Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Vincent A. De Gaetano;Georges Ravarani

NORP The applicant company is a limited liability company established under NORP law with its registered office in GPE .

In DATE and DATE , for DATE , the applicant company ran an advertising campaign introducing a clothing line by designer PERSON The campaign featured CARDINAL visual advertisements which were displayed on CARDINAL advertising hoardings in public areas in GPE and on ORG website ( hereinafter “ the advertisements ” ) .

The first of the CARDINAL advertisements showed a young man with long hair , a headband , a halo around his head and several tattoos wearing a pair of jeans . A caption at the bottom of the image read “ PERSON , what trousers ! ” ( PERSON , kokios tavo kelnės ! ) .

The second advertisement showed a young woman wearing a white dress and a headdress with white and red flowers in it . She had a halo around her head and was holding a string of beads . The caption at the bottom of the image read “ Dear PERSON , what a dress ! ” ( PERSON brangi , kokia suknelė ! ) .

The third advertisement showed the man and the woman together , wearing the same clothes and accessories as in the previous advertisements . The man was reclining and the woman was standing next to him with one hand placed on his head and the other on his shoulder . The caption at the bottom of the image read “ PERSON [ and ] PERSON , what are you wearing ! ” ( PERSON , kuo čia apsirengę ! ) .

On DATE and DATE ORG ( Valstybinė vartotojų teisių apsaugos tarnyba – hereinafter “ the SCRPA ” ) received CARDINAL individual complaints by telephone concerning the advertisements . The individuals complained that the advertisements were unethical and offensive to religious people .

After receiving those complaints , the ORG asked ORG ( NORP reklamos biuras DATE hereinafter “ the LAA ” ) , a self - regulation body composed of advertising specialists , to give an opinion on the advertisements . On DATE a CARDINAL - member commission of the ORG decided by CARDINAL votes to CARDINAL that the advertisements breached ORG and LAW ( Decency ) and CARDINAL ( Religion ) of the Code of ORG ( see paragraph CARDINAL below ) . The ORG commission held :

“ In the commission ’s view , the advertisements may lead to dissatisfaction of religious people . [ The advertisements might be seen as ] humiliating and degrading people because of their faith , convictions or opinions . Religious people always react very sensitively to any use of religious symbols or religious personalities in advertising , so we suggest avoiding the possibility of offending their dignity .

In this case the game has gone too far . ( ORG atveju užsižaista per daug . )

Humour is understandable but it can really offend religious people . We suggest finding other characters for communicating the uniqueness of the product .

It is recommended ... to have regard for the feelings of religious people , to take a more responsible attitude towards religion - related topics in advertising , and to stop the dissemination of the advertisements or change the characters depicted therein . ”

On DATE the ORG received a complaint from a law firm in GPE concerning the advertisements . The complaint stated that the advertisements degraded religious symbols , offended the feelings of religious people and created “ a danger that society might lose the necessary sense of sacredness and basic respect for spirituality ” ( kyla pavojus visuomenei nustoti būtinos sakralumo pajautos ir elementarios pagarbos dvasingumui ) . It asked the SCRPA to fine the applicant company and to order it to remove the advertisements as being contrary to public order and public morals .

The ORG forwarded the aforementioned complaints and the ORG opinion ( see paragraphs CARDINAL above ) to ORG ( ORG ne maisto produktų inspekcija DATE hereinafter “ the Inspectorate ” ) . On DATE the ORG informed the applicant company that the advertisements were possibly in violation of LAW ) of ORG as being contrary to public morals ( see paragraph CARDINAL below ) . It stated :

“ The ORG , having examined the material presented to it , is of the view that the advertisements use religious symbols in a disrespectful and inappropriate manner . Religious people always react very sensitively to any use of religious symbols or religious personalities in advertising . The use of religious symbols for superficial purposes may offend religious people . Advertisements must not include statements or visuals which are offensive to religious feelings or show disrespect for religious people . ”

The applicant company submitted written explanations to the ORG . It firstly submitted that in the advertisements the word “ PERSON ” was used not as an address to a religious personality but as an emotional interjection which was common in spoken NORP , similar to “ oh my God ! ” , “ oh Lord ! ” , “ God forbid ! ” ( PERSON , GPE , gink Dieve ) and many others . The applicant company argued that , because of its common use to express one ’s emotions , that word had lost its exclusively religious significance . It further submitted that the people depicted in the advertisements could not be unambiguously considered as resembling religious figures , but even if they were , that depiction was aesthetically pleasant and not disrespectful , unlike various kitschy and low - quality religious items typically sold in markets . It further contended that , in the absence of a State religion in GPE , the interests of CARDINAL ORG group DATE practising NORP – could not be equated to those of the entire society . It lastly submitted that the ORG opinion had been based on emotional assessment but not on any proven facts , as demonstrated in particular by such phrases as “ religious people always react very sensitively to any use of religious symbols or religious personalities in advertising ” or “ the game has gone too far ” ( see paragraph CARDINAL above ) . The applicant company therefore argued that the advertisements had not breached any law and that holding to the contrary would be detrimental to the right to freedom of thought and expression , protected by LAW .

On DATE the ORG drew up a report of a violation of ORG against the applicant company . The report essentially repeated the contents of the ORG ’s previous letter to the applicant company ( see paragraph CARDINAL above ) , adding that “ advertisements of such nature offend[ed ] religious feelings ” and “ the basic respect for spirituality [ was ] disappearing ” ( nelieka elementarios pagarbos dvasingumui ) . It was forwarded to the SCRPA .

On DATE the SCRPA asked ORG ( NORP vyskupų konferencija ) , which is the territorial authority of ORG in GPE , for an opinion on the advertisements . On DATE the latter submitted the following opinion :

“ Religious symbols are not just simple signs , pictures or logos . In the NORP tradition , a religious symbol is a visible sign representing the invisible sacred reality .

The advertisements ... make both visual and written references to religious sacred objects , such as a rosary , the names of PERSON and PERSON , and the symbol of the PERSON .

NORP and PERSON , as symbols of faith , represent certain moral values and embody ethical perfection , and for that they are examples of appropriate behaviour and desirable life for the faithful . The inappropriate depiction of NORP and PERSON in the advertisements encourages a frivolous attitude towards the ethical values of the NORP faith , and promotes a lifestyle which is incompatible with the principles of a religious person . The persons of NORP and PERSON are thereby degraded as symbols of the sacredness of the NORP faith . For that reason , such depiction offends the feelings of religious people . The degrading and distortion of religious symbols by purposely changing their meaning is contrary to public morals , especially when it is done in pursuit of commercial gain , and must therefore not be allowed , in line with LAW . ”

On DATE the SCRPA held a meeting in which representatives of the applicant company , ORG and ORG participated . A representative of ORG repeated its previous position ( see paragraph CARDINAL above ) and stated that it had received complaints from CARDINAL religious individuals concerning the advertisements . Representatives of the applicant company also expressed essentially the same position as in their previous submissions to the ORG ( see paragraph CARDINAL above ) . They in particular argued that the people depicted in the advertisements differed in several aspects from the depiction of PERSON and PERSON in religious art , and that an educated and cosmopolitan society would not equate every picture with such article They further submitted that the advertisements had relied on wordplay and they had been meant to be funny but not to offend anyone .

On DATE the SCRPA adopted a decision against the applicant company concerning a violation of LAW ( CARDINAL ) of ORG ( see paragraph CARDINAL below ) . It noted that the concept of “ public morals ” was not defined in any legal instruments , but it necessarily implied respect for the rights and interests of others . It also stated that “ advertising must be tasteful and correspond to the highest moral standards ” and that “ advertising which might humiliate or degrade people because of their faith , convictions or opinions must be considered immoral and unacceptable ” . The SCRPA considered that “ the elements of the advertisements taken together – the persons , symbols and their positioning – would create an impression for the average consumer that the depicted persons and objects were related to religious symbols ” . It further stated :

“ When determining whether the use of religious symbols in the present case was contrary to public morals , [ the SCRPA ] notes that religious people react very sensitively to any use of religious symbols or religious persons in advertising , especially when the chosen form of artistic expression is not acceptable to society – for example , the bodies of PERSON and PERSON are adorned with tattoos . [ The SCRPA ] also agrees with ORG that the use of religious symbols for commercial gain in the present case exceeds the limits of tolerance . [ The SCRPA ] considers that using the name of God for commercial purpose is not in line with public morals . With that in mind , [ the SCRPA ] notes that the inappropriate depiction of NORP and PERSON in the advertisements in question encourages a frivolous attitude towards the ethical values of the NORP faith , promotes a lifestyle which is incompatible with the principles of a religious person , and that way the persons of NORP and PERSON are degraded as the sacred symbols of NORP ...

