report of DATE , the gastroenterology panel issued the following conclusions :

A simple X - ray of the abdomen performed DATE before the patient ’s death did not detect any dilatation or perforation of the colon .

The patient ’s death was caused by peritonitis as a result of the perforation of the duodenal ulcer . The difficulties in diagnosing the condition were understandable in view of the patient ’s serious clinical condition and the fact that his abdominal pains were explained by the inflammatory disease in the colon .

The role of the corticosteroids in aggravating or reactivating the peptic ulcer ... is not currently considered a risk factor ... However , given that the patient had already experienced CARDINAL episode of intestinal bleeding , there would have been grounds for weighing up the use of these drugs .

The decisions to discharge the patient [ from hospital ] may have delayed the diagnosis or the commencement of treatment . Nevertheless , after examining the documents submitted to me , I am unable to confirm whether these discharge decisions adversely affected his diagnosis or programme of treatment .

The conclusions of the report of DATE by the infectious - diseases panel read as follows :

“ CARDINAL . In our opinion the diagnosis of meningitis , most likely resulting from the nasal polypectomy , was inexplicably delayed . The fact that there was no one on the medical team trained in this type of diagnosis ( for example , a specialist in infectious diseases ) may be regarded as the only explanation for such an incident . However , this was not the immediate cause of the patient ’s death .

NORP In our view , too long a period elapsed between the diagnosis of the perforation in the duodenal ulcer and surgery .

The procedure has been undermined to an incalculable extent by the fact that no autopsy was performed , although an autopsy is mandatory ( mandatória ) in cases of this type in order to shed light on the chain of events . ”

In its report the panel further held as follows :

“ The inhuman conditions described in this process , as regards how the patient was treated , are another example of the situation encountered on a DATE basis in our hospitals ; a reflection of the appalling structural and operational conditions which require urgent analysis and change .

This board of ORG of ORG must have a fundamental role in advocating the rights of patients and doctors in order to create better conditions of care for the former and better working conditions for the latter .

We reiterate , once more , the need to consider the creation of infectious - diseases departments / units in hospitals of the same type as ORG , in order to improve the quality of care in this regard . ”

In a report of DATE the general - surgery panel found that there had been no negligence or medical malpractice in the hospitals concerned . The report read as follows :

“ CARDINAL . A perforated duodenal ulcer requires immediate surgery . In the present situation the perforated ulcer ... was difficult , if not impossible , to diagnose given the clinical context in which it occurred . Furthermore , in view of the seriousness of the patient ’s clinical condition , the approach to surgery had to be given careful consideration and the patient had to be prepared by means of various measures .

In a report dated DATE the ENT panel concluded as follows :

“ CARDINAL . NORP Meningitis following micro - endoscopic surgery for nasal polyps is described as one of the ( major ) complications of this type of surgery , estimated in the literature to occur in PERCENT of cases . These figures will be higher in the event of a repeat operation , as in the present case ( surgery was performed in DATE as stated on page CARDINAL of the file concerning the operation ) .

NORP The post - operative GPE scan of the brain carried out on DATE does not show any discontinuity in the bones at the base of the skull ... which suggests that no invasive endocranial surgery was carried out .

The description of the surgery performed on the patient on DATE ( page CARDINAL of the file ) does not give any indication of clinical malpractice or negligence .

No ENT procedures were performed during any of the patient ’s subsequent stays in ORG or in ORG . ”

In an order of DATE the regional disciplinary council for the LOC region decided , after having examined the conclusions of the different specialist panels , to take no further action on the applicant ’s complaint , on the ground that there was no evidence of misconduct or medical negligence .

The disciplinary council observed the following :

( i ) meningitis was a complication that could arise in PERCENT of cases following a nasal polypectomy ; the figures were liable to be higher for a repeat operation , as in the case in question ;

( ii ) the applicant ’s husband had received appropriate treatment during his various hospital stays ;

( iii ) the patient ’s bacterial meningitis ( Pseudomonas ) had been treated properly ;

( iv ) although the infectious - diseases panel had suggested that the presence of a specialist in that discipline might have enabled a diagnosis to be made sooner , this had not been a decisive factor in the development of the clinical situation ;

( v ) the perforation of the duodenal ulcer had been the cause of the peritonitis . This had been difficult to diagnose in view of the patient ’s serious clinical condition , a fact acknowledged by the gastroenterology and general - surgery panels ;

( vi ) although the infectious - diseases panel had considered that too long a period had elapsed between the diagnosis of the perforated duodenal ulcer and surgery , the time taken to prepare for the operation had been justified since the patient had been suffering from intestinal disease and had severe anaemia , sepsis and a fluid and electrolyte imbalance , as noted by the general - surgery panel .

On DATE the applicant lodged an appeal against that order with ORG . On DATE the appeal was declared inadmissible as being out of time .

Criminal proceedings before ORG

On DATE the applicant lodged a complaint for negligent homicide with the GPE criminal investigation and prosecution department .

She gave evidence on DATE .

By order of ORG of DATE the applicant was given leave to intervene in the proceedings as an assistant to the public prosecutor ( assistente ) .

