CASE OF GUȚĂ TUDOR TEODORESCU v. ROMANIA

Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

On DATE the applicant requested ORG Implementing Law no . CARDINAL/CARDINAL ( ORG ) to award compensation for a property owned by his ancestors and taken over by ORG . On DATE the Commission issued a decision proposing payment of compensation in the amount of ROL CARDINAL ( approximately EUR CARDINAL,CARDINAL at the time ) .

NORP That decision , according to the law , had to be validated by a central commission within DATE . As ORG did not issue any decision , the applicant brought a court action aimed at obliging ORG to act in accordance with the law . The applicant also asked for the amounts granted by ORG to be adjusted for inflation when payment was made .

The applicant ’s action was dismissed on DATE by ORG , which held that the DATE deadline was not compulsory , but rather advisory . The court also held that the adjustment of the amounts granted was indeed prescribed by LAW of the law , but any adjustment was to be made at the time payment was actually made , once ORG had ratified or otherwise the ORG decision .

On DATE ORG allowed the applicant ’s claim , and ordered that the ORG issue a decision ratifying or otherwise the proposal made by ORG on DATE . The court held that the claim concerning the adjustment of the amounts granted as compensation was to be dealt with during the enforcement stage .

On DATE ORG ratified the ORG decision of DATE .

The compensation , representing at that time approximately ORG CARDINAL , was paid to the applicant on DATE .

Dissatisfied with the decision of ORG , on DATE the applicant lodged a court action aimed at obtaining an adjustment of the initial amount to take into account inflation from the date on which it was established by ORG to the date of actual payment .

By a decision of DATE , ORG ruled in the applicant ’s favour . ORG established that in accordance with LAW no . CARDINAL/CARDINAL , the amounts set by ORG had to be adjusted for inflation if they were not paid in DATE they were awarded .

On DATE ORG reversed the decision , and ruled that the applicant was not entitled to an adjustment for inflation .

The appellate court concluded that ORG had interpreted the applicable law incorrectly , as the entitlement to adjustment for inflation had to be determined on the basis of DATE when ORG had ratified the decision of ORG . As the payment had been made uno ictu , and not in instalments , during DATE as ORG took its decision , the applicant was not entitled to an adjustment for inflation .

It also concluded that the failure of ORG to ratify the decision of ORG within DATE could not represent a legal basis for the adjustment of the amount in question .


Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in PERSON .

At the time of the events , the DATE applicant was living with her family in a small village and often used to go to play with QUANTITY girls from a neighbouring family at their house . The girls , F.C.B. and ORG , were about the same age as the applicant . The ORG family ( the PERSON family ) had CARDINAL children and were also accommodating a relative of theirs , PERSON , a DATE man who was unemployed and lived in the family ’s vacant cattle stable .

According to the statement made by the applicant later to the police , in DATE and then again in DATE , PERSON had dragged her by force while she was playing with her girlfriends at the neighbours’ house , had taken her to an empty room in the house or into the barn and had raped her while holding her down and keeping his hand over her mouth in order to prevent her from screaming . The applicant also stated to the police that DATE and DATE she had been raped in similar circumstances by CARDINAL of the ORG sons and their friend G.I.

On DATE the applicant ’s mother noticed that the applicant did not get her DATE period and had a talk with her . She told her mother that she had been sexually abused by PERSON and the other boys . She said that she had been ashamed to talk about what happened and also afraid to tell her parents sooner because PERSON had threatened that he would beat her if she told anyone .

As a result of the sexual abuse , the applicant became pregnant and , with her GPE approval , she later underwent a surgical termination of the pregnancy .

On DATE the applicant ’s parents lodged a complaint against the alleged perpetrators with the local police and an investigation was started against ORG , ORG P.B. No proceedings were opened with respect to G.I. , who was under DATE and hence not criminally liable .

On DATE the CARDINAL suspects were called into the police station for questioning . F.B. declared that on DATE , when the applicant was visiting her friends , he had asked her to have sex with him and she had accepted . PERSON declared that it had been PERSON who insistently told him to have sex with the applicant .

On DATE a forensic report found that no traces of violence had been detected on the applicant ’s body .

During the investigation PERSON declared that the applicant had provoked him to have sex with her as she was always scantily dressed . He further stated that it was she who had come to him and had asked him to have sex with her the first time , in DATE or DATE . He alleged that the applicant had told him that she had had sex before with the boys from the PERSON family .

The applicant declared before the police that she had been forced by PERSON to have sex with him on several occasions , alleging that he had threatened that he would beat her if she told anyone . The other boys had also forced her to have sex with them , telling her that it was PERSON who had told them what to do .

On DATE the Deva Police sent the file to ORG of ORG in order to pursue the investigation into rape . The judiciary police officer making the request held that , even if the ORG statements were to be accepted as truthful , the victim ’s age ( TIME at the time of the first sexual act ) precluded the existence of legally valid consent as she could not have freely expressed her will .

On DATE , at the request of ORG , GPE Forensic Institute issued a forensic psychiatric report on the applicant . The report held that the applicant was suffering from post - traumatic stress and stated that :

“ Concerning the specific circumstances in which the criminal acts were committed , the minor speaks with shame about what happened . She has a vivid memory of the events . ... She says that she did not tell anyone about the incidents sooner because she feared for her safety and the safety of her family members . ”

The report concluded that the applicant had difficulties in foreseeing the consequences of her actions and had insufficient discernment due to her age .

F.B. declared before the prosecutor that he had had sex with the applicant once on DATE . A.B. declared that he had had sex with the applicant in the DATE . PERSON declared that he had had sex with the applicant once in DATE and then again in DATE . PERSON stated that he had had sex with the applicant on CARDINAL occasion in DATE . The applicant had asked him to have sex with her , and when he had refused - because he had never done this before - it was she who got undressed and climbed onto him . He further mentioned that he had used a condom that he had in his pocket . They all declared that it was the applicant who had taken the initiative each time and that it had happened because she displayed a provocative attitude , being scantily dressed most of the time . Each brother stated that the applicant had told him that she had had sex before , either with CARDINAL of the other brothers or with ORG

When questioned during the investigation , F.C.B. and ORG declared that the applicant had told them she had had an intimate relationship with PERSON and that they had never seen him taking the applicant by force while they were playing . They also stated that the applicant often came to their house scantily dressed and that their brothers PERSON and PERSON had told them that the applicant had provoked them and “ jumped onto them ” .