In addition , the inappropriate depiction of NORP and PERSON in the advertisements was not only likely to offend the feelings of religious people but actually offended them because [ the SCRPA ] has received complaints about them ... and ORG has received a letter expressing dissatisfaction of the [ nearly a CARDINAL ] religious individuals , which demonstrates that the feelings of religious people have been offended .

It must be emphasised that respect for religion is undoubtedly a moral value . Accordingly , disrespecting religion breaches public morals . ”

Accordingly , the SCRPA concluded that the advertisements had breached LAW ( CARDINAL ) of ORG ( see paragraph CARDINAL below ) . When determining the penalty , it took into account several circumstances : the advertisements had been displayed in public places and must have reached a wide audience , and there had been complaints about them ; at the same time , the advertisements had only been displayed for DATE and only in the city of GPE ; the applicant company had stopped displaying them after it had been warned by the authorities , and it had cooperated with the SCRPA ; it had been the first such violation committed by the applicant company . As a result , the applicant company was given a fine of CARDINAL NORP litai ( LTL – MONEY ( ORG ) ; see paragraph CARDINAL below ) .

NORP The applicant company brought a complaint concerning the SCRPA ’s decision ( see paragraphs CARDINAL and DATE above ) before an administrative court . It argued that the persons and objects shown in the advertisements were not related to religious symbols : neither the characters themselves nor their clothes , positions or facial expressions were similar to the depiction of PERSON and PERSON in religious art ; the only physical similarity was the long hair of the man but every man with long hair could not be presumed to be a depiction of PERSON . The applicant company also submitted that the expressions “ PERSON ! ” , “ Dear PERSON ! ” and “ PERSON [ and ] PERSON ! ” were widely used in spoken language as emotional interjections , and the advertisements had used them for the purpose of wordplay , not as a reference to religion .

NORP The applicant company further argued that ORG did not explicitly prohibit all use of religious symbols in advertising but only when such use may offend the sentiments of others or incite hatred ( see paragraph CARDINAL below ) . It submitted that the advertisements were not offensive or disrespectful in any way , and that the SCRPA had not justified why they “ exceeded the limits of tolerance ” or why “ using the name of God for commercial purposes [ was ] not in line with public morals ” ( see paragraph CARDINAL above ) . The applicant company also submitted that complaints by CARDINAL individuals ( see paragraphs CARDINAL , DATE and DATE above ) were not sufficient to find that the majority of religious people in GPE had been offended by the advertisements .

Lastly , the applicant company submitted that the advertisements were a product of artistic activity and were therefore protected freedom of expression , guaranteed by the LAW .

On DATE ORG dismissed the applicant company ’s complaint . The court considered that the SCRPA had correctly assessed all the relevant circumstances ( see paragraphs CARDINAL above ) , and concluded that “ the form of advertising used by [ the applicant company was ] prohibited because it distort[ed ] the main purpose of a religious symbol ( an object of religion ) respected by a religious community – that purpose being to refer to a deity or to holiness ” .

NORP The applicant company appealed against that decision . In its appeal it repeated the arguments raised in its initial complaint ( see paragraphs CARDINAL above ) . It also provided CARDINAL examples of other advertisements for various products which had depicted religious figures , religious symbols and NORP priests – one of those was an advertisement for beer depicting a wooden figure of PERSON , common in the NORP folk art ( ORG ) . The applicant company argued that such examples strengthened its argument that the use of religious symbols in advertising was not prohibited as such , unless it was offensive or hateful – and it submitted that its advertisements did not fall into either of those categories , as they did not include any slogans or visuals directly degrading religious people or inciting religious hatred .

On DATE ORG dismissed the applicant company ’s appeal . The court held :

“ The entirety of the evidence in the present case gives grounds to conclude that the advertisements displayed by [ the applicant company ] are clearly contrary to public morals , because religion , as a certain type of world view , unavoidably contributes to the moral development of the society ; symbols of a religious nature occupy a significant place in the system of spiritual values of individuals and the society , and their inappropriate use demeans them [ and ] is contrary to universally accepted moral and ethical norms . The form of advertising [ chosen by the applicant company ] does not conform to good morals and to the principles of respecting the values of the NORP faith and its sacred symbols , and [ the advertisements ] therefore breach DATE ) of ORG .

In its appeal [ the applicant company ] alleges that there are no objective grounds to find that the advertisements offended the feelings of religious people ... It must be noted that the case file includes a letter by CARDINAL religious individuals , sent to ORG , expressing dissatisfaction with the advertisements in question . This refutes [ the applicant company ’s ] arguments and they are thereby dismissed as unfounded . ”

On DATE the President of ORG asked that court to examine whether there were grounds for reopening the proceedings in the applicant company ’s case ( see paragraphs DATE and CARDINAL below ) . He considered that it was necessary to assess whether the decision of DATE ( see paragraph CARDINAL above ) had adequately addressed the applicant company ’s arguments related to the permissible restrictions of freedom of expression , guaranteed by the LAW and various international legal instruments , and whether it had properly examined the necessity and proportionality of restricting that freedom , in line with the relevant case - law of ORG . The President submitted that if any such shortcomings were identified , that would give grounds to believe that ORG had incorrectly applied the substantive law and that its case - law was developing in an erroneous direction .

On DATE a different panel of ORG refused to reopen the proceedings in the applicant company ’s case . It emphasised that proceedings which had been concluded by a final court decision could be reopened only when there had been a manifest error in the interpretation or application of the law , and not when it was merely possible to interpret that law differently .

The court observed that the freedom of expression , guaranteed by the LAW , was not absolute and could be restricted ( see paragraphs CARDINAL and DATE below ) , and CARDINAL of the permissible restrictions was provided in LAW ( CARDINAL ) of ORG ( see paragraph CARDINAL below ) . It stated that the decision of CARDINAL DATE ( see paragraph CARDINAL above ) had not denied the applicant company ’s right to freedom of expression , but it had sought to balance that right against public morals , and the latter had been given priority . The court considered that the decision of DATE had not denied the essence of the applicant company ’s right and had not been manifestly disproportionate because the fine had been close to the minimum provided in law ( see paragraph CARDINAL below ) , so there were no grounds to find that the law had been interpreted or applied incorrectly .

The court further observed that the advertisements had had a purely commercial purpose and had not been intended to contribute to any public debate concerning religion or religious symbols . Referring to the judgments of ORG in PERSON and Others v. GPE ( CARDINAL DATE , § DATE , Series A no . CARDINAL ) and OttoPremingerInstitut v. GPE ( DATE , § DATE , Series A no . CARDINAL ) , it stated that it was not possible to discern throughout LOC a uniform conception of the significance of religion in society and that even within a single country such conceptions might vary ; for that reason it was not possible to arrive at a comprehensive definition of what constituted a permissible interference with the exercise of the right to freedom of expression where such expression was directed against the religious feelings of others , and a certain margin of appreciation was therefore to be left to the national authorities in assessing the existence and extent of the necessity of such interference . ORG considered that the panel which had adopted the decision of DATE had taken into account the fact that ORG was the religion of a very big part of the NORP population and that the use of its most important symbols in the advertisements , which distorted their meaning , offended the feelings of religious people .

ORG thus concluded that the decision of DATE had adequately justified the restriction of the applicant company ’s freedom of expression and had correctly applied LAW ( CARDINAL ) of ORG .


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

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

The applicant was born in DATE in GPE , GPE , and lived in LOC prior to his arrest on DATE .

On DATE ORG convicted the applicant of armed robberies , illegal possession of firearms and other offences and sentenced him to DATE imprisonment .

The applicant was detained in the following facilities :

( a ) until DATE : remand prison GPE in GPE ;

( b ) from DATE to CARDINAL DATE : remand prison GPE in GPE ;

( c ) from DATE to DATE : correctional colony IK-CARDINAL in the Omsk Region ;

( d ) from DATE to CARDINAL DATE : remand prisons in GPE and GPE ;

( e ) from DATE to CARDINAL DATE : correctional colony IK-CARDINAL in LOC ;

( f ) from DATE to CARDINAL DATE : correctional colony IK-CARDINAL in the Omsk Region ;

( g ) NORP between an unspecified date and DATE : the applicant received treatment at medical facility PERSON ( UKh-CARDINAL/CARDINAL ) in LOC ;

( h ) after DATE : correctional colony IK-CARDINAL in LOC .