On DATE the public prosecutor ’s office made its submissions , charging PERSON with homicide by gross ( grosseira ) negligence . In support of their decision the prosecuting authorities referred to the report appended to the ORG order of DATE . They considered that PERSON should not have discharged the applicant ’s husband on DATE in so far as the patient ’s clinical condition had been problematic and he had been infected with the Clostridium difficile bacterium .

The case was referred to ORG . During the trial the court heard evidence from the applicant , the accused , CARDINAL doctors who had been involved in treating the applicant ’s husband in the CHVNG and in ORG , and the CARDINAL medical experts appointed in the context of the proceedings before the ORG . The court also sought the opinion of ORG .

On DATE ORG acquitted PERSON of the charges against him . In particular , it took the view that the findings made by the ORG in its order of DATE could not be taken into consideration as they had not been confirmed by the CARDINAL medical experts who had given evidence during the trial .

As to the facts , ORG considered , inter alia , the following to be established :

“ The patient ’s hospitalisation on DATE ... was not the result of a lack of medical supervision of his clinical condition ... since it was unconnected to the complications arising out of the meningitis . In fact , it resulted from acute anaemia caused by intestinal bleeding from a duodenal ulcer ; ...

The decisions to discharge the patient on CARDINAL and DATE were appropriate , given that , in the former case , the problem of bacterial meningitis had been resolved , [ the patient ] had completed the course of antibiotics , he no longer had any symptoms or fever , had a slightly increased white - blood cell count , a falling neutrophil count and normal sedimentation rate , and was not complaining ... and , in the latter case , that is to say , the patient ’s hospitalisation from DATE , the patient was not complaining of abdominal pain , diarrhoea or bleeding ... with the result that it was possible to continue treating his ulcer with a dietary regime while monitoring him on an outpatient basis ...

When the patient was admitted to ORG , laboratory tests were carried out for Clostridium difficile . The results were negative on CARDINAL occasions . ”

On the subject of the surgery preceding the death of the applicant ’s husband , ORG observed as follows :

“ ... the patient was in a very serious clinical state , with septic shock and multiple organ dysfunction . For that reason , he was placed on artificial ventilation and vasoactive drugs and fluids were administered ... , together with hydrocortisone to deal with possible acute adrenal insufficiency ( falência supra - renal aguda ) , and broad - spectrum antibiotics ;

... in this medical context the patient ’s prospects of survival were very uncertain , in view of the septic shock and multiple organ dysfunction ;

... a simple abdominal X - ray and an abdominal and pelvic ultrasound scan were therefore requested , which did not reveal a perforation of the intestine . ”

In ORG view , it had not been demonstrated that the care provided to the applicant ’s husband during his stay in hospital from DATE to CARDINAL DATE had not been in accordance with good medical practice , or that he should have been kept in hospital for longer . The court therefore concluded that there was no causal link between the treatment administered by PERSON to the applicant ’s husband in the GPE and his death , which had been caused by a perforated viscus that was unconnected to the colonic disease treated by the accused . It held :

“ ... there was no evidence to show that the treatment administered by the accused for the Clostridium difficile infection was incomplete , that the patient was discharged prematurely on DATE or , in sum , that the accused was responsible for the death of the patient on DATE . ”

DATE . The applicant did not appeal against that judgment .

Proceedings before ORG

On DATE the applicant brought an action in ORG against the GPE , ORG and the CARDINAL doctors who had been involved in treating her husband while he was in hospital , claiming compensation for the damage she had suffered on account of her husband ’s death . She alleged , inter alia ,

( i ) that her husband ’s meningitis had been caused by Pseudomonas cepacia bacteria which , she alleged , had been present in the operating theatre during the nasal polypectomy ;

( ii ) that the meningitis had been diagnosed too late , allowing the illness to become serious ;

( iii ) that the administering of excessive doses of medication and the lack of a suitable prophylactic had caused the duodenal ulcer which had led to her husband ’s death .

In the context of these proceedings the applicant was granted legal aid in the form of exemption from payment of the court fees and the fees of a lawyer of her own choosing .

DATE the eight doctors contested their standing to be sued ( ilegitimidade passiva ) , relying on LAW no . DATE of DATE .

On DATE the court gave a preparatory decision ( despacho saneador ) specifying which facts were considered to be established and which remained to be established . In accordance with LAW no . DATE of DATE it further held that the doctors among the defendants did not have standing in so far as they had been sued only for negligent conduct . Accordingly , it declared the claim admissible only in respect of the hospitals .

On DATE the applicant gave evidence .

During the CARDINAL hearings the court heard evidence from the following witnesses :

( i ) eleven doctors who had been involved in treating the applicant ’s husband during his various stays in the GPE and ORG ;

( ii ) the general practitioner of the applicant ’s husband ;

( iii ) CARDINAL doctors who were friends of the family ;

( iv ) the inspector who had written the final report on completion of the investigation within the ORG ; and

( v ) the medical experts in gastroenterology and internal medicine whose reports had formed the basis for the last ORG decision .

