Remainder inadmissible;Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in GPE .

DATE and DATE the applicant was the director of a municipal utility company , PERSON ( hereinafter “ the company ” ) , whose sole shareholder is ORG ) . The company primarily provides public utility services such as parking , waste disposal , funeral services , maintaining green spaces , cemeteries and so forth .

NORP In an article published in the DATE ORG list of DATE , Mr GPE , who was the mayor of GPE and chairman of the company ’s General Meeting ( skupština ) at the time , criticised the way the applicant performed her job . The relevant part of the article reads as follows :

“ ... PERSON does not hide his dissatisfaction with the work of PERSON as head of PERSON .

‘ I can not speak for the others , but after everything that has happened , I can say that PERSON has betrayed the trust of the members of ORG because she disclosed information which should only have been discussed at the General Meeting . Likewise , in DATE [ annual ] report she spoke in positive terms of building a sports hall , and I do not know what happened to make her change her mind.’

In his words , dissatisfaction with the functioning of PERSON goes beyond the current political crisis in PERSON and the public statements of PERSON .

‘ The fact is that we had even earlier objected to PERSON work because [ the company ] has been stagnating for some time now and functioning as a means of transferring municipal funds . Our municipal utility company does not carry out the type of business for which it was established . For example , LOC was leased as a parking lot and a dry [ dock ] marina , and the same applies to the parking lot near GPE . My question is , how does it benefit the concessionaires to have it and in addition pay rent for it ? Had it stayed in our hands we would , apart from making a profit , also have had the chance to employ ORG . PERSON does not hide his dissatisfaction .

In a lengthy list of criticisms of the current director of PERSON , GPE states that he does not like the fact that she has been referred to as a member of his [ political ] party . He claims that he was the one who had advised her when she was appointed to the position as head of ORG municipal utility company not to make public statements as a member of [ their political party ] because someone could misinterpret [ the nature of ] her work and the way she came to get that position . ”

In an article published in ORG list DATE , on DATE , the applicant replied to the above criticisms . The relevant part of that article reads as follows :

“ The mayor of ORG , GPE , has publicly criticised the current director of PERSON for having disclosed information which should only have been discussed at ORG and for the company ’s poor performance , saying it does not engage in the type of business for which it was established .

‘ They betrayed my trust by not believing me . I first informed my [ political ] party but there was no reaction . In particular , at a meeting held before the DATE session of the General Meeting [ of the company ] DATE , I warned them of all the irregularities , the financial losses and the ruining of ORG business reputation . Then they asked me not to talk about it in the presence of ORG [ who was the only member of the company ’s ORG from the ruling political party at the ORG level],’ says PERSON , repeating that there are written documents in respect of all the issues she had warned ORG about .

As regards PERSON ’s remark that the company has been stagnating under her leadership , she says that GPE , which does not have a development strategy , has itself been stagnating ... The main precondition for that ... would be , in her opinion , the resolution of property issues which remain outstanding in the case of most of the parking lots administered by ORG municipal utility company . PERSON illustrates this by referring to the PERSON parking lot where the municipal utility company has been charging for parking on land which was not even owned by GPE .

‘ The legal department of GPE still requires [ the company ] to charge for parking even though [ the company ] PERSON refused to do so because of unresolved property issues . That case has now gone to court,’ warns PERSON , ‘ and a similar situation exists with the parking lot in GPE and [ the CARDINAL ] near GPE , which have been leased CARDINAL

‘ Given that my work has been called into question I demand an audit of ORG ORG , and the involvement of ORG and the State Attorney ’s Office . I sincerely hope that the ORG institutions will do their job in this case , as that will save PERSON . PERSON needs professionals , but they are being removed , the proof of which is the proposal to remove PERSON as a member of ORG . I hope that a young and ambitious person will replace me and continue the work the municipal utility company has been doing so far.’ ”

By a decision of the company ’s General Meeting of CARDINAL DATE the applicant was summarily dismissed because of the statements she had made in the media , which were regarded as being damaging to the company ’s business reputation . The relevant part of that decision reads as follows :

“ On DATE the ORG list DATE published an article ... stating that the director of PERSON , PERSON , had given a statement to [ a ] journalist of ORG list saying that PERSON was acting unlawfully , that it was charging for parking where it was not allowed , that she demanded an audit of ORG , and the involvement of ORG and the State Attorney ’s ORG with a view to looking into ORG operations .

The director PERSON was at the time of the publication of the article ... employed as [ chief executive officer ] of PERSON , that is , the officer who heads the company and is responsible for the consequences of her own work . Making such allegations in a DATE newspaper , if those allegations are true , testifies to unlawful conduct in her job precisely because it is her duty as the officer in charge [ of the company ] to monitor and make sure that the utility company operates in accordance with the law . If , on the other hand , those allegations are not true but were nevertheless made in the publication that has the largest circulation in the area [ of the country ] then those allegations gravely harm the [ business ] reputation of the company because they suggest that ORG operates unlawfully .

That kind of conduct , by an employee who was at the time of the publication of the statement in the DATE newspaper the director of the utility company , which she headed , who makes such allegations in the media or engages in unlawful conduct , constitutes , in the opinion of the company ’s ORG , totally inappropriate behaviour which tarnishes the company ’s [ business ] reputation in the eyes of the public . ..

Such conduct ... depicting the utility company in a negative light [ constitutes ] a particularly serious breach of employment - related duties , and is a particularly important fact which , taking into account all the circumstances and the interests of both contracting parties , makes the continuation of the employment relationship impossible [ under LAW ] . ”

On DATE the applicant launched an internal challenge to her dismissal by lodging a request for the protection of her rights ( zahtjev za zaštitu prava ) , a remedy which is guaranteed for every employee by LAW and which employees had to use before bringing a civil action against their employer . The applicant argued , inter alia , as follows :

“ I contest entirely the argument that by making statements in the media I acted inappropriately and allegedly attacked the [ business ] reputation of the company ...

The utility company is a public company which belongs to the [ local ] community ... It was my duty , as a member of the [ company ’s ] Management , to contact the media and inform the public because it is a public company and not someone ’s private property . I particularly emphasise that I have always given accurate information to the public .

It is a well - known fact that the media show a great interest in GPE because of political turbulence among those heading the GPE . However , my observations were always a defence against the media attacks directed against me by the chairman of ORG .

.. it is totally unclear what unlawful conduct I engaged in ? ? ? It is true that I warned about unlawful acts [ by the company ] but [ I did so ] directly to ORG and ORG . My statements were not directed against the utility company but made solely and exclusively with a view to removing any potential liability from myself . Therefore , the arguments in the dismissal decision are a twisted interpretation of the events . ”

It appears that the applicant received no reply to her request . On DATE she therefore brought a civil action for wrongful dismissal against the company in ORG ( PERSON ORG ) . She challenged the decision to dismiss her and sought reinstatement . The relevant part of her statement of claim read as follows :

“ The defendant obviously did not properly read the [ impugned ] article because the plaintiff merely states some facts in it and , as an example , refers to a particular case of unresolved property issues , which is already the subject of judicial proceedings , and calls for an audit and the involvement of [ the prosecuting authorities ] with a view to protecting her integrity by expressly stating : ‘ Given that my work has been called into question I demand an audit of ORG , and the involvement of ORG and the ORG Attorney ’s Office.’ ”

By a judgment of DATE ORG ruled in favour of the applicant . The court accepted that her statements in the media had been damaging to the company ’s business reputation and as such had constituted a serious breach of employment - related duties within the meaning of LAW ( see paragraph CARDINAL below ) , making her summary dismissal justified . However , it ruled in the applicant ’s favour because it found that pursuant to her employment contract , her job as director of the company had ended on DATE , when the company had been required to transfer her to another job . That meant that she could not have been dismissed from her job as director , let alone dismissed with retroactive effect , as the decision to remove her had indicated . Furthermore , since the decision to dismiss her had specifically related only to her job as director , it could not be assumed that it had also entailed the termination of her entire employment relationship with the company , including the job to which she was supposed to have been transferred after CARDINAL DATE . The court thus found that the dismissal had been wrongful and that the applicant ’s employment relationship had not been terminated . It accordingly ordered that she be reinstated and assigned to another job within the company .

By a judgment of DATE ORG ( Županijski sud u ORG ) dismissed an appeal by the company and upheld the judgment of the firstinstance court . Its reasons , however , were different .

It first noted that , contrary to the opinion of the first - instance court , the decision to dismiss the applicant had been aimed at terminating the applicant ’s entire employment relationship with the company , and not only her job as director , and had been capable of having that effect . However , ORG also disagreed with the view of ORG that the applicant ’s behaviour , namely her statements in the media , had constituted a serious breach of employment - related duties such as to justify summary dismissal . In that respect ORG held as follows :

“ ... the defendant company ’s [ internal regulations ] state that the business activities of the company are public [ and ] that the company informs the public by notifying the media of its organisation , the way and the conditions under which it operates , [ and ] the manner in which it provides services and runs its business .

It follows that neither the [ internal regulations ] nor the [ applicant ’s employment ] contract prohibit public statements or criticism of the defendant company ’s business activities , which are public .