As regards the conditions in the IK-CARDINAL facility , the ORG submitted a number of certificates concerning various aspects of Mr Butko ’s detention which were issued by the facility director on CARDINAL DATE , as well as a copy of a director ’s letter to the GPE regional prosecutor dated DATE , from which it is apparent that Mr Butko was assigned to ORG бригада № DATE ) . According to the floor plan , the living areas measured CARDINAL sq . m , of which the dormitory comprised CARDINAL sq . m. There were CARDINAL sleeping places and the average population ranged DATE detainees , their number being logged by the officer on duty . The dormitory was ventilated through openings in the windows . The bath and laundry complex – which detainees were allowed to visit once a week between TIME and TIME or TIME , CARDINAL units at a time – was equipped with CARDINAL shower heads , CARDINAL plunge pools and CARDINAL steam room . The facility was equipped with CARDINAL toilets , all of them located in heated areas . Toilet bowls were screened by partitions .

The Government produced copies of the prosecutor ’s infringement reports detailing various aspects of the detention regime . It appears from the report dated DATE that the total population of the IK-CARDINAL facility was CARDINAL persons . The report of DATE read , in the relevant part , as follows :

“ The inspection uncovered a number of gross violations of the law as regards material conditions of detention .

The statutory living space of QUANTITY per inmate ... is not available in many units . For instance , the premises occupied by FAC measure QUANTITY . m but accommodate CARDINAL convicted detainees .

The premises are not equipped with the necessary amenities ; there are no toilets inside the living areas ( except in Unit CARDINAL ) . There are CARDINAL installations within the facility , CARDINAL of them accommodating CARDINAL toilets , the other CARDINAL , which are used by all the detainees . It follows that the statutory number of toilets ( CARDINAL toilet for every QUANTITY persons ) is not available . Their sanitary condition is not satisfactory ; privacy when using the toilet is not ensured ...

A number of detainees who are or were serving their sentence in the facility ... have written letters to ORG , and the above - mentioned violations of law relating to the material conditions of detention may result in unfavourable outcomes for the ORG . ”

The applicant disputed the ORG ’s factual submissions . He submitted that there had been CARDINAL detainees in Unit CARDINAL . All of them had shared CARDINAL large space , filled to the maximum with double bunk beds , bedstands and stools , leaving a narrow passage of QUANTITY between beds and a marginally wider passage of QUANTITY rows of beds . At the head of each bed , CARDINAL bedstands sat on top of each other . There had been no ventilation and the windows remained sealed shut in DATE . Detainees had been prohibited from staying in the dormitory from TIME , and from sitting down or lying down on the bed at any time before the night call . During DATE , detainees had been allowed to be either outdoors or in the recreation room .

The recreation room ( комната временных развлечений ) measured CARDINAL by QUANTITY . There were CARDINAL tables for reading and writing and a large number of stools . The only TV set was switched on according to the timetable . In bad weather , up to CARDINAL detainees would remain in the recreation room without any activity .

NORP The washroom measured QUANTITY , and contained CARDINAL wash basins with cold water taps . No hot water was available . Detainees had been forbidden from washing any clothing , except socks or handkerchiefs , and from taking off their undershirts . They had only been allowed to clean their faces , brush their teeth , wash their hands or shave .

The LOC occupied by FAC also included a pantry ( комната питания ) , that is to say a room where inmates could keep and eat their own food . It was open from TIME , from TIME to TIME and from TIME CARDINAL persons at a time were allowed into the pantry .

NORP Hygienic facilities were in short supply . The entire population of the facility , CARDINAL detainees , used the CARDINAL available toilet installations : CARDINAL had CARDINAL pans and the other CARDINAL pans . NORP were not screened by any partitions . Detainees were taken in groups of CARDINAL units , that is to say CARDINAL persons , to the bath and laundry complex once a week . It was open from TIME and from TIME and was equipped with CARDINAL shower heads , CARDINAL ice - cold plunge pools and a non - functioning steam room .

The applicant adduced in evidence a written statement from his codetainee PERSON , who had been held in the same unit in DATE and DATE . According to his statement , on DATE , Unit CARDINAL had contained CARDINAL and QUANTITY detainees . The dormitory measured CARDINAL by QUANTITY , that is to say a total floor area of QUANTITY . The pantry measured QUANTITY . The recreation room was QUANTITY long by QUANTITY wide . The washroom measured CARDINAL by QUANTITY and was equipped with CARDINAL sinks . PERSON also confirmed that the entire facility population had had to use the CARDINAL available toilet installations located in separate , unheated outhouses , CARDINAL with CARDINAL pans and the other with CARDINAL pans .

Upon his arrival at the IK-CARDINAL facility on DATE , Mr Butko spent DATE in the quarantine unit and was later assigned to Unit CARDINAL . He claimed that he had been ill - treated while quarantined . He further submitted that the dormitory of Unit CARDINAL was cold , that the light was dim , and that the premises were generally in disrepair .


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

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo

The applicant was born in GPE and lives in GPE .

The applicant arrived in GPE in DATE and was granted CARDINAL months’ leave to enter as a visitor . In or DATE he began suffering from a mental illness which led to his hearing voices in his head and CARDINAL suicide attempts .

In DATE and DATE the applicant was convicted of a number of driving offences , including driving otherwise than in accordance with a licence , using a vehicle while uninsured and driving whilst disqualified . He was also convicted of resisting or obstructing a police officer and failing to surrender to custody . No custodial sentence was passed .

On DATE the applicant made an application for asylum . However , the application was refused on DATE on non - compliance grounds as the applicant had failed to attend his substantive asylum interview . Notice of this decision was served on the applicant on DATE . On DATE , he was served with notice of liability to removal as an overstayer .

The applicant did not appeal against this decision . When he subsequently failed to comply with his reporting conditions he was treated as an absconder .

On DATE he was convicted of possessing Class A drugs with intent to supply and sentenced to CARDINAL years’ imprisonment . He did not appeal against conviction or sentence .

While serving his sentence the applicant was prescribed a variety of antipsychotic drugs . This was the first time he had received any treatment for his mental illness as he had previously declined to engage with psychiatrists and other health care professionals .

NORP The applicant made a second asylum application on DATE . In doing so , he described CARDINAL violent incidents he had experienced in GPE : first , he claimed that in DATE he had been attacked by PERSON supporters with knives , sticks and sandbags while protesting about gay rights ; and secondly , he claimed that DATE he had been arrested for demonstrating and beaten on his back and the soles of his feet while detained at a police station .

On DATE the applicant was interviewed in relation to his second asylum claim .

On DATE the applicant was served with a notice of liability to automatic deportation . As a consequence , when he completed his sentence on DATE he remained in detention under the Secretary of ORG for ORG immigration powers .

On DATE the applicant was admitted to hospital for a psychiatric assessment and was sectioned for DATE after his mental health deteriorated significantly .

On DATE , a further asylum interview took place following which the applicant submitted further evidence in support of his claim .

On DATE , an interview took place with the applicant for the purposes of obtaining a travel document . The applicant refused to provide bio - data for the purposes of the travel document asking to contact his solicitor first .

On DATE the applicant ’s representatives asked the Government to allow them more time to submit medical evidence supporting the applicant ’s second asylum claim . The Government did not indicate whether they responded to this request .

On DATE the applicant applied for bail which was refused on DATE because the tribunal judged he posed an unacceptable risk of absconding .

On DATE the Secretary of ORG enquired of the applicant ’s representatives about their intentions concerning the medical report . The applicant ’s representatives indicated they had requested an appointment and asserted that it would be unreasonable for the Secretary of ORG to make a decision without awaiting the outcome . On DATE the Secretary of ORG telephoned the applicant ’s representatives again to ask what their intentions were regarding the medical report . The representatives indicated they would reply in writing .

On DATE the applicant was interviewed again to obtain further bio - data to issue a travel document but he would not provide further details .

On DATE the applicant ’s representatives wrote to the Secretary of ORG . The letter stated that his detention was unlawful and that he should be released . The representatives sent a second letter to the Secretary of ORG on DATE , in which they again requested that the applicant be released due to his medical conditions and pursuant to the Secretary of ORG ’s policy on not detaining mentally ill persons .

NORP The Secretary of ORG replied to these letters on DATE in the following terms :

“ CARDINAL . NORP The Secretary of ORG , having considered the particulars of your client ’s case , is satisfied that the presumption in favour of release is outweighed by the seriousness of the offence , risk of harm to the public , and risk of absconding and that your client ’s detention is justified and lawful .

It has been decided that your client should be detained because :

- Your client is likely to abscond if given temporary admission or release .

- Your client does not have close enough ties ( e.g. family or friends ) to make it likely that he will stay in CARDINAL place .

- Your client has previously failed to comply with conditions of his stay , temporary admission or release .

- Your client has previously absconded .

- Your client has used or attempted to use deception in a way that leads us to consider he may continue to deceive .

- Your client has not produced satisfactory evidence of his identity , nationality , or lawful basis to be in GPE .

- Your client has previously failed or refused to leave GPE when required to do so .