On DATE the court made an order concerning the facts . Taking into account the medical records of the applicant ’s husband and the various statements made by the witnesses who had given evidence , the court considered it established , inter alia ,

( i ) that a polypectomy was a straightforward surgical operation which posed minimal risk and that the patient had been informed accordingly ;

( ii ) that the operating theatre had been aseptic and sterilised at the time of the polypectomy ;

( iii ) that the origin of the bacterium linked to the patient ’s meningitis had not been proven . The court dismissed the possibility of a hospital - acquired infection , pointing out that in that case the prescribed treatment would have had no effect ;

( iv ) that the medication prescribed in the GPE and ORG could cause intestinal problems and hence could give rise to colitis ;

( v ) that the applicant ’s husband had been treated with drugs to protect his stomach in the GPE ;

( vi ) that the gastroduodenal perforation had not been detected until the operation was being performed ; and

( vii ) that the applicant ’s husband had died from septicaemia caused by peritonitis resulting from a perforated viscus .

DATE . On DATE ORG delivered a judgment in which it dismissed the applicant ’s claims . On the facts , the judgment stated , inter alia , as follows :

“ The Pseudomonas bacterium was resistant to the various antibiotics that were tried ...

When the patient attended PERSON Hospital on DATE he had completely recovered from his bacterial meningitis .

On DATE the patient again attended PERSON , where he was diagnosed with pseudomembranous colitis caused by Clostridium difficile ... The colitis was successfully treated in that hospital ... ;

Throughout his stay in ORG he was given treatment to protect his stomach .

When he was admitted ( to ORG on DATE ) he had chronic diarrhoea ... and was diagnosed with suspected inflammatory bowel disease . Medication was prescribed in keeping with that diagnosis .

While in ORG he was kept under observation , received DATE medication and underwent various tests .

On DATE ... nothing had made it possible to predict the gastroduodenal perforation ... the tests carried out that day ... did not confirm the existence of any duodenal perforation such that the situation had to be kept under review ;

It was not until DATE that the patient ’s acute abdominal syndrome was diagnosed , calling for urgent surgery ... it was only during the operation that the patient was found to be suffering from a duodenal perforation ;

The perforation had occurred TIME before surgery . ”

The judgment concluded as follows :

“ ... in view of the facts that have been established , it is not possible to determine at what point the defendants , by their actions or omissions , breached the rules of good medical practice ...

It is considered established that [ Mr PERSON ’s ] death was caused by sepsis due to peritonitis resulting from the perforation of his duodenal ulcer ...

No doubts persisted regarding the diagnosis of meningitis , the procedure adopted , the sequence of treatment and the resolution of the problem , as all the various aftereffects were duly explained .

Hence there were no differences of opinion regarding the need to prescribe and use antibiotics in the context of [ Mr PERSON ’s ] meningitis and other conditions , although it was explained that colitis is a bacterial imbalance caused by antibiotics ( the very ones which have undesirable effects on intestinal flora ) .

Nevertheless , it was not possible to determine the agent or identify the cause of the bacterium linked to the meningitis and it could therefore not be established with certainty whether the sinus surgery was the source of the problem or was simply CARDINAL factor causing the infection . The other factors and circumstances preceding the operation ... thus cease to be relevant .

It is nonetheless surprising that the death of the claimant ’s husband should have occurred ... given that he had been strong and in good health and that the microsurgery on his sinuses was a straightforward operation . However , it has not been demonstrated that the therapy or medication administered to [ Mr Fernandes ] at any point was unsuited to his clinical condition . There was therefore no breach of the rules of good medical practice ( either by action or omission ) . Accordingly , one of the cumulative conditions for establishing civil liability , namely an unlawful act , is absent . ”

The applicant appealed against the judgment to ORG . She contested the facts deemed to be established , arguing that only by studying the circumstances before , during and after the operation would it be possible to understand what type of bacterium her husband had contracted . She further reiterated that her husband had contracted a hospital - acquired infection and had not received adequate treatment either in the GPE or in ORG .

On DATE ORG dismissed the applicant ’s claims , upholding the judgment of ORG . It first of all declined to review the facts considered by the lower court to have been established , on the grounds that the hearings had not been recorded and that no new documents had been submitted which could cast doubt on the evidence forming the basis for the court ’s decision . ORG summed up its judgment as follows :

“ The lower court considered , in sum , that it had not been possible to identify the nature and origin of the bacterium that caused the meningitis and that it had not been demonstrated that the illnesses subsequent to [ the patient ’s ] treatment and recovery from that illness ... had been the consequence of incorrect diagnosis or treatment .

For that reason it found that no breach of the rules of good medical practice had been demonstrated that might have caused the patient ’s death .

The claimant takes a different view of the matter . However , she bases her arguments mainly on allegations that have not been proven , and in particular the allegation that the meningitis was caused by the Pseudomonas bacterium , allegedly acquired in hospital ... and that the patient did not receive appropriate prophylactic treatment to protect his stomach during his treatment with antibiotics .

Accordingly , these claims can be summed up as allegations of medical negligence which are unsupported by the established facts . ”


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

Elisabeth Steiner;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in PERSON .

After the death of the applicant ’s father , his second wife brought an action about the inheritance against the applicant on DATE .