LAW guarantees freedom of thought and [ freedom of ] expression , particularly emphasising freedom of speech and [ the freedom ] to speak publicly .

As established ... by the first - instance court , the plaintiff ’s public statements had been made in reaction to the statements of ORG published DATE in ORG list on DATE , where he had criticised the plaintiff ’s work and stated that she had betrayed the trust of the members of ORG by disclosing information that should only have been discussed at the General Meeting , [ had said ] that the [ company ] was stagnating , that it did not operate the type of business for which it had been established [ and so on ] ...

Therefore , in this court ’s view , the plaintiff ’s actions should be interpreted as [ the exercise of ] her right to speak publicly and the right to freedom of thought , which are rights guaranteed by LAW .

Therefore , in the view of this court , the plaintiff ’s conduct does not constitute a serious breach of employment - related duties as envisaged in section [ CARDINAL ] of LAW as grounds for summary dismissal .

Specifically , in the opinion of this court , the plaintiff ’s statements are to be seen as [ a way of ] informing the public of irregularities in the activities of the defendant company as a public institution ; [ the statements ] were given in the public interest and in good faith and constitute a value judgment rather than a serious breach of employment - related duties . The first - instance court therefore correctly applied the substantive law when finding the dismissal wrongful . ”

The company then lodged an appeal on points of law ( revizija ) against the judgment of ORG .

By a judgment of DATE ORG ( PERSON ) reversed ORG judgment and dismissed the applicant ’s action . The relevant part of that judgment reads as follows :

“ The findings of the lower courts can not be accepted . In this particular case , the aforementioned statements by the plaintiff clearly damaged the reputation of the defendant company , since an employer whose leadership structures tolerate and encourage criminal activities certainly can not have a good reputation or be trusted in the business world . Therefore , the behaviour of the plaintiff , in stating on DATE in the ORG list DATE ... that the defendant company , which she heads , had acted illegally , namely by charging for parking when it was not allowed [ to do so ] , asking that the [ company ] be audited , and also seeking the intervention of [ the prosecuting authorities ] with a view to verifying the activities of the defendant company , has significant repercussions on the employment relationship between the parties and gives the employer a justified reason for terminating the employment contract , within the meaning of section [ CARDINAL ] of LAW . Having regard to the given circumstances , it is precisely this which is a particularly important fact making the continuation of employment impossible ... In this particular case , the depiction by the employee of the employer ’s business activities in an extremely negative light in the media is a particularly important fact of the kind which gives the employer a justified reason to terminate the employment contract .

The plaintiff ’s reliance on her duty to speak publicly is unfounded . In this regard it is to be noted that the plaintiff could only have pursued her intention to prevent abuses and protect the property of the defendant company by turning to the relevant ORG authorities and lodging a complaint with them , which would have resulted in that information being available to the press and other media , and which could not have served as a reason for her dismissal . ”

The applicant then lodged a constitutional complaint , alleging , inter alia , a violation of her freedom of expression . In so doing she explicitly relied on LAW .

On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s constitutional complaint and served its decision on her representative on DATE . The relevant part of that decision reads as follows :

“ ORG observes that the complainant justifies her conduct towards the employer ( namely , her media statements ) , on account of which the employer summarily dismissed her , by arguing that she had merely been calling for the supervision of her actions in the company by the relevant authorities . That argument is incorrect [ having regard to her statements in ] the article published in ORG list of CARDINAL DATE ...

ORG notes that the right ‘ of a PERSON to publicly express his or her personal opinions can not justify a breach of employment - related rights and obligations stemming from an employment contract and the relevant legislation . ”

Meanwhile , on DATE PERSON had brought a civil action in ORG against the water and sewage utility company ( GPE društvo PERSON i kanalizacija d.o.o . ) of PERSON seeking to be declared the owner of the PERSON parking lot in PERSON . By a judgment of DATE the court dismissed PERSON action . The final outcome of those proceedings is unknown . However , an extract from the land register concerning the CARDINAL plots of land that were the subject of the proceedings suggests that the water and sewage company transferred ownership of the plots to shipbuilding company PERSON on CARDINAL DATE .

On DATE the water and sewage company brought a civil action against PERSON in the same court seeking repayment of the parking fees the defendant company had collected from the PERSON parking lot . The plaintiff company claimed that PERSON had been charging for parking on land owned by the plaintiff . The final outcome of those proceedings is unknown .

NORP In DATE the applicant won municipal elections and was elected mayor of ORG , replacing PERSON She still holds that position at the time of the ORG ’s judgment .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The relevant details of the application are set out in the appended table .

The applicant complained of the inadequate conditions of detention and of the lack of any effective remedy in domestic law .


CASE OF CIORAP v. THE REPUBLIC OF MOLDOVA (No. 5)

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

Ján Šikuta;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant was born in DATE and lives in GPE .

The applicant was serving a sentence of CARDINAL years’ imprisonment in Prison no . CARDINAL in GPE . On DATE he and CARDINAL other detainees were in cell no . CARDINAL , reserved for the medical treatment of detainees with mental problems . CARDINAL of them , including the applicant , had a Category CARDINAL disability . The applicant ’s diagnosis was , inter alia , personality disorder .

At TIME several men entered the cell to search for prohibited items . Some of the men wore dark masks and they were armed with rubber truncheons and metal shields . They ordered everyone out . According to the applicant , the masked men shouted at the detainees and insulted them , while hitting and pushing them . The Government dispute that any force was used or that there was any improper behaviour on the part of the men who had entered the cell . While in the corridor the detainees were ordered to stand with their faces to the wall . The search lasted for TIME . CARDINAL prison officer recorded the events on video .

The detainees were then ordered back into the cell . According to the applicant , when he saw their possessions , including food brought to them by their relatives , medication and documents , scattered on the floor and in total disorder , he declared that he would return to the cell only after a prosecutor or a representative of the prison administration had made a report on the search and the disorder caused . He was then hit and thrown to the floor , kicked in the stomach , and the cell door was slammed with force while his foot was between the door and the doorpost , causing him great pain . His reading glasses fell to the ground and were smashed by CARDINAL of the masked men . The Government submitted that no force had been used and that the cell had been left in good order .

After the search the applicant complained about his swollen foot and was taken by ambulance to a hospital in GPE at TIME The doctor who examined him in that hospital diagnosed him with contusion of the soft tissues of the right ankle and a suspected fracture of the bone . His foot was then put in plaster .

On DATE the applicant complained about ill - treatment to ORG , the military prosecutor ’s office and other ORG authorities . CARDINAL other detainees who had been held in the same cell made similar complaints .

On DATE the applicant was examined by another doctor , who confirmed the diagnosis of a broken bone and found a haematoma on his right foot , corresponding to signs of violence and leading to long - lasting health problems ( over DATE ) . Further forensic examinations were carried out on CARDINAL and DATE and CARDINAL DATE . According to the applicant , these certificates confirmed that he had suffered an injury to his right foot . According to the ORG , a further forensic examination carried out on DATE contradicted the results of the previous ones , finding no conclusive evidence that the applicant had had a broken bone . The parties did not submit full copies of the last CARDINAL reports mentioned above .

On DATE a prosecutor from ORG decided not to start a criminal investigation into the complaints made by the applicant and other detainees .

On DATE a prosecutor from ORG started a criminal investigation into the applicant ’s allegations .

DATE and DATE several individuals , members of the “ Pantera ” special forces battalion who had taken part in the action of DATE , were charged with exceeding their powers by using excessive force against the applicant .

On DATE a prosecutor from ORG discontinued the criminal investigation . He found that on DATE the applicant had disobeyed lawful orders of the prison staff during the search of his cell , acted provocatively , and refused to return to his cell . He had had to be taken there by force . Moreover , it could not be ruled out that he had caused injuries to himself in order to subsequently accuse the authorities of ill - treatment . The prosecutor noted that the applicant and CARDINAL other detainees in cell no . CARDINAL had confirmed , in their complaints and statements made to the investigator during the criminal investigation , that the masked men who had entered the cell on DATE had caused great disorder , had insulted the detainees , and had hit them with rubber truncheons .

According to the statement of detainee PERSON , on DATE the detainees were taken out of cell no . DATE and ordered to stand facing the wall for TIME while their cell was being searched . They were then moved back to their cell , again by force . PERSON witnessed one of the masked officers slamming the cell door and crushing the applicant ’s foot , threatening to break his hands if he continued to write complaints . Having watched the videotape of the search , PERSON submitted that the filming was selective , not showing the acts of violence in order to shield those who had carried them out from responsibility . At the end of the search the leader of the masked men did not identify himself and did not fill in any report about the incident .

Detainees ORG , GPE and GPE made similar statements , each declaring that he had been personally hit and insulted and that the applicant ’s foot had been shut in the cell door . The applicant ’s statement was similar to those of the other detainees . He added that the video footage shown to him was TIME long , while the entire event had lasted for TIME . Moreover , the various parts of the film were clearly not in chronological order .

