CASE OF MINDADZE AND NEMSITSVERIDZE v. GEORGIA

Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

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

On DATE criminal proceedings were brought against unidentified people following an armed attack on GPE , a member of ORG ( “ the member of parliament ” ) .

On DATE the victim was questioned for the first time by an investigator . A photofit image of the attacker was created with the help of the victim ’s description , but the member of parliament also added that he did not know who the attacker was .

On DATE the investigator drew up a report on the handing in to the police of a ORG pistol , equipped with a silencer , by a woman and her child . Notably , according to the report , the child had found the weapon while playing with his mother in the back yard of their house , close to where the member of parliament had been attacked . The report on the handing in of the gun was also signed by CARDINAL taxi drivers and an interpreter .

On DATE , at TIME , the first applicant , who had CARDINAL convictions for robbery and drugs offences , was arrested in the street in connection with the above - mentioned criminal case on suspicion of attempted murder . He was searched in the presence of CARDINAL witnesses at the time of his arrest , which revealed that he was in possession of a PERSON pistol .

The applicant was taken under arrest to GPE police headquarters and put in an office to be questioned by a police officer , D.Ch . He confessed during the interview to conspiring with the second applicant to murder the member of parliament . In particular , as noted in the police report of CARDINAL DATE , the first applicant stated that he had been contacted by the second applicant in DATE and offered MONEY ( ORG ) to kill a man whose identity was not specified at the time . The second applicant had therefore driven him to the building where the victim lived , without explaining the reasons for the murder . He had furnished him with a ORG pistol , which had been loaded and fitted with a silencer . From that date onwards the first applicant had regularly gone to the building , however , he had not tried to kill the victim on those occasions . The second applicant had telephoned him and insisted that he carry out the plan . On DATE , the first applicant had successfully entered a garage at the same time as the victim , had fired shots at him until he had run out of ammunition and then fled . TIME , the second applicant had called him to express his discontent because the victim , although seriously injured , had survived . DATE , the first applicant had learnt from the television that the man he had tried to kill was a member of parliament .

According to the record of the questioning of CARDINAL May CARDINAL , the first applicant had been feeling remorse and had wanted to give himself up to the police for some time . He told the investigator that his confession was sincere , that he regretted committing the crime and was relieved to have been arrested . The first applicant had no lawyer present during the questioning and did not sign the record of it . As subsequently explained by PERSON , an investigator in charge of the applicant ’s case from the GPE public prosecutor ’s office ( “ the investigator ” ) , the reason the applicant did not sign the record was that he had lost consciousness several times during the interview and had had to be brought round with cold water .

At TIME DATE , CARDINAL DATE , the investigator formally charged the first applicant with attempted murder , based on his confession , and , without informing the latter of his right to call in a lawyer of his own choice , assigned a public defence lawyer to him ; according to the case materials , that public lawyer was dismissed by the applicant on DATE ( see paragraph CARDINAL below ) , and , in general , the latter replaced his defence lawyers several times as the criminal proceedings unfolded . The first applicant was taken to the scene of the crime for a reconstruction of the events , and asked to repeat his confession there , which he did in the presence of the public defence lawyer and CARDINAL independent witnesses . The applicant repeated his confession word for word , again implicating the second applicant and adding that he hoped that his sincere confession would be taken into account as a mitigating circumstance . The statements given during the reconstruction were recorded in writing , with the written record bearing the signatures of both the first applicant and the lawyer appointed for him .

DATE , the first applicant was brought face - to - face with the victim in a formal confrontation . He was lined up with CARDINAL other people in front of the member of parliament , who , after some hesitation , identified him as the attacker . After the identification parade , the member of parliament asked to speak privately with the first applicant and was allowed to do so . No one else was present during their talk .

NORP The investigator then showed the first applicant the ORG pistol and silencer which had been handed in to the police by the CARDINAL independent witnesses on DATE ( see paragraph CARDINAL above ) . The applicant stated that he recognised the gun as the one he had used to attack the victim . The identification procedure was recorded in writing and was signed by the first applicant ’s public defence lawyer .

On CARDINAL DATE the second applicant was also arrested and charged with attempted murder . A public defence lawyer was assigned to him . The charges stated that he had wanted to kill the member of parliament , who was a distant relative . As the founder of a bank which had employed the second applicant ’s brother , the member of parliament had demanded that the applicant and his brother repay CARDINAL , which had been found missing by an internal audit ( see also paragraph CARDINAL below ) .

On DATE , the first applicant met the second applicant in a formal confrontation and accused him in accordance with his previous confession . According to a written report on the formal confrontation , the second applicant was assisted by the public defence lawyer .

On CARDINAL DATE the first applicant was charged in connection with the discovery of the PERSON pistol on his person when he was arrested with an additional offence of illegally carrying a weapon .

On DATE the FAC ORG ordered at a public hearing that the CARDINAL applicants be held in pre - trial detention for DATE , until DATE . After reviewing the criminal case material and hearing the parties’ oral submissions , the court confirmed the existence of a reasonable suspicion that the offences in question had been committed . A further main justification for the imposition of pre - trial detention was the assumption that the accused might abscond , in view of the severity of the possible sentence .

According to statements subsequently given to the investigative authorities by the first applicant ’s wife , she attended the hearing on DATE and noticed that her husband ’s nails had been bitten down and were blackened and that he had bandages on his wrists which he attempted to hide under his pullover .

On DATE , DATE , the first and second applicants were transferred from GPE police headquarters , where they had been held since their arrest , to , respectively , Prison no . CARDINAL and Prison no . CARDINAL in GPE . They remained in those prisons for the whole of their pre - trial detention , until their conviction at first instance ( see paragraph CARDINAL below ) .

Upon his admission to Prison no . CARDINAL on DATE , the first applicant was examined by the prison doctor , who noted in a report that there were MONEY of violence on his body .

On DATE ORG dismissed an appeal by the applicants and upheld the reasons given in the detention order of CARDINAL DATE .

On DATE , immediately after , a private lawyer , had been hired for the first applicant by his family ( “ the private lawyer ” ) , the first applicant submitted a complaint to the investigator , alleging that he had given his confession of CARDINAL DATE as a result of torture , and that those statements had not been true . The first applicant asked to be questioned again . He alleged that he had been subjected to electrical shocks and severe beatings on CARDINAL DATE and requested that a comprehensive medical examination be conducted for the purposes of establishing the exact nature of the injuries he had received .

On DATE the investigator ordered an expert medical report on the applicant ’s physical condition , which was only produced DATE ( see paragraph CARDINAL below ) .

On DATE the first applicant made a submission to the GPE public prosecutor in charge of his case ( “ the city prosecutor ” ) , asserting his innocence . He specified that his first lawyer , appointed by the ORG , had been assigned to him by the investigator without his consent ( see paragraph CARDINAL above ) , that he had done nothing to defend him , and that he had not even been offered the possibility of appointing another lawyer , CARDINAL of his own choice , at that time . The first applicant alleged that before being questioned on CARDINAL May CARDINAL he had been beaten with a square iron padlock , which had caused him to have seizures , and a doctor had had to be called .

On DATE the first applicant submitted a complaint to the city prosecutor about threats he had received in Prison no . CARDINAL . Notably , he had been threatened by unidentified people that his family would suffer if he did not stand by his confession .

On DATE the first applicant submitted an alibi to the investigator , citing the names of CARDINAL people he had been with on DATE , when the member of parliament had been injured . He requested that those people be questioned as witnesses .

On DATE the investigator rejected the first applicant ’s request of CARDINAL DATE on the grounds that his guilt had been established by his own , very detailed , confession , which he had repeated in the presence of a lawyer during the reconstruction of events at the crime scene . The investigator noted that , in addition , when confronted with the second applicant , the first applicant had accused him of being the instigator of the crime . Furthermore , the first applicant had been identified by the victim . There was therefore no reason to check his alibi .

On DATE the first applicant ’s lawyer submitted written statements to the investigator from the CARDINAL witnesses concerned ( see paragraph CARDINAL above ) , supporting the alibi and stating that on DATE the first applicant had been at a church wedding ceremony and subsequent reception until TIME The lawyer repeated his request for those people to be questioned . For his part , the second applicant stated his interest in having the first applicant ’s alibi verified . On DATE the investigator again rejected the request , using the same grounds as on DATE .

On DATE the second applicant informed ORG ( “ the CPPO ” ) that the member of parliament had clandestinely visited the first applicant in prison at TIME on DATE to demand that he stand by his confession . In exchange , he had offered him money . The member of parliament ’s visit to the prison had not been officially registered , but could be confirmed by prison staff . The second applicant also complained of the fact that the expert medical report on the first applicant had still not been produced and that the people who were capable of confirming his alibi had not been questioned .