At first instance , the court partly found for the applicant on DATE but , on appeal , ORG quashed the decision and remitted the case .

In the resumed proceedings , the second - instance court quashed a decision again on DATE , as confirmed by ORG on DATE .

In the proceedings resumed again , PERSON partly found for the applicant on DATE . The judgment became final on DATE .


CASE OF SATAKUNNAN MARKKINAPORSSI OY AND SATAMEDIA OY v. FINLAND

Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;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)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev

NORP The applicant companies have their seat in PERSON .

The first applicant company PERSON has been publishing PERSON magazine since DATE . The magazine publishes DATE information about natural ORG taxable income and assets . This information is public according to NORP law . Several other publications and media companies also publish such information . The editor - in - chief of the magazine lodged an application with the ORG in DATE ( see PERSON v. GPE ( dec . ) , no . CARDINAL , DATE ) .

In DATE the magazine appeared CARDINAL times and each issue concentrated on a certain geographical area of the country . Data on CARDINAL ORG taxable income and assets was published , which constituted at TIME all taxable persons in GPE . The magazine also published taxrelated articles and announcements .

The first applicant company PERSON has worked in cooperation with the second applicant company , PERSON . The companies are owned by the same persons . In DATE the second applicant company , together with a telephone operator , started an ORG . By sending a person ’s name to a service number , taxation information concerning that person could be obtained if information was available in the database . The database was created using data already published in the magazine . Since DATE the second applicant company has also been publishing PERSON magazine .

On an unspecified date ORG ( tietosuojavaltuutettu , dataombudsmannen ) contacted the applicant companies and advised them to stop publishing taxation data in the manner and to the extent that had been the case in DATE . Collecting data which was not to be published was not forbidden . The companies declined because they felt that this request violated their freedom of expression .

By letter dated DATE the ORG Ombudsman requested ORG ( tietosuojalautakunta , datasekretessnämnden ) to order that the applicant companies be forbidden to process taxation data in the manner and to the extent that had been the case in DATE and to pass such data to an SMS - service . He claimed that , under LAW , the companies had no right to establish such personal data registers and that the derogation provided by the LAW concerning journalism did not apply to the present case . The collecting of taxation information and the passing of such information to third parties was not journalism but processing of personal data which the applicant companies had had no right to do .

On DATE ORG dismissed the request of ORG . It found that the derogation provided by LAW concerning journalism applied to the present case . As concerned the SMS - service , the data used in the service had already been published in PERSON magazine and the Act did not therefore apply to it .

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

On DATE ORG rejected the appeal . It found that the derogation provided by LAW concerning journalism , which had its origins in Directive PERSON , should not be interpreted too strictly as it would then favour protection of privacy over freedom of expression . The court considered that PERSON magazine had a journalistic purpose and that it was also in the public interest to publish such data . The court emphasised , in particular , that the published data was public . The derogation provided by LAW concerning journalism thus applied to the present case . As concerned the SMS - service , the court agreed with ORG that , as the information had already been published in the magazine , the LAW did not apply to it .

NORP By letter dated DATE ORG appealed further to 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 on the interpretation of Directive PERSON .

On DATE ORG of ORG , sitting in a ORG composition , gave its judgment ( see Case CCARDINAL/CARDINAL Tietosuojavaltuutettu v. PERSON and PERSON , judgment of DATE ( ORG ) ) . It found first of all that the activities in question constituted “ processing of personal data ” to which the Directive applied . Moreover , activities involving the processing of personal data such as that 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 . In order to take account of the importance of the right to freedom of expression 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 the CARDINAL fundamental rights , the protection of the fundamental right to privacy required that the derogations and limitations in relation to the protection of data provided for in the Directive had to apply only in so far as was strictly necessary . In conclusion , activities such as those involved in the domestic proceedings , relating to data from documents which were in the public domain under national legislation , could be classified as “ journalistic activities ” if their object was to disclose to the public information , opinions or ideas , irrespective of the medium which was used to transmit them . They were not limited to media undertakings and could be undertaken for profitmaking purposes .

On DATE ORG quashed the previous decisions and referred the case back to ORG . It requested ORG to forbid the processing of taxation data in the manner and to the extent carried out in DATE . The court noted first that the term “ journalism ” was not defined in Directive PERSON but that , according to ORG of ORG , it was necessary to interpret notions relating to freedom of expression , such as journalism , broadly . However , when balanced against the right to privacy , any derogations to the latter were to be kept only to what was strictly necessary . When balancing the right to freedom of expression against the right to privacy , the ORG had found that the decisive factor was to assess whether a publication contributed to a public debate or was solely intended to satisfy the curiosity of readers . ORG found that the publication of the whole database collected for journalistic purposes could not be regarded as journalistic activity . The public interest did not require such publication of personal data to the extent seen in the present case , in particular as the derogation in LAW was to be interpreted strictly . The same applied also to the SMS - service .

The SMS - service was shut down after the decision of ORG was served on the applicant companies . The magazine continued publishing taxation data in DATE when its content was CARDINAL of the previous content . Since then the magazine has not appeared .