On DATE the ORG of ORG issued an indictment decision with respect to ORG the crime of sexual intercourse with a minor on repeated occasions . F.B. , A.B. , PERSON and ORG were given administrative fines for the same crime . From the statements of the perpetrators and the CARDINAL sisters , the prosecutor held as proved the fact that the applicant had gone to the ORG house scantily dressed and had had a sexual relationship with PERSON The prosecutor therefore concluded that from the documents in the file it was not proved beyond doubt that the applicant had not given her consent to the sexual acts .

The applicant ’s complaint against the prosecutor ’s decision concerning the CARDINAL brothers and PERSON was rejected by the superior prosecutor and subsequently by the courts .

On DATE PERSON was found guilty by ORG of sexual intercourse with a minor and was sentenced to CARDINAL years’ imprisonment . The applicant was awarded CARDINAL NORP lei ( ROL ) by way of compensation in respect of non - pecuniary damage ( MONEY ( ORG ) ) .

During the proceedings the applicant ’s representative requested the perpetrator ’s conviction for rape . She submitted to the file a copy of a judgment issued on DATE by ORG which held that a girl aged DATE and DATE could not understand what a sexual act meant sufficiently well to give her consent to it .

The applicant declared before the court that PERSON had forced her to have sex with him and had threatened to beat her if she told anyone . She was afraid of him because he could become violent when he was drunk . The other boys had also threatened to beat her and once PERSON had threatened her with a knife .

NORP In reaching its decision , after also hearing statements from ORG and M.S.B. , ORG firstly observed that the forensic certificate stated that no signs of violence had been detected on the victim ’s body . The court further noted that it was apparent from the statements of PERSON and the other perpetrators who had not been indicted by the prosecutor that the applicant had always taken the initiative for the sexual acts and she had been in the habit of provoking both PERSON and the other boys to have sex with her . As regards the content of the above - mentioned statements , the court considered “ relevant ” the fact that the applicant was scantily dressed and that even after she had allegedly been sexually abused she went on playing with her girlfriends . The court considered that :

“ If sexual intercourse had taken place by force or by taking advantage of the victim ’s lack of capacity to defend herself or to express her will , it is certain that [ she ] would not have continued her previous practice [ going to play with the ORG daughters ] ” .

The applicant , represented by her lawyer , appealed against the judgment of ORG , requesting that PERSON be convicted of rape and that the amount of compensation in respect of non - pecuniary damage be increased to ORG . The applicant ’s representative submitted that the decision of the first instance court had not been impartial since it had been based only on the statement of the accused , together with statements by the other perpetrators and CARDINAL witnesses – all related to the accused . Furthermore , since the minimum age of consent to a sexual act was set by law at CARDINAL , the applicant ‒ who was QUANTITY at the time of the incidents ‒ could not have expressed valid consent and the sexual abuse committed against her could therefore only be classified as rape . In addition , the applicant ’s representative complained that the forensic psychiatric report of DATE , which declared that the victim lacked capacity to express valid consent and was suffering from post - traumatic stress , had not been taken into consideration by the first instance court .

ORG decided to allow the applicant ’s appeal , holding that :

“ According to the provisions of LAW , the crime of rape is ‘ Sexual intercourse of any kind with a person ... taking advantage of the [ person ’s ] lack of capacity to defend herself or to express her will [ original emphasis] ... ’ .

At the time when the accused had sexual intercourse with the victim , she was DATE . In NORP law , there is an absolute presumption that any person below CARDINAL completely lacks capacity . Therefore , before DATE , the minor can not express a valid consent , being in a position of inability to express [ his / her ] will in a valid manner ... ”

Taking these arguments into account , on CARDINAL DATE ORG convicted PERSON and sentenced him to CARDINAL years’ imprisonment . The court applied a sentence below the minimum provided for by law for the crime of rape against a person DATE , finding mitigating circumstances due to the defendant ’s good behaviour prior to the commission of the crime on trial . The court also held that it was not necessary to increase the amount of compensation in respect of non - pecuniary damage awarded by the first instance court .

The applicant ’s representative submitted an appeal on points of law ( recurs ) against the judgment of CARDINAL DATE , requesting an increase in the amount of compensation for non - pecuniary damage and that a more severe sentence be imposed on the defendant . PERSON also contested the judgment , requesting a conviction for the crime to which he had confessed , namely sexual intercourse with a minor .

On DATE the Alba Iulia Court of Appeal allowed the appeal on points of law submitted by ORG upheld with final effect the judgment of ORG of DATE . ORG of Appeal based its verdict on the statements given by PERSON and M.S.B. as well as the account of the events given by the other perpetrators . Based on these testimonies and the fact that the victim had not told her parents about the alleged abuse , the court drew the conclusion that the instances of sexual intercourse had always been initiated by the applicant and dismissed the theory that the victim might have lacked capacity to express her will . The findings of the forensic psychiatric report of DATE were not mentioned or discussed in any way by the court .

The court of appeal explained as follows :

“ The court considers that the crime of rape is committed by constraint - physical or moral - or by taking advantage of the victim ’s lack of capacity to express his / her will , more specifically rape is a sexual intercourse committed without consent . On the other hand , the crime of sexual intercourse with a minor , as provided by LAW , means engaging in a sexual intercourse with a minor DATE , but with the minor ’s consent . ...

“ The presumption of lack of capacity applies only to minors who are under DATE and have committed a crime , but with respect to the crime provided by LAW , the minor [ the applicant ] is the victim and not the perpetrator . ”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

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


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life);Pecuniary and non-pecuniary damage - award

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Peer Lorenzen

The applicant was born in DATE and lives in PERSON ( PERSON ) .

The applicant , who subsequently acquired NORP nationality , was at the relevant time a NORP national who had entered GPE on the basis of a lawful residence and work permit . He was employed by company ORG and insured with ORG ( ORG – “ the INPS ” ) . His family was made up of his wife and their CARDINAL minor children . His income for DATE totalled CARDINAL NORP lira ( ITL – approximately MONEY ( ORG ) ) .

On DATE the applicant lodged an application with ORG , acting as an employment tribunal , seeking payment of the family allowance ( assegno per nucleo familiare ) provided for by LAW no . CARDINAL of DATE . Under the terms of that provision , the allowance in question was paid by the ORG to families made up of NORP nationals living in GPE with CARDINAL minor children , whose DATE income was below the amounts set out in the table appended to Legislative Decree no . CARDINAL of CARDINAL DATE ( in this instance , the amount applicable to families with CARDINAL members , namely ORG MONEY ( approximately ORG CARDINAL ) ) .

