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

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Josep Casadevall;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On DATE the applicant lodged with the GPE Amur‑Nyzhnyodniprovskyy ORG ( “ the ORG ” ) an administrative claim against ORG for the GPE Amur‑Nyzhnyodniprovskyy District ( “ the defendant ” ) seeking an increase in his pension based on the rise in the average wages in the country since his retirement .

On DATE ORG , having considered the applicant ’s claim by way of an abridged administrative procedure , allowed the claim . In the judgment it was pointed out that any appeal must be lodged by the appellant within DATE following their receipt of a copy thereof .

The defendant received a copy of the judgment on DATE .

The defendant lodged its first appeal with ORG on DATE and did not request an extension of the time - limit for appeal .

On DATE Judge PERSON of ORG ( “ the Court of Appeal ” ) dismissed the defendant ’s appeal on the grounds that it had been lodged after the time - limit for appeal had expired and the defendant had failed both to explain the reasons for the late lodging of the appeal and to submit a request for an extension . The ruling stated that it could be appealed against before ORG . The defendant did not appeal .

On DATE ORG , at the applicant ’s request , issued a writ of enforcement confirming that the judgment had become final on DATE .

With effect from CARDINAL DATE the defendant complied with the judgment and increased the applicant ’s pension .

On DATE the defendant lodged a second appeal with ORG . By letters of DATE and CARDINAL DATE ORG forwarded the case file , including the appeal and its copy for the applicant , to ORG . The case file gives no indication of any steps to follow up on the matter .

On DATE the defendant lodged a third appeal , requesting that ORG extend the time - limit for its submission . As grounds for its request the defendant stated that it “ had begun the process of appealing against ” the ORG judgment on DATE .

On DATE Judge PERSON of ORG scheduled a hearing for DATE to examine the question of extending the time - limit for appeal .

According to a summons dated DATE addressed to both the applicant and the defendant , they were summoned to attend a hearing of ORG on DATE at which the court was to examine the applicant ’s request for an extension of the time - limit for appeal . The summons included the warning that failure to appear would not prevent ORG from examining the matter .

It is apparent from the domestic case file that no other document was added to it between CARDINAL DATE and DATE .

On DATE a panel of ORG , presided over by Judge N. , extended the time - limit for appeal , stating that the defendant had missed the deadline for “ valid reasons ” . ORG recounted the sequence of events in the case from DATE to CARDINAL DATE , found it established that the first appeal had been lodged outside the time - limit , namely on DATE , and observed that the defendant had requested the extension because it had received a copy of the judgment only after the time - limit for appeal had already expired .

On DATE Judge PERSON of ORG ruled that appeal proceedings be opened , that copies of the ruling be sent to the parties , and that the applicant be sent a copy of the appeal and be invited to provide his reply .

According to a summons dated DATE and addressed to both the applicant and the defendant , they were summoned to attend a hearing of ORG on DATE at which the court was to examine the appeal . This summons also contained the warning that failure to appear would not prevent ORG from examining the matter .

On DATE ORG quashed the judgment of DATE and rejected the applicant ’s claim , holding that the first - instance court had erred in its interpretation of the relevant legislation governing pensions .

On DATE the defendant sent a letter to the applicant informing him that his pension had been reduced in accordance with the decision of ORG of CARDINAL DATE .

On DATE the applicant lodged a complaint with the prosecutor ’s office for the GPE Amur‑Nyzhnyodniprovskyy GPE alleging that Judge PERSON had intentionally failed to inform him about the appeal proceedings .

On DATE the prosecutor ’s office made an entry in ORG to investigate the suspicion that offences of delivering of an intentionally unjust court decision and of failure to enforce a court decision may have been committed .

On DATE the prosecutor ’s office decided to discontinue the investigation concerning the applicant ’s complaint . The prosecutor ’s office found , in particular , that the defendant had dispatched the original appeal against the judgment of DATE on DATE that is to say within the time - limit . As to the applicant ’s allegations that he had not been informed about the reopened appeal proceedings , the prosecutor ’s office noted that the case file contained copies of court summonses dated CARDINAL DATE and DATE .

On DATE ORG and on CARDINAL DATE the Dnipropetrovsk Regional Court of Appeal upheld the prosecutor ’s decision .


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

NORP The applicant in the first case , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . The applicant in the second case , PERSON , is a NORP national who was born in DATE and lives in ORG . They were represented before the ORG by PERSON , a lawyer practising in ORG .

NORP The facts of the cases , as submitted by the applicants , may be summarised as follows .

On DATE the applicants , a married couple , were convicted in absentia by the CARDINAL - member ORG of an offence of theft which they were found to have committed jointly , and sentenced to CARDINAL months’ imprisonment ( decision no . CARDINAL/CARDINAL ) . The applicants lodged an appeal , which was scheduled to be heard on DATE by the CARDINAL - member ORG . However , on that date the applicants applied for an adjournment of the hearing , as their lawyer could not be present , and the hearing was rescheduled for CARDINAL DATE ( adjournment decision no . CARDINAL ) . The applicants did not attend that hearing , and neither did a lawyer acting on their behalf . ORG , taking into account that the applicants had been present on DATE , considered that it was “ as if [ they were ] present ” , examined their appeal , and sentenced them to QUANTITY months’ imprisonment ( decision no . CARDINAL/CARDINAL ) .

The applicants applied for the annulment of the proceedings under LAW , arguing that they had not been present at the court hearing owing to force majeure , which had prevented them from attending the hearing or informing the court of their absence . In particular , PERSON submitted that he had been hospitalised on DATE owing to acute febrile gastroenteritis , and had left hospital with instructions to stay in bed from DATE to CARDINAL DATE ; he attached the relevant documents to his application for annulment . Ms ORG argued that she had been prevented from attending the hearing owing to her husband ’s illness , as she had had to take care of him and their children at home .

NORP The applicants’ applications for the annulment of the proceedings were heard by ORG on CARDINAL DATE and the proceedings continued on CARDINAL DATE . The court dismissed their applications as inadmissible ( decision no . CARDINAL/CARDINAL ) . In particular , it held that an application for annulment under Article CARDINAL could only be lodged if the defendant had been tried in absentia , and not when he had been tried “ as if [ he were ] present ” .

The relevant parts of LAW read :

If the defendant has been legally summoned but is not present , or is not legally represented by a lawyer , he is tried as if he were present ... ”

“ CARDINAL . If , as a result of force majeure or other insurmountable obstacles , the convicted defendant could not notify the court of the insurmountable obstacle promptly by any means , so as to request an adjournment of the hearing ( Article CARDINAL ) , he can lodge an application for annulment of the proceedings which took place in his absence or in the absence of his representative ...

CARDINAL ... If the application for annulment is granted , the decision against which it has been lodged is annulled and the court orders a new hearing for the case on DATE , during which the defendant shall appear without having been summoned . Under no circumstances is the defendant allowed to lodge an application for annulment against the decision [ on his application for annulment ] . ”

According to the case - law of ORG , the decision that is issued following an application for annulment pursuant to LAW is not subject to an appeal on points of law ( decision no . CARDINAL/CARDINAL of ORG ) .


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicants , ORG , GPE and ORG , are NORP nationals who were born in DATE , DATE and DATE respectively and live in GPE . The first applicant is the mother of the second and third applicants . They were represented by PERSON , a lawyer practising in GPE .

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

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

Mr GPE , a reserve colonel ( colonel în rezervă ) , was the first applicant ’s husband and the second and third applicants’ father . On CARDINAL DATE he died in hospital , aged DATE , following an operation and a twoweek convalescence period .

On DATE Mr GPE developed symptoms of icterus ( a yellow discoloration of the skin or whites of the eyes , indicating excess a bile pigment in the blood ) and , together with the applicants , went to the military clinic for a consultation . He underwent some tests and was immediately admitted to ORG ( “ the hospital ” ) for further investigations and treatment . His diagnosis was “ cholestatic jaundice due to cholestatic calculus DATE left renal lithiasis clinically significant for DATE ” ( icter colestatic prin calcul colestatic DATE trei zile litiază renală stânga ) . Neither the patient nor his family was informed of the diagnosis .

An ultrasound scan performed TIME in the hospital revealed a pancreatic tumour and the patient was prescribed treatment by the doctor on duty , PERSON After DATE of treatment , the jaundice disappeared . The treatment continued for DATE .

On DATE and DATE Dr GPE ordered further examinations of the patient ’s abdomen , pancreas and bile ducts . GPE thus underwent a computerized tomography scan ( a form of X - ray examination in which the X - ray source and detector rotate around the object to be scanned and the information obtained can be used to produce cross - sectional images by computer ) on DATE and an ultrasound endoscopy on DATE . An MRI test ( magnetic resonance imaging , a non - invasive method of examination of body organs by recording the responses to radio waves , or other forms of energy , of different kinds of molecules in a magnetic field ) was recommended but never carried out . Throughout this time , the applicants were at the hospital with the patient , but they were allegedly not given any information by the medical team .

Dr GPE conferred with his colleague PERSON and decided , on the basis of the test results , that the patient probably had a pancreatic tumour of a kind requiring surgery .

According to the applicants , neither the patient nor his family was properly informed of the diagnosis , the nature of the intervention , its risks , or its actual duration . The medical team told them that they were going to perform a “ routine ” operation lasting TIME , and which had a PERCENT chance of success .

On DATE Dr GPE , assisted by ORG , GPE , and GPE , and by the specialist anaesthetist PERSON , performed the surgery and removed the tumour along with parts of the patient ’s pancreas , stomach and duodenum . The intervention lasted for TIME .

The tests run after the surgery showed that the tumour had been benign .