On DATE ORG forbade the first applicant company to process taxation data in the manner and to the extent that had been the case in DATE and to forward this information to an ORG . The second applicant company was forbidden to collect , save or forward to an SMS - service any information received from the first applicant company ’s registers and published in PERSON magazine .

NORP By letter dated DATE , after ORG had made its decision , ORG asked the applicant companies to indicate what measure they were envisaging to take in view of the ORG ’s decision . In their reply , the applicant companies asked ORG view on the conditions under which they could continue publishing public taxation data at least to a certain extent . In his reply ORG stated that , according to ORG decision , the applicant companies lacked the legal right to maintain their taxation database and to publish it , and 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 prohibition of censorship guaranteed by LAW as well as their freedom of expression . LAW provided better protection than the international human rights treaties as the latter did not prohibit censorship fully . According to the 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 use “ public interest ” as a criterion for preventing publication when 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 , as far as the matter had been decided by ORG in its decision of DATE , it could not take a stand on the issue . In the latter decision ORG had stated that the case was not about the public nature of the taxation documents , nor about the right to publish such information . As the court was now examining only the decision rendered by ORG which was issued as a result of ORG decision of DATE , it could not examine the issues which ORG had excluded from the scope of its decision . As the ORG ’s decision corresponded to the content of ORG decision , there was no reason to change it .

By letter dated CARDINAL DATE the applicant companies appealed further to ORG , reiterating the grounds of appeal already presented before ORG . They noted in particular that the decision issued by ORG had prohibited the processing of taxation information for publishing purposes as well as requiring that the internal registers of the first applicant company be protected in a manner required by LAW . In practice the companies were prevented from collecting information for publishing purposes , which meant that there was an interdiction to publish such information . The companies noted that LAW also prohibited indirect preventive censorship .

On DATE ORG upheld the judgment of ORG . It found that the case was not about the right to publish taxation information as such , nor about preventive censorship . On these grounds and the grounds mentioned in ORG reasoning , the court found that there was no reason to change the latter ’s decision .


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

George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicants were born in DATE , DATE , DATE and DATE respectively . Mr PERSON and Mr PERSON live in PERSON and Mr PERSON lives in GPE . PERSON also lived in PERSON .

Ancestors of the applicants owned agricultural land in the area of the village of PERSON , GPE region , which was collectivised after DATE .

NORP In DATE the municipal authorities in GPE decided to allocate land for the construction of a hotel in PERSON . The exact borders of the plot were specified in a decision delivered in DATE : it was one of the plots formerly owned by the applicants’ ancestors . In DATE a proposal to formally expropriate the land from the agricultural co - operative in which it had been included earlier was rejected by a commission created by the Government .

The hotel was constructed DATE . It consisted of a main building ‒ comprising a restaurant and QUANTITY bedrooms , QUANTITY bungalows and maintenance buildings . In DATE the complex also included an unfinished building , designed to be used as CARDINAL bedrooms and a lounge , and a swimming pool . The plot of land on which it was constructed measured QUANTITY .

In DATE the local authorities in GPE created a ORG - owned enterprise named “ ORG delo na SO ” , which was charged with the task , in particular , of using and managing the hotel in PERSON . On DATE the Minister of Agriculture ordered the creation of a ORG - owned limited liability company named “ ORG delo na ORG ” ORG , which took over the assets of the enterprise ; under the applicable domestic provisions , this entailed the company becoming the owner of these assets . “ ORG delo na ORG ” ORG was entered in the companies register in GPE on DATE .

NORP In DATE the company initiated a procedure aimed at changing the status of the land on which the hotel was constructed , and which was still formally considered agricultural . The course of that procedure is unclear .

On DATE the Minister of Agriculture issued an “ act of ORG ownership ” of the hotel and the land on which it was constructed . The document noted that the property had been included in the capital of “ ORG delo na ORG ” ORG .

In DATE , following the adoption of LAW ( “ the ORG ” ) , the applicants , who had inherited their ancestors in equal shares , applied for the restitution of the land formerly owned by them .

In a decision of CARDINAL DATE the PERSON agricultural land commission ( “ the land commission ” ) restored the applicants’ property rights to several plots , including CARDINAL of QUANTITY on which the hotel had been constructed . The decision referred to this plot as a “ meadow ” .

On DATE the land commission issued a new decision concerning the applicants’ land , amending its previous one . In the new decision the commission did not mention the plot on which the hotel had been constructed , which , according to the applicable rules , was considered to amount to a tacit refusal to order restitution .

The applicants instigated proceedings for judicial review of the decision of CARDINAL DATE . In a final judgment of DATE the ORG quashed the decision . It noted that in DATE a proposal to expropriate the disputed plot from the agricultural co - operative had been rejected by the competent commission . It noted further that the procedure aimed at changing the land ’s status initiated by “ ORG delo na ORG ” ORG had not been completed and that the plot had not yet been registered as ORG or municipally - owned . It concluded that the land commission had had no valid legal grounds on which to amend its decision of DATE ordering restitution in kind , quashed its subsequent tacit refusal in that regard and restored the applicants’ property rights to the plot of land .