The applicant submitted that even though he did not have NORP nationality as required by PERSON no . CARDINAL of DATE , the allowance was nevertheless due to him under the association agreement between ORG and GPE – known as LAW – which had been ratified by GPE ( Law no . CARDINAL of DATE ) . LAW provides as follows :

“ CARDINAL . Subject to the provisions of the following paragraphs , workers of NORP nationality and any members of their families living with them shall enjoy , in the field of social security , treatment free from any discrimination based on nationality relative to nationals of ORG in which they are employed .

The concept of social security shall cover the branches of social security dealing with sickness and maternity benefits , invalidity , old - age and survivors’ benefits , industrial accident and occupational disease benefits and death , unemployment and family benefits .

These provisions shall not , however , cause the other coordination rules provided for in Community legislation based on LAW to apply , except under the conditions set out in LAW .

All periods of insurance , employment or residence completed by such workers in the various Member GPE shall be added together for the purpose of pensions and annuities in respect of old age , invalidity and survivors’ benefits and family , sickness and maternity benefits and also for that of medical care for the workers and for members of their families resident in the Community .

The workers in question shall receive family allowances for members of their families who are resident in the ORG .

The workers in question shall be able to transfer freely to GPE , at the rates applied by virtue of the legislation of the debtor Member GPE , any pensions or annuities in respect of old age , survivor status , industrial accident or occupational disease , or of invalidity resulting from industrial accident or occupational disease , except in the case of special non - contributory benefits .

GPE shall accord to workers who are nationals of a Member State and employed in its territory , and to the members of their families , treatment similar to that specified in DATE , CARDINAL and DATE . ”

In a judgment of DATE the ORG rejected the applicant ’s application .

The applicant appealed . He requested , among other things , that a question be referred to ORG of ORG ( “ the CJEU ” ) for a preliminary ruling as to whether , under LAW , a NORP worker could be refused the family allowance provided for by CARDINAL of PERSON no . CARDINAL of DATE .

In a judgment of DATE ORG dismissed the applicant ’s appeal . It observed that , as the allowance in question was based solely on the income and family situation of the recipients , it fell within the sphere of social assistance ( assistenza sociale ) . The allowance had initially been intended only for NORP citizens and had subsequently been extended to all ORG nationals . However , LAW related only to social - security benefits ( prestazioni previdenziali ) and was therefore not applicable to the family allowance provided for by CARDINAL of PERSON no . CARDINAL of DATE .

NORP The applicant lodged an appeal on points of law , reiterating his request for a preliminary ruling to be sought from the CJEU .

In a judgment of DATE which was deposited with the registry on DATE , ORG dismissed the appeal .

In its reasons , ORG observed first of all that Article CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW provided , inter alia , as follows :

“ CARDINAL . The treatment accorded by each Member ORG to workers of NORP nationality employed in its territory shall be free from any discrimination based on nationality , as regards working conditions , remuneration and dismissal , relative to its own nationals .

All NORP workers allowed to undertake paid employment in the territory of a Member ORG on a temporary basis shall be covered by the provisions of paragraph CARDINAL with regard to working conditions and remuneration . ”

Noting that the text in question referred explicitly to employment relationships and the elements that comprised them , ORG inferred from this that it applied only to social - security benefits and not to social - assistance benefits of the kind claimed by the applicant , to which NORP citizens resident in GPE were not entitled . According to ORG , this interpretation was confirmed by LAW ) and ( CARDINAL ) of LAW , which referred in particular to “ sickness and maternity benefits , invalidity , old - age and survivors’ benefits , industrial accident and occupational disease benefits and death , unemployment and family benefits ” . ORG stressed that its interpretation was not based solely on the reference in the text to “ social security ” ( previdenza sociale ) but , as indicated by the ORG , on the elements comprising each benefit .

This judgment was served on the applicant on DATE .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The applicant was born in DATE and lived in GPE before his conviction . He is currently serving a sentence in GPE .

NORP In DATE a criminal case was opened into the theft of money belonging to the applicant ’s cousin , PERSON

On DATE G. was found dead in her flat with several gunshot wounds . On DATE a criminal case was opened into her murder .

On DATE the applicant , who was suspected of the theft and whose whereabouts were unknown , was placed on a police wanted list .

At TIME on DATE the applicant was arrested on the street . He was handcuffed and taken to the police station of the LOC district police department of Cheboksary ( ORG РОВД г. GPE – “ the district police ” ) . According to PERSON and QUANTITY other female witnesses , the applicant had no injuries before his arrest .

The applicant was escorted to the police station at QUANTITY He was taken in handcuffs to room no . CARDINAL on the first floor ( “ second floor ” in LANGUAGE ) and interviewed by operative police officers PERSON . and PERSON about the theft and murder . He gave a partial confession , stating that he had stolen less money from the victim , but denied murder .

The parties provided different accounts of the events at the police station .

According to the applicant , police officers PERSON . and PERSON , who were drunk at the time , demanded that he confess to the theft and murder . They allegedly beat him up , delivering blows to his head , ears , body and legs , and threatened him with rape . At TIME they shackled QUANTITY weight to his hands , which he was made to hold while they continued to physically assault him . At TIME they made him stand on the windowsill of an open window and threatened to throw him out and make it look as if he had attempted to flee or commit suicide if he did not confess to the murder . After refusing to do so , CARDINAL of the police officers allegedly pushed him out of the window .

According to the Government , in the course of the police interview the applicant , who was drunk when he was taken to the police station , suddenly climbed on a table and jumped out of the window . This course of events was reported by police officers PERSON . and PERSON to their superior on DATE . They stated that they had taken the applicant for an interview in room no . CARDINAL in handcuffs as he had been drunk , had had a strong smell of alcohol coming from his mouth , had behaved aggressively and inadequately and had used obscene and threatening language towards them .

Shortly before TIME on DATE the applicant was given first aid by the ambulance service , which diagnosed him with a closed head injury , concussion and bruises of the soft tissue on the face and on both feet . According to the paramedic and his assistant , they found the applicant lying on the tarmac conscious ; he was handcuffed without any weight shackled to him .

At CARDINAL TIME the applicant was taken to ORG handcuffed on a stretcher , accompanied by police officers PERSON . and PERSON After surgery his right foot was in plaster and his left foot had a weight fixed to it . The applicant was shackled to the bed by one of his hands and guarded by a police officer .

From TIME on DATE an investigator from the district police questioned the applicant in hospital as a suspect in the theft case , in the presence of a lawyer . He reiterated his confession ( see paragraph CARDINAL above ) . From TIME that TIME an investigator from the Moskovskiy district prosecutor ’s office questioned him as a witness in the murder case .