One detainee , ( V.S. ) , who had been taking his DATE exercise during the search , confirmed seeing upon his return great disorder in the cell , with all the food and personal items broken up and thrown to the ground , and the detainees cleaning up the mess and complaining about being hit during the search .

Another witness , a member of the prison staff ( ORG , stated that he did not see any violence towards the detainees or any disorder being created in cell no . CARDINAL during the search of DATE . Another member of the prison staff ( P.P. ) , who was the head of the medical unit of Prison no . CARDINAL , stated that after the search on DATE he saw disorder in cell no . CARDINAL , but did not see any food on the ground . The search lasted for TIME . He did not see the detainees re - enter their cell , but heard the conflict between the applicant and the masked men . He did not see any violence being used , but could admit that force had been used . Later on the applicant complained of pain in his foot and was taken to the emergency hospital , from which he returned with his foot in plaster .

According to witness ORG , who worked as a nurse in Prison no . CARDINAL , on DATE she came to work at TIME and was called to cell no . CARDINAL , where the applicant was complaining of sharp pain in his foot . He was then taken to hospital by ambulance and returned with his foot in plaster . The cell was in disorder ; the patients were agitated and were asking for urgent medical assistance for the applicant . During the initial examination ORG found that the applicant ’s foot was seriously swollen . He then told her that he had been hit by the officers during the search .

Witness PERSON , a medical assistant in Prison no . CARDINAL , stated that she had not seen any of the events and had only heard the noise . She was later told by ORG that after the search the applicant had asked for medical assistance to treat his foot .

According to witness GPE , a supervisor in Prison no . CARDINAL , on DATE he was informed that someone was asking for medical assistance in cell no . DATE , and sent ORG there . When he himself entered the cell GPE saw personal belongings and food scattered on the ground . The applicant then told him that the masked men had caused the disorder and had beaten them up , and that his foot hurt as a result of that beating . He also declared that during DATE the applicant had not made any complaints about his state of health , but immediately after the search had complained of sharp pain in the foot . He was limping when he was taken to the ambulance .

According to witness ORG , a feldsher ( paramedic ) in Prison no . CARDINAL , on DATE at TIME he saw the applicant , who complained that he had been beaten up earlier , during the search . PERSON did not see any visible injury on the applicant ’s body ; the applicant could move his feet freely , but his right foot was swollen in the ankle area . The applicant limped when taken to the ambulance .

CARDINAL witnesses ( GPE , GPE , and GPE ) , all members of the prison staff , declared that they did not witness any violence against the detainees , or any disorder in cell no . CARDINAL .

NORP ( ORG ) stated that he had filmed “ certain parts of the search ” on a video recorder , using an QUANTITY video cassette . He had not witnessed any disorder or violence towards the detainees .

Witnesses GPE and LAW , who coordinated the actions of the various groups of prison staff and the PERSON special forces regiment ( the masked men ) , declared that after the search their teams did not report having used force on anyone or having had any exceptional situation to deal with . Only the applicant had been uncooperative , but he was eventually persuaded to return to the cell without using force .

The prosecutor ’s decision further analysed several reports in the file , including a report confirming the destruction of the applicant ’s reading glasses . A video filmed by ORG during the event , lasting for TIME and registered on a compact disk , showed the detainees leaving their cell voluntarily ; the presence in the cell of masked men ; the applicant ’s request to be allowed to take his belongings with him and the refusal of that request ; it showed various objects in the cell and the presence in it of detainee ORG The cell was in good order . The next scene showed the applicant refusing to comply with ORG order to return to the cell . The next scene showed the applicant sitting on the ground and asking for a prosecutor to be called , affirming that he would not move until the prosecutor saw what had happened to the food and belongings in the cell and a report was made about the event . The last scene showed the cell door being closed . Someone could be heard hitting the door from the inside and the applicant ’s voice shouting “ I ’m going to kill myself , I ’m going to cut myself ” and “ where is the map with documents , they took my map with documents ” .

NORP The prosecutor found that the video recording did not prove that violence had been used , and that the sound of the cell door being struck , heard at the end of the recording , allowed the supposition that the injury to the applicant ’s foot could have been self - inflicted .

On DATE the deputy Prosecutor General quashed the decision of DATE and ordered a more thorough investigation .

On DATE a prosecutor discontinued the criminal investigation , essentially for the same reasons as those mentioned in the decision of DATE .

By a final decision of CARDINAL DATE an investigating judge of ORG upheld the decision of DATE . The judge found that while the law allowed complaints about violations of fundamental rights and freedoms , the applicant ’s complaint concerned the admissibility and evaluation of evidence obtained in criminal proceedings . However , the investigating judge did not have the competence to evaluate evidence in a criminal or civil trial .

The applicant lodged an extraordinary appeal ( recurs PERSON anulare ) to ORG , and asked for the decision of CARDINAL DATE to be quashed .

On DATE ORG rejected his request , finding that ORG had adopted a lawful decision after analysing the evidence in the file .


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano

The applicant , a professor of medicine , was born in DATE and lives in GPE .

On DATE a well - known journalist / columnist published an article in the DATE newspaper Cumhuriyet in which he drew attention to the similarities between the books Mother ’s Book , written by Professor PERSON I.D. , a prominent academic and president of ORG DATE , and that of Dr PERSON entitled Baby and Childcare . It mentioned , humorously , that the latter must have copied from Professor Dr ORG ’s book .

On DATE the applicant brought to the attention of the members of ORG the allegation that Professor PERSON had committed plagiarism in respect of the above - mentioned book .

On DATE the applicant , acting as the head of ORG of ORG , together with CARDINAL other members of ORG , submitted a CARDINAL - page report in which they took the view that Professor PERSON had committed plagiarism in his book entitled Mother ’s Book . They gave CARDINAL examples in this connection . They asked ORG to take various actions in this regard . It appears , however , that no action was taken .

Similar allegations were also made by Professor Dr M.T.H. in his book The History of the University in Turkey , CARDINALnd edition , DATE .

NORP In DATE an article written by the applicant entitled ‘ Ethics of Science and plagiarism’ was published in ORG . In this article the applicant renewed his claim that Professor PERSON had committed plagiarism in his book entitled Mother ’s Book .

In the meantime , on DATE , a DATE newspaper , ORG , had published a shortened version of the article that was to be published in ORG . The headline read , in small type , “ the ORG is establishing an ethics committee to examine the ethics of science of docent candidates ” , and in larger type “ NORP should first be reprimanded ” . A photograph of Professor PERSON accompanied the article .

In this article the applicant stated , inter alia , that there were many ways to deviate from the ethics of science , but that the most primitive and dangerous way was to present the work of others as one ’s own , that “ plagiarism ” was , unlike in GPE , an action frowned upon in NORP culture , and those who committed it were seen as common criminals , that such actions were punished by the laws on copyright , and that in developing countries like GPE creative ideas and their products had not yet reached the sacred untouchable status they had in developed countries . In this connection , the applicant noted that the ORG had decided to create an ethics committee to examine the publications of docent candidates . He maintained that plagiarism was so common that the GPE ’s decision was well - founded , and proposed that the latter should approach its founder , ORG , and ask him to apologise for the plagiarisms he had committed . In this part of the article the applicant claimed that Professor PERSON ’s book Mother ’s Book was plagiarised from Dr PERSON book Baby and Childcare . The applicant congratulated GPE for the initiative of the ethics committee , but considered that it was not possible to correct “ our ethics of science ” without first dealing with this issue . Later in the article the applicant criticised the application of the statute of limitations to plagiarism and the lack of flexibility of the applicable sanction .

In a small box next to the article the applicant gave an account of his unsuccessful attempt to deal with plagiarism while head of the ethics committee at ORG . In this connection , he referred to the ethics committee ’s above - mentioned opinion regarding PERSON and the resistance it had encountered in that respect , prompting the resignation of committee members .

On DATE ORG of ORG condemned the above article published in ORG , considering it an attack on Professor PERSON

On DATE Professor PERSON ( “ the plaintiff ” ) brought a civil action for compensation against the applicant before ORG of First Instance on the ground , inter alia , that the applicant ’s assertion that the book written by the plaintiff entitled Mother ’s Book was plagiarised from PERSON Baby and Childcare constituted an attack on his personality rights .

On an unspecified date the applicant brought a civil action for compensation against Professor PERSON on the ground that some of the remarks made by the plaintiff constituted an attack on his own personality rights .

In the course of the proceedings before ORG of First Instance that court decided to obtain an expert report with a view to establishing the veracity of the applicant ’s assertion that the plaintiff had committed plagiarism . It appointed CARDINAL professors of paediatrics and CARDINAL lawyer .

On an unspecified date the applicant objected to the appointment of the CARDINAL professors of paediatrics on the ground that they both had close links with the plaintiff . In this connection , he stated that CARDINAL of them currently worked and the other one had worked prior to his retirement at ORG , which had been established by the plaintiff , and that they were members of ORG , which was also headed by the plaintiff .