- It is conducive to the public good for your client to be detained . ”

On DATE the Secretary of ORG set a time limit of CARDINAL DATE for the provision of further information in support of the applicant ’s asylum claim .

On DATE the applicant was examined by PERSON and her expert report , dated DATE , was sent to the Secretary of ORG on CARDINAL DATE .

Dr. PERSON noted that the applicant had a number of scars which accorded with his description of the first assault by supporters of PERSON . She also noted that he had a clear history of a psychotic illness which was characterised by many first - rank symptoms of schizophrenia . He was being treated but still experienced some symptoms , including auditory hallucinations and ideas of reference . In addition , he had symptoms of posttraumatic stress disorder , including poor sleep , nightmares , intrusive TIME thoughts , and physical symptoms of fear , hopelessness and isolation .

On DATE the detention centre where the applicant was detained raised concerns about his mental health . He was assessed by ORG as unsuitable for detention under LAW on DATE and on DATE as not requiring compulsory mental health treatment .

On DATE the applicant applied to the tribunal for bail but withdrew his application on DATE .

On DATE , the medical report was provided to the Secretary of ORG .

On DATE the applicant submitted his application for permission to apply for judicial review , in which he challenged his continuing detention on the grounds that it was contrary to the Secretary of ORG ’s published policy on the detention of persons suffering from serious mental illness ( “ the mental health concession ” ) ; that it was contrary to the Secretary of ORG ’s published policy on the detention of persons who had been victims of torture ( “ the torture concession ” ) ; and that it was contrary to the principles set down in R v. ORG Governor ex parte ORG PERSON [ DATE ] CARDINAL WLR CARDINAL ( “ the ORG PERSON principles ” ) . The applicant also claimed damages for unlawful detention .

On DATE , the applicant ’s representatives sent a new medical report and informed the Secretary of ORG that they were no longer relying on the medical report provided on DATE .

On DATE the Secretary of ORG refused the applicant ’s second asylum claim and made a deportation order pursuant to section ORG ) of GPE DATE . The applicant ’s appeal was dismissed on DATE . On DATE he was refused permission to appeal against that decision .

On DATE the applicant was refused permission to apply for judicial review on the papers by Mr Justice PERSON . In refusing permission , he observed that the mental health concession only applied where the detainee was suffering from a serious mental illness which could not be satisfactorily managed within detention . As a consequence , he concluded that the applicant ’s condition fell short of the severity required .

With regard to the torture concession , the judge noted that the alleged torture which had happened DATE previously and which was said to be the cause or part cause of the mental illness the claimant was suffering from could have no bearing on the reasonableness or otherwise of the current detention . Finally , he found that the ORG PERSON principles were not infringed because :

“ a. the CARDINALst principle is not engaged .

b. DATE and CARDINALrd principles are not infringed . The dangers of absconscion and reoffending are and have always been real in view of the claimant ’s behaviour DATE and his arrest in respect of the drugs matter . The recent decision of DATE means that the detention is not open - ended .

c. the CARDINALth principle is not infringed . There has been no lack of expedition by the defendant since the expiry of the claimant ’s sentence in DATE . ”

The applicant was released from detention on DATE after being granted bail by ORG .

On DATE the applicant was again refused permission to apply for judicial review by Mr Justice PERSON at a renewed oral hearing in which he heard from representatives for both parties . In the renewed application , the applicant had contended that his detention became unlawful on DATE , when the pre - action letter was sent to the Secretary of ORG . However , Mr Justice PERSON rejected that claim and found that the applicant had no arguable case . In particular , he noted that there was no evidence to suggest that his mental illness could not be satisfactorily managed in detention ; that there was no independent evidence that he had been tortured because his scarring was only consistent with an assault by PERSON supporters which did not amount to torture , and there was no scarring consistent with his allegations of ill - treatment at the police station ; and finally , that there was nothing to indicate the applicant ’s prospects of removal at the relevant time were nil or that efforts did not take place to effect his removal .

On DATE ORG refused the applicant permission to appeal the decision of DATE , finding that ORG had been correct on every point . There was no independent evidence of torture and the fact that the mental health concession had been clarified on DATE to refer to satisfactory management in detention did not mean that the position was otherwise before that date .

In the meantime , the applicant had challenged the decision to refuse his asylum claim and sought to appeal to ORG . On DATE the Secretary of ORG agreed that the decision of CARDINAL DATE refusing the applicant ’s asylum claim was flawed and that the case should be remitted to ORG .

On DATE ORG allowed the applicant ’s asylum appeal on human rights grounds . On DATE the deportation order was revoked and the applicant was subsequently granted discretionary leave until DATE . He applied for further discretionary leave on DATE . According to the observations submitted , a decision on that application remains outstanding .


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

The applicants were born in DATE and DATE respectively .

On DATE upon receipt of intelligence reports that the youth branch of the ORG would be holding a meeting in the premises of a cooperative , the police officers , under the orders of the GPE court , conducted a search in the LOC of the co - operative of which the applicants were members . The police seized several documents and CDs that contained propaganda materials related to the youth branch of the ORG .

On DATE the applicants were taken into custody on suspicion of being members of a terrorist organisation .

On DATE ORG ordered the applicants’ detention on remand .

On DATE and DATE , respectively , the applicants filed objections against their pre - trial detention . The courts rejected their request on the basis of the case - file , without holding a hearing .

During the pre - trial stage , the GPE court continued to examine , by virtue of LAW no . CARDINAL , the necessity of ORG continued detention DATE on the basis of the case file , without holding an oral hearing . The applicants also filed objections against their continued pre - trial detention , namely on DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL DATE . All these objections were examined on the basis of the case file and were rejected by the domestic courts .

On DATE ORG filed an indictment with ORG charging the applicants , along with CARDINAL other persons , with aiding and abetting a terrorist organisation under LAW no . DATE ) .

On DATE ORG held its first hearing and the applicants appeared before the court . On DATE , the applicants were released pending trial .

On DATE ORG acquitted the applicants of the charges against them . In the absence of an appeal , this judgment became final on DATE .


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

András Sajó;Egidijus Kūris;Nebojša Vučinić

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE the applicants brought a real - estate action against their mother and grandmother . On DATE a first - instance decision was given . On DATE the appeal judgment was adopted . In DATE ORG decision on the applicants’ petition for review was served .


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

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

NORP In DATE the applicant got married in GPE to GPE , a NORP national . They continued living in GPE and their son was born there in DATE . The child obtained NORP nationality at birth . It is unknown to the ORG whether he also holds NORP nationality . The family lived in the applicant ’s apartment . The applicant worked full time and was the sole financial provider for the family . In DATE he took CARDINAL GPE parental leave .

NORP In DATE the family went to GPE on holiday . They agreed to return to GPE in DATE and aeroplane tickets were purchased to this end .

The couple split up in DATE and ORG refused to return to GPE with the child . Soon afterwards the applicant went back to GPE alone . He briefly returned to GPE in DATE when his son underwent emergency surgery .

On DATE the applicant lodged an application to have his child returned under LAW . This application was registered with ORG on DATE .

On DATE ORG decided to obtain an expert report from ORG ( Rodzinny Ośrodek Diagnostyczno - PERSON “ the RODK ” ) . The experts were ordered to assess whether there was a grave risk that the boy ’s return abroad would expose him to physical or psychological harm or otherwise place him in an intolerable situation . A copy of this decision has not been submitted to ORG .

The applicant and ORG were invited to appear at an interview at the RODK which was scheduled for DATE . It appears that the domestic court ’s decision to order the RODK report contained an instruction that the examination should go ahead whether or not the applicant was present . The applicant did not come to the appointment at the RODK . As a result , the report was based only on the statements of the child and his mother and on CARDINAL volumes of the domestic court ’s case file . It was prepared by CARDINAL experts in psychology and was issued on DATE .

In their report , the RODK experts took notice of the fact that for DATE the child ( who was DATE at the time of the psychological examination ) had lived away from and almost without any contact with his father . They also observed that the child had a strong emotional bond with his mother ; he was developing well and spoke NORP ; and that ORG had ensured the child ’s security , well - being and development .

NORP The experts concluded that “ the child ’s separation from his mother would disturb his sense of security , belonging and stability , and [ that ] it would be adverse to his development – in particular , psychological [ development ] – [ and ] it would be against his best interests . In view of the above , moving the child to his father ’s care [ posed ] a grave risk to his emotional [ and ] social development , [ and ] could cause a situation [ which ] for a DATE child [ would be ] difficult to bear . ”

Apart from the RODK report , the domestic court obtained the following evidence : testimony from the applicant , ORG and the members of both families and medical reports .

On DATE ORG , with Judge PERSON presiding , dismissed the applicant ’s FAC application ( IIRNsm CARDINAL ) .