According to PERSON and the applicant ’s mother , who visited the applicant in the hospital , the applicant ’s eyes were both bruised ( which is also evident on photographs of the applicant in hospital ) , his left ear was swollen , his teeth were loose and he could hardly talk . According to his mother , his left ear was unresponsive and he could not hear , his head and chin were badly bruised , and he had bruises and cuts on his wrists . The applicant told his mother that he had been beaten up and threatened with rape by QUANTITY police officers , who had shackled a QUANTITY weight to him and threatened to throw him out of a window if he did not confess to the crimes . He could not remember what had happened next .

At TIME on DATE an investigator from the district police drew up a record of the applicant ’s arrest at TIME that day as a suspect in the theft case . On DATE the Moskovskiy District Court of Cheboksary ( “ the ORG ” ) dismissed the investigator ’s request to have the applicant remanded in custody on the grounds that he had been hospitalised and could not participate in the hearing himself .

At TIME on CARDINAL DATE an investigator from the Moskovskiy district prosecutor ’s office drew up a record of the applicant ’s arrest at CARDINAL p.m. that day on suspicion of the murder . On DATE ORG extended his arrest until DATE .

On DATE the criminal cases concerning the theft and murder were joined and the applicant was charged with both crimes . ORG remanded him in custody .

On DATE the applicant , who had been undergoing continuous inpatient treatment in hospital since DATE , was transferred to the ORG pretrial detention facility .

By an order of CARDINAL DATE ORG of GPE held police officers PERSON . and PERSON liable in disciplinary proceedings for failing to properly guard the applicant and leaving him without permanent surveillance on DATE . They were issued with a severe warning . The order stated that in the course of the applicant ’s interview the police officers , who had failed to carry out their duties in accordance with the service regulations and to take into account the applicant ’s personality , had opened a window thereby creating conditions for the applicant to jump out of it .

On DATE the applicant confessed to the murder of PERSON in the course of his questioning as an accused , in the presence of his lawyer .

On DATE ORG convicted him of theft , murder and possession of a firearm , and sentenced him to DATE imprisonment . The period of his arrest and remand in custody from CARDINAL DATE and from DATE was counted towards his sentence . The judgment entered into force on CARDINAL DATE .

The following injuries were recorded during the applicant ’s initial examination at ORG on DATE : a soft tissue injury to the head , scratches on the face and knees , swelling and bruises on the left hip , a fractured left foot and a dislocated right foot . He was diagnosed with a closed head injury , concussion , bruises and scratches on the head soft tissue and left hip and knee joints , and fractures to both feet .

On DATE , during his inpatient treatment in hospital , the applicant , who had complained that CARDINAL of his teeth was loose and painful , was examined by a dentist and diagnosed with a “ contusion of tooth CARDINAL ” ( lower tooth on the right side ) . On DATE an otolaryngologist examined him in connection with the impaired hearing in his left ear and diagnosed him with otitis .

From DATE the applicant received inpatient treatment in the medical facility of ORG correctional colony no . CARDINAL ( IK-CARDINAL ) .

It appears from a report by a panel of forensic psychiatrists dated DATE that the applicant suffered from a personality disorder which did not require medical treatment or exclude his criminal responsibility . The experts did not assess the applicant ’s fall from the window of the police station .

On DATE an investigator of the Moskovskiy district prosecutor ’s office ordered a forensic medical examination of the applicant . The investigator stated that at TIME on DATE the applicant had fallen from office no . CARDINAL on the first floor of the police station and received injuries to both feet . The investigator asked whether on DATE the applicant had had any injuries other than those to both of his feet , and if so , how and when they had been received , whether they could have been received as a result of a fall onto tarmac from the first floor , where they were located and how serious they had been .

Following an examination of the applicant ’s hospital records , a forensic medical expert concluded on DATE that the information concerning the applicant ’s initial examination in hospital on DATE was undetailed . Information on the exact location , number and morphological characteristics of the injuries was missing , and was insufficient to determine the time and order they had been inflicted to distinguish them and determine which could have been as a result of the applicant being punched and kicked and which could have been as a result of his fall from the first floor . It was stated in the expert ’s report that the applicant had not attended the examination , after asking in writing to carry it out in his absence .

On DATE the applicant ’s mother lodged a complaint with the ORG prosecutor ’s office concerning her son ’s alleged illtreatment and unlawful deprivation of liberty from DATE .

On DATE the applicant lodged a complaint with the Moskovskiy district prosecutor ’s office concerning his alleged illtreatment by the police officers , requesting that criminal proceedings be opened against them .

The LOC district prosecutor ’s office and subsequently the Cheboksary inter - district investigation department of the investigative committee at the ORG prosecutor ’s office refused to open a criminal case into the applicant ’s alleged ill - treatment and unlawful deprivation of liberty CARDINAL times , pursuant to LAW CARDINAL ( CARDINAL ) of LAW ( “ CCrP ” ) , because none of the elements of the offences provided for in Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Criminal Code ( unlawful deprivation of liberty , abuse of powers , criminal prosecution of persons known to be innocent and unlawful arrest and detention respectively ) were present in respect of the actions of the police officers . They concluded that the applicant ’s allegations could not be confirmed by a pre - investigation inquiry .

The pre - investigation inquiry was resumed CARDINAL times as the decisions refusing to open a criminal investigation were set aside by higher authorities within the prosecutor ’s office and subsequently the investigative committee as unsubstantiated , unlawful or based on an incomplete inquiry .

( i ) A refusal on DATE was overruled on DATE on the grounds , inter alia , that nothing had been done to establish whether there had been a QUANTITY weight in office no . CARDINAL . Moreover , police officers PERSON . and PERSON had carried out non - investigative actions involving the applicant , a suspect in the criminal case , from TIME to TIME on TIME DATE , and no assessment of the lawfulness of those actions had been carried out .

( ii ) A refusal on DATE was overruled on DATE . It was noted that office no . CARDINAL had been inspected and no weights had been found .

( iii ) Twenty further decisions refusing to open a criminal case taken DATE and DATE were overruled . In particular , a refusal on CARDINAL DATE was overruled on DATE on the grounds that instructions by the deputy head of the investigative committee of ORG given on DATE had still not been fulfilled . A refusal on DATE was overruled on DATE on the grounds that deficiencies identified by the deputy head of the prosecutor ’s office of ORG on DATE , ORG on DATE and ORG of Chuvashiya on DATE had still not been corrected .

( iv ) A refusal on DATE was overruled on DATE on the grounds that the investigative committee of ORG acknowledged that investigator PERSON had been found liable in disciplinary proceedings for stalling the inquiry and issuing unlawful and unsubstantiated decisions based on an incomplete inquiry .