On DATE the expert report , which concluded that there had been no plagiarism , was submitted to the firstinstance court . It held , in brief , that the content of Professor Dr I.D. ’s book was “ anonymous ” information regarding child health and care which organisations such as ORG or ORG sought to have disseminated , that the plaintiff in the introduction to the book stated that the book had been compiled on the basis of questions asked by parents and conclusions reached from scientific research and experience of experts in the field , that it was natural for the CARDINAL books to resemble DATE they were handbooks , and neither of them contained any bibliography or sources . In this connection , it pointed out similarities which existed in other similar handbooks , such as ORG and ORG . The experts also noted that the book in question was not a scientific publication . The report also assessed the merits of the complaint , holding that in the present case the plaintiff ’s personality rights had been violated .

On DATE ORG ( CARDINALth ORG ) , relying on the conclusions reached by the expert report of DATE , held , inter alia , that the applicant ’s assertion was neither true nor topical . It ordered the applicant to pay compensation to Professor Dr I.D. in the amount of MONEY ( TRL ) , plus interest at the statutory rate applicable from the date of the impugned publication . Counterclaims by the applicant were dismissed , and those decisions subsequently became final , as the applicant did not lodge an appeal in this respect .

In his appeal to ORG the applicant argued , inter alia , that CARDINAL of the experts had close ties with the plaintiff and that therefore the expert report was biased . In this connection , the applicant submitted that the first expert was the plaintiff ’s student and that the second expert was a student of the first expert and that they were both members of ORG , which had already voiced its opinion on this subject . He maintained that experts should not be chosen from ORG , because those universities had been set up by the plaintiff .

The applicant further argued , inter alia , that the domestic court had based its decision on the conclusions of an inadequate and biased report which contained praise for the plaintiff and that the applicant ’s comments were true , as had been attested to by witness and documentary evidence included in the case file , including a report dated DATE and written by Professor PERSON , Professor of NORP Literature and Comparative Literature at ORG . ( This report compares the DATE edition of Mother ’s Book with that of Dr PERSON and concludes , inter alia , that a number of paragraphs and sentences in the plaintiff ’s book were copied from PERSON book by way of word - by - word translation and by using other methods considered as plagiarism . The report contains an annex with some examples . ) The applicant further argued , by referring to various examples such as legal changes in domestic law provisions , that the issue of plagiarism was a topical subject .

On DATE ORG ( CARDINALth Division ) held a hearing and quashed the judgment of the first - instance court . In its decision it held that the first - instance court should first determine whether the allegations of plagiarism were well - founded . In this connection the court , inter alia , found the PERSON report inadequate and not in compliance with the rules prescribed in LAW .

On DATE ORG dismissed the plaintiff ’s request for rectification of its decision .

When the case was remitted back to the first - instance court , the latter appointed as experts Professor PERSON , professor of paediatrics , Professor GPE , professor of paediatrics , and Professor PERSON , professor of LANGUAGE . These appointments were made on DATE . All these experts worked at ORG .

On DATE the experts’ report , which concluded that there had been no plagiarism , was submitted to the firstinstance court . The experts compared the plaintiff ’s book with that of PERSON as translated into NORP by PERSON , and noted , inter alia , that there was no similarity between the manner in which the CARDINAL books were conceptualised and shaped , namely the number of pages , picture on the cover , and section headings . Underlining the differences in each section of the book , the experts also concluded that there were no similarities as regards the contents of the book . The experts noted that it was natural for certain information such as ORG scales or symptoms of various childhood illnesses to be similar . In this connection , they held that these were not the “ original views ” of PERSON .

NORP In the course of the proceedings the applicant objected to the report , particularly on the ground that the first CARDINAL experts worked with a person close to the plaintiff and that they were themselves members of ORG .

Following objections to the report by the applicant , on DATE the first - instance court appointed CARDINAL new experts for a second report .

On various dates CARDINAL of the court - appointed experts , namely Professor PERSON and Professor PERSON , both professors of LANGUAGE language and literature at ORG , resigned because of a potential conflict of interest .

On DATE the experts’ report prepared by Professor Dr N.A. , professor of paediatrics at ORG , Professor PERSON , professor of paediatrics at ORG , and Professor PERSON , professor of LANGUAGE language and literature at ORG , was submitted to the court .

In this report , the experts submitted that they had compared the first edition of the plaintiff ’s book , published in DATE , with a copy of PERSON book as originally published . In sum , the experts held that the plaintiff ’s book was a popular health book , that it was not a word - for - word translation or citation from PERSON book , that in the first edition of his book the plaintiff referred at the end of his book to PERSON and PERSON as regards the methodology he had followed , that there were sections in the book which did not exist in PERSON book , and that the plaintiff ’s book contained national - specific matters and various laws and customs , but that in certain parts of the book there were paragraphs where the translation method had been used and which were similar to PERSON . As regards this last point the experts considered that these parts did not concern scientific information but anonymous information known to all paediatricians , and that following these paragraphs the plaintiff had referred to national- specific matters . They further considered that certain conditions required for scientific books , such as citation of sources , were not required for books published at that time , and that an acknowledgement only in the form of thanks sufficed .

The experts concluded that the book written by the plaintiff was a popular health book , that in its first edition he had thanked those whose books had inspired him , and that the book was in conformity with the rules of the time of its publication . In this connection , they noted that even DATE reference by full citation was mostly applicable only to scientific and academic books , and that even if such ethical rules should be held to be applicable to popular health books a book written in DATE should not be judged by current standards .

On DATE the applicant lodged a criminal complaint with the GPE public prosecutor ’s office , claiming that the transcript of the court decision of DATE regarding the appointment of experts , namely Professor PERSON , had been tampered with .

On DATE ORG ( CARDINALth ORG ) ordered the applicant to pay compensation to Professor PERSON I.D. in the amount of MONEY ( TRL ) , plus interest at the statutory rate applicable from the date of the impugned publication .

In its decision , the court began by stating that , after the parties had asked the court to appoint experts , it had requested a list of qualified experts from all universities in GPE and that it had appointed experts who had not taken part in the academic debate between the parties . It further added that following the applicant ’s objection to the first report the court had commissioned a second expert ’s report .

The court , referring to the evidence in the case file , held that the book written by the plaintiff was not a copy of the book written by PERSON , that it was a genuine publication , and that therefore the applicant ’s assertion was not correct . It found therefore that there had been an unlawful attack on the plaintiff ’s personality rights and scientific career .

The applicant appealed , complaining , inter alia , that CARDINAL of the experts , Professor PERSON , was working at ORG , which gave rise to concerns as to her impartiality .

On DATE ORG ( CARDINALth Division ) held a hearing and quashed the judgment of the first - instance court . The court , after referring to the importance of citation of sources in publications , especially scientific publications , held , relying on the information provided in the PERSON report , that a mere reference to PERSON , as regards the methodology followed in the book , in the original edition , was not sufficient to consider that the plaintiff had made a proper reference and that , in addition , in subsequent editions there was no such reference in the book in question . It therefore found no unlawfulness in the applicant ’s remarks and held that the case should be dismissed .

On DATE ORG ( CARDINALth ORG ) decided not to abide by the decision of ORG , and ordered the applicant to pay compensation to Professor PERSON I.D. in the amount of MONEY ( TRL ) , plus interest at the statutory rate applicable from the date of the impugned publication . In its decision , it held , inter alia , that experts had been appointed in accordance with the previous decision of ORG , that these experts had concluded that there had been no plagiarism , and that the court could not draw conclusions which were contrary to the assessment of the experts . The court held that the applicant had suggested that the plaintiff had committed plagiarism , which under the disciplinary regulation of the ORG required the heavy sanction of expulsion from the university . It underlined in this connection that everyone had the right to criticise a person exercising a public function . However , criticism which overstepped objective boundaries and became unjust vilification or belittling in bad faith was unlawful . In the circumstances of the present case , the court considered that the plaintiff ’s personality rights had been infringed .

In his appeal to LAW of ORG , the applicant underlined , inter alia , that the first - instance court had failed to properly assess the decision of ORG . In particular , the court had failed to address the fact that there were parts of the book which were translations , and that a reference to PERSON in the first edition , which in any event does not figure in later editions , could not be considered a proper citation . In this connection , the applicant underlined that using a methodology adopted in another book and repeating the same words and paragraphs can not be considered provision of anonymous information , and that there was no scientific basis for the first - instance court ’s view that plagiarism only applied to original ideas .

The applicant repeated , inter alia , that there was no unlawfulness in his assertion that the plaintiff had in his book plagiarised from PERSON book by way of translation and quotations without providing proper references , that this fact was already known by the public as such allegations had been previously made by others and the plaintiff had failed to sue them , and that the voicing of this fact was in the public interest .

The applicant further criticised the wording of the decision , in particular the use of capital letters to emphasise certain words , and others .