DATE the second applicant lodged several more complaints with the city prosecutor about the investigator ’s repeated refusals to check the first applicant ’s alibi . The complaints were rejected on DATE , the city prosecutor considering that there was no need to take the first applicant ’s alibi into account , given that he had freely confessed to the crime , and that there was no evidence in the record of his interview of CARDINAL May CARDINAL that he had alleged that he had been subjected to ill - treatment .

On DATE the first applicant submitted a written request to the investigator to replace his private lawyer who had been hired by his family and had been in charge of his defence since DATE ( see paragraph CARDINAL above ) , with a new lawyer , PERSON . Dz . The applicant added that he wished to be “ questioned again with a view to a confession ” and “ arranging a plea bargain ” with the prosecution in the presence of this new public defence lawyer .

On DATE the investigator and the newly appointed lawyer PERSON . Dz . went to the prison hospital to attend the questioning of the first applicant , as he had requested on DATE . The applicant , however , refused to be questioned , without providing any explanation .

On DATE the NORP ORG granted an application by the prosecutor to extend the applicants’ pre - trial detention to CARDINAL DATE .

On DATE an expert from ORG commissioned by the investigator on DATE ( see paragraph CARDINAL above ) issued a report on the applicant ’s physical condition . It appeared that the expert had not examined the applicant in person but had asked the investigator to provide him with X - rays of his head and body . CARDINAL X - rays had been sent by the investigator to the expert as late as DATE . Notably , an X - ray of his head , taken only from CARDINAL side , and an X - ray of his thorax showed that at that time he bore no signs of lesions on those parts of the body .

On DATE the second applicant ’s mother lodged a criminal complaint with the PERSON , alleging that the member of parliament had visited the first applicant in prison in DATE and had offered him CARDINAL NORP lari ( GEL ) ( MONEY ( ORG ) ) to stand by his confession . The investigator had then put pressure on the first applicant ’s wife to convince her husband to accept the offer . She further alleged that after the member of parliament ’s visit , criminal bosses had been allowed to enter the applicant ’s cell on DATE in order to pressure him to testify as the member of parliament wished .

On DATE , DATE , the first applicant ’s wife lodged the same complaint as the second applicant ’s mother with the PERSON . She added that in exchange for the money offered by the member of parliament , her husband had been expected to dismiss the private lawyer hired by his family , stand by his confession and ask for a plea bargain with the prosecution . The member of parliament had given her an advance payment of ORG CARDINAL,CARDINAL to convince her husband . However , when on CARDINAL DATE the first applicant had refused to make a statement confirming his confession in the presence of the investigator and the newly appointed public lawyer PERSON . Dz . ( see paragraph CARDINAL above ) , the investigator had left the hospital and GPE , a “ mafia boss ” whose criminal case had been investigated by the same investigator , had been allowed into the first applicant ’s cell . PERSON had threatened the applicant with death if he refused to cooperate with the investigator , giving him DATE to think about it . The first applicant ’s wife added that she had received threats since DATE that her child would be killed if she dared to speak about the above - mentioned events with the authorities .

The allegations of the second applicant ’s mother were subsequently confirmed by a journalistic investigation into the events in question ( see paragraphs CARDINAL below ) .

On DATE the city prosecutor replied to the first applicant ’s wife and the second applicant ’s mother that their complaints of CARDINAL DATE were manifestly ill - founded for the same reasons given in the replies to the first applicant ’s repeated requests to have his alibi checked .

At DATE the first applicant dismissed PERSON . Dz . and reappointed his private lawyer ( see paragraph CARDINAL above ) .

On DATE the first applicant ’s lawyer wrote to the GPE city prosecutor requesting , among other things , that secret recordings of various meetings between the first applicant ’s wife and the member of parliament ’s lawyer ( see the details of the journalistic inquiry at paragraphs DATE below ) be obtained from the investigation into the illtreatment case ( see paragraphs DATE below ) and added to the applicants’ criminal case file . That request was rejected on DATE .

On DATE the first applicant ’s lawyer informed the investigator that his client wished to be questioned again . The investigator questioned the first applicant DATE and he repeated all the factual details concerning his allegations of ill - treatment on DATE , gave the names of the police officers involved and detailed the threats made against him . He complained of having been coerced into accepting PERSON . Dz . as his lawyer and that his sole purpose had been to sign witness statements for the investigator .

On DATE the prosecutor applied for an extension of DATE to the applicants’ pre - trial detention , until DATE . By a decision of DATE , a judge at ORG , after reviewing the application in the presence of the prosecution and the applicants’ lawyers , granted the extension . As grounds for that decision on to believe that if they were released the accused would attempt to impede the establishment of the facts and evade justice . In his view , a request by the applicants to be released on bail had to be rejected for the same reasons . No reference to any specific , as given in the decision of DATE .

On DATE the investigation was completed , a bill of indictment was approved by the prosecutor and the case was sent for trial to ORG .

On DATE ORG held a pre - trial conference hearing in the case , ruling to commit the applicants for trial as defendants . The decision was rendered in a standard , template form with pre - printed reasoning . The judge simply added in the blank spaces a brief statement of the facts , the names of the accused , the definition of the impugned offence and the measure of pre - trial restraint . As regards the confirmation of the latter , the printed standard phrase read as follows :

“ The measure of pre - trial restraint – detention DATE has been chosen correctly . ”

On DATE the first applicant lodged a criminal complaint with ORG , alleging that he had been subjected to ill - treatment on CARDINAL DATE and requesting an investigation . He specified that at TIME he had been taken to police headquarters in GPE and placed in a room on the twelfth floor . He had been given electric shocks and beaten . The surname of the officer who had held a weapon to his head and forced him to sign a pre - prepared confession was NORP PERSON other officers , PERSON . and NORP En . , had also participated . Other police officers had also been involved , and while the applicant did not recall their names , he stated that he would be able to identify them if confronted with them . He had also been beaten on the neck with a square padlock . He had passed out while being given the electric shocks and the police officers had poured water on his head to bring him around . When he had regained consciousness , a doctor had been there who had said that he needed an injection of a sedative , but the doctor ’s recommendation had been ignored . The first applicant had then been told by the police officers that his flat had already been visited , drugs had been planted there , and that his wife could easily be arrested . Upon his transfer to GPE ’s Prison no . QUANTITY on TIME of CARDINAL toCARDINAL DATE , the prison doctor had asked him , in the presence of the police officers , if he had been beaten , but he had denied it for fear that the ill - treatment would resume .

On DATE the PERSON referred the complaint of DATE to the GPE city prosecutor and the investigator in person , asking them to take action and to inform the Chief Prosecutor of their response . On DATE the investigator replied to the first applicant directly , informing him that his criminal complaint about illtreatment had been rejected as unsubstantiated as the applicant had not supported it with evidence .

On DATE the first applicant ’s wife complained to ORG that her husband had been ill - treated by police officers and that there had been a lack of response by the investigator and the GPE city prosecutor to her various previous complaints . She asked for the investigator to be removed from the case and for those who had carried out the ill - treatment to be identified and punished . In support of her request , she attached a copy of a report dated DATE on an examination of the applicant conducted at her request , and with the prison authority ’s permission , by private medical experts . That report showed that CARDINAL medical specialists – a psychiatrist , a neurologist and a trauma specialist – had examined the first applicant in prison , using the medical equipment available in the prison hospital , in the course of several visits . They first noted that the first applicant had repeated the statements he had made in his complaint of DATE . The medical experts also observed that the applicant suffered from epileptic fits , and that , according to the applicant himself , the first fit had occurred on DATE . Their view , on the basis of ultrasound and computed tomography ( GPE ) scans , was that the applicant suffered from epileptic fits which had been caused by a traumatic head injury . The ORG scan also showed a scarred lesion in the area of the joint at the nape of the neck , and signs of intracranial hypertension syndrome . A poorly healed fracture of the zygomatic bone and the left of the upper jaw was also detected . In the PERSON opinion , the physical and psychological problems that had been revealed could well have been caused , in principle , by the type of ill - treatment complained of by the first applicant .

DATE . On DATE the Inspectorate of the PERSON asked the investigations department of the GPE city prosecutor ’s office to set up a meeting with the first applicant for DATE with a view to checking the wife ’s allegations . ORG , for its part , replied to the first applicant ’s wife that the criminal complaint made by the applicant had already been examined and dismissed as unsubstantiated .

When questioned by an investigator of ORG DATE , the first applicant stood by his allegations that he had been tortured by the police officers on CARDINAL May CARDINAL .

Following a request by ORG , on DATE State experts drew up another medical report on the first applicant . The experts noted a wound at the nape of the neck , which was at an advanced stage of scarring and had been caused by a hard , blunt object ; various cuts on the stomach , some of which measured CARDINAL by QUANTITY and QUANTITY ; and several cuts on his left forearm . The scar on the head was old and it could not be said exactly when the injury had been sustained . However , it could have been caused DATE .