( v ) A refusal on DATE was upheld by the courts as a result of a review under LAW CCrP ( see paragraph CARDINAL below ) .

In the most recent refusal issued on DATE investigator PERSON from the Cheboksary investigative committee found that the applicant , who had been wanted in the theft case , had been arrested and taken to the police station and remained there on suspicion of committing it . His being held in room no . CARDINAL for TIME had been necessary for carrying out operationalsearch measures . Police officers PERSON . and PERSON had handcuffed him lawfully in order to guard him and prevent him from escaping or harming himself or others . His hospitalisation had made it impossible for him to be arrested as a suspect on DATE . He had been handcuffed in hospital to prevent him from attempting to escape again .

The investigator also found that the applicant had jumped out of the window himself in order to flee , without any coercion by the police officers . His allegations that he had been subjected to physical violence had not been confirmed . The investigator stated that injuries other than those to both feet had been found on the applicant at the time of his admission , as set out in the forensic medical expert ’s report of DATE . However , the lack of any detailed description of those injuries in the applicant ’s medical records had made it impossible to establish when and how they had been received , in particular whether they had been received as a result of him falling from the first floor or being beaten up .

The investigator ’s decision of DATE referred , inter alia , to statements by police officers PERSON . and PERSON They said that after the applicant ’s arrest on DATE they had interviewed him in room no . CARDINAL about the theft and the murder of PERSON of which he had been suspected . The applicant had given a partial confession to the theft but had denied murder . He had been convicted of a criminal offence in the past and had tried to escape from a police station by jumping out of a toilet window . The incident had prompted the police to install iron bars on it . In DATE , after the murder of PERSON , the applicant had been hospitalised for a drug overdose , but had not been arrested because after the hospital had alerted the police he had managed to escape . During the interview on DATE the applicant , who had been drunk and had smelled of alcohol , had behaved provokingly and insulted them with obscene words . They had therefore handcuffed him ( placing his hands in front ) to avoid any attempts to escape or commit suicide . At TIME , as F. had been leaving the room , the applicant had jumped on a table adjacent to an open window and jumped out . PERSON . claimed that he had been putting documents into a safe at the time , while PERSON said that PERSON . had been sitting at the table and the applicant had been sitting on a chair near the table immediately before jumping out of the window . Access to the window had been blocked by the table . It had been possible to reach and open it while sitting at the table . They had taken the applicant to hospital and guarded him there to prevent him attempting to flee again .

The decision of DATE also referred to the applicant ’s statements that immediately before his arrest he had been drinking , and to statements by the investigator from the district police and a police officer who had guarded the applicant at the hospital on DATE that the applicant had allegedly stated off the record that he had jumped out of the window himself trying to flee , without any influence by the police officers . It also relied on statements by duty police officer T. that in TIME of DATE he had seen on a monitor ( no video recordings had been made ) that somebody had fallen out of the window of the police station . He had been the first to go near the applicant lying on his back with his hands handcuffed to his front . Nothing had been attached to his hands . In his earlier statements set out in the refusal to open a criminal case of DATE , ORG explained that at QUANTITY on DATE he had seen on a monitor that somebody was lying near the entrance of the police station . Police officers and ambulance staff approached him . T. had not gone near him himself and had neither seen him nor whether there had been any objects near him .

Refusals of CARDINAL DATE and CARDINAL DATE , as well as the refusal of DATE , were reviewed by the domestic courts in accordance with LAW of the CCrP. The applicant ’s complaints concerning the CARDINAL DATE refusals were allowed . In decisions of DATE and CARDINAL DATE ORG found that they were unlawful and lacked reasoning . The decision of DATE was upheld on appeal on CARDINAL DATE by ORG of Chuvashiya , which noted that it was necessary to assess the lawfulness of the handcuffing and guarding of the applicant in hospital before his detention in the criminal proceedings . The decision of CARDINAL DATE also found the Moskovskiy district prosecutor ’s failure to enforce ORG previous decision of DATE unlawful .

On DATE ORG dismissed the applicant ’s appeal against the most recent refusal to open a criminal case , finding that the investigating authorities had carried out all the measures necessary for establishing the relevant facts fully , objectively and thoroughly , and had taken a reasoned decision on the basis of a full and comprehensive inquiry in accordance with the law . On DATE ORG of Chuvashiya upheld that decision on appeal , noting that in disagreeing with ORG findings , the applicant ’s representative had misinterpreted the relevant domestic law .


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

Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in DATE . He is currently serving a sentence in a prison in GPE .

Following an undercover operation set up by the police with the help of CARDINAL undercover agents , the applicant and a NORP national , ORG , were arrested on suspicion of drug trafficking .

In DATE , the prosecutor ’s office attached to ORG committed the applicant and his co - accused for trial for drug trafficking and the case was registered with GPE .

The applicant ’s counsel asked the court to hear evidence from the undercover agents . His request was refused on the ground that the anonymity of the undercover agents was protected .

Following another request lodged by the applicant ’s counsel , on DATE the court ordered the prosecutor to submit the authorisations it had issued for the undercover operation .

The applicant ’s counsel claimed that his client had committed the drug offence only after being incited to do so by the undercover police agents .

On DATE the ORG convicted the applicant of drug trafficking and sentenced him to CARDINAL GPE imprisonment . ORG imposed a lenient sentence in the light of the applicant ’s good behavior after his arrest and the fact that he had pleaded guilty as charged . The court based his conviction on the report drafted by the undercover agents after the applicant had been caught red - handed , as well as a search report and the statements given by the applicant and his co - accused .

The applicant appealed , complaining , inter alia , that the undercover agent had overstepped the legitimate limits of investigation by inciting him to sell drugs .

By a decision delivered on DATE ORG increased his prison sentence to CARDINAL years’ imprisonment . It held that the good behaviour of the applicant after he had committed the offence could not justify a lenient sentence .

The applicant lodged an appeal on points of law . In his grounds for appeal he did not complain about the unlawfulness of his conviction but only about the length of his sentence . He requested the appellate court to impose a milder sentence and accordingly , to overturn the decision of ORG and to uphold the judgment of GPE ORG by which he had been convicted to only three years’ imprisonment .

By a final decision delivered on DATE , ORG dismissed the applicant ’s appeal on points of law as unfounded .

The applicant was detained in PERSON DATE and DATE .

The applicant alleged that he had been kept in poor hygienic conditions in overcrowded cells . The water provided had been of very poor quality , being of a yellow colour , smelling and containing worms . Sometimes , there had been no water DATE either for drinking or for the toilet . The food had also been of very poor quality .