The applicant was placed in the intensive care unit under the supervision of PERSON He remained there until his death .

The family was not officially allowed access to the intensive care unit until DATE before the patient ’s death . For DATE after the operation , the patient ’s general state was stable . However , his general health started to deteriorate and he developed a high fever . He was prescribed broad spectrum antibiotics , which were provided by his family , pending the results of further blood tests .

On DATE blood tests were ordered and the results revealed the presence of CARDINAL types of bacteria : klebsiella and meticillin - resistant staphylococcus .

Meanwhile , his health continued to deteriorate and he finally slipped into a coma . He was in this state when , on DATE , PERSON operated on him again to remove an abscess and some blood clots which had formed after the first operation .

On CARDINAL DATE the applicants spoke with the anaesthetist on duty , who – in GPE absence – acquainted them with the patient ’s real diagnosis and informed them of the type of surgery he had undergone on DATE and of the suspicion of a bacterial infection .

On TIME the patient died of septic shock and multiple organ dysfunctions ; he was taken to the hospital mortuary .

The third applicant signed a discharge form provided by the hospital , which read :

“ ... [ we ] request that no autopsy be performed as the cause of death is known and we have no complaints concerning the treatment and care provided by the medical and paramedical personnel . ”

The applicants collected the deceased ’s personal belongings and found that the medicine they had brought to the hospital had not been administered to the patient .

On DATE , while her father ’s body was still in the hospital mortuary , the second applicant brought the case to the attention of ORG . She sent her complaint to both the GPE branch and ORG , by e - mail and by normal post . She informed both associations that her father had contracted a bacterial infection while in the intensive care unit of the hospital and asked that an autopsy be performed before the burial , which was scheduled for DATE .

The disciplinary committee of ORG gave no reply to the request for an autopsy but opened an investigation into the patient ’s death , hearing evidence from the applicants and the doctors . It gave its decision on DATE , ruling that no medical errors had been made , but reprimanding PERSON for his failure to seek the patient ’s consent before the surgery , as required by PERSON no . CARDINAL .

The applicants objected to the committee ’s conclusions and their appeal was heard by the superior disciplinary committee of ORG .

Drs GPE and GPE from the medical team that had performed the surgery on DATE submitted written statements to the effect that together they had sought the patient ’s written consent before the intervention and that the consent form had been attached to the file . The statements were typewritten and identical . The head of the surgery department at the hospital submitted a written statement clarifying that no patients had been operated on in that period without a consent form being attached to their file . PERSON , a specialist doctor from a different hospital , was asked to comment on the treatment choices made by PERSON He gave his opinion on DATE , stating that , in general , icterus was a condition that required surgical intervention under any circumstances , and that DATE according to the guidelines – the surgery performed in Mr GPE ’s case had presented a certain risk , but one that had not been increased by the patient ’s age ; he also considered that the postoperative complication and ensuing death had fallen within the generally accepted risks for such an operation .

On the basis of the evidence presented , on DATE ORG terminated the disciplinary proceedings against PERSON Relying on the CARDINAL written statements given by the CARDINAL doctors , the authority considered it established that the patient ’s consent had been obtained but that the consent form had been lost .

The second applicant lodged an action for the decision adopted on DATE to be quashed , pointing out that GPE and GPE ( the anaesthetist ) had disregarded the patient ’s rights and well - being in that they had failed to perform all the requisite tests before the operation , in particular an MRI scan , and had failed to inform either the patient or his family of the real diagnosis and the risks of the surgery and to obtain the patient ’s consent before the intervention ; she also contended that the postintervention care had been deficient . She reiterated that the patient had contracted a bacterial infection in hospital , which in her opinion had contributed to his death .

On DATE the ORG gave judgment in the case . It noted that a criminal investigation had taken place , that the medical experts consulted by the prosecutor had expressed the opinion that the patient ’s death had not been caused by medical error , and that on the basis of that opinion the case had been closed ( see paragraph CARDINAL below ) . It therefore dismissed the applicants’ action and upheld the decision of ORG .

The second applicant appealed against the decision delivered by ORG , but in a final decision of CARDINAL DATE ORG dismissed the appeal and upheld the findings of the lower court .

On DATE the second applicant lodged a criminal complaint against the doctors who had treated her father , naming in particular the CARDINAL surgeons GPE and GPE and the anaesthetist , PERSON They addressed their complaint to the prosecutor ’s office attached to ORG and ORG and the GPE military prosecutor ’s office . As the doctors were career officers , the military prosecutor took over the case and opened an investigation into involuntary manslaughter .

Dr PERSON gave a statement before the military prosecutor . He maintained that the patient ’s death had not been directly caused by the surgery and that it had been impossible to establish the cause of death beyond doubt as the family had refused an autopsy . PERSON declared that the patient had received adequate treatment and his death had not been caused by medical negligence .

The prosecutor sought the advice of ORG ( “ the ORG ” ) , asking it to explain the nature and cause of death , whether the treatment had been appropriate to the diagnosis , whether there had been errors of medical practice and conduct ( erori de tehnică şi conduită medicală ) and , if so , how such errors had contributed to the patient ’s death .

On DATE ORG issued an expert medical report regarding the case . It took into account the patient ’s medical log during his stay in the hospital and the opinion expressed in general terms about Mr GPE ’s condition by PERSON , a specialist surgeon at a different hospital from the one where the patient had been treated . It concluded that the cause of death had been multiple organ failure and sepsis occurring during the evolution of a post - surgical abscess . It considered that the treatment had been appropriately determined and administered and that there had been no medical errors at any stage ( diagnosis , medical treatment , surgery and post - surgical care ) .

On the basis of the conclusions of the expert medical report , on CARDINAL DATE the prosecutor decided not to prosecute PERSON and GPE

The first and second applicant objected to the outcome of the prosecutor ’s investigation . They pointed out , in particular , that the expert medical report had failed to examine the question of the bacterial infection contracted in the hospital and that the prosecutor had not taken account of the absence of consent for the surgery .

On DATE the Chief Prosecutor of ORG dismissed the above - mentioned complaints , finding , in particular , that the expert medical report had not confirmed the ORG allegations .

The applicants lodged a complaint against that decision with ORG ; as they became more familiar with the expert medical report , they raised several objections to it and asked that the case be remitted to the prosecutor for further investigation . On DATE the court dismissed their complaint as illfounded , on the basis of the medical report of DATE .

The second applicant appealed against that decision . She contested the accuracy of the expert medical report , stating that PERSON was not an accredited medical expert , and that the conclusions of the report were flawed . She requested that a new expert examination be carried out . She also complained that at the hospital the applicants had been informed of a diagnosis that was different from that appearing on the official documents presented by the hospital as evidence , and that it had only been on the basis of the erroneous diagnosis that her brother had signed the discharge form concerning the autopsy . In any case , she considered that her father ’s death had been suspicious , as it had followed what appeared to be a good recovery ; moreover , since the presence of hospital bacteria had been identified , an autopsy should anyway have been performed with or without the family ’s endorsement . She also pointed out in this connection that as soon as they had become aware of the misrepresentation by the hospital , the applicants had appealed to ORG to demand an autopsy in the case .

The second applicant emphasised the absence of informed consent from either the patient or his family before the operation and pointed out that that failure on the part of the hospital had prevented them from making informed decisions , for instance seeking a second opinion from a specialist doctor .

In a final decision of DATE ORG dismissed the appeal . The court referred to the conclusions reached by ORG , which , in its opinion , had given an exhaustive account of the facts and was better placed than the courts to give a specialist opinion .

On CARDINAL DATE the second applicant forwarded to ORG a copy of the complaint she had sent to ORG on DATE . ORG was responsible for the administration of the hospital . Later on she expanded the complaint , claiming that the hospital had also failed to provide the patient with clerical assistance when he was dying .

On DATE and DATE ORG replied to the second applicant ’s complaint . It informed her that the medical treatment given to her father had been adequate and that the surgery performed had fallen within the generally accepted range as regards the risk of complications and fatality , given the patient ’s age ( CARDINAL ) and medical history . It also stated that the procedures for sterilisation of instruments in the hospital were in accordance with the existing guidelines and beyond reproach .

LAW ( Law no . CARDINAL/CARDINAL ) expressly states that there is an obligation to inform a patient about any surgical intervention proposed , the risks involved in the surgery , alternative treatment , and the diagnosis and prognosis ( Article CARDINAL ) . The PERSON also regulates the patient ’s right to seek a second medical opinion ( LAW ) .

According to LAW , a breach of a patient ’s rights may result in disciplinary or criminal action , depending on the applicable law .

The judgment delivered in PERSON v. GPE ( no . GPE , § § CARDINAL - CARDINAL , DATE ) describes in detail the relevant domestic law and practice concerning the delivery of expert forensic reports and the authorities competent to issue them , as well as the relevant domestic law and practice concerning the civil liability of medical staff .

Under LAW ( Law no . CARDINAL/CARDINAL ) , the hospital has to ensure adequate standards of accommodation , hygiene and food as well as the prevention of hospital - acquired infections , in accordance with the regulations issued by ORG . The hospital is liable for any damage sustained by patients as a result of the quality of the medical treatment or because of the standards of accommodation , hygiene , food and the prevention of hospitalacquired infections if such damage is established by the competent authorities . Under the same provision , where the damage is caused through medical fault , the liability lies with the person who committed the tort ( răspunderea este individuală ) .


André Potocki;Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

NORP The case originated in an application ( no . CARDINAL ) against GPE lodged with ORG under LAW of ORG ( “ the Convention ” ) by CARDINAL NORP nationals , PERSON ( “ the first applicant ” ) , Mr PERSON ( “ the second applicant ” ) and Mr NORP Zips ( “ the third applicant ” ) , on DATE . The applicants were represented by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , most recently Ms K. Līce .