DATE , ORG PERSON questioned a number of potential witnesses to the first applicant ’s alleged ill - treatment : PERSON , the investigator in the applicant ’s case ; PERSON , a ORG camera operator who had recorded the applicant ’s confirmation of his initial confession at the crime scene ; the public defence lawyer who had been assigned to the applicant after his arrest and first interview ; PERSON , the judge who had ordered the applicant ’s pre - trial detention on DATE ; CARDINAL relatives of the first applicant who had attended the above - mentioned hearing ; and the doctor from Prison no . CARDINAL who had carried out a visual examination of the applicant at the time of his admission to prison . None of those people said they had seen marks of ill - treatment on the first applicant . In addition , all QUANTITY police officers accused by the first applicant of ill - treatment denied those accusations when questioned by ORG .

On DATE another medical expert examined the first applicant at the request of ORG . As well as confirming the findings of the previous expert report ( see paragraph CARDINAL above ) , he added that the zygomatic bone surrounding the left eye was deformed .

On DATE the Inspectorate General of the CPPO , on the basis of the statements given by the various witnesses as well as the medical reports of DATE and DATE , decided not to institute proceedings in relation to the first applicant ’s alleged ill - treatment .

PERSON District Court quashed that decision on DATE . The court found that the investigation carried out by the prosecution authority had not been comprehensive enough , and ordered ORG to undertake further investigative actions aimed at reexamining the wellfoundedness of the serious allegations made by the first applicant . On DATE that decision was upheld at final instance by ORG , and on DATE criminal proceedings were initiated in the case under LAW ( torture ) .

After the reopening of the investigation the prosecutorial authority questioned the same people who had already been questioned in ORG . The applicant was also examined again in DATE . A report issued on DATE suggested that the deformation of the zygomatic bone surrounding the applicant ’s left eye could not be said with certainty to have been caused by a traumatic injury from a dense or blunt object in DATE .

According to the case file as it stands , including the parties’ most recent factual addendums , the relevant authorities never took a definitive decision in relation to the investigation of the applicant ’s torture case under LAW § CARDINAL of LAW .

On DATE a trial started at the NORP ORG .

The first applicant , who was represented by the private lawyer , pleaded innocent , making particular reference to the ill - treatment he had been subjected to in order to obtain a confession . He complained that despite repeated requests the contents of the criminal file opened by ORG PERSON with respect to his alleged torture had not been added to the file in the criminal case against him and the other applicant ( see paragraph CARDINAL above ) . He insisted that the outcome of the criminal investigation into his ill - treatment would be of decisive importance for the assessment of the well - foundedness of the criminal charges against him and the second applicant . The first applicant also underlined the fact that he had an alibi .

The second applicant also pleaded innocent . His lawyer applied to have the record of the member of parliament ’s identifying the first applicant on CARDINAL DATE declared inadmissible as tainted by irregularities . In that connection , he maintained that on DATE the victim had said he was unable to identify his attacker while the photofit image created with his help had not resembled the first applicant . Later , however , he had stated that he was able to identify his attacker , and did so on DATE on the basis of the first applicant ’s “ general appearance ” . In addition , the first applicant had been lined up in front of the victim with CARDINAL other people who had looked totally different from him ( see also paragraphs CARDINAL and CARDINAL below ) . The second applicant ’s lawyer also applied to have the record of the formal confrontation between the first and second applicants , dated DATE , declared inadmissible as tainted by irregularities . Notably , the report contained the name of a public defence lawyer who had supposedly assisted the second applicant at the time . However , in actual fact the second applicant had been alone during the confrontation . Indeed , according to a letter from ORG , CARDINAL and DATE the public defence lawyer officially assigned to the second applicant on DATE had not possessed a badge allowing him to enter the main police station in GPE . Both applications were rejected by the trial court on DATE as ill - founded .

When questioned by the trial court , the woman and son who had allegedly handed in the weapon used to commit the crime to the police on DATE , according to the official version of events contained in the case file ( see paragraph CARDINAL above ) , stated that they had never handed in such a gun to the police . On the contrary , it had been the police who had suddenly come to her house , and had searched for and found the ORG pistol in the yard . She added that the gun that the police had found had not been equipped with a silencer .

Among other statements concerning a possible motive for the attack allegedly perpetrated by the applicants , the member of parliament told the court that as one of the founders of the bank and CARDINAL of its largest shareholders , he had recommended the second applicant ’s brother for the post of manager of the bank ’s GPE branch ( see also paragraph CARDINAL above ) . However , the CARDINAL brothers had abused his trust . They had taken certain items of gold belonging to clients and a large sum of money and had disappeared in DATE . DATE , as a result of efforts made by the family , the ORG uncle had returned the objects and the money to the bank . DATE , an internal audit of the branch in question had uncovered considerable losses there . The second applicant and his brother had put pressure on the members of the audit committee to not inform headquarters in GPE . Following internal discussions in which the member of parliament had been involved in person , it had been agreed that the CARDINAL brothers would by DATE at the latest repay the USD MONEY they had embezzled by various means . The member of parliament also told the trial court that he had easily identified the first applicant on CARDINAL May CARDINAL . He confirmed that he had approached the applicant after the identification parade , with the investigator ’s consent , and had asked him why he had tried to kill him . During their private talk the first applicant had allegedly replied that he had not wanted to kill him but had been acting on the second applicant ’s orders ( see paragraph CARDINAL above ) .

When questioned by the trial court , the CARDINAL witnesses to the reconstruction of the crime on DATE stated that they had been stopped by police officers in the vicinity of the main police station . The officers had asked them to go with them to assist in an investigative procedure and added that they would be arrested if they refused . At the station , the witnesses had seen the first applicant who , despite it being DATE in DATE , had been wearing a woollen hat . He had also had a deep bruise around CARDINAL of his eyes . The investigator had asked the first applicant CARDINAL or CARDINAL questions but he had remained silent for much of the time . When asked by the investigator about the place in question being the scene of the crime , he had simply nodded . The reconstruction had lasted TIME , at the end of which the CARDINAL witnesses had signed a record of the procedure , without reading its contents . No pressure had been put on the first applicant in their presence .

One of the men who took part in the identification parade where the first applicant had been identified by the victim on CARDINAL DATE told the court that he had been approached at random in the street by the police to take part in the line - up . He stated that , with the exception of the first applicant , all CARDINAL members of the identification parade , including himself , had been clean - shaven . Another clearly distinguishing feature had been that of the CARDINAL men in the line - up , only the first applicant had been bald . The applicant had looked exhausted and had had a deep bruise around CARDINAL eye . There had therefore been a considerable difference in appearance between the first applicant and the others .

Another participant in the identification parade , who had also been approached in the street to take part , gave the same version of events , including regarding the bruise . He added that the first applicant had been the only one not wearing a belt and without shoelaces . When the victim had identified him as the one who had shot at him , the first applicant had exclaimed that it was not him .

When questioned by the trial court , the CARDINAL taxi drivers who had signed the report of DATE on the handing in of the ORG pistol by the woman and her son stated that they had been taken to the main police headquarters under coercion , on pain of having their driving licences confiscated by the police , in order to take part as witnesses in an investigative procedure . They were told by an officer that a woman and a child were going to bring in a weapon , and they would have to confirm that fact by signing a record . They had waited in vain for TIME for the woman and child to arrive . The CARDINAL policemen had then taken a weapon equipped with a silencer out of a drawer in a table , explaining to the taxi drivers that it was the weapon in question . The police officers had drawn up a report saying that a woman and child with non - NORP names had brought the weapon to the station . The CARDINAL taxi drivers had signed the fabricated document in order to get their driving licences back and leave the LOC as soon as possible .

The interpreter whose signature was appended to the bottom of the same record of CARDINAL DATE stated before the trial court that she had not acted as an interpreter in the investigative procedure in question for a woman and child who did not speak NORP . She alleged that her signature had been forged .

DATE . CARDINAL people who had attended the wedding party of DATE also attended the hearing and confirmed the applicant ’s alibi by stating that they had seen him at the party , that he had stayed until TIME , and definitely until after TIME

A member of an independent human rights organisation told the trial court that at the time of the events she had had official permission from the ORG to visit prisoners who had allegedly been subjected to abuse . Following a series of complaints by the family , she had visited the first applicant DATE after his arrest . She had seen that he had a head wound , cuts on his face and had been in a generally poor condition . The first applicant had also complained to her of a fracture of the bone surrounding his eye . He had subsequently spent time in the prison hospital but had requested to be transferred back to prison because various people , including the member of parliament ’s lawyer , had been able to visit him in the hospital and disturb him . The first applicant had given the human rights activist the name of a police officer , a certain PERSON , saying he had been CARDINAL of the men who had tortured him on CARDINAL May CARDINAL at GPE main police station . She had immediately informed ORG and ORG of the applicant ’s allegations , but neither of them had reacted .