The Government contended that the records held by the prison authorities concerning the ORG size and their occupancy rate were no longer available as the archives for that period had been destroyed , pursuant to the domestic law . However , as regards the general detention conditions in ORG submitted that every cell had been equipped with CARDINAL squat toilets connected to the water network and separated from the rest of the room by a wall . It had been possible to let in fresh air by opening the window to each cell . The prisoners had been allowed to take CARDINAL hot shower per week in the communal bathrooms located in each section of the prison ( DATE CARDINAL showers had been available ) . The applicant had been allowed to walk outside his cell for TIME each day .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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

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


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

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

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

In DATE a former business partner sued the applicant for a sum of money in the context of the dissolution of their partnership . On DATE the applicant filed a counterclaim .

The case was dealt with by courts at CARDINAL levels of jurisdiction .

On DATE the ORG dismissed both parties’ claims . It found the claim lodged by the applicant to have lapsed .

On DATE the ORG rejected an appeal by the applicant as having been lodged out of time .

ORG decision was served on the applicant by ORG several times owing to difficulties in obtaining a certificate of service . Thus , in a letter of DATE a judge stated that the above impediment had prevented ORG from indicating DATE when the decision in issue took effect . On DATE , following the receipt of the relevant document and the return of the case file , ORG put a stamp on the decision indicating that it had become final on DATE .

In the meantime , on CARDINAL DATE the applicant unsuccessfully applied to ORG for the lodging of an extraordinary appeal on points of law on his behalf . He argued that he had appealed within the statutory time - limit .

On DATE the applicant posted a complaint to ORG . He alleged a breach of his right to a fair hearing within a reasonable time in the proceedings before the ordinary courts . The applicant affirmed that the complaint had been lodged within DATE of CARDINAL DATE , when he had been notified that his application to ORG had been dismissed .

The applicant noted that the copy of ORG judgment enclosed with his constitutional complaint had no stamp indicating the date of final effect . This was due to the fact that such indication had to be made first in the original decision , and that had been possible only after the case file had been returned to ORG .

On DATE ORG rejected the complaint as having been lodged outside the statutory time - limit of DATE . It held that the applicant should have lodged his complaint within DATE of the service of ORG decision . ORG admitted that the exact date of service of that decision was unknown . However , it found that decision to have been served not later than on DATE , the date of the applicant ’s application to ORG . The applicant had posted his constitutional complaint DATE thereafter , namely on DATE . His application to ORG could not affect the position as it concerned an extraordinary remedy .

On DATE , in a reply to the applicant ’s complaint , the vicepresident of ORG indicated , with reference to the case file , that the decision in the applicant ’s case had become final on DATE .

On DATE the applicant ’s representative asked ORG to review its decision .

In a letter of CARDINAL DATE a judge of ORG , after examining the file , replied that ORG decision of CARDINAL DATE had actually become final on DATE . It had been served on the applicant on that date ; he had been the last person on the list of those on whom it had to be served . The indication of CARDINAL DATE as the date of final effect of the decision by ORG had been an error , but it could not affect the legal position because it was of a merely declaratory nature . Finally , the letter stated that the applicant ’s complaint was in any event inadmissible on account of his failure to seek redress by means of an appeal on points of law .

Pursuant to LAW , a certified true copy of a judgment is to be served on the parties or their representatives in person .

Article CARDINAL § CARDINAL of the Code of Civil Procedure provides that a judgment which has been served and which can no longer be challenged by means of an appeal is final .

Section CARDINAL(CARDINAL ) of LAW DATE provides that a complaint to ORG may be lodged within DATE of the date on which the decision in question becomes final and binding or on which a measure is notified or notice of some other interference with the complainant ’s interests is given . As regards measures and other types of interference , this period commences when the complainant has had a practical opportunity to become aware of them .

Pursuant to section CARDINAL(CARDINAL ) of Regulation no . DATE , a court ’s legal secretary is obliged , as soon as the date of final effect of a decision has been established , to indicate the same on the cover page of the original of the court ’s decision . Under section CARDINAL of that Regulation , upon request courts are to confirm , by means of a stamp on the cover page of a true and certified copy , the date when the decision acquired final effect and became enforceable .

As regards complaints about ordinary courts’ decisions in the context of civil proceedings , ORG has held , in a number of cases , that the above time - limit of DATE starts running on DATE when the contested decisions become final ( see , for example , decisions II . ÚS CARDINAL/CARDINAL of DATE ; IV . ÚS CARDINAL of CARDINAL DATE ; III . ÚS CARDINAL/CARDINAL of DATE ; or II . ÚS CARDINAL of DATE ) .

In the context of complaints about judicial proceedings ORG has consistently considered irrelevant , when determining compliance with the time - limit of DATE under section CARDINAL(CARDINAL ) of LAW DATE , the dismissal of GPE request for an extra - ordinary appeal to be filed on their behalf . It held the date of final effect of the contested judicial decisions to be relevant in that context ( see , for example , decision file no . PERSON . ÚS CARDINAL of DATE , with further references ) .


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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was questioned as suspect on charges of theft .

On DATE the GPE XIV / ORG indicted the applicant for theft .

On DATE the Pest Central District Court acquitted the applicant .

The first - instance judgment was upheld on appeal by ORG on DATE . This judgment was served on the applicant on DATE .


CASE OF ALBERTINA CARVALHO E FILHOS LDA v. PORTUGAL

Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Enforcement proceedings;Article 6-1 - Reasonable time)

Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque

NORP The applicant company has its registered office in GPE , GPE .

On DATE the applicant company brought enforcement proceedings against GPE before ORG , seeking payment of an alleged debt of MONEY ( ORG ) plus ORG CARDINAL,CARDINAL.CARDINAL in interest it considered to be due up to that date , amounting to a total sum of ORG CARDINAL . It also sought the payment of the interest accrued until the date of repayment of the debt in full .

On DATE a judicial enforcement officer ( agente de execução ) was appointed to the case by ORG . He accepted this appointment on DATE .

PERSON was summoned on DATE and on DATE she lodged an application for proceedings for opposition to enforcement ( oposição à execução ) . These proceedings were joined to the enforcement proceedings on DATE .

DATE and DATE information was exchanged between ORG and the judicial enforcement officer about the date on which PERSON had been summoned and the documents in that connection .

On CARDINAL DATE the applicant company gave its reply to the opposition to enforcement proceedings .

DATE and DATE several procedural steps took place in the enforcement proceedings regarding the possible freezing of PERSON ’s bank accounts .