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

NORP The events leading up to the present application took place in the context of a transition in GPE from analogue to digital terrestrial television broadcasting .

On DATE a contract was signed between ORG ( Digitālais Latvijas radio un televīzijas centrs – “ the ORG ” ) , a subsidiary company of the ORG nonprofit joint - stock company , ORG radio un televīzijas centrs DATE “ the LOC ” ) , and ORG ( “ QUANTITY ” ) , a company registered in GPE and GPE , for implementation by the latter of the second phase of the digital terrestrial television broadcasting project .

In DATE Kempmayer Media GPE ( “ FAC ” ) , a subsidiary company of FAC , was incorporated in GPE . The applicants were at the material time board members of the ORG . Subsequently , PERSON informed the ORG that its obligations under the contract of DATE would be performed by ORG , with FAC only overseeing implementation of the project .

In DATE the ORG lodged a claim against KM with ORG of the International Chamber of Commerce in GPE , seeking to invalidate the contract of DATE .

On DATE that court ruled that , being a “ mailbox ” company , ORG had never had the capacity to fulfil its contractual obligations . It was ordered to repay MONEY ( ORG ) to the ORG .

On DATE the Bureau for the Prevention and Combating of Corruption ( GPE novēršanas un apkarošanas birojs – “ the ORG ” ) opened an investigation into whether , in the context of the transition to digital terrestrial television broadcasting , ORG officials had abused their authority and failed to act .

The ORG carried out various investigative actions including numerous searches .

On DATE , at the request of the ORG , a judge of ORG authorised the searches and seizures .

The judge ’s decision authorising the searches and seizures was amenable to appeal before ORG ( PERSON apgabaltiesa ) ( see paragraphs CARDINAL below ) .

On DATE the ORG searched ORG ’s business LOC and the LOC residential LOC . The search record indicated that numerous items were seized , such as the first applicant ’s mobile phone and ORG card , the second applicant ’s notebook , cassette tape , CDs , business card , the third applicant ’s CDs , business cards , floppy disks , computers , computer hard drives , photographs and notes .

During the searches of their residential LOC , the first and third applicants were also searched .

NORP In DATE the applicants asked the ORG and ORG to return all the items and documents seized , in particular those of a personal nature and having no connection with the criminal case .

NORP In DATE the ORG request to return the computers was refused because they contained information of evidential value . The ORG indicated that the applicants could obtain a copy of the information stored on them and that the third applicant could recuperate certain items seized from his residential LOC . Other items were being examined and would be returned if found to be of no evidential value .

On DATE the applicants lodged complaints regarding the judge ’s decision authorising the searches and seizures with ORG , arguing that it had been unsubstantiated and had not specified the items sought . They further contended that items unrelated to the criminal case had been seized from their residential LOC .

On DATE ORG dismissed the applicants’ complaints .

As regards the conduct of the searches , that ORG noted that the actions of the investigating authority could be appealed against to the prosecution service , in accordance with LAW . That part of the ORG complaints fell outside the scope of ORG competence and was therefore left unexamined .

NORP This decision of ORG was final .

On DATE a prosecutor of ORG dismissed the applicants’ complaints regarding the conduct of the searches and seizures .

On DATE and DATE the ORG further complaints to CARDINAL higher levels of prosecutor were dismissed . The applicants’ opinion that certain seized items were of no relevance to the case was deemed without basis . Furthermore , since ORG employees had had sufficient reasons to believe that the first and third applicants had been in possession of and were hiding items which were of relevance to the case , they could therefore be searched .

On DATE the Prosecutor General dismissed the applicants’ complaints with final effect .

On DATE the applicants and ORG lodged a complaint with ORG ( PERSON tiesa ) , challenging the compliance of ORG CARDINAL and CARDINAL of LAW ( procedures for lodging complaints about the actions of an investigating authority and for a prosecutor ’s decision on such a complaint ) with LAW ( right to a fair trial ) , LAW ( right to respect for private life , home and correspondence ) and Articles DATE , CARDINAL and CARDINAL of the Convention .

They maintained that an investigating authority ’s actions could not be the subject of an appeal before a court . A review of those actions by the prosecution service could not be equated to a review by a “ court ” within the meaning of LAW . They further complained in a general manner that their right to respect for private life , home and correspondence had been violated on the grounds that the intervention was not based on law .

On DATE , a panel of CARDINAL judges of ORG , by relying on LAW of LAW , refused the initiation of constitutional proceedings insofar as it concerned LAW . They held that that part of the complaint did not comply with the criteria provided by LAW ( see paragraphs CARDINAL - CARDINAL below ) . In particular , the applicants had not sufficiently demonstrated in the complaint how their fundamental rights under those provisions had been infringed . This decision was final .

On DATE the Constitutional Court handed down its judgment in relation to the remainder of the ORG complaint . It found that the impugned statutory provisions , namely ORG and CARDINAL of LAW , complied with LAW . ORG also held that the prosecution service may be regarded as an effective and available legal remedy within the meaning of LAW of the LAW and that the absence of an appeal to a court does not in itself give rise to a breach of LAW . As a result , it dismissed the applicant ’s complaint .

Article CARDINAL guarantees the right to a fair trial ( see Čalovskis v. GPE , no . CARDINAL , § CARDINAL , DATE ) . Article CARDINAL enshrines the right to respect for private life , home and correspondence ( see PERSON v. GPE ( dec . ) , no . MONEY , ORG CARDINAL-XII ) .

Section CARDINAL paragraph CARDINAL part CARDINAL of LAW provides that an application to ORG regarding the initiation of constitutional proceedings must , among other criteria , contain legal reasoning ( juridiskais pamatojums ) .

Pursuant to section CARDINAL² , in addition to the above - mentioned requirements , an individual constitutional complaint must include justification as to how the applicant ’s fundamental rights as defined in the LAW have been infringed upon , and show that all available remedies have been used .

Section CARDINAL sets out the grounds on which the panel examining the constitutional complaint may refuse to initiate a case . LAW ( CARDINAL ) ( CARDINAL ) provides that , when examining applications , the panel dealing with the application may refuse to initiate a matter if the application does not comply with the requirements specified in Sections CARDINAL or CARDINAL of LAW . When examining a constitutional complaint , the panel may also refuse to initiate a case where the legal reasoning included in the complaint is evidently insufficient to satisfy the claim ( section CARDINAL ) ) .

For further details regarding LAW PERSON v. GPE , no . GPE DATE , DATE .

The provisions of LAW applicable at the time of the national proceedings ceased to be in force on DATE . The provisions governing the procedure for complaints regarding the actions of an investigating authority provided as follows .

Article CARDINAL provides that a suspect , accused and other persons may lodge complaints with a prosecutor about the actions of an investigating authority .

Article CARDINAL provides that the prosecutor supervising the investigation shall decide on a complaint within DATE of receipt . A higher - ranking prosecutor shall decide on a complaint within DATE , or DATE if a further inquiry or information is necessary in order to decide [ it ] . The complainant shall be informed of the outcome . If the complaint is dismissed , the prosecutor shall provide reasons as to why the complaint was considered unfounded and explain the appeal procedure . The investigating authority and complainant may appeal against the prosecutor ’s decision concerning the complaint to a higher - ranking prosecutor .

Under Article CARDINAL complaints about the actions of a prosecutor shall be submitted to a higher - ranking prosecutor and decided in accordance with the procedure laid down in Articles CARDINAL and CARDINAL of LAW .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

The applicants complained of the non - enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law . Some applicants also raised other issues under the Convention .


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

On DATE the applicant lodged a claim with ORG ( GPE ) ( “ the ORG ” ) against ORG ( GPE ) for providing him with a housing subsidy and for a compensation of non - pecuniary damage .

On DATE ORG dismissed the claims .

On DATE this decision was upheld on appeal by ORG ( GPE ) ( “ the ORG ” ) .

On DATE , following the applicant ’s supervisory review appeal , the ORG of ORG quashed the decision of DATE . ORG remitted the case for a new examination by the court of cassation instance for the applicant had not been duly summoned to the hearing of DATE .

On CARDINAL DATE ORG dismissed the applicant ’s cassation appeal and upheld the judgment of DATE .

On DATE , upon the applicant ’s supervisory review appeal , the Presidium of ORG quashed the judgment of DATE and the decision of CARDINAL DATE as it found that the lower courts misjudged the facts of the case and erred in application of the national law .

On DATE ORG again dismissed the applicant ’s claims .

On DATE ORG set aside the judgment of CARDINAL DATE on appeal and remitted the case for a new examination , as the lower court had misapplied the national law .

On DATE ORG ordered the Government of ORG ( GPE ) to pay the applicant MONEY ( RUB ) from the federal budget funds allocated for providing the housing subsidies for persons leaving the high north regions .

On DATE ORG found the decision of DATE to award the applicant money unlawful and unreasoned , quashed the decision and yet again remitted the case for a new examination .

Twice , on CARDINAL DATE and DATE , ORG dismissed the applicant ’s claims .

Each time , on DATE and DATE , respectively , the judgment of ORG was set aside on appeal , and the case was remitted for a new examination . In the first set of the proceedings , the appellate court found the judgment unlawful , and requested to bring into the proceedings the municipality “ Nizhnekolymskiy rayon ” . In the second set of the proceedings , the appellate court found that the applicant had not been duly summoned to the hearing , and that the municipality should have been joined to the proceedings as a defendant rather than a third party .