On the basis of the above judgment , on DATE the applicants obtained a notarial deed .

On DATE “ ORG delo na ORG ” ORG brought an action against the applicants , seeking a declaratory judgment to the effect that it was the owner of the plot of land at issue . The applicants brought a counter - claim for rei vindicatio . They argued that the hotel ’s buildings were unlawful and that the land had never formally ceased to be considered agricultural . They based their claims to be the owners of the land on the land commission ’s decision of DATE .

The case was examined by CARDINAL levels of jurisdiction . ORG final judgment was given on DATE .

The domestic courts found that “ ORG delo na ORG ” ORG had become the owner of the plot following its transformation into a ORG company in DATE , since the ORG enterprise of which it was the successor had previously used and managed that property . As to the ORG claims , the courts noted that they were based on the land commission ’s decision of DATE . However , this decision , as well as the Teteven ORG judgment of DATE , were not binding on “ ORG delo na ORG ” ORG , as it had not been party to the restitution proceedings . The courts thus considered that they were free to conduct an “ indirect judicial review ” ( косвен контрол ) of the restitution decision and concluded that it was invalid as the preconditions for restitution in kind had not been met . This was so in particular in the light of the provision contained in section CARDINAL of the ORG , which barred such restitution where a “ complex of construction works ” had been carried out on the land at issue . Section CARDINALb did not require the construction works to have been lawful , since what mattered was the situation at the moment of the ORG ’s entry into force .

Following the above developments , in a decision of CARDINAL DATE the Teteven ORG ( former land commission ) held that the applicants were entitled to compensation in lieu of restitution . In another decision of DATE it held that the compensation would be effected through compensation bonds , with a face value of CARDINAL NORP levs ( ORG ) . The applicants received the bonds on DATE .

The applicants sold the bonds in DATE . They received , in total , BGN CARDINAL .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE . He was employed by ORG as a border guard from DATE .

On DATE the applicant was promoted to head of the LOC section . On DATE a certification commission ( atestācijas komisija ) deemed him suitable for his new position .

After the Law on State Secrets ( see paragraphs CARDINAL below ) came into force on DATE and the adoption of Regulation no . CARDINAL of the Cabinet of Ministers , entitled “ Regulations for the Protection of State Secrets ” ( see paragraph CARDINAL below ) on DATE , the applicant was invited to apply for security clearance for work with ORG secrets . He filled in a questionnaire on DATE . According to a letter sent to ORG by ORG ( ORG aizsardzības birojs , hereinafter “ the ORG ” ) , CARDINAL of the NORP intelligence services responsible , inter alia , for issuing security clearances , he had been invited to attend a “ discussion ” ( pārrunas ) on DATE in respect of his application . The Government provided a copy of additional written explanations submitted by the applicant DATE . Therein he had explained that he had been a reserve lieutenant in ORG and a member of ORG until DATE . He denied having had any links with foreign secret services , and in that regard referred to a prior interview he had apparently had with ORG .

On DATE the head of ORG showed the applicant a letter from the ORG , which indicated that he had been refused the first category security clearance . The letter did not contain any motivation of the refusal apart from a reference to section CARDINAL(CARDINAL)(CARDINAL ) of the Law on State Secrets ( see paragraph CARDINAL below ) .

The applicant presumed that clearance had been refused because he had been suspected of past collaboration with ORG of the former GPE ( PERSON государственной безопасности in LANGUAGE , hereinafter DATE “ the ORG ” ) . He accordingly made use of the remedy available under the domestic system to have the question of his alleged collaboration adjudicated in court . As a result , in a judgment of CARDINAL DATE , ORG established that the ORG archives contained a document which indicated that on CARDINAL DATE the applicant had been recruited as a ORG “ agent ” and given a codename . His recruiter had been a ORG operative , V.P. The court , however , went on to note that there was no indication that the applicant had ever submitted any reports in his alleged capacity as a ORG agent . Moreover , the court considered that there was no evidence to suggest that the applicant had been aware that he had been an “ informer ” of the ORG . Accordingly , the court concluded that the applicant had not knowingly collaborated with the ORG . That judgment was not appealed against and became final on DATE .

NORP However , prior to the completion of the inquiry into the applicant ’s alleged collaboration with the ORG , and after he had refused to leave his job voluntarily , an order was made by the head of ORG on DATE to dismiss him from service with effect from DATE . The reasons given for the termination of his employment were the letter of the ORG and section MONEY ) of the Law on Border Guard Service ( PERSON likums ) , which provided that border guards were to be retired from service if they were deemed unsuitable for their duties . Another border guard , Major PERSON , was appointed to fill the applicant ’s position .

NORP In DATE the applicant wrote to the ORG , seeking a review of the decision concerning his clearance . On DATE the ORG responded , refusing to change the “ findings of ORG , in accordance with which it is impossible to issue PERSON the first category special clearance on the basis of section CARDINAL ) of the PERSON on State Secrets ” . Section CARDINAL ) provided that clearance would not be issued to persons suffering from alcoholism , drug addiction , mental illness or who were otherwise deemed unsuitable for work with ORG secrets ( see paragraph CARDINAL below ) . It was DATE that the applicant discovered that on DATE the director of the ORG had changed the legal basis of the refusal of the clearance from section MONEY ) to section CARDINAL ) of the relevant law .