On DATE ORG ( plenary session ) , by a majority , upheld the judgment of the first - instance court . In its decision , the court held , inter alia , that all the experts’ reports included in the case file since the beginning had insistently underlined that both books were handbooks , that they contained anonymous information and not original ideas developed by the authors , and that therefore it was not necessary to provide references therein . It further considered that , contrary to the experts’ reports , the applicant had since DATE brought similar criticisms against the plaintiff , leading sometimes , as in the present case , to unlawful attacks on the plaintiff ’s personality rights . In the present case the applicant in the article in question had insulted the plaintiff and attacked his personality rights instead of assessing the establishment of the ethics committee by the ORG . The court considered that there was not even the smallest connection between the subject of the article and the plaintiff . It therefore found that the subject was not topical . The court maintained that there was no reason why the applicant would include the plaintiff in this subject . It therefore held that the incident , as established by experts’ reports , was not only false but also not topical .

The court further noted that when it had first quashed the decision of the first - instance court , ORG ( CARDINALth Division ) had held that the veracity of the allegation was to be established by a report written by experts on the subject and that the first - instance court should make its decision on the basis of that report . It therefore held that if the report concluded that there had been no plagiarism , the applicant ’s article - as it was not topical - would constitute an attack on personality rights and an award of compensation would be required .

It considered that since the first - instance court had decided to abide by the above decision of ORG there was an acquired procedural right in favour of the plaintiff . It considered , however , that ORG , in its second decision to quash the first - instance court judgment , had revised its view and , contrary to the PERSON report , had taken the view that the book was a scientific publication . In this connection , the court referred to its case - law in which it had previously held that where an issue required expertise judges could not rule on it on the basis of their own personal views and opinions . It underlined that this case - law was also applicable to ORG . Otherwise , the acquired procedural right would be violated .

The court underlined the conditions that must be met for compensation to be awarded for an attack on personality rights in the press : unlawfulness , fault , damage and interconnectedness between reason and conclusion . It further held that for a published criticism or news item to be held unlawful there must be a violation under one of the following criteria : truthfulness , topicality , public interest , public good and interconnectedness between the subject , form and idea .

The court noted that in the present case , according to experts’ reports , the article published in ORG was not true , that the article was not topical , and the opinions expressed in the article exceeded the limits of criticism and insulted the plaintiff .

It further found that ORG assessment referred to above was contrary to its case - law regarding the assessment of experts’ reports .

The court therefore found that the first - instance court ’s decision to resist ORG judgment was justified . It transferred the case back to ORG of ORG for determination of the amount of compensation .

CARDINAL dissenting members ( judges sitting on the bench of ORG ) considered , inter alia , that in the instant case the conditions of public interest , topicality and veracity had been met , and that the form and the words used by the applicant in his criticism of an important public figure and academic was not contrary to law .

On DATE ORG ( plenary session ) dismissed a request by the applicant for rectification of its decision .

On DATE ORG ( CARDINALth Division ) , finding the amount awarded to the plaintiff excessive , reduced the amount of compensation to CARDINAL new NORP liras ( TRY ) .

On DATE ORG ( CARDINALth Division ) dismissed the parties’ request for rectification of its decision .

A description of the relevant domestic law at the material time can be found in GPE v. GPE , no . CARDINAL , § § DATE , DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

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

The applicants complained of the inadequate conditions of their detention . Some applicants also raised other complaints under the provisions of the Convention .


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in LOC , a village in GPE .

summarised as follows .

NORP The applicant is a NORP . In DATE , during the Second World War , ORG issued a decree ( PERSON -CARDINALсс от DATE г. ) by which it ordered the deportation of her family and other NORP to a special settlement in GPE and placed them under police surveillance . In DATE the ORG of ORG of the GPE allowed the deportees out of exile , but banned them from returning to their homeland and ruled out the return of confiscated property . In DATE the applicant left the special settlement .

NORP In DATE , after the break - up of GPE , GPE passed the PERSON on the Rehabilitation of Victims of Political Persecution ( ORG “ О реабилитации жертв политических репрессий ” ) , whose preamble provided for the rehabilitation of victims and compensation for material damage and personal suffering .

In DATE the mention of personal suffering was removed from the preamble .

In DATE the applicant was recognised as a victim of NORP political and ethnic persecution and in DATE she sued the ORG for MONEY ( RUB ) ( MONEY ) in damages for the suffering she had undergone in her childhood .

On DATE ORG dismissed her claim . The applicant appealed to ORG of GPE . Relying on LAW , she argued that the PERSON had given her a “ legitimate expectation ” of redress .

On DATE ORG upheld the judgment of the lower court , considering that the applicant had had no legitimate expectation : the PERSON had not provided for compensation for people who had been deported as they had not been “ deprived of their liberty ” within the meaning of section CARDINAL ; the PERSON had made no promise of damages for personal suffering , nor could such damages be awarded under LAW because the LAW had introduced the notion of personal suffering into LANGUAGE law long after the persecution had taken place .

At the heart of the present case lie differences between CARDINAL versions of the PERSON on the Rehabilitation of Victims of Political Persecution : the original version ( DATE ) and the one in force at the time of the applicant ’s claim ( CARDINAL DATE ) .

“ This PERSON aims to rehabilitate all victims of political persecution ... and to compensate them ... for their material damage and personal suffering . ”

“ This PERSON aims to rehabilitate all victims of political persecution ... and to compensate them ... for their material damage . ”

“ Those who have been persecuted by way of deprivation of liberty and rehabilitated ... shall be paid RUB CARDINAL per month of captivity , but no more than RUB CARDINAL ... ”

“ Those who have been persecuted by way of deprivation of liberty or forced psychiatric custody and rehabilitated ... shall be paid RUB DATE of captivity ... but no more than RUB CARDINAL . ”

Article CARDINAL § CARDINAL of LAW of DATE reads :

“ Provisions of civil legislation shall have no retroactive effect and shall be applied to legal relationships which have arisen after [ the provisions ] have entered into force ... ”

On DATE ORG found the DATE version of section CARDINAL of the PERSON compatible with the LAW and confirmed that the compensation mentioned in the PERSON aimed to provide redress for the most severe acts of political persecution , that is , imprisonment and forced psychiatric custody ( judgment PERSON ) .


Branko Lubarda;Johannes Silvis;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and has been detained in PERSON since DATE .

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

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

The applicant has been detained since DATE and , following his conviction in DATE , has been serving a DATE prison sentence .

On DATE the applicant instituted proceedings before ORG seeking the suspension of his prison sentence on medical grounds .

On an unspecified date ORG asked ORG to produce an expert medical report in respect of the applicant ’s illnesses and to clarify if he could be treated in a prison hospital .

On DATE the Mina Minovici Forensic Institute produced the expert medical report ordered by the court . CARDINAL of the conclusions of the report was that the applicant had bone tissue missing on the right side of his head since an operation to treat a head injury suffered in DATE . It noted that after the surgery he had been recommended to undergo an osteoplasty ( surgical repair or alteration of the bone ) . It concluded by agreeing that an osteoplasty was recommended for the applicant ’s condition . The surgery was not urgent but could be carried out only in a civilian hospital . The applicant could be transferred to a civilian hospital under permanent guard after an appointment had been made and he had consented in writing . Also , from a medical standpoint , it was not impossible for the applicant to serve out his sentence .

On DATE ORG dismissed the applicant ’s action . It held that according to the conclusion of the expert medical report produced by PERSON Forensic Institute , it was not impossible for the applicant to serve out his sentence from a medical standpoint . The applicant appealed on points of law ( recurs ) against the judgment .

By a final judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal on points of law as ill - founded .

On DATE ORG dismissed the applicant ’s action . It held that according to the expert medical report produced by ORG on DATE the applicant ’s illness did not make it impossible for him to serve out his sentence . The applicant appealed on points of law against the judgment .

On DATE , relying on ORG expert report , the applicant lodged a request with the post - sentencing judge attached to PERSON seeking his assistance in gaining permission to undergo the surgery he needed .

On DATE the post - sentencing judge attached to PERSON informed the applicant that his request had been forwarded to the prison ’s medical office in order to be resolved .

On DATE , referring to PERSON post - sentencing judge ’s referral , the governor of PERSON informed the applicant that according to the neurosurgical evaluation report , produced in ORG for the expert medical report by ORG , the cranium cerebral trauma that had been operated on in DATE did not need neurosurgical treatment .

On DATE the post - sentencing judge attached to PERSON informed the Government that except for his request of DATE the applicant had never complained before him DATE under LAW . CARDINAL/CARDINAL and GPE that his right to medical assistance had been breached .

On DATE the applicant was taken to ORG for a neurological evaluation . The evaluation report concluded that the applicant was not suffering from any serious neurological problems . However , it did recommend a neurosurgical evaluation .

On DATE and DATE the applicant was taken to ORG for CARDINAL neurosurgical evaluations . The evaluation reports concluded that the surgery was not urgent and that the applicant could have been operated on at any time .

On DATE the applicant was taken for a GPE scan which did not disclose any internal brain haemorrhage .

On DATE the applicant was taken to ORG for a neurosurgical evaluation . The evaluation report noted that the applicant ’s condition was favourable and it recommended subsequent neurological evaluations with a view to an osteoplasty .

DATE the applicant was hospitalised in ORG for a neurosurgical evaluation and in order to determine the need for an osteoplasty . The evaluation report concluded that the applicant ’s head injury was old and therefore was not an emergency warranting neurosurgery .