In the meantime , on DATE , in the proceedings for opposition to enforcement the court had given a preparatory decision setting out the facts that had already been established and those that remained outstanding ( despacho saneador ) .

On DATE the applicant company ’s lawyer withdrew from the case .

On DATE the court requested that the judicial enforcement officer provide a report on the procedural steps taken ( see paragraph CARDINAL above ) .

On DATE the court could not contact the applicant company at the address it had provided to the court .

On DATE a hearing in the proceedings for opposition to enforcement was scheduled for CARDINAL DATE . For reasons related to the health of GPE ’s lawyer , the hearing was postponed to DATE . On an unknown date the hearing was postponed to CARDINAL DATE , the date on which it took place .

For unknown reasons , on DATE ORG ( PERSON ) informed ORG that a new judicial enforcement officer was to be appointed .

On DATE a new judicial enforcement officer was appointed to the enforcement proceedings .

On an unknown date before the CARDINAL DATE another lawyer started representing the applicant company .

DATE and DATE discussions took place between the new judicial enforcement officer , the court and the previous judicial enforcement officer regarding the transmission of the necessary case documents from the previous judicial enforcement officer to the new one .

DATE and DATE correspondence took place between the new judicial enforcement officer and the court regarding the applicant company ’s representation by a lawyer ( whether it was represented in the case and by whom ) .

On DATE ORG adopted a decision against the applicant company in the proceedings for opposition to enforcement .

On an unknown date before or during DATE the applicant company appealed against that decision to ORG .

ORG upheld the first - instance decision by a judgment adopted on DATE .

On an unknown date the applicant company appealed against that judgment to ORG . On DATE that appeal was rejected by ORG because the applicant company had not submitted any grounds of appeal . Following that decision , the enforcement proceedings were terminated .


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

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

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


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

Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The first applicant , Mr. PERSON , was born in DATE and lives in Hard . The second applicant , Mr. PERSON , was born in DATE and lives in GPE . They are both journalists employed by the third applicant , Zeitungs- und Verlags GmbH , a limited liability company with its seat of business in PERSON . The applicant company publishes the regional newspaper ORG .

At DATE R.H. , a NORP football referee , admitted to having participated in bet rigging ( PERSON ) by manipulating football matches together with other persons , in particular the brothers GPE , GPE and GPE .. PERSON told the police that he knew that football matches were also manipulated in GPE and GPE . As regards GPE , he referred to the football club ORG GPE , which still existed at the time of the events in DATE .

On DATE an article written by the first and second applicants appeared in the NORP dealing with the NORP betting scandal ’s links to GPE .

On the front page the headline , printed in a black box in white , read as follows : “ PERSON players bribed with MONEY ( ORG ) ” ( “ ORG mit CARDINAL.CARDINAL € bestochen ” ) . Below that headline , and still in the black box , were photographs of ORG , ORG and PERSON and in a yellow box the phrase : “ The investigators are at the heels of this trio : They may have manipulated matches for the betting - mafia ! ” ( “ PERSON die PERSON den LOC : NORP soll für ORG LOC manipuliert haben ! ” ) . In the upper left corner , a little box contained the following phrase : “ Terrible suspicion against football pros confirmed : ” ( “ Schlimmer Vedacht gegen Fussball - Profis erhärtet : ” ) .

The main article on this subject , written by the first and second applicants , appeared on page CARDINAL . The headline read as follows : “ Sold and betrayed the team for LAW ? ” ( “ FAC verkauft und verraten ? ” ) . The article stated that the CARDINAL football players had been bribed by the betting - mafia with ORG CARDINAL,CARDINAL for QUANTITY matches . Bets for these NORP SW PERSON matches had been placed in the GPE area ( GPE ) . In CARDINAL match , which had ended with the result of CARDINAL against ORG GPE , the goal - keeper , PERSON , had made serious mistakes , as expected , and another player , PERSON had been replaced because of his poor performance . PERSON had also been playing in that match . The reason for the manipulations was the ORG financial difficulties : they had not received their salary for DATE . They had all signed a public statement prepared by the management of the club , denying their involvement in the betting scandal .

On the following page there was an article under the headline “ A CARDINAL result shocks a second time ! ” ( “ Ein CARDINAL:CARDINAL schockt ein zweites PERSON ! ” ) in which a football match of DATE was reviewed again and it was hinted that the poor performance of some of the players was connected to the betting - scandal .

On DATE ORG , GPE and PERSON filed a private prosecution ( PERSON ) against the applicants before ORG . They argued that the accusation raised in the article published by the applicant company in its newspaper on DATE , that they had accepted bribes and manipulated football matches , was particularly serious for a professional football player and his professional reputation . This accusation , which was untrue , constituted defamation and they requested the court to convict the first and second applicants of this offence . They indicated in particular the following passages of the article as defamatory :

( i ) “ Terrible suspicion against football - pros confirmed : PERSON players bribed with LAW ” ( “ Schlimmer Vedacht gegen Fussball - Profis erhärtet : PERSON mit CARDINAL,CARDINAL € bestochen ” ) ;

( ii ) “ Sold and betrayed the team for CARDINAL EUR ? ” ( “ FAC verkauft und verraten ? ” ) ;

( iii ) PERSON players PERSON , ORG and PERSON were bribed CARDINAL ORG for their team to lose CARDINAL matches . ( “ PERSON , ORG , und FAC sollen bestochen worden PERSON . CARDINAL € , damit ihr Team drei PERSON . ” ) ;

( iv ) ( Regarding the third plaintiff . ORG ) “ ORG had made contact with the NORP betting - mafia . ” ( “ PERSON zur kroatischen ORG soll A.T. hergestellt haben . ” ) .

They also claimed compensation from the applicant company for the harm caused and requested that the judgment be published in its newspaper .

On DATE ORG ordered the applicant company to publish within DATE a short piece ( kurze Mitteilung ) on the institution of criminal proceedings for defamation in respect of the article at issue .

On DATE the applicants commented on the charges against them . They argued that they had only voiced a suspicion against the plaintiffs but that in any event their statements were true or , at least , the first and second applicants had had good reason to believe that they were true , which would rule out punishment .

DATE and DATE ORG held CARDINAL hearings in the case in which it heard several witnesses , inter alia , ORG , a freelance journalist working for the third applicant ’s newspaper and who had contacted CARDINAL informants who had wished to remain anonymous , and PERSON ( see above ) . PERSON spoke about his contacts with the PERSON brothers since DATE and stated that CARDINAL of them , ORG , had contacts in GPE , in particular the football club Casino SW Bregenz . In his opinion CARDINAL players of that team were in contact with ORG , but he did not give any names or other details .