NORP The applicant then appealed against the ORG ’s decision to ORG . On DATE the latter issued a decision , upholding the refusal to issue him clearance on the basis of section CARDINAL ) while referring to :

“ circumstances that attest to [ the applicant ’s ] personal and professional characteristics which give rise to legitimate doubts as to [ his ] ability to preserve ORG secrets – [ the applicant ’s ] frequent contact with the former ... ORG employee [ ORG ] , his hiding of information concerning the involvement of officers of the LOC section of ORG in illegal activities and needless and dangerous brandishing of a firearm in the presence of other employees of ORG while intoxicated . ”

Section CARDINAL(CARDINAL ) of the Law on State Secrets provided that ORG decision was final and not amenable to further appeal , either in court or elsewhere .

The applicant then attempted to obtain access to the materials in the investigation file on the basis of which he had been refused clearance . On DATE he was informed by the ORG that the materials were confidential ( in accordance with the regulation no . CARDINAL of the Cabinet of Ministers ; see paragraph CARDINAL below ) and not accessible to the person subject to the investigation . However , on DATE the applicant received permission to access some parts of the file and obtained copies of several documents contained therein . CARDINAL of the documents contains excerpts from a report by a border guard , officer GPE ( who was promoted to head of the PERSON section following the applicant ’s dismissal , see paragraph CARDINAL above ) to the deputy director of the ORG containing intimations that the information the applicant had disclosed about his former collaboration with the ORG had been inaccurate . Another report ( which did not contain any indication of its source ) indicated that the applicant , while intoxicated , “ had behaved aggressively with a service weapon , threatening to either shoot himself or [ GPE ] ” . The third document was a report by GPE reciting information supposedly provided by third parties concerning the applicant ’s former collaboration with the ORG and concerning “ the covering up of extraordinary incidents of alcohol use and smuggling in the LOC section ” .

The applicant complained about his dismissal from service to CARDINAL levels of courts of general jurisdiction . In a judgment of DATE the GPE Latgale District Court noted the change that had been made to the legal basis on which refusals of clearance had been made ; however , it did not find it necessary to analyse that issue , since the judgment of ORG had not refuted the fact that the applicant had been an “ agent ” of the ORG , and that section MONEY ) of the PERSON on ORG provided that clearance should not be issued to former “ agents ” of , inter alia , the ORG , irrespective of how active their involvement had been . The applicant had also asked the first - instance court to renew the procedural time - limit for appealing against the refusal to issue him security clearance . The court rejected this request by noting that the applicant had already made use of the procedure for appealing against the refusal .

An appeal hearing took place on DATE at ORG but the applicant did not attend . DATE prior to the hearing , he had informed the court that he was ill and that a doctor had ordered him to stay in bed ( “ gultas režīms ” ) . The case file contains a copy of a medical certificate , dated DATE , which states that the applicant had been put on sick leave until DATE . The certificate is made out on a pre - typed form and contains no specific details of the applicant ’s medical condition . Under the heading “ the reason for a temporary inability to work ” the doctor preparing it has ticked “ other reasons ” , as opposed to being infected with tuberculosis , having an occupational disease or having had an accident at the workplace . The court considered that the applicant had not submitted any evidence in support of his claim that his health condition had prevented him from attending the hearing . Neither had he substantiated his claim that he had been ordered to stay in bed .

The court considered that his arguments had been fully expressed in his written appeal and on that basis had decided to proceed with the hearing in his absence . The applicant was not fined for failure to attend the hearing without a justified reason . As summarised by the appeal court , the applicant in his appeal had complained , among other things , that he had been dismissed from service even before the appeal procedure against the refusal to issue security clearance had been completed .

The applicant was not represented by counsel . A representative of ORG , the respondent in the proceedings , was present at the hearing and in his oral observations before the court endorsed the validity of the judgment of the first - instance court and disagreed with the applicant ’s claim and appeal .

As to the merits of the appeal , the appellate court in its judgment of DATE indicated that the first - instance court had not adequately analysed the arguments of the parties and had exceeded the scope of its competence . It nevertheless decided to dismiss the applicant ’s claim . It held that the order of DATE discharging the applicant from service could not be deemed to be a restriction of his rights , since he had already been aware of the ORG ’s refusal to issue him security clearance since DATE . In any event , the court considered that it was impossible to reinstate the applicant to his position , since the position required him to obtain security clearance , which had been refused by a final decision of ORG , which was not amenable to appeal . The appeal court also held that there were no legal grounds to renew the time - limit for appealing against the decision to refuse the applicant a security clearance and that in any case the applicant had exhausted the appeal procedure legally available to him .

The applicant lodged an appeal on points of law . On DATE the ORG of ORG adopted a judgment dismissing his appeal . It dismissed his complaint concerning the fact that the appellate court had conducted the hearing in his absence . The ORG noted that the appellate court had regarded the applicant ’s reason for having failed to appear at the hearing as unjustified , but said that it was a question of fact which the ORG , being a level of jurisdiction which deals with alleged violations of procedural and substantive law and not with the re - evaluation of facts , was not competent to review . As regards the merits of the case , the ORG agreed with the conclusions of the appellate court .