The first - instance court held that the child had been wrongfully retained in GPE by his mother within the meaning of LAW . It also considered that , in line with LAW , the interim orders concerning the issues of custody over the child and his residence which had been granted by the NORP and NORP family courts ( see paragraphs DATE , DATE and DATE below ) were viewed as irrelevant to the case at hand .

NORP The district court also considered that the RODK report was thorough , clear and of a high evidentiary value . Relying on the report and the remaining evidence , the family court established that since his birth the child had been under the constant good care of his mother ( who had not worked in GPE ) . The child had a strong emotional bond with the mother , did not remember the applicant and did not perceive him as a parent . The applicant did not show any interest in the child . Since DATE , he had seen his son only once , in DATE , despite the fact that he had been in GPE for DATE . He had also stopped paying child support and had not shown any interest in him . The domestic court also made an additional observation that the applicant had sold his apartment in GPE and it was unknown if his new living conditions were adequate for his DATE child to move into .

In view of the above it was ultimately held that separating the DATE boy from the mother and returning him to his father in GPE would be traumatic and hard to bear for the child . This , in turn , would pose a threat to the child ’s emotional and social development and would perturb his sense of security and stability .

The applicant appealed , arguing that the first - instance court had erred in that , inter alia , it had given a broad and not restrictive interpretation of LAW ( b ) of LAW and had dismissed his application even though it had not been established that the child was at a grave risk of physical or psychological harm if returned to GPE . The applicant also challenged the RODK experts’ report , arguing that it was unconvincing and inconsistent with the evidence obtained .

On DATE ORG ( II Ca CARDINAL/CARDINAL ) dismissed the appeal in the relevant part .

The appellate court observed that international and domestic practice required that LAW ( b ) be given a restrictive reading to the effect that , in principle , any unfavourable consequences of the child ’s separation stemming from the order to surrender the child by the abducting parent did not give rise to a grave risk of physical or psychological harm within the meaning of that provision . It also noted that the aim of LAW would be achieved if the abducting parent returned with the child . If no objective obstacles to the abducting parent ’s return were present , it could be inferred that the parent was refusing to return and was acting in his or her own interest and not the interest of the child .

The appellate court reasoned that the application of the abovementioned principles was more complex in cases concerning very young children . LAW stipulated only a maximum age requirement for children whose return could be sought under its provisions ( DATE ) . It also protected ( under LAW ) very young children from possible harmful effects of the return if it was shown that the parent seeking the return had not taken care of the child before the abduction or that the child had already adapted to the new environment . Following this approach , separating an abducted child from the parent who had a dominant role in the child ’s life would not fall within LAW ( b ) exceptions unless objective obstacles to the parent ’s return could be shown to be present . This approach however , was difficult to accept in cases concerning abductions of infants by mothers because of the special relationship between them . This was true even in the absence of any objective obstacles to the mother ’s own return because any separation of an infant from his or her mother would inevitably be contrary to the child ’s best interests .

The appellate court held that the utmost importance had to be attached to the child ’s contact with his mother and his separation from her would place the boy in an intolerable situation . The domestic court relied on the following elements of the case : the applicant ’s son had arrived in GPE with both parents at DATE , in DATE ; since then the child had been taken care of solely by his mother ; the most important element in his life was his contact with the mother ; he did not have any memories of his life in GPE ; and the applicant had not considered the child ’s remaining in GPE illegal prior to DATE . The appellate court also observed that by not appearing at the RODK interview , the applicant had waived his right to demonstrate that he could establish adequate contact with his young child and that the applicant had only seen his child once since the latter ’s departure from GPE .

Since DATE , the applicant has visited his son once , in DATE during a DATE stay in GPE .

In the applicant ’s submission , he had made countless attempts to see his son . In particular , he had applied to the courts to have a meeting with his child away from ORG house on DATE and on an unspecified date in DATE . Copies of these applications have not been submitted to ORG .

In the ORG ’s submission , the applicant had not enquired about or sought contact with the child .

On DATE the applicant lodged an application with the competent domestic court for arrangements to be made to secure the effective exercise of his right of contact during the Hague Convention proceedings . He wished to meet with his son away from ORG house DATE before and on DATE of the court hearing . He submitted that he had not seen his child since DATE and that the child ’s mother and grandparents had been very hostile towards the applicant when he had tried to visit his son at home . The applicant submitted that the application had been made under LAW . A copy of this application has not been submitted to the ORG .

On DATE ORG , with ORG as the presiding judge , decided to return the application for an interim order on the right of contact as unsubstantiated . It was considered that the applicant had not demonstrated that the child ’s mother , apart from her allegedly hostile attitude , had obstructed his contact with the child . The domestic court relied on the applicable provisions of LAW and did not make any reference to LAW .

The applicant stated without submitting a copy of the relevant document that on DATE the domestic court had decided to grant him a right to a supervised visit with his son for TIME daily in ORG house . The applicant had been in GPE at that time and thus had not exercised his right .

The applicant also submitted that on DATE the appellate court had dismissed his request , presumably for a different schedule of his visits . A copy of this decision is not in the case file .

On an unspecified date , the NORP family court granted the applicant a right to contact with his child . The details of this decision are unknown to the ORG .

On DATE ORG issued a decision , presumably concerning the applicant ’s right of contact with his son ( IC CARDINAL/CARDINAL ) . A copy of this decision has not been submitted by the ORG .

The applicant lodged an interlocutory appeal against this decision . On DATE the applicant ’s lawyer completed this appeal by submitting that ORG had been hindering the father ’s right of contact which he had tried to enforce in line with the court ’s order . The outcome of these proceedings is unknown .

On DATE PERSON petitioned for divorce in GPE . Divorce proceedings are currently pending before ORG .

On DATE the ORG gave an interim order , establishing the child ’s residence as being with the mother . It appears that the applicant participated in the court hearing via a live video link . He refused to answer any questions .

On DATE ORG in GPE held that the child ’s retention in GPE was wrongful and issued an interim order granting full custody of the child to the applicant , authorising him and the law - enforcement authorities to apprehend the child and ordering ORG to surrender the child without delay . To this effect , a wanted notice for ORG was issued by ORG for the offence of kidnapping .

ORG appeal against this ruling was dismissed on DATE .

On DATE ORG found ORG to be in contempt of court for , inter alia , failing to comply with the interim order described above . No sentence was pronounced on that occasion .

On DATE ORG confirmed the interim decision of DATE , granting a final order of the applicant ’s exclusive custody of the child . The NORP court also requested the assistance of the NORP courts in securing the immediate apprehension and return of the child pursuant to LAW .

On DATE ORG allowed the divorce between the applicant and ORG


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression;Freedom to impart information);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev

The applicant is a journalist for PERSON , a NORP Internet - based version of the newspaper ORG ( “ DN ” ) , published by the company ORG .

On DATE PERSON was indicted for market manipulation and insider trading under LAW on ORG ( verdipapirhandelloven ) . He was accused of having requested Mr Y , an attorney , to draft a letter concerning ORG ( “ ORG ” ) , a limited liability company quoted on the stock exchange . The letter , addressed to a trustee company representing the interests of bond holders in ORG ( “ the bond trustee company ” ) , gave the impression that it had been written on behalf of a number of bond holders who were seriously concerned about the company ’s liquidity , finances and future . In fact , it had been written only on PERSON behalf . He had owned CARDINAL bond , which he had acquired DATE as he had asked attorney Y to draft the letter .

Mr X had sent a copy of the above - mentioned letter by fax to the applicant on DATE , and in this connection he had a telephone conversation with her . DATE , on DATE , the applicant wrote an article entitled “ Fears of ORG collapse ” ( “ PERSON at ORG rakner ” ) , in which she expressed strong concerns about the content of Attorney Y ’s letter , a central feature in the article .

The price of ORG stock fell by PERCENT on DATE , the first trading DATE after the content of the letter had become known in the press . On DATE , a new article on the topic was published in ORG . Other media also reported on the first article , including an online newspaper ( ORG online ) which on DATE reported that an analyst had stated that he would not be surprised if the letter had been sent by a person with a short - position or who wanted cheap stocks . The GPE stock exchange ( GPE børs ) suspected market manipulation and , having looked into the matter , forwarded the case to ORG ) with suspicions that PERSON had infringed the LAW on ORG . During subsequent questioning by ORG , PERSON confirmed that he had initiated the letter and been the source of the article in ORG .

The applicant was questioned by the police on DATE . They informed her that PERSON had told the police that he had given her the letter . She was handed a signed statement from PERSON in which he confirmed this . The applicant was willing to say that she had received the letter on which the article was based by fax on DATE , at TIME She also stated that the article had been published on PERSON at TIME on DATE . The applicant further explained that she had considered the information in the letter as price - sensitive . She had no particular thoughts as to how many persons were behind the letter , beyond the fact that it had been signed on behalf of several bond holders . The applicant refused to give additional information , referring to the journalistic principles on protection of sources .