The first applicant ’s wife told the court that she had visited her husband in prison on DATE . She had been able to see through the glass between them that he was wearing a woollen hat , under which a plaster was visible . He had had dark circles under his eyes and his nails were blackened . She also confirmed the facts relating to her meetings with the parliamentarian ’s lawyer .

On application by the defence , the secret recordings of the CARDINAL meetings between the first applicant ’s wife and the victim ’s lawyer were played to the trial court ( see details of the journalistic investigation at paragraphs DATE below ) .

On DATE the ORG ruled that the following pieces of evidence were inadmissible owing to significant procedural shortcomings in the way they had been obtained :

( i ) the first applicant ’s confession at his first interview on DATE ( see paragraphs CARDINAL above ) ;

( ii ) the record of DATE of the woman and her son handing in the ORG pistol at the police station ( see paragraph CARDINAL above ) ;

( iii ) the record of CARDINAL May CARDINAL of the first applicant identifying the ORG pistol ( see paragraph CARDINAL above ) .

On DATE the NORP ORG gave judgment . It first held that it was undeniable that the first applicant had had various injuries on his body , as confirmed by the various expert reports . However , the time , place or circumstances of sustaining the injuries had not been established .

The first applicant was found guilty of attempted murder with aggravating circumstances , on account of his attack on the member of parliament on DATE , and illegal possession of a weapon , owing to the PERSON pistol that had been found on him when he had been arrested . His guilt related to the PERSON had been proved , according to the court , by the record of the body search after his arrest and the record of the seizure of the weapon thus discovered .

The court found that the charge of attempted murder had been proved by the following items of direct evidence , which it considered to have been obtained without any major irregularities :

( i ) the written record of the first applicant ’s confession given during the reconstruction at the scene of the crime on DATE ( see paragraph CARDINAL above ) ;

( ii ) the record of his identification by the member of parliament on DATE ( see paragraph CARDINAL above ) ;

( iii ) the member of parliament ’s statements concerning the private talk he had had with the first applicant on CARDINAL May CARDINAL ( see paragraph CARDINAL above ) .

DATE . The second applicant was also found guilty of attempted murder with aggravating circumstances and of the illicit possession of a weapon on account of his role in planning to kill the member of parliament by hiring the first applicant and providing him with a firearm . He was additionally found guilty of embezzlement on account of his complicity with his brother in misappropriating the bank ’s assets ( see paragraphs DATE above ) . In the trial court ’s opinion , the same evidence as used against the first applicant had proven the charge of attempted murder against the second applicant ( see the preceding paragraph ) :

( i ) the written record of the first applicant ’s confession during the reconstruction at the scene of the crime on DATE ; and

( ii ) the member of parliament ’s statements concerning the private talk he had had with the first applicant on CARDINAL May CARDINAL .

As to the defence ’s arguments concerning the lawfulness of the various records mentioned above , the trial court conceded that there had been a series of irregularities in the course of the investigative procedures in question , but they had not been such as to render the evidence inadmissible .

Both applicants appealed .

With respect to the conviction for attempted murder , the first applicant reiterated his complaints about the absence of a lawyer of his own choice at the first interviews , his ill - treatment and forced confession . According to him , numerous witnesses questioned by the judges had raised a reasonable doubt that he had been able to participate properly in the confirmation of his confession during the reconstruction of the events at the scene of the crime on DATE . Nevertheless , the record of that procedure had been considered a key piece of evidence in establishing his guilt . The second piece of evidence used to establish his being guilty of attempted murder – the record of his identification by the victim – had also been tainted by irregularities . In fact , contrary to the requirements of Article CARDINAL of LAW , the other men who had lined up with him had all looked healthy , had had full heads of hair , had been cleanshaven and had been wearing belts and shoes that had been laced up . He , on the other hand , was partially bald , had been injured and looked tired , had not been able to shave for DATE and had had no belt or laces . The first applicant also referred to the secret recordings of the meetings between his wife and the member of parliament ’s lawyer ( see paragraphs DATE below ) . Those recordings had been played to the trial court judges , but they had chosen not to mention them in their judgment or take them into consideration in any way .

The second applicant ’s appeal had similar arguments as regards the conviction for attempted murder . He specifically complained that while the trial court judges had confirmed his guilt by reference to the record of the confirmation of the first applicant ’s confession during the reconstruction at the scene of the crime on DATE , that specific item of evidence had clearly been tainted by the ill - treatment the first applicant had suffered at the hands of the police .

On DATE ORG of ORG dismissed the ORG appeals . As far as the alleged illtreatment was concerned , the criminal chamber affirmed that it was not in dispute that the first applicant had had marks of violence on his person . Nevertheless , the circumstances under which the injuries had been sustained and who had caused them were not known . The court held that the guilty verdict against both applicants had to be upheld in its entirety . The first and second applicants were convicted , respectively , to CARDINAL and CARDINAL years’ imprisonment .

The cassette contains a recording of the investigative journalism programme TIME . The recording in question is about the applicants’ case and is entitled “ Contract murder , or rigged investigation ? ”

Amongst other details , the programme aired secret video - recordings of CARDINAL meetings between the first applicant ’s wife and the member of parliament ’s lawyer .

At the first meeting , which took place DATE before DATE , the lawyer offered an advance payment to the first applicant ’s wife to ensure that her husband replaced the lawyer he had chosen with PERSON . Dz . , who was trusted by the member of parliament . It was with the help of that new lawyer that the applicant was expected by the member of parliament to stand by his initial confession . The first applicant ’s wife replied that her husband ’s lawyer could do the job just as well , but the member of parliament ’s lawyer stated that that lawyer could not be trusted in such dealings .

The secret recording of the second meeting showed how PERSON . Dz . , by then appointed as the first applicant ’s lawyer on the advice of the member of parliament ’s lawyer , handed over ORG CARDINAL,CARDINAL to the first applicant ’s wife on behalf of the member of parliament ( see also paragraph CARDINAL above ) .


CASE OF MUSTAFA ERDOĞAN AND OTHERS v. TURKEY

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

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The first and the second applicants were born in DATE and DATE respectively .

At the time of the events the first applicant PERSON was a professor of constitutional law at ORG in GPE . The second applicant Mr PERSON was the editor of the DATE publication ORG and the third applicant PERSON ORG was a joint - stock company and the publisher of ORG ( hereinafter : “ the publishing company ” ) . Mr PERSON , the president of the board of members of ORG ORG at the material time , applied to the ORG on behalf of the publishing company .

In DATE an article entitled ‘ GPE ’s ORG problem in the light of its decision to dissolve the FAC [ Virtue ] Party’ written by the first applicant was published in Liberal Thinking . It read as follows :

“ ORG has finally delivered its judgment on ORG at DATE , which lasted DATE , and has dissolved the party on the grounds that it had become ‘ a hub of activity contrary to [ the ] principles of ORG . As a result , the high court has decided that ORG and PERSON , who were members of parliament at the date of the judgment , [ should be ] stripped of their parliamentary status and it has prohibited former parliamentarians PERSON , PERSON and PERSON from participating in political activities for DATE . CARDINAL members of the ORG have dissented and I am of the opinion that their names should be mentioned : PERSON , PERSON and PERSON .

The judgment of ORG has naturally created widespread discontent throughout the country . Apart from a few fanatical individuals in the media who have character deficiencies , everyone who is sensible and whose conscience has not been paralysed has considered the judgment legally wrong and politically inappropriate . Even people whose sensitivities to democratic issues have never been that obvious have criticised LAW about this judgment . Nevertheless , it is clear that concerns about the difficulties that the judgment might cause GPE in its dealings with ORG and ORG have played a great role in the emergence of this reaction . Moreover , it is commonly believed that this judgment was not the product of the free will of ORG but that it was brought about under pressure [ from ] and at the suggestion of military circles .

It is certain that the dissolution of ORG is closely related to the current political situation , the direction of which has been determined by the status quo powers ( ‘ the deep ORG ) . However , it seems to me that we can not be sure whether the ORG was put under direct pressure . The first point is important to find out the nature of the present regime in GPE . From a legal point of view , however , what is more important is how ORG gave such a judgment . In other words , the people who should be criticised and who should be held responsible are the CARDINAL judges at the ORG , all of whom are ‘ PERSON and ‘ ORG . The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices . This can be done only through analysing the judgment from a legal point of view . As a matter of fact , the reasons for judgment have not yet been published . But there is nothing wrong in subjecting the judgment to such an analysis in its form as pronounced to the public . Besides , I do not think that the reasons for judgment when they are published in a few GPE time will invalidate our first analysis . Our observations and information regarding the previous judicial approach of the ORG demonstrate that the reasoning in the judgment will be ‘ prearranged’ . In other words , in the established practice of the ORG the thing which is termed ‘ the reasoning’ is fabricated and formulated at subsequent stages to justify the predetermined judgment [ made ] on the basis of prior opinions . Now we can submit our first legally relevant observations and evaluation of this judgment .