On DATE ORG attached to ORG informed the ORG and submitted supporting evidence attesting that from DATE to CARDINAL DATE the applicant had been repeatedly examined and treated for his medical conditions , including his head injury , in prison hospitals . Moreover , he was regularly given medical evaluations in respect of his condition .

On DATE ORG informed the Government that on DATE the applicant had been examined by a neurosurgeon at ORG . The aforementioned neurosurgeon concluded that the applicant ’s health was good and reiterated the chronic nature of the applicant ’s condition and that it was not an emergency warranting neurosurgery .

NORP The relevant provision of the former NORP Code of Criminal Procedure concerning suspension of prison sentences ( Articles CARDINAL and CARDINAL ) , are described in PERSON v. GPE , no . CARDINAL , § § CARDINAL - CARDINAL , DATE .

Excerpts from the relevant legal provisions concerning the rights of detainees , namely PERSON no . CARDINAL/CARDINAL on the execution of prison sentences , are given in the cases of LOC v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) ; PERSON v. GPE ( no . CARDINAL , § DATE , DATE ) ; and GPE v. GPE ( no . CARDINAL , § DATE , CARDINAL DATE ) .

The Execution of Prison Sentences Act ( LAW no . MONEY ) , which entered into force on DATE , provides that a detainee can complain before the post - sentencing judge against the measures taken by the prison administration in respect of his lawful rights . The post - sentencing judge ’s decision can also be challenged before the domestic courts .


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

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

The applicant was born in DATE and lives in GPE .

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

The applicant was a civil servant of GPE , working in its ORG and LAW ( Grad PERSON , GPE odnose s javnošću i protokol DATE hereinafter “ GPE PERSON ” ) . In DATE he was suspended from the civil service on account of having been accused of severe breaches of his official duties .

For the duration of his suspension , that is to say DATE , the applicant was entitled to monthly salary compensation in the amount of PERCENT of the salary remitted in DATE prior to his suspension from the civil service .

On DATE ORG ( PERSON ) found the applicant guilty of severe breaches of his official duties and fined him PERCENT of the salary paid to him in DATE in which the said sanction was imposed .

On DATE , after the applicant lodged an appeal , ORG ( PERSON službenički sud ) amended the impugned decision and fined the applicant PERCENT of his salary paid in DATE in which the said sanction was imposed .

On DATE the applicant lodged an application for the reimbursement of the portion of his gross salary – in the total amount of NORP kunas ( ( HRK ) , MONEY ( ORG ) at the time ) DATE withheld during the suspension period between DATE and DATE , together with accrued default interest running from the date of his suspension until payment of the said portion . He was of the opinion that by withholding PERCENT of his salary for DATE and imposing a fine on him the administrative bodies had punished him twice .

By a decision of CARDINAL DATE GPE dismissed that application .

The applicant then lodged an appeal , which was dismissed as ill - founded by the same administrative body that delivered the above - mentioned decision ( that is to say GPE . However , in its decision of DATE it gave the instruction that the applicant had a right to bring an administrative action against it before ORG .

On DATE the applicant brought an administrative action , in accordance with GPE PERSON ruling .

On DATE certain amendments to LAW entered into force and ORG became ORG .

By a decision of CARDINAL DATE ORG , relying on sections CARDINAL and PERSON ) , point CARDINAL , of LAW , declined jurisdiction in respect of the subject matter , stating that an ordinary municipal court ( redovni , općinski sud ) was the appropriate court to hear the applicant ’s case , and declared the applicant ’s action inadmissible . This decision was final . On DATE it served its decision on the applicant ’s representative .

On DATE the applicant lodged a constitutional complaint . He complained , inter alia , that his right to a fair hearing , in particular his right of access to court , as guaranteed by LAW and LAW , had been violated when ORG had declared his action inadmissible . In particular , he argued that according to ORG case - law , ordinary municipal courts did not have jurisdiction over disputes arising from legally binding decisions of administrative bodies . He also argued that even if he had brought a civil action , it would have been time - barred because it had taken ORG DATE to declare his administrative action inadmissible .

By a decision of CARDINAL DATE ORG declared the applicant ’s constitutional complaint inadmissible on the grounds that the case raised no constitutional issue . On DATE it served its decision on the applicant ’s representative .

On DATE the applicant brought a civil action in ORG ( PERSON ) for reimbursement of salary arrears withheld DATE .

By a judgment of DATE the first - instance court dismissed the applicant ’s claim as time - barred . It held , inter alia , that given that ORG had declared the applicant ’s administrative action inadmissible , it could not be deemed that the statutory limitation period had been interrupted . It relied on section CARDINAL(CARDINAL ) of LAW .

By a judgment of CARDINAL DATE ORG PERSON ) dismissed the applicant ’s appeal and upheld the first - instance judgment of DATE .


Remainder inadmissible;Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations;Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations;Fair hearing);No violation of Article 13+P4-2-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 para. 1 of Protocol No. 4 - Freedom of movement;Article 2 of Protocol No. 4 - Freedom of movement-{general});Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Egidijus Kūris;Guido Raimondi;Helen Keller;Ján Šikuta;Jon Fridrik Kjølbro;Josep Casadevall;Kristina Pardalos;Ledi Bianku;Mark Villiger;Nebojša Vučinić;Paulo Pinto De Albuquerque;Robert Spano;Ksenija Turković

The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE .

On CARDINAL DATE the PERSON public prosecutor recommended that the ORG place the applicant under special police supervision ( sorveglianza speciale di pubblica sicurezza ) for DATE , on the basis of Act no . DATE , and impose a compulsory residence order on him during that time . The public prosecutor submitted that the applicant ’s previous convictions for drug trafficking , absconding and unlawful possession of weapons showed that he associated with criminals and was a dangerous individual . He also noted that the applicant had been given a “ warning ” by the police but had persisted in his criminal conduct .

In submissions of DATE the applicant challenged the prosecutor ’s recommendation . He argued that there had been a case of mistaken identity and that the alleged breaches of the terms of his special supervision concerned a person who shared his first name and surname but had been born in DATE . He further submitted that no criminal charges had been brought against him since a conviction dating back to DATE . Although he had been convicted of absconding in DATE , that was not a decisive factor for the imposition of the measure in question . He argued that there was no need to place him under special supervision .

In a decision of DATE , served on DATE , ORG placed the applicant under special supervision for DATE . It rejected his arguments , finding that the statutory requirements for the imposition of the measure were indeed satisfied , there being no doubt that he was dangerous .

ORG found that the applicant had “ active ” criminal tendencies and that the evidence before it showed that he had derived most of his means of subsistence from criminal activity .

The court observed , in particular :

“ The subject was issued with a ‘ verbal warning for public ORG on DATE , but this did nothing to improve his conduct ; he continued to associate regularly with key figures in the local underworld ( malavita locale ) and carried on committing offences ( see statement of charges pending : breach of supervision order on DATE ; breach of supervision order on DATE ) . ”

ORG further held :

“ The findings of the investigation ( see documents and certificates in the case file ) show that Mr PERSON remains personally involved in various criminal activities , among which the greatest threat to public order and safety is posed by offences against property and weapon- and drug - related offences .

This negative picture is compounded by the contents of the recent report issued by the ORG carabinieri on DATE , from which it appears that far from having receded , the subject ’s criminal tendencies are still thought to be active and operational . The evidence in the file indicates that he has no fixed and lawful occupation ( having declared himself available for employment from DATE ) and that the serious offences under consideration are such as to warrant the conclusion that he has , up until now , derived a significant part of his means of subsistence from criminal activity , by repeatedly resorting to crime either alone or in association with habitual offenders ( whether in his municipality of residence or elsewhere ) . To ensure more thorough monitoring , it is therefore necessary to order not only special police supervision for DATE ( a measure deemed reasonable on account of the subject ’s character as clearly emerges from the acts attributed to him ) , but also compulsory residence for the same duration . ”

The preventive measure imposed the following obligations on the applicant :

– to report once DATE to the police authority responsible for his supervision ;

– to start looking for work within DATE ;

– to live in GPE and not to change his place of residence ;

– to lead an honest and law - abiding life and not give cause for suspicion ;

– not to associate with persons who had a criminal record and who were subject to preventive or security measures ;

– not to return home TIME or to leave home before TIME , except in case of necessity and only after giving notice to the authorities in good time ;

– not to keep or carry weapons ;

– not to go to bars , nightclubs , amusement arcades or brothels and not to attend public meetings ;

– not to use mobile phones or radio communication devices ; and

– to have with him at all times the document setting out his obligations ( carta precettiva ) , and to present it to the police authority on request .

On DATE the applicant appealed to ORG .

On DATE the PERSON prefecture ordered the withdrawal of the applicant ’s driving licence .

In a decision of DATE , served on the applicant on CARDINAL DATE , ORG allowed his appeal and quashed the preventive measure ex tunc .

The Court of Appeal observed , firstly , that for a preventive measure to be imposed it was necessary to establish that the individual posed a “ current danger ” , which was not necessarily linked to the commission of a specific offence , but rather to the existence of a complex situation of a certain duration indicating that the individual had a particular lifestyle that prompted alarm for public safety .