On DATE ORG granted the applicant ’s claims in part . It ordered ORG ( GPE ) to pay the applicant RUB CARDINAL from the federal budget funds allocated for the housing subsidies for persons leaving the high north regions .

On DATE the judgment of DATE was upheld on appeal by ORG .

On DATE the applicant requested the writ of execution in respect of the judgment of ORG of DATE .

On DATE a writ of execution was issued .

On unspecified dates , the applicant submitted the writ of execution , first , to ORG and , second , to ORG of ORG ( GPE ) .

On DATE and DATE respectively the writ of execution was returned to the applicant as the debtor had no accounts at these bodies .

On DATE ORG for ORG ( GPE ) ( “ ORG ) received the writ of execution and opened the enforcement proceedings .

On DATE the Head of ORG ordered to set aside the above decision to open the enforcement proceedings .

On DATE the decision of CARDINAL DATE was set aside and ORG refused institution of enforcement proceedings with the reasoning that as the enforcement document required recovery of public budgetary funds , it could not be enforced by ORG .

On DATE ORG clarified the judgment of DATE . It explained that the debt had to be recovered from ORG ( GPE ) represented by ORG of ORG ( GPE ) from the federal budget sources allocated for the housing subsidies for persons leaving the high north regions .

On an unspecified date the applicant on CARDINAL more occasion sent the writ of execution to ORG . On DATE the writ was returned to him for the debtor had no account at the ORG .

On DATE ORG received the writ of execution and opened the enforcement proceedings .

On DATE the enforcement proceedings were terminated for the debtor had no property that the debt could be recovered from .

On DATE the bailiff responsible for the execution of the judgment issued an act establishing that there were grounds for returning the writ of execution to the creditor . According to this document , the debtor , ORG ( GPE ) , was a collective executive body , without the status of a legal entity or any property on their balance sheet .

The judgment of DATE remained unenforced .

On DATE the applicant lodged a claim under LAW ( see the LAW part below ) . He complained that the civil proceedings in his case against ORG ( GPE ) had been unreasonably long , and asked for a compensation in that respect .

On DATE a judge of ORG ordered that the application should be returned to the applicant with the reasoning that the proceedings complained of ended on DATE , i.e. before the entry into force of LAW .

On DATE the applicant ’s special appeal against the above decision was dismissed by ORG . The court agreed with the judge that had passed the decision of DATE that DATE of the proceedings was the date of the decision of CARDINAL DATE to uphold the judgment of DATE on appeal , while the subsequent period when the applicant applied for supervisory review of that decisions should not be included in the overall length of the proceedings .


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

Angelika Nußberger;Vincent A. De Gaetano

The applicant was born in DATE and lives in PERSON .

The applicant was detained in the remand section of GPE prison from DATE to CARDINAL DATE . He was again detained in the remand section of GPE prison from DATE to DATE .

In the period from DATE to DATE he was held for DATE in cell CARDINAL alone or with another detainee . From DATE to CARDINAL DATE he was held for DATE in cell CARDINAL measuring QUANTITY ( not including a separate QUANTITY sanitary facility ) , alone with QUANTITY of personal space . From CARDINAL DATE to DATE he was held for DATE in cell QUANTITY ( not including a separate QUANTITY sanitary facility ) , alone with QUANTITY of personal space or with another detainee with QUANTITY of personal space .

The cell for CARDINAL detainees , where the applicant was held , contained CARDINAL bunk bed , CARDINAL bigger and CARDINAL smaller table , CARDINAL chairs , CARDINAL wardrobes and CARDINAL x QUANTITY windows , which detainees could freely open or close .

As regards the general characteristics of the cells in the remand section of GPE prison , material conditions inside the cells and sanitary conditions , see the judgment in PERSON and PERSON GPE , nos . CARDINAL , § § DATE , DATE .

As to the out - of - cell time in the remand section , the ORG found in the aforementioned judgment that detainees in the remand section were confined to their cells day and night , save for DATE outdoor exercise , and TIME in a recreation room ( ORG and PERSON , cited above , § MONEY ) .

As regards the cell temperature , the data provided by the Government showed that the average temperature in the cells in TIME ( CARDINAL- TIME ) in DATE and DATE had been approximately CARDINAL , exceeding CARDINAL on DATE .


No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-b - Access to relevant files);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses);Non-pecuniary damage - finding of violation sufficient (Article 41 - Jurisdiction to give orders or grant injunctions;Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Egbert Myjer;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was employed by the ORG as an audio editor and interpreter . In this capacity he had access to classified information ( gerubriceerde informatie ) , which he was under a duty not to divulge to persons not authorised to have knowledge of it .

The suspicion arose that the applicant had forwarded copies of classified documents to persons outside the service , including in some cases persons who were under covert investigation by the ORG in connection with possible terrorist activity .

On DATE the applicant was arrested . He was charged with divulging ORG secret information to persons not authorised to take cognisance of it and taken into detention on remand ( voorlopige hechtenis ) .

The ORG advised the applicant in writing that he was still under an obligation of secrecy . Consequently it would be constitutive of a further criminal offence if he were to discuss matters covered by his duty of secrecy with anyone including his counsel .

The applicant ’s counsel were also warned that they might be prosecuted should they divulge any ORG secret information to third parties .

NORP The trial opened before ORG ( rechtbank ) on DATE . It was adjourned several times .

The applicant ’s counsel protested against the restrictions affecting communication between themselves and the applicant , which in their submission undermined the effectiveness of the defence . They also asked for certain documents to be added to complete the file : these included the internal ORG report that was the basis of the prosecution , which was absent from the file altogether , and the documents which had supposedly been leaked , which had been added to the case file in redacted form with parts blacked out . They further repeated a request , made earlier in writing , for the applicant to be released unconditionally from his duty of secrecy in order to conduct his defence ( vrijwaring ) .

NORP The public prosecutor ( officier van justitie ) announced that some but not all of the documents requested by the defence would be added to the file but refused to release the applicant from his duty of secrecy unconditionally .

On DATE ORG gave a decision remitting the case to the investigating judge , to whom it would fall to carry out investigations in such a way as to mitigate , and compensate as far as possible , the handicaps under which the defence laboured .

On DATE the head of the ORG informed the applicant in writing that communication of matters covered by his duty of secrecy was permitted , subject to the following conditions :

He would be allowed to discuss such matters only with his counsel , PERSON and Mr Pestman ;

He was not allowed to reveal the identity of any ORG staff or human sources ;

He could discuss only “ that which [ was ] contained in the case file ” ;

This exemption covered only information that was strictly necessary for the defence ;

This exemption was valid only until the final judgment in the domestic proceedings was given .

The letter continues :

“ In order to preclude any misapprehension I stress that this release from the duty of secrecy does not apply to the suspect ’s counsel . In the event that counsel wish to make use of information obtained from the suspect with a view to the defence of M , this must be done in consultation with the investigating judge . The investigating judge will then determine whether the ( answers to the ) questions are of any relevance to the criminal proceedings ( strafvorderlijk van belang ) . If this is the case , the ORG will then indicate to what extent ORG secrets are at stake in this context . ”

On DATE the Head of the ORG wrote to the investigating judge in the following terms :

“ ... I consider it of great importance that the suspect ( verdachte ) should be able to defend himself adequately against the matters of which he is suspected . This entails that he will have to consult his counsel for that purpose . To that end I have granted the suspect conditional release from his duty of secrecy . These conditions are necessary and serve the interest of national security . There exists a certain tension within these frameworks , i.e. a ( more far - reaching ) release ( as requested ) of the duty of secrecy and the interests of national security . After all , the ORG can only carry out its statutory duty within a certain measure of secrecy . CARDINAL criteria are of importance in this respect , namely that the ORG should be able to maintain the secrecy of its current levels of intelligence , its sources and its working methods . These are critical thresholds that can be seen as the practical implementation of the so - called ‘ ORG criterion in the case - law of ORG .

... CARDINAL additional conditions apply :

NORP the release from his duty of secrecy granted [ the applicant ] shall apply solely to communication between the suspect , his lawyers PERSON and ORG , Public Prosecutor PERSON and the court , and

NORP shall take place within the confines of the offices of the Investigating Judge or in the presence of the trial court in a closed hearing .

The parties to the proceedings are to submit their questions and other requests to you [ i.e. the investigating judge ] . You then check whether the questions and requests are of any procedural significance ( strafvorderlijk belang ) in these proceedings , as you have indicated to me with regard to the CARDINAL subjects mentioned by counsel . In the affirmative , you offer me the opportunity to consider whether the text of the questions in itself can harm national security .

In the ( probably most likely ) event that the questions in themselves can not harm national security , the answer can be provided in the accustomed way , i.e. by means of an official ORG report ...

In addition , and if the parties to the proceedings consider it necessary , more specific answers can be given by means of , for example , the hearing of witnesses . Perhaps unnecessarily I would observe that section CARDINAL(CARDINAL ) of the DATE Intelligence and Security Services Act ( FAC inlichtingen- en veiligheidsdiensten ) applies .

In the event that the line of questioning ( vraagstelling ) in itself is capable of endangering national security , it is my responsibility , pursuant to section CARDINAL of the DATE Intelligence and Security Services Act , to ensure the secrecy of the information that should remain so and accordingly the classification of that information . I therefore propose that you do not place this information , after I have classified it , in the case file and to request ORG to deal with those questions at a closed hearing . I am of the opinion that the above procedural proposal serves the interests of all parties to the proceedings , taking into account the interests involved in national security .

The second condition , which is that the suspect should not be allowed to disclose the identities of ORG members or human sources , appears clear enough to me . All information that , whether or not in combination with other information , may lead to the identities of ORG members or human sources becoming known , falls within the scope of the second condition for release [ from the duty of secrecy ] .