During the criminal case against PERSON in DATE before ORG ( tingrett ) , the applicant was summoned as a witness . She refused to answer questions about possible contacts between her and Mr X and other sources , if any , related to the publication by PERSON on DATE . Relying on LAW , she argued that she was under no obligation to give evidence on those points .

The prosecutor requested that the court impose on the applicant an order to testify . In the court records ( “ rettsboken ” ) , his arguments in favour of issuing such an order are restated as having included the following :

“ The prosecutor rose to speak and argued that the witness had an obligation to give testimony about her contact with the defendant in connection with the letter to [ the bond trustee company ] of DATE and asked the court to make a decision on the matter . The prosecutor further justified the obligation of the witness to make a statement and argued that undoubtedly in this case it was desirable to hear her explanation , even if the prosecuting authority found the case adequately disclosed ( fullgodt opplyst ) without her statement . The press was sometimes abused by investors to take actions liable to affect the share price . The element of abuse should suggest that in a case like this the press would also have an interest in making a statement in order to avoid being abused in this way . Whether or not consent had been given by the source to the witness making her statement had no bearing on the obligation to give evidence . ... ”

From the same records , it appears that PERSON , through his counsel and cocounsel , had submitted that he had described his contact with the applicant and that she could contribute nothing further of interest .

By a decision of CARDINAL DATE , ORG held that the applicant had a duty to give evidence about her contacts with PERSON in relation to the letter of DATE from Attorney Y to the bond trustee company . As to the scope of that duty , ORG held :

“ The obligation to make a statement is , however , limited to the contact with the defendant as a source and not her communication with possible other unknown sources with whom she has been in contact and who may be protected by the protection of sources . ”

NORP The prosecutor then stated , according to the hearing protocol , “ that he would not ask for postponement of the case as the prosecuting authority considers the case to be sufficiently disclosed ( “ tilstrekkelig opplyst ” ) even without the statement of the witness [ the applicant ] ” . It was then clarified that the applicant ’s appeal against the order would not be forwarded to ORG until after ORG judgment in the case against PERSON had been delivered .

On DATE ORG convicted PERSON in accordance with the indictment and sentenced him to DATE and CARDINAL months’ imprisonment , of which DATE were suspended for DATE .

The judgment contains the following passage :

“ CARDINAL of the witnesses pleaded , as a journalist , the protection of sources under LAW and was not willing to explain about her potential contact with the accused . The court held that the witness had an obligation to explain about her contact with the accused since he , as the source of the PERSON article , was known and the court ruled accordingly . An appeal was immediately made against the decision . No motion for extension was made ( pending a final decision ) as according to the prosecutor the case was sufficiently disclosed ( tilstrekkelig opplyst ) even without the statement by [ the applicant ] and this was used as a basis by the court . ”

On DATE Mr X appealed to ORG ( lagmannsrett ) against ORG assessment of the evidence and application of the law in relation to the issue of guilt , its procedure and the sentence ( see paragraphs CARDINAL - CARDINAL below ) .

The applicant appealed to ORG against ORG order of DATE . It rejected the appeal by a decision of DATE , finding it generally decisive whether the source was known . In this case , it had been established beyond reasonable doubt that PERSON had been the applicant ’s source .

An appeal by the applicant to ORG was rejected by CARDINAL votes to CARDINAL on DATE ( PERSON . DATE page CARDINAL ) . The appeal had been directed at ORG assessment of evidence as well as its application of the law . The disagreement in ORG concerned primarily the interpretation of the first paragraph of LAW , according to which , inter alia , journalists may refuse to answer questions as to who is the source of information confided to them for use in their work ( see paragraph CARDINAL below ) . The CARDINAL factions of ORG disagreed , in particular , as to whether this provision was applicable if the source had stepped forward or the identity of the source had otherwise been established .

NORP The majority observed that it did not appear from the wording of LAW § CARDINAL of LAW that it was relevant whether the source had disclosed his or her role or that this role had in other ways become known . However , the wording could not be given decisive weight . It emerged from the preparatory work that the legislature had not , with the chosen formulation , taken a stance on the issue at stake in the present case . There was therefore greater reason to assess whether the rationale underpinning the main rule , namely the right not to answer questions concerning the identity of the source , could also be given significant weight when the person , who had been the source of the information , had given evidence concerning his or her role and had confirmed being the source . It was difficult to see that this should be the case .

If the imposition of an obligation on the press to give evidence were limited to cases where the source had come forward , the person who was considering giving information to the press would know that it was up to him or her to determine whether the person who received the information would have an obligation to give evidence . There was thus no cogent reason why such a conditional obligation to give evidence should lead to increased scepticism towards providing information to the press . The same would , to a great extent , be true if the obligation to give evidence also applied when the identity of the source had become known in some other way . While the possibility that the identity of the source might be disclosed could well constitute a deterrent , it would hardly make much difference if information already known was also confirmed by the recipient of the information .

An obligation on the press to give evidence in such cases was not thought likely to weaken the public ’s general trust that the press would protect its sources . The situation under review did not concern the disclosure of sources but rather whether the person ’s role had become known by other means .

The majority further disagreed with the applicant ’s view that there was no reason to treat a situation , where the informant had identified himself or herself as the source , differently from those cases where the source had consented to being identified . A person who so consented could do so , trusting that the recipient of the information would respect the protection of sources as long as the identity of the source was unknown . Once an informant had confirmed that he was the source , this fact would become known . Should the recipient of the information then refuse to give evidence , this would normally appear futile . In such a situation , an exemption from the obligation to give evidence would in reality not constitute a protection against having to disclose the source , but rather a right to avoid contributing to the elucidation of a criminal case .

Interpreting LAW in the light of certain statements made in the preparatory work ( PERSON . nr . CARDINAL ( CARDINAL - CARDINAL ) , pp . CARDINAL and DATE ) as followed up in ORG caselaw ( ORG . DATE page DATE and DATE page CARDINAL ) , the majority held that this provision did not apply when the source had come forward and had confirmed his or her role . The same ought probably to apply when the identity of the source had been established beyond reasonable doubt by other means . If the state of the evidence was such that confirmation by the journalist of the identity of the source could not be said to assist in identifying the source , it seemed unquestionable to maintain the obligation to testify .

As to whether a more wide - reaching protection of journalistic sources followed from LAW , the majority had regard to ORG case - law , including PERSON v. GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) , ORG and Others v. GPE ( no . CARDINAL/CARDINAL , DATE ) and the ORG judgment in ORG v. the GPE ( no . CARDINAL/CARDINAL , DATE noting that ORG had decided the latter case on a different ground ) . They observed that in the CARDINAL NORP cases , a violation had been found under the necessity test even though strong countervailing arguments had been present . The majority further noted that there was no decision where the ORG had examined the situation where the source had come forward and where in this sense there was no source to protect ( “ ingen kilde å beskytte ” ) . The principal justification for source protection , as elaborated by the ORG in its case - law , was based on the consequences that the disclosure of a source ’s identity might have for the free flow of information . However , these considerations did not apply where the source had confirmed his or her participation .

Against this background , one could safely assume that no violation of the ORG would arise where a source had come forward and the obligation of the witness to give evidence had been expressly limited so as not to include questions that might lead to other sources being revealed . Also , the charge in this case had been based on the fact that the journalist had allowed herself to be used by the source in his efforts to manipulate the bonds market in a criminal manner . It was a serious criminal case , where it seemed likely that the applicant ’s evidence might significantly assist in elucidating the concrete circumstances of the defendant ’s contact with her .

The minority observed that , should the applicant be ordered to testify concerning her possible contact with PERSON about Attorney Y ’s letter of CARDINAL DATE to the trustee company , she would have to confirm or deny that PERSON was the source for her article on PERSON on DATE . By making a statement on this matter , she might also inadvertently reveal other potential sources . The legal question at hand was whether a journalist might rely on source protection if the source , without the journalist having revealed it , could be identified with more or less certainty by other evidence .

The wording of LAW was absolute and granted members of the press , broadcasting and other media the right to “ refuse to answer questions concerning who is ... the source ” . The provision made no exception for cases where the identity could be established with more or less certainty in some other way .

The protection of sources by journalists was , according to ORG case - law , “ one of the basic conditions for press freedom ” ( PERSON , cited above , § DATE ) . The purpose was not to protect the source , but rather the public interest in free communication of news and opinions ( ORG . DATE page CARDINAL ) . If journalists were allowed to protect their sources , they would obtain information enabling them to uncover matters in society that were worthy of criticism more easily than they would otherwise . The fact that it was for the journalist to decide to what extent he or she would rely on such protection reflected that it was not the source who was protected . If the journalist was willing to reveal the source , the source could not prevent it .