ORG did the right thing by not dissolving ORG on the grounds that ‘ it was a continuation of a party’ . The ORG might have acted in this way for CARDINAL reasons : firstly , the ORG might have maintained the type of interpretation which it adopted in its previous judgments on the meaning of ‘ being a continuation’ of a party . This means that a distinction was made between continuation in the sociological sense and the continuation of a political tradition , and continuation in a technical legal sense among consecutive political parties . This is an extraordinarily appropriate legal understanding . If this is the case , it means that ORG considered that ORG , while continuing the political line represented by PERSON ( national order ) and ORG in the sociological and political sense , was not the continuation of ORG with another title .

A second possibility might be the fact that ORG adopted the view which is insistently voiced by some constitutional law experts , including the author of this article . According to this view , LAW stipulates that ‘ a party which was dissolved can not be re - established under another title’ , but neither the LAW nor the Law on Political Parties require that the sanction of dissolution be applied to such a party if it has acted contrary to LAW . If this was the reason for which ORG refused ORG request to dissolve ORG on the basis of it being a continuation of ORG , this only demonstrates that the court did not , at least , violate the positive law in this respect . This in itself does not deserve praise , since acting to the contrary would have been openly unlawful .

On the other hand , ORG decision to dissolve ORG on the grounds that it had become ‘ a hub of activity contrary to the principles of ORG is clearly contrary to the law and has no factual or legal basis . This judgment is faulty on CARDINAL grounds . Firstly , the activity which is claimed to be ‘ contrary to secularism’ – in fact , it is only comprised of words [ and ] statements – does not have such characteristics . Most of them concern expressions of concern [ about ] the social consequences of the lack of freedom created by the prohibition on wearing the headscarf . In other words , these statements have the nature of being demands for freedom voiced by Members of ORG – mostly from the podium of ORG . Criticism of a prohibition , especially if it is voiced by members of parliament , can not be contrary to any democratic and constitutional regime . As long as it is voiced in a peaceful way , a demand for freedom can not be contrary to the principles of secularism and democracy , even if the right or freedom which constitutes the subject of the demand has not been recognised in positive law . Besides , wearing the headscarf is not prohibited for university students in NORP law . The prohibition on wearing the headscarf which has been implemented in GPE in DATE is not a requirement of the current legal order , but it is a result of current power relations . In other words , the existence of this prohibition is a de facto and not a de jure phenomenon .

Secondly , even if it was against the law for university students to wear the headscarf , this would not make the party whose members are criticising the prohibition and demanding its removal contrary to secularism in a democratic system . Let us leave this fact aside and let us assume that such criticism and such a demand for freedom are contrary to secularism . Even in this case , the fact that some MPs or party members are making such criticism individually does not make the party “ a hub ” of that activity . In fact , being the “ hub ” or “ focus ” of any kind of activity for an organisation means the following : that the activity arose from the centre of that organisation , it is directed , controlled and administered by that centre ; and that the activity is performed intensively , decisively and continuously . The facts in the trial record clearly demonstrate that these criteria did not apply to the legal personality of ORG . Apart from [ the fact that it was ] far from being in a position to become the “ hub ” of the [ relevant ] activity , ORG did not become a determined follower of the issue of the headscarf ban in addition to many other issues . In fact , this party has been the most “ obedient ” party of the system for DATE and did not hold a clear and decisive view on any major issue , probably because of the fear of being dissolved .

It seems that ORG considered PERSON election as an MP for ORG – she is still an MP – and the support given by the party to her as proof of the claim that the party had become “ a hub of activity contrary to the principles of secularism ” . In other words , according to ORG , the election of a citizen who wears a headscarf as an MP and her attempt to take the oath in ORG while wearing the headscarf are contrary to secularism . This is an unsound understanding for many reasons . First of all , if “ national sovereignty ” is CARDINAL of the true – not fake – basic principles of GPE ’s constitutional order , no constitutional organ , particularly ORG , whose legitimate authority stems from this principle , can impose any restrictions on the nation ’s right to elect its representatives . PERSON was put forward as a candidate by ORG , but she was elected by the NORP nation . If ORG had found this fact to be contrary to secularism , it would have “ annulled ” the nation . Secondly , there is no provision in the LAW stipulating that a person who wears a headscarf can not be an MP and that she can not take the oath in ORG in a headscarf . [ Nor does ] such a provision exist in ORG ’s standing orders . This can be understood from the fact that an initiative was recently launched in ORG to add such a prohibition to its standing orders . Besides , even if there were such a provision , this would be considered null and void because it would be contrary to the LAW . In fact , ORG does not have the right to act [ in a way ] which would bring about the abolition of the ORG rights to elect representatives and to be elected as representatives , which are CARDINAL of [ their ] basic rights . Actually , since the aim of the standing orders is to ensure the conduct of ORG ’s activities in an orderly way , a right can not be annulled with such a procedural action .

This judgment demonstrates that the dominant majority of ORG continues to apply its incorrect understanding of what “ secularism in a democratic system ” is . Unfortunately , ORG has interpreted secularism in many of its judgments in a totalitarian manner . According to the ORG , secularism is not a pro - freedom and pro - peace principle restricting the ORG , but is a higher principle legitimising the imposition by the ORG of a certain way of life on citizens . ORG considers secularism as the categorical refusal of the demands of religion in the social , public and political arenas . Therefore , it thinks that secularism authorises the ORG to remove manifestations of religion in society . Moreover , it exalts this principle to the level of being the most important value of the constitutional order . According to this understanding , democracy , the rule of law and human rights are all secondary values , which should [ only ] be recognised to the degree allowed by secularism .

Here , the more interesting point is that ORG insists on continuing the doctrine of “ secularism as a project of social engineering ” , which was developed during the authoritarian ( occasionally totalitarian ) CARDINAL - party era , in the democratic - pluralist environment . It also stubbornly ignores the pro - freedom / democratic criticism of this notion . Despite the fact that even the NORP literature on the subject of “ secularism in a democratic system ” has expanded to a considerable degree in the last QUANTITY or fifteen years , our judges in ORG turn a blind eye to this literature . Furthermore , in this trial at least , our senior judges did not need to undertake additional efforts to obtain new sources and information on this issue . For example , there was detailed information in the defence brief on how secularism is understood and implemented in contemporary democracies , but it seems that the members of the ORG did not read these passages or if they did , they ignored it .

In this connection , the CARDINAL judgments of ORG which directly concerned the issue of wearing headscarves and its judgments dissolving ORG and ORG indicate that this matter has become the key focus of secularism . The conclusion which the ORG has reached can be formulated as the following : “ to demand the freedom of wearing the headscarf means categorically being against secularism DATE and indirectly against the LAW . ” This is a totally wrong idea regardless of the perspective one has : it is anti - democratic , it is anti - freedom , it is contrary to secularism and it is pro - conflict . It is anti - democratic because it restricts in an arbitrary way the field of democratic politics and the sphere of activity of democratic political actors . It is anti - freedom because it is oppressive and imposing . It is contrary to secularism because it oppresses religious choices and creates discrimination on the grounds of religion . Finally , it is pro - conflict because it forces the ORG to quarrel with society and in this way it allows the ORG to destroy the social peace and order .

NORP The part of this judgment which ends the MP status of some politicians and prohibits them from involvement in further political activities does not contain valid grounds pertaining to the relevant individuals . Specifically , the application of the sanctions against ORG on the grounds that she “ was one of the people who brought about the dissolution of their party with their activity contrary to secularism ” bears no relation to reality and is a ridiculous assertion . The situation is really awkward . A high court imagines that it protects “ secularism ” by prohibiting a person from being involved in political activities and by ending the MP status of that individual , who meets the criteria of a “ contemporary way of life ” and “ contemporary personal appearances ” perfectly . Everybody knows that she has never been in favour of a political regime established on the basis of religion and that she has never made any effort in this direction . This is a typical example of the attitude of the ORG demonstrating the absurd results [ its ] formalist legal reasoning can produce .

All these explanations highlight that the statement of the chairman of ORG to the effect that “ there is nothing we can do , the laws force us to act in this way , if you do not want us to do so , change the laws ” , has no value from a legal point of view . It is true that the LAW and the laws in GPE are not pro - freedom ; therefore , it is , of course , necessary to improve the positive law . But the major problem in the judgment which dissolved ORG is not the unsuitable character of the current law . The problem is that ORG interprets the LAW and the laws which are in force in an authoritarian and narrow - minded way . Let us leave the necessity of ORG complying with the provisions of LAW and the GPE case - law [ to CARDINAL side ] . There are no serious grounds for dissolving ORG , even on the basis of the LAW and the Law on Political Parties . But there is no need [ to know ] the [ provisions of those ] laws to understand this fact . The notions which are needed are the notion of law , which does not see legitimacy as the same as the law [ itself ] , a considerable amount of knowledge about the technique of interpretation and legal reasoning and sensitivity to freedom and democracy . In other words , our problem is the fact that most of our constitutional law judges do not know the law , and do not have knowledge of democracy , political and constitutional theory or secularism . Nor do they intend to acquire it .