As regards the third and fourth conditions , I am of the view that these too are sufficiently clear : [ the applicant ] is released from his duty of secrecy vis - à - vis his counsel PERSON and PERSON in so far as consultation between the suspect and his counsel [ Dr ] PERSON and Mr Pestman relates to the crimes with which he is charged . In the event that counsel wish to discuss documents with the suspect which they may wish to add to the case file , the third and fourth conditions should be interpreted to mean that the documents must be relevant and directly necessary for the defence in this case and may possibly be added to the case file . [ These requirements of ] relevance and direct necessity also apply to the preparation of requests and defences .

As to the latter condition : if and when such a procedure becomes a real possibility I will consider , if asked , whether release from the duty of secrecy , conditional or not , is possible .

Fourthly , you have asked me to react to the witnesses requested by counsel . I presume that you mean the ORG members . I am of the opinion that this is above all a matter of criminal procedure , the public prosecutor indicating in her letter that the questions counsel would like to ask relate primarily to the working methods of the ORG , the spreading of the leaked information and the internal investigation into this . I can agree with the position taken by the public prosecutor that these questions can most probably be answered by me or my deputy during a witness hearing . Whether and to what extent national security permits the questions to be answered will have to be seen for each question . This will require me first to have the questions intended to be asked at my disposal , so that the Ministers of Justice and of ORG and ORG can decide together and in due time on the application of section CARDINAL ) of the DATE Intelligence and Security Services Act .

As to the possible questioning of ORG members as witnesses , I would ask you to make it possible , in pursuance of Article CARDINALc of the Code of Criminal Procedure , for special access to be granted to an additional ORG member . This person can consider the interests of national security for each specific question during the interrogation . This will also permit the defence to put ‘ sub - questions’ , questions arising from the questions previously submitted in writing . The hearing of witnesses will thus , in my opinion , considerably speed up the pace of the proceedings – at least as far as the hearing of witnesses is concerned – since the ( additional ) ORG member present will in many cases be able to decide almost immediately whether the said sub - questions can be answered . This acceleration of the proceedings , in my opinion , benefits all parties to the proceedings . I am prepared to advise the Ministers of Justice and of ORG and ORG , on the basis of section CARDINAL ) of the DATE Intelligence and Security Services Act , to consider this in any exemption decision .

On DATE ORG gave a decision in which , following the public prosecutor , it refused to make the exemption unconditional . It expressed the view that it would serve no useful purpose to allow the applicant to disclose the identities of ORG staff members and informants to his counsel . The interests of the applicant were sufficiently protected inasmuch as the exemption covered information strictly necessary for his defence . ORG ordered the investigating judge to hear CARDINAL witnesses referred to by name and CARDINAL witnesses referred to by a code name or number . It refused to order the hearing of QUANTITY other witnesses referred to by a number and CARDINAL named witness immediately , leaving that decision to be taken by the investigating judge after a particular witness , an ORG staff member called PERSON , had been heard . As to the partially blacked - out documents , ORG noted that it too was thereby prevented from considering whether they held secret information within the meaning of Articles CARDINAL and FAC of LAW ( Wetboek van Strafrecht , see below ) ; even so , the prosecution interest in maintaining secrecy prevailed .

The named witness PERSON was heard on DATE and DATE . It appears that he refused to answer certain questions because of his duty of secrecy .

It appears that on DATE the investigating judge decided to refuse to hear the CARDINAL witnesses requested by the defence for lack of available time ( agendatechnische redenen ) .

On DATE the investigating judge decided that the unnamed witnesses permitted to be questioned would be heard at a secret location , under heavy disguise and with the use of voice distorting equipment . A representative of the ORG and legal counsel of the ORG would attend in addition to the prosecution and the defence .

The defence lodged an objection against the investigating judge ’s decision of CARDINAL DATE with ORG , stating also that they would not cooperate in any witness hearing held at a secret location . They also asked for the named witnesses already heard to be relieved of their duty of secrecy and to be heard anew .

ORG held a hearing in camera on DATE . The defence outlined its provisional strategy , which was to aim for an acquittal by identifying potential sources of the leaks other than the applicant and by demonstrating that the documents leaked did not contain ORG secrets properly so - called . They also wished to establish the applicant ’s attitude to his work for the ORG . This strategy required the applicant ’s former direct colleagues to be questioned and uncensored copies of the documents in question to be made available to the defence and the court .

On DATE ORG gave an order for CARDINAL further named witnesses to be heard but dismissed the defence ’s objection for the remainder .

On DATE the defence challenged CARDINAL judges of the trial chamber who had also taken part in the decision of DATE , arguing on various grounds that positions taken in the latter decision prejudged the outcome of the trial .

The following day , DATE , the challenge was dismissed and the trial hearing was resumed . The defence asked for documents to be added to the file , including all those found in the applicant ’s desk . ORG remitted the case to the investigating judge for the hearing of the witnesses authorised to be heard , in so far as they had not already been heard , and requested the prosecutor to add documents to the file including a description – to be prepared by the AIVD – of the documents found in the applicant ’s desk .

Witnesses were heard on various dates . In so far as they were unnamed ORG staff members , they were identified by a number ; they were heavily disguised and they were placed in a box that left only their upper body visible ; and their voices were distorted . The applicant states that it was impossible to discern their body language and facial expressions . He further states that an ORG official was present , who could – and did – prevent named and unnamed witnesses from answering a proportion of the questions put by the defence , and that this was permitted by the investigating judge .

The trial hearing was resumed on DATE . Finding no indication that the ORG information had been leaked by someone else , ORG yet again refused to hear the named witness and the CARDINAL unnamed witnesses . As to ORG staff members who refused to disclose certain information based on their duty of secrecy , it stated that the final decision whether to allow this lay with the trial court itself but found that it could not set precise limits as the prosecution wanted .

The trial hearing was resumed on CARDINAL and DATE . The applicant made no statement .

On DATE the trial hearing resumed . The prosecution and the defence made their closing statements .

ORG gave judgment on DATE . It convicted the applicant and sentenced him to DATE and CARDINAL months’ imprisonment .

The applicant lodged an appeal with ORG ( gerechtshof ) of GPE .

The appeal hearing opened on DATE . Among other things , the applicant ’s counsel objected to the refusal , in the proceedings at first instance , to allow the defence an unconditional exemption that would allow the applicant and his counsel to communicate unimpeded ; to the hearing of unnamed witnesses under heavy disguise , in a closed box that partially hid them from view and with the use of voice distortion , even though they were the applicant ’s former direct colleagues ; to the withholding of evidence by the witnesses , based on their duty of secrecy as ORG staff members ; and to the withholding of documentary evidence requested by the defence . The prosecuting Advocate General ( advocaatgeneraal ) conveyed an offer by the ORG to allow an independent expert to see uncensored ORG documents and report on their content ; the expert proposed had previously been a member of a committee appointed to investigate the internal functioning of the ORG itself . The defence protested that this expert lacked independence precisely for that reason .

ORG delivered an interlocutory judgment on DATE . Its reasoning included the following :

“ The duty of secrecy arising from DATE Intelligence and Security Services Act Serviced Act is subject only to the exceptions set out in that LAW . The implication is that only the possibility offered by section CARDINAL(CARDINAL ) of that LAW offers a solution for the applicant ’s present predicament .

The interests of ORG security , which DATE Intelligence and Security Services Act and LAW and following of LAW seek to protect , stand in the way of a complete release from the duty of secrecy as the defence would wish and a complete exemption from prosecution for disclosing ORG secrets to be granted by ORG . It is obvious that the said duty of secrecy constitutes a restriction of – normally entirely – free and confidential consultation between the suspect and his counsel and DATE if it remained in force in its entirety – it would prevent a fair trial . In the present case , the suspect has been granted conditional release from that duty by the ORG , based on the latter section of the DATE Intelligence and Security Service Act , as have his CARDINAL counsel . The conditions accompanying that release , all of which concern interests of ORG security in relation to interests of the defence in the present criminal proceedings , appear to ORG neither unreasonable within the framework of the interests of ORG security nor unworkable within the framework of the interests of the defence .

Finally , it is the case that if the suspect and the defence , if they consider that the space left to them by the said release is not sufficient to conduct a defence meeting the requirements of the LAW and they consider , in their assessment , that he / they have to transgress his / their duty of secrecy further than the conditions governing the release allow , they can plead justification ( rechtvaardigingsgrond ) , namely the interest of a proper defence within the meaning of LAW . The Advocate General gave the assurance at the hearing of DATE that no prosecution would be brought if a violation of the duty of secrecy by the suspect – and as ORG presumes , his counsel as well – was justified by invoking LAW . ”

and

“ ORG assumes that the defence request [ for access to the internal ORG investigation materials ] comprises all investigations undertaken by the ORG after it had become known that a third party , i.e. S. , possessed [ a copy of a classified ORG document ] . It does not appear from the file that these internal investigations were set out in any report . The case file contains criminal complaints ( aangiftes ) based on those investigations .

It must be noted in the first place that the defence request does not concern documents in the possession of ORG within the meaning of LAW ; none of the participants in the proceedings is aware of the content of the internal investigations , save for what has been stated by witnesses in this respect , and what is set out in the said criminal complaints . There is therefore no violation of the principle of ‘ equality of arms’ .

Quite apart from the question whether the ORG , given its duty and responsibility ... , would be willing to submit its report or any written documents concerning its internal investigation to the public prosecution service to be added to the file , the question needs to be considered whether these documents , which do not emanate from any investigatory body , can in reason be relevant to the defence .