NORP The applicant then submitted a complaint to ORG ( PERSON birojs , the predecessor of the ORG ) . On DATE he received a response , in which the ORG expressed doubts as to the constitutionality and compatibility with the Convention of the process for appealing refusals of security clearance , given that such appeals could only be made to the director of the ORG and to ORG .

The applicant then lodged a complaint of unconstitutionality with ORG , alleging firstly that there had been no opportunity for him to address his complaint concerning a refusal of security clearance to a court , and secondly that he had been denied access to the investigation file on the basis of which the refusal had been made . On DATE ORG adopted a judgment in which it declared the legal provisions in question constitutional . CARDINAL of the CARDINAL judges dissented ( see paragraphs CARDINAL and CARDINAL below ) .

The majority considered that the right of access to a court guaranteed by the LAW did not include a right to resolve in a court every issue that might be of importance to an individual . Accordingly it started its analysis by questioning whether the disputed legal norms concerned the applicant ’s rights or lawful interests . Firstly , it was noted that the freedom to obtain information did not incorporate access to ORG secrets , since there were legitimate grounds for restricting access to such information . Secondly , refusing the applicant security clearance had restricted his right to employment and equal access to employment in public service . Nevertheless , it concluded that such a restriction had been legitimate , since it had occurred for reasons related to national security .

NORP Despite finding that the refusal did not impinge upon the applicant ’s constitutional rights , the majority of ORG proceeded to analyse the question whether the appeal process involving the director of the ORG and ORG was sufficient to satisfy the requirement of access to a court . In that regard it was firstly pointed out that ORG could not be understood to be a “ court ” for the purposes of the right of “ access to a court ” . Secondly , the court referred to ORG judgments in the cases of PERSON v. GPE ( DATE , § CARDINAL , Series A no . CARDINAL ) and ORG v. GPE ( [ ORG ] , no . CARDINAL , § CARDINAL , ECHR MONEY ) , in which it was held that the right to access to a court was not absolute and was subject to limitations . The court then went on to analyse whether the impossibility of disputing the validity and legality of a refusal of security clearance before a court pursued a legitimate aim , and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved . It considered that the legitimate aim was the need to protect the confidentiality of materials contained in the investigation file regarding the person in question ’s suitability for security clearance . As concerns the issue of proportionality , ORG took into account the fact that the legislation provided CARDINAL possible method of disputing a refusal of clearance before an independent authority , namely by way of an appeal to ORG .

With regard to the adequacy of the appeal process , the court noted that the domestic legislation did not contain any details of the decision - making process involved in refusing clearance or of the subsequent appeal procedure . In particular , the observance of the audiatur et altera pars principle was not guaranteed . That led ORG to conclude that :

“ in a country governed by the rule of law it is possible to provide for a more thought - out mechanism which would permit , in the course of deciding upon whether to issue a special clearance , to take into account , in so far as is possible , both interests of ORG security and the individual interests of each person under consideration . ”

To illustrate that point , the court referred to the system in GPE as an example , where security clearance candidates were given an opportunity to make representations concerning facts relevant to the decision and to be represented by a lawyer , save in cases where a personal interview could significantly harm State security . ORG then went on to conclude that NORP legislation did not , in principle , prevent the competent authorities from implementing the audiatur et altera pars principle , particularly if the legislation were to be interpreted in the light of the LAW . It followed that the limitation of the rights of security clearance candidates was proportionate to the legitimate aim of protecting ORG security .

As regards the fact that the applicant had been denied access to the investigation file , ORG viewed it as a restriction of the right to respect for private life . Referring to ORG Rights’ judgment in the case of GPE v. GPE ( DATE , § CARDINAL , Series A no . CARDINAL ) , it noted that interests of national security could justify such an interference with private life and concluded that in the applicant ’s particular situation such an interference had been justified .

Judge PERSON in her dissenting opinion focused on the fact that the process for appealing a refusal of security clearance to the director of the ORG and ORG did not ensure an adequate implementation of the audiatur et altera pars principle . She criticised the majority ’s reliance on the assumption that the applicable legislation would be interpreted broadly and in accordance with LAW so as to implement the principle of hearing both parties’ arguments because “ the practice shows that in transitional legal systems , such as GPE , the principle of hearing all parties is not implemented unless it is provided for in the law , which is a fact borne out by the present case ” .

Judge PERSON

After gaining partial access to his investigation file ( see paragraph CARDINAL above ) , and acting on the advice of ORG , the applicant , relying on new information , applied for the proceedings concerning the alleged illegality of his dismissal to be reopened . On DATE ORG dismissed his application , finding that the new information related to the reasons for the refusal of security clearance , the illegality of which had not been the subject matter of the original proceedings . The applicant then missed the time - limit for submitting an ancillary complaint against ORG decision . In a final decision of CARDINAL DATE the ORG of ORG refused to accept the applicant ’s belated ancillary complaint .