If it were a precondition for the protection of journalistic sources that no other proof of the source had been presented , such protection would be undermined . This would enable a source to be tracked down , even if a requirement for waiver of source protection was that the source be identified with a criminal standard of proof . If the hearing of evidence on the identity of a source were to be allowed , the media ’s working conditions would become considerably more constricted and society ’s interest in free communication of information and opinions would suffer .

If consent to source disclosure by a potential source should have the effect of removing source protection , the actual source might easily be identified and source protection would be undermined . In the present case PERSON had stated that he was the source . A situation where someone claimed to be the source ought to be considered in the same way as where the source consented to disclosure of his or her identity . A person might incorrectly claim to be the source so that the actual source might be identified by a process of elimination . And even if it were true that this person was the source , it would erode the journalist ’s right to source protection should the person who was the source be able to cancel the journalist ’s right . In addition , journalists often had several sources . If a journalist could be ordered to describe his or her contact with a person who claimed to be the source , his or her contact with other sources might also be revealed .

Equally , a combination of someone claiming to be the source and other evidence confirming this , should not lead to source protection being removed . Effective source protection was necessary in order to ensure free communication of information and opinions . It should not be permissible for press journalists to confirm or deny that a person claiming to be the source was in fact the source , even where there was weighty evidence to this effect . As mentioned above , it was not the source , but society ’s interest in free communication of news and opinions , which was to be protected .

The prosecutor had argued that PERSON had used the applicant as a tool to commit serious crimes , and this would have constituted a relevant argument , had the case been one concerning a possible individual exception to the right to non - disclosure of sources made under the third paragraph of LAW . However , the prosecutor had not relied on that paragraph of the provision , and the source ’s motive could not render the principle of source protection as such inapplicable . Within the ambit of LAW , freedom of speech did not protect only information and views that were positively received , but also those which offended , shocked or disturbed the ORG or parts of the population . Therefore , the fundamental right of journalists to protect their sources could not be dependent on the sources’ motives .

Mr X ’s appeal against ORG judgment of CARDINAL DATE ( see paragraph CARDINAL above ) was examined by ORG , which summoned and heard the applicant as a witness on DATE . She answered certain questions but affirmed that she still would not reply to questions about her contacts with Mr X. The court records contain the following passage :

“ When heard as a witness [ the applicant ] stated that she had received Attorney [ Y ] ’s letter by fax on DATE at TIME She does not wish to answer questions about who she had received the letter from or on her possible contact with Mr [ X ] during the period before or after this point in time . The presiding judge pointed out to the witness that after a legally enforceable decision by ORG she was obliged to give evidence about her contacts with Mr [ X ] . The presiding judge underlined that an omission to reply to such questions could constitute a ground for the imposition of a fine for an offence against the good order of court proceedings [ “ rettergangsbot ” ] . It was emphasised that the duty to reply lay on the witness personally and that a possible fine would be imposed on her personally . ”

On account of her refusal to comply , ORG , by a decision of DATE , ordered the applicant to pay a fine of MONEY ( ORG ) , MONEY ( ORG ) for an offence against the good order of court proceedings , failing which she would be liable to CARDINAL days’ imprisonment . The applicant did not appeal against that decision .

By a judgment of DATE , ORG convicted PERSON on the charges and sentenced him to DATE and CARDINAL months’ imprisonment .


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Sri Lanka)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant , PERSON , is a GPE national of GPE origin , who was born in DATE and resides in GPE .


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

On DATE the ORG of LOC convicted him of murder and sentenced him to DATE imprisonment . On DATE ORG upheld the conviction on appeal .

The applicant is HIV - positive and at the material time also suffered from tuberculosis and hepatitis .

On DATE the applicant was transferred to the PERSON medical facility ( лечебно-исправительное учреждение ) in LOC and was detained in the following wards :

( a ) quarantine ward DATE from DATE and from DATE ;

( b ) ward DATE from DATE to CARDINAL DATE and from DATE to CARDINAL DATE ; and

( c ) ward DATE from DATE to CARDINAL DATE .

According to the applicant , the wards were severely overcrowded . For instance , ward CARDINAL measured QUANTITY , was equipped with CARDINAL - tier bunk beds and housed CARDINAL inmates . Passages between the beds , lengthwise , were as narrow as QUANTITY and were used by QUANTITY inmates . The wards were poorly lit as the windows were covered with louvre shutters blocking access to natural light .

According to the Government , ward CARDINAL measured QUANTITY , had CARDINAL sleeping places and accommodated up to QUANTITY inmates . Ward CARDINAL measured QUANTITY , was equipped with CARDINAL - tier bunk beds and housed CARDINAL inmates . Finally , ward CARDINAL measured QUANTITY and accommodated CARDINAL inmates . The applicant was provided with an individual sleeping place at all times . All wards had access to natural light .

NORP In support of their submissions , the Government provided original floor plans and ward population registers containing information about the exact number of inmates in each ward for the whole period the applicant was in the PERSON facility . They also submitted a prosecutor ’s report dated DATE regarding the conditions there . It indicated , in particular , that windows in all wards were fitted with metal louvre shutters .

NORP On DATE the medical facility authorities issued an order introducing visiting fees for inmates and their families . The calculation table annexed to the order specified that a fee of MONEY ( MONEY ) per day per person would be payable , covering maintenance charges , prison staff salaries , the depreciation of visiting room equipment , bed linen and cleaning products .

On DATE the director of ORG sent a letter to the heads of NORP penal facilities , reminding them that charging visitors and detainees for family visits was in breach of LAW on LAW ( see paragraph CARDINAL below ) and that facility administrations must bear the costs of providing rooms for long - term visits . Only additional services are payable by detainees in accordance with LAW ( see paragraph CARDINAL below ) .

On DATE the applicant was authorised to see his CARDINAL daughters on a long - term family visit . He calculated that a DATE visit from them would cost RUB MONEY , which was far beyond their means . His daughters did visit him , but stayed only one day instead of the expected CARDINAL , as they did not have enough money on them to stay any longer .

On DATE the applicant ’s daughters visited their father again , this time free of charge .

On DATE the applicant received a letter from the ORG dated DATE in the correspondence department of the NORP correctional facility , to which he had been transferred in DATE . It was handed over to him in an open envelope and he was told to sign a copy which had been attached to his personal file .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)

All the applicants were parties to civil proceedings in which the firstinstance and appeal courts found in their favour . These judgments became final but were subsequently quashed by the supervisory review courts on the grounds of incorrect application of substantive law ( for more details see the Appendix ) .


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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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 .


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

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicants , PERSON and his wife PERSON , were born in DATE and DATE respectively and live in PERSON .

In DATE the NORP secret service ( PERSON ) bought a data carrier from a certain PERSON for a considerable amount of money . The data carrier contained financial data from ORG relating to CARDINAL people . PERSON , who had formerly been an employee of ORG , had illegally copied the data . The data carrier was submitted to the NORP tax investigation authorities , which subsequently instigated proceedings against , inter alia , the applicants , in relation to tax evasion crimes .

On DATE the GPE ORG ( “ the ORG ” ) , following an application from the GPE prosecutor ’s office , issued a search warrant in respect of the home of the applicants , who were suspected of having committed tax evasion DATE . The search warrant allowed the seizure of papers and other documents concerning the applicants’ capital , both inside and outside GPE , especially documents concerning information on foundations and any documents that could help to determine the true tax liability of the applicants DATE .

The search warrant indicated that , in the course of investigations against another suspect , the prosecution had obtained information that the applicants had established the “ ORG ” on DATE and the “ ORG ” on DATE . The applicants were suspected of having made financial investments via these CARDINAL associations with ORG in GPE , for which they were liable for tax in GPE . According to the search warrant , the applicants had failed to declare MONEY ( ORG ) of the yearly interest accrued from the capital of both ORG and ORG in their tax returns for DATE . It indicated that the applicants had evaded tax payments of ORG CARDINAL,CARDINAL in DATE , ORG CARDINAL in DATE , ORG CARDINAL in DATE , ORG CARDINAL,CARDINAL in DATE and ORG CARDINAL,CARDINAL in DATE . The search warrant stated that the house search was urgently needed in order to find further evidence and that , weighing the seriousness of the alleged crimes against the constitutional rights of the applicants , the house search was proportionate .

On DATE the applicants’ flat was searched and CARDINAL envelope containing ORG documents and CARDINAL computer files were seized .