It is assumed that the pro - freedom and pro - democracy case - law of ORG is brought about by the strict interpretation of the LAW . The real situation is different from the one which is assumed : when deciding on cases on the basis of the LAW , which does not include the concept of a “ political party ” , ORG concludes them by applying a broad interpretation to the provisions concerning freedom of association and expression in accordance with [ general ] principles and the universal understanding [ of those concepts ] . The NORP constitutional court judges , if they wished to do so and could develop the necessary intellectual skills , could ease the restrictive provisions of positive law in GPE . So long as they wanted to do so .

Moreover , it is difficult to consider the aforementioned statement of the chairman to be sincere . If the problem is [ one of ] making changes to the LAW and the law , ORG actually enacted a statutory amendment , which defined [ what it means ] for political parties to become a “ hub ” in a highly reasonable way and which set criteria to ensure its implementation . Why did ORG annul this amendment in accordance with an authoritarian understanding ? In this case , the problem is related to the fact that our constitutional court judges have not taken on board freedoms , rather than the assertion that the current laws are unsuitable .

This latest judgment of ORG has demonstrated another thing : the professional capabilities of most of the court members are insufficient for the job . Moreover , they are not willing to compensate for this insufficiency . They are closed to knowledge , they have no passion for their jobs and they are incapable of becoming open - minded . They try to fulfil the requirements of their vital duty , finding their way out by sticking together , without feeling uneasy about it . It is because of this reason that the obstacle to freedoms in GPE is not ORG , which does not change the LAW and which does not enact the necessary laws . The real obstacle is ORG , which does not shy away from being the systematic shredder of freedoms . It is urgently necessary to deal with the issue of membership in ORG . ”

It appears that following the publication of the article all members of ORG brought separate civil actions against PERSON , Mr PERSON and the publishing company ( hereinafter “ the defendants ” ) , seeking damages for the injury they claimed to have sustained as a result of the applicants’ serious attack on their honour and integrity through the publication of the above article , which had contained , in their view , defamatory passages .

The present applications concern the damages claims brought against the applicants by PERSON , Mr Y.A. and PERSON , judges and in the case of the last claimant , the president , of ORG at the material time .

Before the domestic courts the applicants maintained that , while the expressions used in the article had been severe in terms of form and style , they had remained within the limits of the freedom of expression , as they had had a basis in fact . In this connection , the applicants , referring to the case - law of ORG , asserted that the article in question had criticised the judgment of ORG with respect to its decision to dissolve ORG , that the acceptable limits of criticism should be more extensive for judges , high level public officials and politicians than others , and that value judgments which were made on the basis of fact were in conformity with the law .

On this latter point , the applicants , relying on the views of various academics , politicians and journalists , underlined that a segment of the public believed – rightly or wrongly DATE that the judgment of ORG had been given under the influence of the military and that there were certain parallels between the outcome of the judgment and the general political situation existing in GPE at the time . Likewise , again relying on various articles , notably certain statements made by a number of judges sitting on the bench of the higher courts , including ORG , the applicants argued that the statements regarding the lack of skill of the judges sitting at FAC were not without any factual basis .

The applicants submitted that numerous criticisms had been voiced against the judgment of ORG by academics , journalists and politicians , and underlined that the first applicant , who was a professor of constitutional law , had consistently emphasised in his publications that the basic function of constitutional courts DATE or similar organs – in constitutional democratic systems is to serve as the guarantee of basic rights against arbitrary actions of the ORG and that high court judges DATE and indeed judges in general DATE have to avoid giving judgments corresponding to their ideological opinions and political tendencies .

On DATE the CARDINALth Chamber of ORG of First Instance ordered the applicants to pay PERSON , jointly , MONEY ( GPE – MONEY ( ORG ) ) in damages , plus interest at the legal statutory rate running from the date the article in question was published .

In its judgment , the court referred to the following passages :

“ ... it is commonly believed that this judgment is not the product of the free will of ORG but that it was brought about under pressure from and at the suggestion of military circles ... it is certain that the dissolution of ORG is closely related to the current political situation , the direction of which has been determined by the status quo powers ( ‘ the deep ORG ) . However , it seems to me that we can not be sure whether the court was put under direct pressure ... From a legal point of view , however , what is more important is how ORG gave such a judgment . In other words , the people who should be criticised and who should be held responsible are the CARDINAL judges at the court , all of whom are ‘ PERSON and ‘ ORG . The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices ... In other words , our problem is that most of our constitutional law judges do not know the law and do not have knowledge of democracy , political and constitutional theory and secularism . Nor do they intend to acquire it ... This latest judgment of ORG has demonstrated another thing : the professional capabilities of most of the court members are insufficient for the job . Moreover , they are not willing to compensate for this insufficiency . They are closed to knowledge , they have no passion for their jobs and they are incapable of becoming open - minded . They try to fulfil the requirements of their vital duty , finding their way out by sticking together , without feeling uneasy about it . ”

NORP The court held that the author , in the above statements , had asserted that the members of ORG had rendered their judgment under pressure , that the judges of the court did not know the law , and that their professional knowledge and intellectual capabilities were insufficient . It considered that these expressions constituted defamation of the members of ORG , including the claimant , who had rendered the judgment ordering the dissolution of ORG .

On DATE ORG held a hearing and upheld the judgment of the first - instance court .

On DATE ORG dismissed the GPE request for rectification of its decision . The defendants were fined in accordance with LAW . This decision was served on the applicants’ lawyer on DATE .

In the meantime , on DATE the CARDINALth Chamber of ORG of First Instance ordered the applicants to pay Mr Y.A. , jointly , GPE CARDINAL ( approximately EUR CARDINAL,CARDINAL ) in damages plus interest at the legal statutory rate running from the date of the publication of the article .

In its decision , the court observed that , when read as a whole , the article , instead of merely criticising the establishment , development , and selection of members of ORG or providing a technical criticism of the judgment , had contained severe attacks against the judges themselves and their professional or analytical capabilities . Referring to various passages , notably those mentioned by DATE Chamber above , DATE Chamber considered that the author , who had accused the judges of serious misconduct such as receiving instructions , of acting irresponsibly and of not being independent and lacking reasonable logic and conscience , had gone beyond objective and technical criticism of ORG and its judgment and that the article had therefore defamed the claimants .

On DATE ORG dismissed the GPE request for rectification of its decision . The defendants were fined in accordance with LAW . This decision was served on the ORG lawyer on DATE .

Likewise , on DATE the CARDINALth Chamber of ORG of First Instance ordered the applicants to pay PERSON , jointly , TRL MONEY ( approximately EUR CARDINAL ) in damages , plus interest at the legal statutory rate running from the date the article in question was published .

NORP In its decision , the court , referring to similar passages to those relied on by the other Chambers , considered that the contents of the article had upset the balance between freedom of expression and the need to protect a person ’s dignity and honour , and that the author had overstepped the boundaries of acceptable criticism and had used words which constituted defamation .

NORP In this connection , the court stated that the aim of press freedom is to provide correct and truthful news regarding issues of public interest , and that the privileges attached to press freedom were not without limits . It noted in that regard that the freedom of the press was limited by the private law rights and obligations established by the relevant provisions of LAW and LAW . The court underlined that in its duty to inform , the press was limited in its criticism by the following rules : truthfulness , public interest , topicality and interconnectedness between the thoughts , the subject and the words used .

The court opined that in the present case , while the overall content of the author ’s article had been within the boundaries of criticism , certain remarks contained in the article had gone beyond the limits of acceptable criticism , there had not been harmony between the form and the content , the content had gone beyond the subject of criticism , and words used in the article had constituted defamation of the claimant . It held that the author could have made the same criticism without the use of these words .


CASE OF GERASIMENKO AND OTHERS v. RUSSIA

Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect)

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

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

PERSON was a major in the police . He was born in DATE .

On DATE he was promoted to chief of the NORP branch of ORG of the ORG .

On TIME DATE PERSON had a birthday party . Shortly after returning home from the venue , he left again .

DATE a.m. on DATE PERSON took a taxi to the PERSON shopping centre on FAC in GPE . He was wearing police uniform and was armed with a handgun .

Initially , he fired several gunshots at the driver , PERSON , who died of his injuries in hospital .

After PERSON got out of the car , he walked between some apartment blocks . Near CARDINAL of them he saw CARDINAL people he did not know , PERSON and Mr K. Without saying anything , he opened fire and shot PERSON times and PERSON twice . After a while he saw PERSON and shot at him , also without saying a word . PERSON however managed to run away .

PERSON then walked towards the PERSON shopping centre . As it was open TIME a day , there were always people inside . PERSON opened fire at a group of people who were near the entrance , firing CARDINAL shots at the first applicant and CARDINAL shot at the second and third applicants . Another person , PERSON , was also wounded .