The defence has not , in the present case , suggested , let alone shown , that the materials compiled by the ORG within the framework of its internal investigation have been obtained unlawfully or are unreliable , but only that the documents and information provided by that service have been accepted uncritically ( voor zoete koek aangenomen ) first by ORG ( Rijksrecherche ) and then by ORG and can not be checked .

ORG takes DATE without wishing to prejudge its final decision [ on the question whether the trial was fair ] – that the said materials can be assessed based on the statements of the witnesses questioned , albeit , as far as ORG members are concerned , subject to some restrictions owing to their duty of secrecy . ”

It noted the “ particular tension between fundamentally opposed interests ” , namely the applicant ’s interest as a defendant in a criminal trial and the ORG interest in maintaining the secrecy of ORG information , but rejected the protests put forward on the applicant ’s behalf . The judgment took note of a promise made by the Advocate General not to prosecute for a violation of the duty of secrecy if that violation was justified by reliance on LAW ( gerechtvaardigd is door een beroep op artikel TIME ) . It asked the prosecution to submit certain official reports but not the uncensored ORG documents requested by the defence .

The appeal hearing was resumed on CARDINAL DATE . The applicant announced that he might , in his own defence , have to reveal ORG secret information . This prompted ORG to exclude the public from the interrogation of the applicant , despite the latter ’s protests .

In the course of questioning by his counsel the applicant mentioned the names of particular ORG staff members ; these are not recorded in the official record of the hearing . The Advocate General protested against the mentioning of these names in so far as they were not already to be found in the case file , which in his view was not justified by LAW , and announced his intention to prosecute if the applicant should “ transgress those limits ” ( mocht hij die grenzen overschrijden ) . The applicant ’s counsel replied that the defence needed these names in order to decide whether to call the persons concerned as defence witnesses and pointed out that the public had been excluded . After the president decided that the Advocate General should be entitled to state a view on the acceptability of questions put to the applicant by his counsel , the applicant stated that he would for the remainder of the hearing comply with his duty of secrecy . Thereupon the hearing was reopened to the public .

On DATE the applicant ’s counsel Mr Pestman sent the Advocate General a letter by fax , to which was appended a list of questions he and PERSON would have wished to ask the applicant in support of the case for the defence . These questions concerned ORG working methods and procedures and ORG members . CARDINAL question asked the applicant to identify individual ORG members on a handwritten anonymised organigram by name . Other questions asked the applicant to state the names of ORG members other than himself who would have had access to the documents found to have been leaked .

The hearing continued on DATE . The Advocate General announced his intention to prosecute the applicant should he answer questions naming ORG sources , providing an insight into ORG working methods or relating to the blacked - out parts of the redacted documents . Responding to protests by the defence , ORG referred to its interlocutory judgment of DATE ( see paragraph CARDINAL above ) , in which it had stated that if the applicant considered a breach of his duty of secrecy in the interest of his defence he would , if prosecuted , be able to pray the right under LAW to defend himself in justification . The decision to prosecute , however , belonged to ORG alone to the exclusion of the courts .

The Court of Appeal gave judgment on DATE . It quashed the judgment of ORG on the technical ground that ORG judgment could not be simply endorsed , convicted the applicant and sentenced him to CARDINAL years’ imprisonment .

The evidence relied on was the following :

Statement by the applicant at the hearing of ORG ( CARDINAL DATE ) , to the effect that :

He worked for the ORG and accordingly had the documents mentioned in the charges at his disposal ;

Knew some of the targets personally ;

Had written down names and addresses found in his address book himself ;

Had CARDINAL of the documents ( a phone tap report ) in his home as well as in his office at work ;

He knew the name of another target .

ORG report of CARDINAL DATE , criminal complaint lodged on behalf of the ORG by its acting head , to the effect that it has emerged that one of the targets ( O. ) turns out to be aware that he is an object of investigations . In particular , NORP turns out to possess a copy of a document to that effect . The document has been circulated to “ QUANTITY of persons ” within the ORG . The applicant is mentioned by name .

ORG report of DATE , statement by the ORG ’s acting head to the effect that a secret ORG document ( copy of a telephone interception report ) has been found during a search of the applicant ’s home . The name of the person who printed it out would normally have been stated on the document but appears to have been removed .

ORG report of DATE , statement by an ORG official to the effect that a document shown him by police officers is secret and that one of the persons to whom it had been given was the applicant .

ORG report of DATE , statement by an ORG official relating to investigations undertaken by the ORG itself on a copy of the hard disk of the applicant ’s home computer . This is stated to have revealed information compromising the applicant . In particular , the applicant is reported to have informed a target about ORG investigations .

ORG report of DATE , statement by an ORG official to the effect that a fax seized from a target was a transcript of an intercepted phone call prepared by the applicant . The content of the document reveals specific methods used by the ORG in terrorism - related investigations . The document is identical to a document found in the applicant ’s office desk , which bears the applicant ’s ID .

ORG report of DATE , statement by an ORG official to the effect that the leaked information is ORG secret , sensitive , and relates to ongoing ORG operations for gathering information on terrorist groups .

ORG report of DATE , from which it appears that the applicant was arrested DATE and was found in the possession of an address book .

ORG report of DATE , mentioning that objects ( envelopes , diaries , a phone tap report , written notes , floppy discs , compact discs and computers ) were seized in the applicant ’s home . No further details given .

ORG report of DATE , list of goods seized in the home of a target .

ORG report of DATE , relating the search of the applicant ’s office and describing ORG secret documents found in his desk . CARDINAL of these is identical to a document found in the possession of a target ; another is identical to a document found in the applicant ’s home ( albeit that the applicant ’s ORG has been whited out ) . These documents are identified by the acting head of the ORG as ORG secret .

A transcript of a page out of the applicant ’s address book , bearing names in LANGUAGE script identified by an ORG expert as the names of targets .

A copy of a post - it note found in the applicant ’s address book .

ORG report of DATE to the effect that CARDINAL ( unnamed ) ORG members have classified the list of goods seized in the applicant ’s home ( paragraph CARDINAL above ) as ORG secret .

ORG report of DATE identifying persons mentioned in the transcript of the phone tap .

ORG report of CARDINAL October CARDINAL identifying the transcript of the intercepted telephone conversation as identical to a document found in the applicant ’s office desk .

ORG report of DATE to the effect that a document found in a search of the home of a target ( C. ) was identical to a classified document found in the applicant ’s office desk .

ORG report of CARDINAL DATE relating the arrest of another target ( O. ) , who was found to be in possession of classified LAW documents . PERSON stated that these had been sent to a friend of his anonymously by post . A search of the applicant ’s hard disk revealed an e - mail inquiring of a friend ( PERSON ) whether “ the information sent to him by post had been of any use . ”

ORG report of DATE . A search of the dwelling shared by PERSON , who was later convicted of the murder of filmmaker PERSON , had led to the finding , among the personal effects of PERSON flat - mate , of a transcript of a conversation that was part of an ORG investigation .

ORG report of DATE . The post - it note found in the applicant ’s address book bore an address to which it appears that “ the aforementioned document ” was found to have been sent .

ORG report of DATE . Description of documents found in the possession of the target C. , whose house had been searched , and copies of some of which were found in the possession of the target O. All are classified documents already mentioned in other ORG reports .

ORG report of DATE . Interview of an ORG official responsible for the security of the IT system . No name is given , the official identified only by a number ( CARDINAL/CARDINAL ) . It emerges that the applicant had access to all the systems needed for his work as an audio analyst and had his own user ORG and password .

ORG report of CARDINAL DATE . Interview of witness CARDINAL/CARDINAL to the effect that the applicant , and he alone , prepared a transcript of a conversation later found in the possession of the target H.

ORG report of DATE . Interview of the applicant from which it appears that the applicant has been employed by the ORG since DATE , receives DATE reports about investigations in progress ( which are classified ) , has signed a promise of secrecy and knows the targets O. and C. who are friends of his brother - in - law . He is aware that O. and C. are investigation targets .

ORG report of DATE . Interview of the applicant , who recognises the transcript of the intercepted telephone conversation , which he admits is classified and should not have left ORG premises , but which he must have taken home by mistake . The applicant also recognises a note bearing a name .

ORG report of DATE . Interview of the applicant , who recognises the post - it note with the names of CARDINAL targets ( NORP , PERSON ) and admits that he knows he should not take names of targets home . The applicant also admits that there is no other possible explanation for finding the transcript of the intercepted telephone conversation in his office desk than that he himself put it there .

ORG report of DATE . The applicant identifies CARDINAL observation reports which are classified . CARDINAL of them is stated to have been found in his office at work .

ORG report of DATE . The applicant identifies the name of the target PERSON on the post - it note .

ORG report of DATE . The applicant identifies private e - mail addresses used by him ( in his private capacity of agent for a travel agency based in GPE ) and by his wife respectively .

ORG report of DATE . The applicant admits that the transcript of the intercepted telephone conversation bears his user ORG . The name PERSON on the post - it note corresponds to the person PERSON who is a target of an ORG investigation ; the applicant himself identified him as a target .

ORG report of DATE . A DNA sample is taken from the applicant .

ORG report of DATE . The DNA sample corresponds to DNA found on an envelope .

ORG report of DATE . A further DNA match is found on an envelope .

ORG report of DATE . It is CARDINAL times more likely that the DNA match can be explained by the presence of the DNA of the applicant than by the presence of the DNA of strangers .

ORG report of DATE . The target C. states that he received CARDINAL envelopes containing documents from which it appeared that he and other NORP men were being watched .

ORG report of DATE . The target C. relates how he received the CARDINAL envelopes . The first had been sent to him at his home address . The second had been addressed to him , but sent to the home address of a second person , CARDINAL , and handed to him by a third , BCARDINAL .