The applicants appealed against the search warrant . They argued that the warrant had not been granted in accordance with the law . It had been based on material which had been acquired in breach of international law , especially LAW of DATE and ORG , Search , Seizure and Confiscation of the Proceeds from Crime of CARDINAL DATE , because the data had been stolen from ORG and had been bought by the secret service . The acquisition of the data had also violated domestic law , as the secret service had no authorisation to obtain tax data . In fact , such an act was a criminal offence under NORP law , as it infringed section ORG ) and section CARDINAL(CARDINAL)(CARDINAL ) of LAW ( “ divulgence of official secrets ” ( NORP ) ) . Furthermore , the secret service was not authorised to forward tax data to the financial authorities and the prosecution , as this infringed the NORP legal principle of separation of the secret service and the police / prosecution ( GPE ) .

On DATE the GPE ORG dismissed the appeal . It was of the view that the house search had been legal as it had been based on a lawful search warrant . The court had no doubt that it had been lawful to base the search warrant on the information contained in the GPE data carrier , as , in its view , the data had neither been seized in direct violation of international law nor by circumventing international treaties .

ORG was also of the view that the search warrant in question could be issued on the basis of the information in the data carrier , as the secret service had only played a passive role in acquiring it . According to the court , there was no indication that the secret service had incited a third person to steal the data , and it had merely accepted the data from a third person when this person had offered it . The fact that the secret service might have remunerated the seller did not , in the court ’s view , change the fact that the secret service had only played a passive role . In the court ’s opinion , it was within the secret service ’s remit to acquire the data carrier in the prescribed way and hand the data over to the prosecution , as the data carrier contained CARDINAL sets of data concerning international cash flows .

On DATE the ORG dismissed the ORG appeal . It held that the search warrant had been lawful , even if it was true that the NORP authorities had infringed domestic criminal law in obtaining the evidence . Even assuming that the NORP authorities might have committed the criminal offences of acting as an “ accessory to a criminal offence ” ( PERSON , LAW of LAW ) and an “ accessory to the divulgence of official secrets ” ( Beihilfe zum NORP , section CARDINAL(CARDINAL ) and section CARDINAL(CARDINAL)(CARDINAL ) of LAW , in conjunction with LAW ) in buying the GPE data from PERSON , and that PERSON might have committed the offence of “ industrial espionage ” ( ORG , section CARDINAL ) of LAW ) , it considered the search warrant to have been lawful . With regard to the ORG allegation that the data had been acquired in breach of international law , ORG doubted any such breach .

As regards the question whether illegally obtained evidence could be used in criminal proceedings , ORG referred to a decision of the same court of DATE , where it had held in a similar case and with regard to the same data carrier that the interest in prosecuting the suspects outweighed the possible infringements of criminal law , as the principal criminal act of “ data theft ” had been committed by a third party and not by the NORP authorities . According to the well - established case - law of ORG , evidence that had been illegally acquired by a third party could generally be used in criminal proceedings , unless it had been acquired through coercion or force . It also had to be considered that the use of the “ stolen ” data had not infringed the core of the applicants’ private sphere , but their business affairs . Furthermore , the “ data theft ” had not primarily infringed the rights of the applicants , but the data - protection rights of the bank from which it had been “ stolen ” . Thus , the GPE data was not excluded as evidence and the search order could be based on it . As to the presumed breach of international law , the court added that such a breach would not lead to the unlawfulness of the search warrant , firstly because international law did not grant the applicants any personal rights and secondly because the use of the evidence did not in itself constitute a breach of international law .

On DATE the applicants lodged a constitutional complaint with ORG . They were of the view that ORG and ORG should have decided that the search warrant had not been in accordance with the law , as the use of the GPE data as a basis for a search warrant had violated international treaties and the sovereignty of GPE , which had protested against the use of the data .

Furthermore , they argued that their right to respect for their home under LAW had been infringed , as the search warrant had been based on evidence that had been acquired by the secret service and passed on to the prosecution in violation of domestic law . The data purchase from PERSON had constituted a criminal act . Moreover , the secret service had no authority under NORP law to purchase such data . Furthermore , the transfer of the GPE data from the secret service to the financial authorities and the prosecution had violated the principle of the separation of the secret service and the prosecution in GPE . The infringement of domestic law had been so severe that the criminal courts should have come to the conclusion that the GPE data could not have formed the basis of a search warrant . They would thus have been obliged to declare the search warrant illegal .

On DATE ORG dismissed the constitutional complaint as manifestly ill - founded . It found that the fact that the search warrant had been based on the GPE data did not infringe LAW .

The Federal Constitutional Court reiterated that there was no absolute rule that evidence which had been acquired in violation of procedural rules could never be used in criminal proceedings ( compare paragraph CARDINAL below ) . The court further pointed out that it had to be borne in mind that the case at hand did not concern the question of whether evidence could be admitted in a criminal trial , but only concerned the preliminary question of whether evidence that might have been acquired in breach of procedural rules could form the basis of a search warrant in criminal investigation proceedings . Even if evidence was considered inadmissible in criminal proceedings , this did not automatically mean that the same was true for all stages of criminal investigations .

Furthermore , the court reiterated that it was not its role to substitute itself for the authorities in the interpretation and application of domestic law , but to review , in the light of LAW , the decisions taken by the authorities in the exercise of their margin of appreciation .

In applying these general principles to the case at hand , ORG ruled , at the outset , that it was not necessary to decide upon the question whether the acquisition of the data had been in breach of national or international law or violated the principle of the separation of the secret service and the prosecution in GPE , as ORG had departed in its decision from the ORG allegation that the evidence might in fact have been acquired in breach of domestic and international law , including criminal law .

The Federal Constitutional Court found that the fact that ORG based its legal assessment on the assumption that the acquisition of the data had been in breach of domestic and/or international law was not arbitrary and hence could not be found to be in violation of LAW . Its finding that the applicants could not invoke international law in their favour only showed a different legal opinion without disregarding the applicants’ basic rights . Furthermore , ORG considered reasonable LOC legal assessment that the principle of separation of the secret service and the prosecution had not been infringed , as the facts of the case did not show that the secret service had either ordered or coordinated the “ data theft ” , but had been offered the data on PERSON ’s own initiative . Acquiring data in such a way and passing it on to the prosecution could not violate the principle of separation , and hence could not render a search warrant unconstitutional .

With regard to ORG finding that the search order could be based on the GPE data ORG found that ORG legal assessment sufficiently took into account the applicants’ basic rights as ORG had departed from the ORG allegation that the evidence had been obtained in breach of domestic law and thus based its decision on , what was , for the applicants , the best possible assumption .

The Federal Constitutional Court further considered that ORG had struck a fair balance between the different interests at stake . The alleged breach of national and/or international law did not entail an imperative prohibition to use the evidence in the proceedings at issue . Furthermore , ORG had rightly pointed out that the data did not relate to the core area of the applicants’ private life , but to their business activities . It had recognized the decisive interest at stake , namely the applicants’ right to inviolability of their home , and took it sufficiently into account , as nothing showed that NORP authorities purposely and systematically breached international or domestic law in obtaining the data carrier .

On DATE the GPE ORG acquitted the applicants of the charges of tax evasion , finding that it had not been proven beyond reasonable doubt that the capital of the foundation in question had been invested in an interest - bearing way .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicant was born in DATE and lives in Rheine .

On DATE the applicant was arrested on the spot for having damaged with a hammer a number of vehicles parked in the PERSON courthouse ’s car park , and resisting a court ’s clerk . As a preliminary measure he was confined to a psychiatric hospital . The court appointed defence counsel to the applicant , who had a previous history of psychiatric treatment going back DATE .

On DATE , ORG delivered its judgment and ordered the applicant ’s confinement to a psychiatric hospital . It held that the applicant could not be held criminally responsible and was mentally ill . According to the court ’s psychiatric expert , he was psychotic and aggressive , did not show any awareness of his illness and it was likely that he would commit further , even more serious crimes .

When the judgment was delivered in the presence of the applicant , his courtappointed defence counsel and the applicant ’s custodian ( gesetzlicher ORG ) , the applicant became agitated . He told the courtappointed lawyer that he wished for a change in representation and declared that he wanted to appeal against the decision himself . He was informed that this was not possible on the spot . The presiding judge instructed him about the time and form for lodging an appeal on points of law . He was then returned to the forensic hospital where , when in contact with others , he showed no more signs of agitation .

On DATE the applicant received a letter from the courtappointed lawyer , dated DATE , who advised him as follows :

“ ... You already announced immediately after the hearing that you wanted to appeal against the court ’s decision and also to mandate new defence counsel . We respect your wish for new counsel and hereby terminate the mandate .

Regarding the remedy you wished for , we give the following advice : You may appeal on points of law against the decision of ORG ( ORG ) within DATE after the judgment was delivered , thus until