In ORG view , the requirement of a “ current ” danger to society implied that the relevant decision should relate to the time of the assessment and should remain valid throughout its implementation ; any previous circumstances could be taken into account only in relation to their impact on the “ current ” element .

The court found that at the time the measure had been imposed , the applicant ’s dangerousness could not have been inferred from any criminal activity .

It then observed that in several final judgments delivered between DATE and DATE the applicant had been convicted of tobacco smuggling . He had subsequently changed his sphere of activity and until DATE had been involved in drug trafficking and handling illegal weapons , offences for which he had been sentenced to CARDINAL years’ imprisonment in a judgment of DATE , which had become final on DATE ; he had served his sentence from DATE to DATE .

ORG accordingly noted that the applicant ’s most recent illegal activities relating to drugs dated back to DATE before the preventive measure had been imposed . All that the court could hold against him was an offence of absconding , committed on DATE ( while he had been subject to a compulsory residence order ) .

The court also pointed out that the breaches of the terms of special supervision committed on DATE and DATE concerned a different person , who had the same first name and surname as the applicant but had been born in DATE .

ORG held that ORG had omitted to assess the impact of the rehabilitation purpose of the sentence on the applicant ’s personality .

It observed in particular :

“ While it is true that the application of special supervision is compatible with the status of detention , which relates solely to the time of the execution of the sentence , the assessment of dangerousness is inevitably even more significant in the case of an individual who has fully served his sentence and has committed no further offences after his release , as is the case for PERSON .

The note of DATE in which the carabinieri mentioned that PERSON associated with convicted offenders ( to whom he had been caught speaking ) does not appear sufficient to establish his dangerousness , bearing in mind that PERSON has not been the subject of any further judicial proceedings since the decision to impose the preventive measure .

Lastly , ORG notes that the material produced by the defence before ORG and at the hearing before this division indicates that , notwithstanding the typically casual nature of work as a farm labourer , the subject has , at least since his release from prison in DATE up to the present day , consistently been in lawful employment providing him with a respectable source of income .

In conclusion , in DATE there were no specific facts from which to infer persistent dangerousness on the part of the subject , who , after serving his lengthy sentence of imprisonment , has not displayed any conduct justifying the assessment made in the judgment appealed against , which is therefore to be quashed . ”


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

On DATE the applicant , a police captain , was arrested for soliciting a bribe . He was taken into custody and his detention was extended on several occasions . On DATE the case was submitted for trial in ORG of GPE .

On DATE ORG determined that the case was not ready for trial and returned the file to the prosecutor . By the same decision , it extended the applicant ’s detention until DATE .

On DATE the director of the PERSON remand prison where the applicant was held reported to the GPE prosecutor and to the president of ORG that , in the absence of an order extending the applicant ’s detention beyond DATE , he would need to be released on DATE . On DATE the PERSON prosecutor replied to him that there were no grounds for releasing the applicant because the date for hearing the prosecutor ’s appeal against ORG order of DATE had been fixed for CARDINAL DATE . The applicant was not released on DATE . He complained about his unlawful detention to the head of ORG and the regional head of ORG but did not receive any reply .

On DATE the ORG quashed ORG order on appeal . As regards the custodial measure , it held that no extension had been necessary because by virtue of LAW the applicant could be held in custody for an initial DATE period starting from the date on which the case had been submitted for trial .


Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano

The applicant , PERSON , was born in DATE and lives in Burdur .

On DATE the applicant , who was pregnant and in pain , was taken by her husband , Mr PERSON , to the Gümüşhane public hospital .

At TIME on DATE the applicant gave birth by Caesarean section to a boy ( PERSON ) , who – at CARDINAL GPE gestation –was premature and weighed QUANTITY .

Shortly after his birth , PERSON began showing signs of respiratory distress .

As there was no suitable neonatal unit in the LOC public hospital , the doctors decided to transfer the baby to the PERSON Farabi public hospital ( “ KTÜ Farabi ” ) , located in GPE , QUANTITY away .

On DATE at TIME the KTÜ Farabi public hospital refused to admit PERSON on the grounds that there were no places available in the neonatal intensive care unit .

Around TIME PERSON was transferred to ORG ( “ PERSON ” ) . There , the duty doctor explained to PERSON that there were no incubators available and advised him to return to the KTÜ Farabi public hospital , which the father had no choice but to do .

On their arrival , the doctors at the KTÜ Farabi public hospital again argued that they were unable to admit the premature baby , owing to a lack of available places in the neonatal unit .

A fresh attempt was then made to drive GPE to the PERSON .

Towards TIME , he died in the ambulance , which he had apparently never left throughout this sequence of events .

On DATE Mr and PERSON filed a complaint .

NORP In particular , they called for the conviction of doctors GPE and PERSON from the KTÜ Farabi public hospital .

CARDINAL investigations , one criminal and the other administrative , were opened .

In the context of these investigations , several witness statements were taken . The relevant passages read as follows :

The deceased ’s relatives :

The applicant : “ My pregnancy was progressing normally . The doctors preferred a birth by Caesarean section on account of the baby ’s position . The birth had initially been scheduled for DATE , but during TIME DATE I had pains , and the baby was born by Caesarean section DATE . I do n’t know what happened after that . I was told that the baby had been transferred to another hospital on account of a respiratory problem , but that he had not been admitted because there were no available places , and that he died in an ambulance , in the garden of a hospital , without a doctor taking the trouble to care for him . I want those responsible for my son ’s death to be punished . ”

Mr Genç : “ My son was born prematurely at the LOC public hospital . The doctors decided to transfer him to another hospital with better equipment . The KTÜ PERSON hospital did not admit him owing to a lack of places . He was also refused admission to ORG , for the same reasons . Instead of caring for my son , the doctors wasted time with administrative formalities . They did not even take the trouble to examine him , although it was an emergency situation . They ought to have diagnosed and treated him . We fought for TIME for my son to be seen by a doctor , but no hospital would agree to admit him . After several trips back and forth between hospitals , he died in an ambulance , in a hospital garden . Had my son been admitted to hospital in time , he would not have died . The persons responsible must be punished . ”

Ö.B. : “ Mr Genç is a friend . I accompanied him on TIME of the incident . We followed behind the ambulance in a car . At the KTÜ Farabi hospital , the duty paediatrician , PERSON , was annoyed that the transfer had been carried out without any prior checks that there was indeed a place available at the hospital . She paid no attention to the baby . She was busy with the administrative side of things and asked for documents proving that there were in fact no places in the other hospitals . She first called ORG , then the GPE public hospital , to check . She told us that there were indeed places at ORG , but that the duty doctor had simply not wished to be disturbed . She advised us to request an official signed document stating that there were no places available in the hospital . She added that if the doctors at ORG were confronted with such a request , they would certainly change their attitude , find a place and agree to admit the child . When we went to ORG , doctor PERSON told us that there were no places available and that they could not take the child into their care . Instead of looking after the child , who needed urgent medical assistance , he preferred to spend time drawing up a document stating that there were no places in the hospital . TIME were lost in this way . After numerous back - and - forth trips between hospitals , the child ended up having a heart attack . Treatment by the emergency doctor was not enough to save him . Nobody wanted to take charge of the child . No emergency doctor examined him . They all refused to admit him and tried at any cost to transfer him to another hospital . This indifference towards a child who required emergency medical killed him . ”

The medical staff :

ORG : “ I work as a gynaecologist and obstetrician at the LOC public hospital . PERSON Caesarean section proceeded normally . We handed over the child to the paediatrician after the birth . He was crying . I do n’t know what happened after that , since I continued with the operation . ”

ORG : “ I work as a midwife in the LOC public hospital . PERSON gave birth to a boy . The child was showing no anomalies when I took him in my arms . Suddenly , for a reason I do n’t understand , he had difficulty breathing . Doctor N.A. stepped in right away . The child was intubated . He was transferred to another hospital by ambulance . ”

N.A. : “ I work as a paediatrician at the Gümüşhane public hospital . I saw the child TIME after his birth . I intervened as a matter of urgency , since he was not breathing correctly and his pulse was weak . Once his condition had stabilised , we organised his transfer to a better equipped hospital . I had been told that there was a place available at the KTÜ Farabi hospital . The child was transferred by ambulance and he was intubated during the transfer . ”

GPE : “ I work as an anaesthetist at the LOC public hospital . PERSON gave birth by Caesarean section to a QUANTITY - old premature baby . Shortly afterwards , the midwife told us that the child had breathing difficulties . The paediatrician intervened immediately to provide the necessary treatment . It was decided to transfer him to another hospital , since there was no appropriate medical unit on site . I was in the ambulance with ORG The child was intubated . The transfer was carried out in an incubator . At the KTÜ PERSON hospital , the duty paediatrician , PERSON , did not examine the child . She simply said that we should go to ORG . Once there , doctor PERSON also refused to admit the child on the grounds that there were no available places . He took this decision without even examining the child . We went back and forth between hospitals , but no one would accept him . He died in the ambulance outside ORG . ”