Official record by the investigating judge of DATE . Target C. recognises the documents sent to him .

ORG report of DATE . Statement by the target O. O was aware that he was being watched , since his friend PERSON had received reports by post .

Official record by the investigating judge of DATE . The target ORG admits that when arrested he had CARDINAL sheets of paper in his pocket which he had received from a friend ( PERSON , the “ third person ” mentioned in document no . CARDINAL ) .

ORG report of DATE . CARDINAL states that the target C. had received letters mentioning “ our names ” . CARDINAL had been sent to his address ( the address of the target C. ) ; the second had been sent to the address of BCARDINAL . The letters had been ORG documents from which it appeared that all CARDINAL were being watched . CARDINAL recognised the documents .

ORG report of DATE . BCARDINAL recognises the envelope sent to ORG from a photocopy .

ORG report of DATE . BCARDINAL describes how the second letter , addressed to C. and O. , was received at the address of CARDINAL . He had opened the letter , which mentioned him and O. He had left it with PERSON had received a copy as well .

Official record by the investigating judge of DATE . BCARDINAL recognises the second letter referred to under no . DATE . He had taken the letter to C. and given a copy to O.

ORG report of DATE . Statement by PERSON ( see under no . CARDINAL above ) who admits to knowing the applicant and also that he had received the e - mail from the applicant . In DATE or DATE he had received a transcript of an intercepted conversation from the applicant .

Official record by the investigating judge of DATE . PERSON admits to having received the e - mail from the applicant . He admitted to having received a transcript by mail and recognised it from a photocopy .

ORG report of DATE . PERSON recognises the telephone transcript , which was sent to him at his home address . He suggests that it was sent to him because the other targets still lived with their parents .

Official report of ORG and ORG [ which is ORG responsible for the ORG ] , DATE , with a statement of the ( by then ) Head of the ORG to the effect that it is now possible to accommodate the applicant ’s defence by offering documents with fewer parts blacked out , but noting that the documents in issue come from a place that is out of bounds .

A copy of LAW designating the ORG offices out of bounds .

The applicant ’s letter of appointment as a member of the ORG ( DATE ) .

Official report of ORG and ORG , DATE , to the effect that the documents found in the possession of unauthorised third parties in the course of the criminal investigation against the applicant concern current ORG counterterrorist operations and destroying their secrecy endangers national security .

Letter from the Head of the ORG to the investigating judge , DATE , confirming that those documents concern ORG counterterrorist operations and endanger the interests of the ORG by offering an insight into the ORG ’s state of intelligence , sources and operational methods .

Official report of ORG and ORG , DATE , signed by the Head of the ORG , stating that not blacking out the blacked - out parts of particular documents would harm the ORG by disclosing the ORG ’s state of intelligence , sources ( including CARDINAL human source ) and operational methods , naming the foreign intelligence services with which the ORG cooperates , and disclosing the nature of information exchanged with those foreign services ; identifying targeted organisations and their members ( referred to as “ NORP nationalist extremists ” ) .

Official record of verification by ORG for Counter - terrorism , DATE . The prosecutor has personally examined the documents in issue in unredacted form and found the unredacted parts of the redacted documents identical to the corresponding parts of the unredacted documents .

Photocopies of the address book with the post - it note and the redacted ORG documents were attached to the judgment .

ORG reasoning included the following :

“ In considering whether the positions adopted by the service [ i.e. the ORG ] and/or its members as regards the necessary secrecy and in answering the question to what extent restrictions on ( among other things ) the right to question witnesses can be justified , other issues than that of defining ORG secrets in a strict sense also play a part . That is apparent from the chapeau paragraph of section CARDINAL(CARDINAL ) of the DATE Intelligence and Security Services Act , which imposes on ORG officials a duty of secrecy ‘ without prejudice to ORG CARDINAL of the Criminal Code’ . That obligation extends to ‘ all information the confidential character of which he knows or ought reasonably to suspect’ . Only a ministerial decision as referred to in section CARDINAL(CARDINAL ) of that Act can relieve the official of this duty of secrecy if he wishes to act as a witness . The legislature has thus placed the choice in the ‘ conflict ... between the interests of ORG security , which may imperatively require certain sources or information to be kept secret , and the interest of establishing the material truth in , among other things , ... criminal PERSON [ reference to the statutory drafting history of an earlier Act , repealed by DATE Intelligence and Security Services Act , omitted ] in the hands of the said Ministers .

The above leads ORG to conclude as follows . In addition to ORG secrets within the meaning of LAW there are other matters that ( in the view of the ORG ) fall under the duty of secrecy of CARDINAL of the DATE Intelligence and Security Services Act . ORG deduces , on the basis of what is laid down in CARDINAL of that Act , that that obligation ( in principle ) prevails over the duties of a witness in a criminal trial . ORG examination of the question whether an ORG staff member has rightly invoked his duty [ of secrecy ] is necessarily detached / marginal . Things are different where it concerns the question whether the right of the defence to question witnesses is materially impaired , it being relevant , in the opinion of ORG , whether the statement of that particular witness is used in evidence . ”

and

“ The interests of ORG security , which DATE Intelligence and Security Services Act and ORG and following of LAW are intended to protect , stand in the way of granting a complete exemption from the duty of secrecy as desired by the defence .

It is obvious that the said duty of secrecy constitutes , to some extent , a restriction on – normally entirely DATE unimpeded free and confidential discussion between the suspect and his counsel and that – had it been in force unmitigated – it would prevent a fair trial .

As ORG held in its interlocutory judgment of DATE , the duty of secrecy is subject only to the exceptions set out in the DATE Intelligence and Security Services Act .

This means that the situation in which the suspect finds himself in the present criminal case leaves only the avenue left by section CARDINAL(CARDINAL ) of the said LAW . ”

and

“ The Advocate General has given the undertaking , at ORG hearing of DATE , that [ the applicant ] shall not be prosecuted if a violation of the duty of secrecy by [ the applicant ] is justified by reliance on LAW , with due regard to the demands of proportionality and subsidiarity inherent pertaining to a legal defence ( strafuitsluitingsgrond ) .

The conditions attached to the exemption aforementioned , all of which concern the interest of ORG security in relation to the interests of the defence in the present criminal proceedings , do not appear unreasonable to ORG within the framework of the interests of ORG security and in ORG opinion have done no relevant harm to the interests of the defence . ”

and

“ ORG can only answer the question whether the information in issue is to be considered ‘ State secret’ or as information relating to State security by referring to the texts , as contained in the file , of [ the documents concerned ] , to the extent that these documents have been added to the file in censored form as appendices to the ORG ’s official record of DATE , [ an uncensored e - mail relevant to CARDINAL of the charges ] and the explanations to these documents given by the ORG , especially as contained in the said official record of the head of the ORG of DATE and the official record of the acting head of the ORG of DATE , which latter report has been verified by ORG for Counter - terrorism ( NORP PERSON ) as appears from the latter ’s official report of DATE .

ORG considers itself sufficiently able to determine the nature and character of this information on the basis of these documents , considered in context . For that purpose it is not necessary , in the opinion of ORG , to possess or have access to entirely uncensored versions of the information . In this connection , ORG has sought , in giving its interlocutory judgment aimed at obtaining a further official report about the type and nature of the ORG security interest of the information contained in the censored texts portions , to gain optimum understanding of the nature and character of the information . Although the ORG , in submitting its official record of DATE ( verified by ORG for Counter - terrorism ) , has not entirely kept to the letter of ORG order , ORG has , based on the texts before it , considered in context with the ORG ’s explanations in its official records of CARDINAL DATE and DATE , sufficiently gained the understanding referred to . ”

The applicant lodged an appeal on points of law ( cassatie ) with ORG ( PERSON ) .

ORG gave judgment on DATE ( ORG : NL : HR : ORG ) . It held that the length of the proceedings before it had been excessive and the applicant was entitled to compensation in the form of a reduction of sentence . It therefore quashed the judgment of ORG for technical reasons in order to revise the sentence which it reduced by DATE and DATE . It held , however , that the appeal was unfounded . Its reasoning included the following :

“ CARDINAL . There is no statutory provision for an exception to the duty of secrecy laid down in CARDINAL of the DATE Intelligence and Security Services Act in the event that the official concerned is a suspect . Even then the official is bound by his duty of secrecy and he will not be permitted to divulge information in violation of that duty .

If , however , the trial judge takes the view , whether or not it be in response to a request or a legal argument ( verweer ) put forward by the defence , that the interest of the defence requires that information falling under the duty of secrecy is disclosed by the suspect , the court will have to weigh the conflicting interests in the case . The guiding principle ( richtsnoer ) in so doing is whether , if this information can not be disclosed after all , there can still be a fair trial within the meaning of LAW .

If the trial court reaches the finding that it is necessary , from the point of view of that LAW guarantee , to take cognisance of that secret information and the handicap for the defence [ resulting from not being able to disclose it ] is not sufficiently compensated by the procedure followed , it will have to determine – for example , by hearing the appropriate ORG official or officials on this point – whether the duty of secrecy is to be maintained intact in relation to that information . If that is the case , the conclusion will have to be that there can not be any fair trial and the prosecution will have to be declared inadmissible ( zal de officier van justitie niet - ontvankelijk moeten worden verklaard in de vervolging ) .