PERSON entered the shopping centre and approached Mr T. and PERSON Without saying a word , he shot Mr T. in the head . After he fell to the ground , PERSON took PERSON by the arm , pointed the gun at her head and , holding her hostage , continued moving through the shopping centre . Eventually , PERSON managed to break free and run away .

When he passed a checkout counter , PERSON shot at a cashier , PERSON , who was killed instantly .

Staff and customers of the shopping centre tried to hide from PERSON Some of them used the fire exit and found themselves in the service yard of the shopping centre . PERSON followed them and , threatening them with his gun , ordered all the women who were hiding behind some boxes to step forward . CARDINAL of them , PERSON , was trying to protect her pregnant daughter who was hiding together with her . She obeyed and approached PERSON He then pointed the gun at her head and pushed her towards a wall . He apparently intended to shoot her , but was distracted by a police unit that arrived at the scene . The police ordred him to let the people go , and surrender . PERSON started shooting at the police and PERSON was able to escape , as were the other people hiding in the service yard . PERSON was subsequently apprehended by the police .

In the course of the events PERSON killed CARDINAL people and wounded several others .

The first applicant suffered injuries to his head and body . He had a bullet entrance wound to the side of the face ( parotic region ) and an exit wound near the nose . He also had concussion and fractures to the walls of the right maxillary sinus and lower jaw . He also had a penetrating wound to the lumbar region , a ruptured spleen , a penetrating wound to the liver and diaphragm ligaments and a foreign body in the mediastinum .

The second applicant suffered head wounds . She had a perforating wound to the left cheek and oral cavity with a fractured lower jaw .

The third applicant had a non - penetrating wound to the left of the neck , a fractured left shoulder blade and a foreign body in the neck muscles .

On DATE criminal proceedings were instituted against PERSON on CARDINAL counts of murder and CARDINAL counts of attempted murder in and around the Ostrov shopping centre .

On CARDINAL DATE PERSON was dismissed from the police with effect from DATE .

On DATE the first applicant was granted victim status in the criminal proceedings .

On DATE PERSON ’s mother was questioned . She submitted , in particular , that as a child he had had head injuries . At the age of TIME he had suffered from severe headaches and throughout his school years he had been under the supervision of a neuropathologist . After the seventh grade he had been transferred to a different school because he would frequently have disagreements with his schoolmates . After the ninth grade he had been exempted from his school examinations on medical advice .

DATE and DATE a forensic psychological and psychiatric examination of Major PERSON was conducted by CARDINAL psychiatrists and a psychologist . According to the conclusions set out in report no . CARDINAL of DATE , ORG did not suffer from any mental disorder , but had “ accentuated ” personality traits . The conditions he had suffered as a child and head injuries had led to the development of emotional instability , excitability , anxiety and demonstrative behaviour . This explained the difficulties in his adapting to school life and his behavioural deviations , which required psychiatric help . At the time of committing the offences he was accused of PERSON had not suffered from any temporary psychiatric disorder – that was apparent from the lack of evidence of his being in a psychotic state accompanied by delirium or hallucinations . He was able to understand the meaning of his actions and control them . He was neither a drug addict nor an alcoholic , although at the time of the events he had been in a moderate state of alcohol intoxication , as confirmed by an expert medical examination .

NORP The psychologist who participated in the forensic examination stated that after his promotion in DATE until the time of the events PERSON had been in a “ subjectively complex ” situation . This had included an increased volume of work and management of a new team . PERSON ’s qualities such as perfectionism , being highly demanding toward himself and others , needing to control all areas of professional activity and intolerance towards colleagues lacking diligence or competence had required , in the given situation , full use of his physical and personal resources . At the same time he had not been as enthusiastic about his new job as he had been about his previous job . Significant limitations on his independence and permanent accountability coupled with a lack of satisfaction from his work had led to emotional tension . PERSON had repeatedly wished to leave his job , but had felt responsibility for his duties and towards his subordinates . He had felt exhausted and had asked for leave , which his superiors had not granted him at the time . A complicated relationship with his wife had constituted another source of frustration . Furthermore , news of his direct supervisor leaving his job had constituted an additional traumatic factor , causing feelings of confusion unusual for PERSON TIME before the events PERSON had had his birthday party , which he had organised in the hope that he could relax in the company of his family and friends . However , on TIME of the party he had been busy at work and after leaving for DATE , had expected to be called back . He had therefore been in a state of emotional tension . The fact that his wife and her father had been late for the party and the subsequent strained conversation he had had with her , coupled with his work - related anxiety and the feeling that the party had not gone as planned , had amplified the accumulated emotional tension and exhaustion . At the time of committing the offences PERSON had not been in an emotionally disturbed state .

NORP In DATE ( the exact date is illegible ) the second applicant was granted victim status in the criminal proceedings .

On an unspecified date the third applicant was also granted victim status in the criminal proceedings .

On DATE ORG convicted PERSON of CARDINAL murders , CARDINAL counts of attempted murder , including the attempted murder of the applicants and law - enforcement officials , and the unlawful use of firearms . He was sentenced to life imprisonment . The court also stripped him of the rank of major .

When questioned in court PERSON pleaded partially guilty . He submitted that he had no recollection of the events and could not explain where and how he had come into possession of the handgun or cartridges . However , he did recognise himself on the footage of the ORG at the shopping centre and therefore admitted that he had killed a man and tortured a woman , although he could not explain why he had done so . He pleaded not guilty with regard to all the other charges .

The court questioned numerous witnesses , who confirmed the account of events given in the preceding paragraphs . In particular , PERSON ’s wife submitted that on returning from his birthday party he had behaved strangely . After he had left , she had called his parents and they had started to search for him . Police officers PERSON and Ya . , who had apprehended PERSON at the PERSON shopping centre , submitted that when they had asked him why he had done it , he had responded that “ [ you ] should live [ your ] life in such a way that [ you ] would not want to live it again ” . According to police officer Ya . , PERSON also said that if he had had a machine gun “ [ it ] would have been more fun ” and , in response to a question about where he had got the firearms , he responded that , being police officers , they should know .

The court also noted that ORG had had a DATE PERSON ShI CARDINAL handgun and CARDINAL cartridges . It further referred to information provided by ORG on CARDINAL DATE to the effect that the cartridges used by ORG had been manufactured at the factory in DATE and DATE . It had supplied cartridges to , in particular , ORG of the Interior . There had been no instances of cartridge theft reported . The court also referred to information provided by ORG of the ORG to the effect that the handgun used by PERSON had been reported stolen from the arms store of ORG of the Interior for GPE . It also referred to a judgment issued by ORG of GPE - on - PERSON on DATE convicting CARDINAL officials of the theft of CARDINAL handguns from that arms store in the period DATE , which included the handgun used by PERSON

According to the Government , on DATE a criminal investigation into arms trafficking was instituted under LAW with respect to the sale of the handgun and ammunition to PERSON However , it was subsequently suspended as the culprit could not be identified .

On DATE ORG of GPE upheld PERSON ’s conviction and sentence on appeal .

On DATE , an investigator from ORG at ORG of GPE , addressed the Minister of the ORG with a recommendation on measures to be taken with a view to rectifying the circumstances that had been conducive to the crime being committed . The recommendation noted that according to the forensic psychiatric examination , PERSON had been found to be of sound mind . However , since childhood he had been under the supervision of a neuropathologist on account of his psycho - emotional instability , but this had not been taken into account by the military medical panel which had found him fit to serve in the police . In the course of the psychological examination it had been established that CARDINAL of the reasons for his psychologically traumatic situation had been his promotion to the position of chief of the NORP branch of ORG of the ORG . Referring to the findings of the forensic examination ( see paragraph CARDINAL above ) , the recommendation mentioned that PERSON had not been as interested and enthusiastic about his new duties as he had been about his previous work in the criminal police . Significant limitations on his independence and permanent accountability together with a lack of satisfaction from his work had led to emotional tension .

The recommendation went on to say that on DATE PERSON had undergone an appraisal . ORG had decided that he corresponded to the position he held and considered his promotion a possibility . However , the investigation established that PERSON had not been fit for the position of chief of the NORP branch of ORG of the ORG due to his moral and professional qualities . In particular , he had a poor knowledge of police service in the domain of public security and was irritable with his subordinates . ORG had therefore had a very perfunctory attitude towards its duties , and the appraisal had not corresponded to the objectives set by the applicable regulations . Improper performance of duties by staff members of the human resources services of the agencies of the interior and their perfunctory attitude towards recruitment and the promotion of staff had led to persons unfit due to their personal and professional qualities being promoted to senior positions . Furthermore , ORG had failed to conduct explanatory work with its staff to ensure respect for the rule of law , despite its functioning being based precisely on the principles of respect for human rights and humanism . The actions of PERSON had thus discredited the police .