E.İ. : “ I work as a nurse at the NORP public hospital . I was on duty on DATE of the incident . The child had been brought to us in an incubator so that we would take him to the KTÜ Farabi hospital . Once there , doctor PERSON told us that it was impossible to take charge of the child and that he ought to be looked after by a specialised paediatrician . He told us to go and see doctor PERSON That is what we did . Ms DATE , without even examining the child , told us that there were no places in the hospital and that he should be transferred to ORG . We went there immediately . Doctor PERSON did not examine the child . He simply told us that there were no places in the hospital . We insisted for TIME that he take the child in for treatment . He refused . We then set off again for the KTÜ Farabi hospital . Doctor PERSON again refused to admit the child and insisted that he be transferred to the GPE public hospital . The child ’s father and I protested strongly against this decision . Doctor PERSON then asked us to provide her with an official document stating that there were no places at ORG . As no one had thought to give us such a document , we were unable to give it to her . She then asked us to return once more to ORG . Faced with her categorical refusal , we set off once again for ORG . Once there , the doctors again refused to admit the child . The child died in the ambulance at TIME ”

PERSON : “ On TIME of the incident , I was on duty at the adult emergency department at the KTÜ Farabi hospital . I spoke to the father on the telephone . I told him that paediatrics was not my field , but that I could help him with the transfer to the emergency paediatrics department . ”

T.Ö. : “ I was on duty at the paediatrics department in the KTÜ Farabi hospital on TIME of the incident . The Gümüşhane public hospital did not contact us to find out whether or not there were free beds . The child was transferred directly to our hospital . I immediately addressed myself to his care . Other than the presence of meconium on his body , the child was fine . His vital functions were normal . I tested his oxygen saturation level , and it was CARDINAL . As there was a risk that the child would inhale meconium , I preferred to keep him [ at the hospital ] in order to ensure closer monitoring . However , I discovered that there were no beds in the department . The child ’s father told me that doctor PERSON had stated that there were places available in the hospital . I then called doctor PERSON , who was in the adult emergency department . He told me that he had thought that there were still places in the neonatal unit , but that he had not thought it necessary to call and check . I then expressed my displeasure to him . The child ’s father , who was accompanied by a friend , protested strongly against my decision to refuse to admit [ the child ] for lack of a bed . But I had only followed the procedure . The head of department had expressly asked us not to accept patients if there were no places available and to organise for their immediate transfer . That is what I attempted to do . Someone from ORG told me on the telephone that there was one place available . After completing the administrative formalities , I ordered an ambulance journey . However , the ambulance came back to our hospital TIME , since ORG had refused to admit him . As there was no official document to that effect , I again transferred the patient to the same hospital . As it was impossible to take the child into our care , I did not go ahead with his administrative registration or open a treatment file . ”

Doctor PERSON : “ I saw doctor PERSON looking after the child . He was doing well and was not intubated . The oxygen saturation level was PERCENT . ”

Nurse PERSON : “ I do not recall having seen any intubated child in the paediatric unit of the KTÜ Farabi hospital on TIME of the incident . ”

GPE : “ I am a doctor at the KTÜ Farabi hospital . The child was taken care of by doctor PERSON From what I saw , his general state was entirely satisfactory . The oxygen saturation level was PERCENT . ”

Y.A. : “ I am the head of the paediatric department at KTÜ PERSON hospital . My assistant , doctor PERSON , was right to refuse to admit the child , because we can not admit patients when the department is full . On the other hand , she ought to have opened an administrative file . ”

K.B. : “ I was on duty at ORG . At TIME on DATE , an ambulance carrying an intubated newborn baby arrived at our hospital . I did not want to take the child out of the incubator , since there is a risk of hypothermia with premature babies . I called doctor PERSON to ask for his advice , since the child needed to be put on a respirator , but there were no available places in the department . I called the other hospitals to try to find a place , but without success . I then told them to return to the KTÜ Farabi hospital . TIME , they came back asking for an official document stating that there were no available places in our hospital . I did not give them a document of this sort , but I told them they could visit the department if they did n’t believe me . While I was in the middle of explaining all this , I was suddenly informed that the child had had a heart attack . I immediately went into the ambulance to carry out resuscitation , but in spite of all my efforts I was unable to save the child . I do not think that I was negligent . If we had admitted the child , we would have had to care for him in an ordinary bed . We would have been unable to control his temperature and guarantee artificial ventilation in those conditions , which in fact would probably have caused an even quicker death . ”

PERSON : “ PERSON called me to ask for advice . As we had no places , I told him to organise a transfer to the nearest university hospital . The patient was in an incubator in the ambulance . Yet we did n’t even have an incubator available in the hospital . We would have lost the patient much more quickly had we admitted him . We could n’t really do anything else . Furthermore , according to what I ’ve been told , Gümüşhane public hospital would not have wanted to lend us the ambulance incubator . ”

With regard to the available places in the neonatal units on TIME of the incident , the criminal investigation revealed that there had been CARDINAL incubator at the NORP public hospital and that it was out of order .

At the KTÜ Farabi public hospital , there were CARDINAL children in the maternity unit and QUANTITY in the neonatal unit , where capacity was limited to CARDINAL children .

There were CARDINAL incubators at the PERSON : CARDINAL were occupied and the fourth was out of order . Furthermore , they were not equipped with assisted ventilation systems .

With regard to the CARDINAL other establishments located in the region , it was noted that , out of CARDINAL incubators at the PERSON public hospital , CARDINAL were available at TIME on DATE , but that they did not have assisted ventilation systems .

ORG had no neonatal unit at all .

A full autopsy was carried out on ORG body . It revealed , in particular , that the child ’s lungs showed signs of “ asphyxial haemorrhage ” .

On DATE the NORP public prosecutor held that he did not have jurisdiction and relinquished the investigation to the LOC prosecutor ’s office .

On DATE the ORG public prosecutor sent the file to the PERSON ORG , to which the GPE public hospital was attached .

On DATE a committee of investigation , composed of doctors , issued a report concluding that the doctors in question had not committed any fault and that , accordingly , there were no grounds to grant authorisation for bringing proceedings against them .

On DATE ORG upheld that decision .

On DATE the Gümüşhane Governor refused to open a criminal investigation against doctor N.A. , considering that he had committed no breach of his professional duties .

On CARDINAL DATE the NORP public prosecutor filed an objection to that decision , on the grounds that doctor ORG ought not to have ordered the child ’s transfer to a hospital that had no places available .

On DATE ORG rejected the prosecutor ’s objection .

On DATE , taking note of that judgment , which was ipso jure final , the prosecutor issued a decision that there was no case to answer .

In the absence of an appeal before ORG , this decision became final on DATE .

On CARDINAL DATE the LOC Governor refused to open proceedings against doctors GPE and GPE , taking the view that they could not be criticised for any negligence in performing their duties .

The GPE public prosecutor lodged an objection to that decision , considering that the accused had indeed committed an offence and that they ought to be referred to the courts for negligence in the performance of their duties .

On DATE the prosecutor , who was obliged to comply with that final judgment , issued a decision that there was no case to answer .

An investigation committee within ORG GPE branch decided of its own motion to carry out administrative investigations .

On completion of these investigations , on DATE ORG Governor refused to authorise the opening of an additional investigation in respect of doctors GPE and GPE

NORP By contrast , in respect of doctor PERSON , the Governor accepted the conclusions of the investigation committee and decided to open a criminal investigation for professional negligence .

To that end , on CARDINAL DATE the ORG public prosecutor , to whom the case had been referred back , transferred the file to ORG of Karadeniz University , to which PERSON was subordinate .

The Rector ’s Office immediately opened an administrative inquiry .

This confirmed the preliminary conclusions reached by the ministerial investigation committee .

On DATE the Rector ’s Office authorised the opening of a criminal investigation in respect of PERSON The relevant passages of that decision read as follows :

“ Health Inspector PERSON considered in his report of DATE that doctor PERSON had been negligent and that she should be held liable .

In his report of DATE , Health Inspector GPE found that doctor PERSON ought to have carried out administrative registration of the patient and opened a treatment file .

The information in the file reveals that there were no places available in the KTÜ Farabi hospital .

The patient ’s transfer to this hospital was due to a failure in communication and coordination .

At the KTÜ Farabi hospital , no adequate treatment was given , although the patient ’s state was very serious and his condition was life - threatening .

Furthermore , apart from the witness statements by medical staff from the KTÜ Farabi hospital , there is no evidence showing that the patient was examined by a doctor .

In addition , there is no administrative file or treatment file in the patient ’s name .

Doctor PERSON ’s explanation that “ if [ she ] did not open an administrative file , it was because we could not admit the patient to the hospital ” is unacceptable conduct .

In this incident , it must be concluded that there was negligence and fault on the part of doctor PERSON ”

On DATE T.Ö. applied to have that decision set aside .

On DATE ORG set aside the decision of DATE ( see paragraph CARDINAL above ) on the grounds that , in the absence of new evidence capable of justifying revision , its previous judgment of DATE ( see paragraph CARDINAL above ) remained final .