In so far as ORG has been inspired by a procedural framework other than outlined above , it has misinterpreted the law ( heeft het blijk gegeven van een onjuiste rechtsopvatting ) . However , that need not lead to the quashing of the judgment [ of ORG ] for the following reasons . ... ”

ORG went on to find that the compensatory measures had been sufficient in the circumstances : the possibility had been offered to hear ORG officials as witnesses without disclosing their identities , and ORG had been sufficiently informed by the information contained in the case file – the uncensored parts of documents , the official explanatory documents submitted by the ORG , and the checking of the ORG position by ORG - terrorism – to make a proper assessment as to whether the documents in issue were properly classified ORG secret .


Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

NORP The applicant is a NORP national , who was born in DATE . The President decided that the applicant ’s identity should not be disclosed to the public ( Rule CARDINAL § CARDINAL ) . The applicant was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

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

The applicant worked as a police inspector in CARDINAL of the local branches of ORG .

During DATE and DATE ORG ( FAC uprava MONEY ) investigated an organised chain of prostitution in the Split area . The investigation disclosed that the applicant had several contacts with the principal suspect in the investigation , GPE , and that he was one of the clients of the services organised by GPE

In this connection QUANTITY police inspectors of ORG , GPE and PERSON , were ordered to interview the applicant and to obtain from him the available evidence .

On DATE D.Z. and PERSON came to the LOC of ORG in order to interview the applicant .

In TIME of the same day the Chief of Crime Police of ORG invited the applicant to his office . When the applicant arrived at TIME , the secretary of ORG called PERSON , a police inspector at ORG , to escort the applicant to a meeting room for an interview with PERSON and PERSON

According to the applicant , while escorting him to the meeting room the inspector PERSON without any reason started pulling his arm saying that he was a “ dirty policeman ” and that he knew those of his kind very well . The applicant protested against the use of force which made PERSON to press him even harder . The applicant also alleged that during the interview ORG and the inspectors of ORG exerted pressure on him forcing him to confess . In particular , PERSON threatened to beat him if he would not confess .

According to the ORG , the applicant was escorted to a meeting room without any use of force by ORG or any of the other police officers . There was also no use of force or any other form of ill - treatment or coercion against the applicant during the interview .

A note of the applicant ’s interview dated DATE available to the ORG shows that the applicant confessed to having CARDINAL sexual intercourse with a prostitute in PERSON . The applicant also gave his mobile phone card to the police officers and duly signed a seizure record indicating that he had no objections .

After the interview the applicant returned to his work where he resumed with his duties until the end of the working day .

On DATE , at TIME , the applicant saw a doctor in a hospital in PERSON concerning the injuries he had allegedly sustained in the premises of ORG on DATE . The relevant part of the medical record reads :

“ According to the statement of the injured person ... :

During the performance of his duties a crime inspector at [ ORG ] injured him on his left arm .

Diagnosis :

Contusion on the left side of chest . Contusion and large haematoma on the left upper arm . ”

The relevant part of another medical record of DATE reads :

“ Time of the injury : TIME

Reason for [ the examination ] : During the performance of his duties a crime inspector at [ ORG ] injured him on the left shoulder .

Main diagnosis : PERSON – superficial injuries of chest ( torso ) . ”

The applicant underwent further medical examinations on CARDINAL and DATE , which indicated recession of the injuries on his upper arm and chest .

Following the applicant ’s medical examination on DATE ( see paragraphs CARDINAL and CARDINAL above ) , the hospital forwarded a copy of his medical record to ORG .

On DATE the applicant was interviewed in ORG concerning his alleged ill - treatment of DATE . The applicant stated that he had been forcefully grabbed by the hand by CARDINAL of ORG inspectors who escorted him to a meeting room . Inside the meeting room the inspector threatened him with ill - treatment saying that he should know very well why he had been summoned to an interview . At CARDINAL point CARDINAL inspectors of ORG had joined them and then he was questioned concerning his alleged contacts with prostitutes . The applicant also explained that following his interview he had said to an on - duty officer at the police station , GPE , what had happened to him . He also stated that DATE he had gone to see his lawyer and then decided that he should lodge an official complaint concerning his alleged ill - treatment .

On DATE the inspector PERSON was interviewed and he denied any use of force against the applicant . On CARDINAL and DATE the inspectors of ORG and PERSON submitted their reports denying any threats or use of force against the applicant .

On DATE the applicant ’s colleague PERSON was interviewed . PERSON stated that upon the applicant ’s return from his meeting at ORG on DATE , he had explained to ORG that he had been interviewed by the police inspectors concerning his alleged contacts with prostitutes . The applicant had also said to ORG that while escorting him to the meeting room CARDINAL of the police inspectors took him by the hand . However , ORG explained that although the applicant had said that the inspectors were rude he did not say that he was ill - treated or injured nor did he explain in what manner were the inspectors rude . The following day PERSON went together with the applicant to the internal control department and on their way there the applicant had not mentioned to GPE any injuries nor did he complain of any pain .

On DATE ORG forwarded the material obtained during its inquiry to ORG ( Općinsko državno odvjetništvo u PERSON ) .

On DATE the applicant sent an email to ORG of ORG za unutarnju kontrolu GPE unutarnjih poslova ; hereinafter : the “ ORG ” ) complaining about his alleged ill - treatment by a police inspector during his interview in ORG on DATE . He in particular alleged that he had been grabbed by the hand and pulled by a police inspector who escorted him to a meeting room where the same inspector then continued with the threats forcing him to confess to the alleged involvement in prostitution . The applicant also contended that the police inspector had forcefully taken his mobile phone and searched it . There were allegedly some other police officers who laughed at him .

Further , on CARDINAL DATE the applicant forwarded a photograph to ORG depicting the alleged injuries he had sustained as a result of his ill - treatment of DATE .

During its inquiry ORG obtained a report from ORG as well as the applicant ’s medical records and reports form the inspectors ORG and PERSON , and it interviewed the applicant , the inspector PERSON and the applicant ’s colleague PERSON , as well as the Chief of Crime Police of ORG .

On DATE ORG informed the applicant that it considered his allegations unfounded and unsubstantiated .

The applicant challenged these findings and ORG informed him on DATE that his complaints were forwarded to ORG ( GPE za rad po pritužbama GPE unutarnjih poslova ; hereinafter : the “ Commission ” ) .

The proceedings before the ORG are still pending .

On DATE the applicant sent a letter to the Z. Municipal State Attorney ’s ORG complaining about his alleged ill - treatment during his interview in ORG on DATE .

On DATE the applicant lodged a criminal complaint against the Chief of ORG , the Chief for Crime Police of ORG and his deputy , the inspectors PERSON and PERSON and the Head of ORG , alleging his ill - treatment during the interview of DATE and their abuse of powers by lodging criminal complaints against him in connection with his alleged involvement in the prostitution ( see paragraph CARDINAL below ) . In connection with the alleged ill - treatment , the applicant submitted in general terms that the inspector PERSON had unlawfully used force against him and that the inspector PERSON had threatened him , forcing him to confess to his alleged involvement in prostitution .

During the investigation , the Z. Municipal State Attorney ’s ORG interviewed the Chief for Crime Police of ORG and the inspector PERSON , who denied any unlawfulness or the applicant ’s alleged ill - treatment .

In the further course of the investigation the Z. Municipal State Attorney ’s ORG summoned the applicant ’s colleague PERSON for an interview .

The investigation before the Z. Municipal State Attorney ’s ORG is still pending .

Meanwhile , on an unspecified date the applicant also lodged a criminal complaint against the Chief for Crime Police of ORG and his deputy as well as the inspectors PERSON and PERSON before ORG for ORG suzbijanje korupcije i organiziranog kriminaliteta ; hereinafter : the “ ORG Attorney ’s ORG ” ) alleging his ill - treatment during the interview of CARDINAL DATE and irregularities in processing the case against him concerning his alleged involvement in prostitution .

On DATE the ORG Attorney ’s ORG rejected the applicant ’s criminal complaint as ill - founded on the grounds that there was no evidence that on DATE he had left the premises of ORG with any injuries and that the fact that he had sought medical help DATE after the alleged ill - treatment remained fully unexplained . This led to a conclusion that his injuries had not been caused in the course of his police interview . The ORG Attorney ’s ORG also indicated that it did not find any irregularities in processing of the applicant ’s case by any of the persons involved .

On DATE the applicant was provisionally suspended from the police service .

The disciplinary proceedings against the applicant in connection with his alleged involvement in prostitution , and concerning another event of alleged breach of the confidentiality of information , are still pending .

On DATE ORG lodged a criminal complaint against the applicant before GPE ORG in connection with a suspicion of his involvement in a prostitution scheme .

On an unspecified date the ORG Attorney ’s ORG rejected the criminal complaint as ill - founded .

The relevant provisions of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL , CARDINAL , DATE , ORG DATE , CARDINAL , CARDINAL and DATE ) read as follows :

Article CARDINAL

“ No one shall be subjected to any form of ill - treatment ... ”


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

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was taken into custody on suspicion of membership of a terrorist organisation and disseminating its propaganda .

On DATE the applicant was brought before the Siirt Magistrates’ Court , who ordered his detention on remand taking into account the strong suspicion that he had committed the alleged offences .

On DATE the applicant ’s lawyer filed an objection against the above decision on the applicant ’s detention and requested his release .

On DATE the ORG public prosecutor filed a bill of indictment , charging the applicant with disseminating terrorist propaganda , and aiding and abetting a terrorist organisation .

On DATE , at the end of the preparatory hearing , ORG decided to prolong the applicant ’s detention on the basis of the case - file .

On DATE ORG ex officio examined the applicant ’s detention on remand on the basis of the case - file and decided to extend it .

On DATE , at DATE first hearing before ORG , the applicant was released pending trial .

NORP On DATE ORG acquitted the applicant of the charges against him . No appeal was filed and the judgment became final on DATE .