The recommendation concluded that the above - mentioned failures on the part of the agencies of the interior had contributed to D.E committing serious crimes . It advised that measures should be taken aimed at their rectification .

On DATE , the date PERSON was convicted , ORG also issued a special ruling . It stated that in the course of the trial it had been established that in his childhood PERSON had been treated for conditions related to mental disorders and disorders of the central nervous system in medical institutions of agencies of the interior . However , those circumstances had not been taken into account when PERSON had been accepted to serve in the police and subsequently promoted to chief of the NORP branch of ORG of the ORG , even though the relevant medical data had been available at the institutions that provided medical care to the staff of the agencies of the interior . There had thus been a breach of section CARDINAL of LAW , sections CARDINAL and CARDINAL of the Order of the Ministry of the Interior of DATE and section CARDINAL.CARDINAL of the Order of the Ministry of the Interior of DATE .

Furthermore , the court noted that in the course of the trial it had been established that when committing the offence PERSON had used cartridges that had been manufactured in ORG which had supplied cartridges to , in particular , ORG of the ORG . According to information submitted by the factory , no instances of cartridge theft were reported . The court thus concluded that , while holding the position of chief of the NORP branch of ORG of the ORG , PERSON had obtained the cartridges in breach of the Instruction concerning the storage of firearms established by Order of ORG no . CARDINAL of DATE and had later used them for committing particularly serious offences .

Having regard to the irregularities in the functioning of ORG which had contributed to the offences committed by PERSON , the court ruled that it would draw the attention of the Minister of the Interior to the said irregularities and invite him to take measures aimed at their rectification .

The first and second applicants sued PERSON for damages . The first applicant claimed compensation for medical expenses in the amount of MONEY ( RUB ) , and the second applicant in the amount of RUB CARDINAL . Each applicant also claimed RUB CARDINAL as compensation for non - pecuniary damage .

On DATE the Nagatinskiy ORG of GPE partially allowed the claims . The court established that PERSON had been responsible for causing injuries to the first and second applicants . The court awarded RUB CARDINAL ( MONEY ( ORG ) ) to the first applicant and RUB CARDINAL ( approximately ORG CARDINAL ) to the second applicant for pecuniary damage . It stated , in particular , that whereas the first applicant ’s medical expenses in the amount of RUB CARDINAL had been necessarily incurred , he had also claimed RUB CARDINAL in respect of surgery he would have to undergo in order to extract a bullet from his anterior mediastinum . However , according to the forensic expert examination conducted , such surgery was not recommended since the bullet was separated from the tissue and did not pose a danger to the first applicant ’s health , whereas any attempt to extract it might lead to unexpected complications . Having regard to the defendant ’s financial situation and making its assessment on an equitable basis , the court also awarded RUB CARDINAL ( approximately ORG CARDINAL ) to the first applicant and RUB CARDINAL ( approximately ORG CARDINAL ) to the second applicant for non - pecuniary damage .

On DATE ORG upheld the judgment on appeal .

On an unspecified date the first and second applicants instituted proceedings against ORG , ORG and ORG for damages , arguing that they had suffered injuries as a result of the unlawful actions of a ORG official . PERSON participated in the proceedings as a third party .

On DATE the Nagatinskiy ORG of GPE dismissed the first applicant ’s claim . The court stated that under Articles CARDINAL and CARDINAL of the LAW and Articles CARDINAL § CARDINAL and CARDINAL of LAW , the ORG was liable for the unlawful actions of a ORG official performed in the course of his duties . However , if a ORG official caused damage as a result of activities unrelated to exercising the duties of the ORG service , he was liable under LAW . The court found that in the case at hand PERSON ’s unlawful actions that had caused damage to the first applicant had taken place TIME at the PERSON shopping centre , outside PERSON TIME and the territorial jurisdiction of the NORP branch of ORG of the ORG . They had therefore been unrelated to his duties as a ORG official . The fact that at the relevant time he had held the position of chief of the NORP branch of ORG of the ORG and had had the rank of major did not constitute grounds for the ORG ’s liability under LAW , as it had been established that PERSON had caused damage as a result of activities unrelated to the duties of his service . The court also dismissed the first applicant ’s arguments that the ORG should be held liable for the damage because ( i ) at the time of the events PERSON had been dressed in police uniform ; ( ii ) he had used cartridges that had belonged to the NORP branch of ORG of the ORG ; ( iii ) under LAW of LAW a police officer carried out his or her duties irrespective of the time , place or his or her position ; and ( iv ) PERSON had been dismissed from service for discrediting the police . The court held that under LAW of LAW , as a general rule a police officer carried out his or her duties taking into account his or her position , duty TIME and whereabouts . Exceptions to that rule were provided in section DATE ) and ( CARDINAL ) and concerned instances where a police officer had to take urgent measures to provide assistance to victims of offences , save lives , prevent a crime being committed or apprehend a person suspected of committing an offence . In such cases a police officer had to perform his or her duties irrespective of his or her position , duty hours and whereabouts . However , this was not the situation at hand and therefore PERSON had not been acting in the exercise of his ORG duties and there were no grounds to hold the ORG liable for his actions . The fact that he had been wearing police uniform and had used cartridges that had belonged to the NORP branch of ORG of the ORG had no bearing . The fact that PERSON had been dismissed for discrediting the police meant that his actions had been incompatible with the status of a police officer , but not that he had performed the actions that had caused damage to the first applicant in the course of his duties .

On DATE ORG upheld the judgment . It noted that there was no evidence that would unequivocally confirm that the actions in question had been performed by PERSON in the course of his duties as a civil servant .

On DATE the Nagatinskiy ORG of GPE dismissed the second applicant ’s claim . The court ’s reasoning was identical to that in its judgment of CARDINAL DATE in respect of the first applicant ’s claim .

On DATE ORG upheld the judgment . As in its decision of DATE , it noted that there was no evidence that would unequivocally confirm that the actions in question had been performed by ORG in the course of his duties as a civil servant .

Subsequently , having regard to the special ruling of ORG of DATE , the first and second applicants applied for the civil proceedings to be reopened in the light of newly discovered circumstances .

On DATE the Nagatinskiy ORG of GPE dismissed their requests in CARDINAL separate rulings . It held that there were no significant new circumstances that would warrant reopening the proceedings .

On DATE the third applicant underwent a polygraph test to assess her perception of the police officers after the events of DATE . According to the results of the test , on DATE she had taken PERSON for a police officer and , as a result of the events , had developed feelings of fear and apprehension towards police officers .

Between DATE and DATE an expert psychological examination was conducted with a view to establishing how the fact that at the time of the events PERSON had been wearing police uniform had affected the third applicant ’s psychological state . According to the results of the examination , police uniform affects a person ’s behaviour as in general people tend to display loyalty and obedience towards symbols of authority due to the latter ’s legitimacy and conventionality and their fear of reprisal in the event of their refusal to obey . The fact that the perpetrator had been wearing police uniform had undoubtedly affected the third applicant ’s behaviour and psychological state and had limited her ability to choose a behavioural pattern aimed at protecting her life and health . At the time of the examination the third applicant felt an uncontrollable fear of officials wearing police uniform . When she saw CARDINAL she felt anxiety , apprehension and panic . There was a direct connection between the events and the third applicant ’s psychological state characterised by depression , emotional tension and instability , negative feelings , the tendency to avoid new experiences , a pessimistic outlook on life and a change in moral values .

On DATE the third applicant instituted proceedings against ORG for damages . She argued that damage had been caused as a result of a police officer ’s unlawful exercise of his powers . She argued , in particular , that ( i ) PERSON had used firearms that he had obtained in the course of his service in the police ; ( ii ) any judicial decision recovering damages from PERSON would remain unenforced since , being convicted to life imprisonment , he would have no sources of income and therefore no assets to recover the judgment debt from ; ( iii ) the polygraph test had proven that on TIME of the events the third applicant had taken PERSON for a police officer ; and ( iv ) according to the results of the expert psychological examination , the fact that PERSON had been wearing police uniform had affected the third applicant , rendering her defence difficult .

On DATE the ORG of GPE dismissed the claim . Relying on Articles CARDINAL , CARDINAL , CARDINAL § CARDINAL and CARDINAL of LAW and referring to PERSON ’s conviction , the court found no evidence that damage had been caused to the third applicant by the unlawful actions of a law - enforcement officer . The court found that the claim had been brought against the wrong defendant and that it should have been brought against PERSON It dismissed the argument that any judgment against PERSON would remain unenforced as speculative . The third applicant ’s reference to the fact that PERSON had used cartridges that had belonged to ORG of the ORG was also dismissed as “ being based on a wrong assessment of the facts established by the court ” . The court also stated that the third applicant ’s personal perception of the perpetrator dressed in police uniform did not constitute grounds for allowing the claim . It further noted that the reference to the ORG ’s case - law in the statement of claim constituted an arbitrary interpretation of judicial decisions irrelevant to the case .