On DATE ORG found that the incriminated statements from the article of DATE amounted to defamation , convicted the first and second applicants of that offence and sentenced them to a fine of ORG CARDINAL,CARDINAL and ORG CARDINAL respectively , suspended on probation for DATE . It ordered the applicant company to pay compensation of ORG CARDINAL,CARDINAL to each plaintiff and to publish an extract of the present judgment in its newspaper .

As regards the impugned article , ORG paid particular attention to its visual appearance which , through its layout and presentation , in particular the printing in white in a large black box , conveyed to the reader the impression that the investigators were about to catch the pictured persons , who had filled their pockets with money by using dirty tricks . That first impression was not mitigated by the small reference to a suspicion in the upper left corner . The same was true for the headline on page CARDINAL which read : “ Sold and betrayed the team for EUR CARDINAL ? ” . This was a leading question which already contained the answer , and again that first impression could hardly be mitigated by the use of the subjunctive in some phrases of the article itself . The court therefore concluded that , seen as a whole , the article created the impression of being a statement of facts about the scandal and not a genuine expression of a suspicion .

ORG therefore examined whether the accused had acted with due journalistic diligence when they considered these statements as true , or if they could prove their veracity . As regards the first element , ORG accepted that there was a public interest in being informed on the question of whether or not players of the Casino SW PERSON team had actually been involved in a betting scandal , but found that the first and second applicants had not acted with sufficient professional diligence . They had not personally conducted any research to verify the well - foundedness of the rumours but had merely relied on the research of ORG , a freelance collaborator with the newspaper , and had not checked the reliability of the sources - anonymous informants not known to them . Furthermore , they had not given ORG , ORG and PERSON an opportunity to react even though there had been important new elements going beyond a general suspicion of involvement in the betting scandal to which they had already reacted in the past , namely that they had received a specific amount , LAW , for manipulating CARDINAL football matches in DATE .

Turning to the proof of truth put forward by the applicants , ORG observed that ORG and PERSON had only been accused by ORG CARDINAL informants , X and Y , of being involved in the betting scandal , and these informants had not given any details nor stated that they themselves had witnessed a transaction . Also PERSON , when heard by the court , did not refer to them directly or indirectly . There was clearly no proof of the truth .

As regards PERSON , ORG observed that he had lied when he stated that he did not know ORG , that ORG had repeatedly visited GPE and that there had been football matches in which that player had given a very poor performance . Also the informants X and Y had stated that PERSON was involved in the betting scandal . These were arguments speaking in favour of his involvement in the betting scandal , but there were also arguments speaking against . It was understandable that ORG had not admitted to knowing ORG immediately , when all kinds of suspicions were discussed in connection with the betting scandal , as GPE was one of the principal persons involved in that scandal . Furthermore , there was only evidence that ORG had visited GPE on various occasions DATE and DATE , whereas the football match which , in the eyes of the authors of the article , was particularly suspicious had taken place in DATE . According to the information given by X and Y , ORG had paid the CARDINAL accused football players LAW in DATE for CARDINAL matches which had not yet taken place . That did not coincide with his habits as described in detail by PERSON Lastly , the amount claimed by X and Y , namely LAW , was not plausible , given that Casino SW PERSON had been at the very end of the national football league table in GPE throughout DATE and the quota for bets on that team losing a match would have been so small that it would not have justified the investment of a considerable sum .

Weighing all these elements , ORG concluded that the applicants had not succeeded in proving the truth of the statements made in the impugned article . As regards the compensation under LAW , ORG found that the particular seriousness of the accusations raised , and the adverse effect they could have on the career of a professional footballer , justified the sum of compensation granted .

On DATE the applicants appealed against this judgment . They argued that the impugned article did not contain a statement of fact but merely a suspicion against ORG , ORG and PERSON Moreover , the first and second applicants had fully complied with journalistic ethics . As PERSON and the applicants had acted as a team , there was no need to check further the information received and at that stage of the investigations there had also been no need to give the plaintiffs an opportunity to react to the information to be published .

On DATE ORG dismissed the appeal of the first and second applicants , but partially granted the appeal of the applicant company and reduced the amount of compensation to ORG CARDINAL for each plaintiff . It found that ORG had carefully weighed the arguments and had arrived at a correct and well - reasoned judgment . It agreed with ORG that the first and second applicants had not reported on a mere suspicion but had presented their allegations as facts which they had failed to prove .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in DATE and lives in LOC ( GPE ) .

On DATE ORG ( PERSON do GPE ) of ORG ( ORG dos Advogados ) instituted disciplinary proceedings against the applicant , following a complaint introduced by a client for breach of professional secrecy on DATE .

On DATE the case was dismissed on the ground that the facts had already been subject to a decision in DATE , which had been dropped as time - barred .


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

The applicants complained of the inadequate conditions of their detention . In applications nos . CARDINAL and CARDINAL/CARDINAL the applicants also raised complaints under LAW .


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Eritrea)

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

The applicant is an NORP national and was born in DATE . He grew up in GPE and currently lives in GPE .

The applicant entered GPE illegally on DATE and applied for asylum DATE . He was heard in person CARDINAL times by the NORP authorities responsible for asylum and migration ( until DATE the ORG für Migration , renamed with effect from DATE as the Staatssekretariat für Migration , DATE hereafter “ ORG ) . During all CARDINAL hearings an interpreter was present and the record was translated for the applicant prior to his signing it .

The first hearing was a summary interview at ORG ( Empfangs- PERSON ) in PERSON on DATE . The applicant stated that he had not been allowed to continue at school beyond the eighth grade because he had failed the national admission exams for secondary school , and had been summoned for military service , which he had tried to avoid . Once he had reported for duty , he had tried to escape but had been caught . He stated that he had been beaten and subsequently imprisoned in Wi’a in conditions of very poor hygiene . He was unable to recall the exact dates of his imprisonment , but stated that he had been imprisoned from DATE . He had managed to escape from prison TIME when the guards were asleep . After staying in GPE for DATE , he had left the country on foot on DATE , crossing the border at GPE . He had been picked up by NORP soldiers DATE .

NORP In order to support his account , the applicant submitted copies of his student card and a card showing that he was a church deacon , as well as the original of a card used for food distribution in GPE . He stated that he had been issued with an identity card in GPE in DATE , but had had to hand it in in GPE . The applicant further stated that he was married and had a son born in DATE .

The second , more detailed , hearing took place at the office of ORG in GPE on DATE . A member of a non - governmental organisation was present as a neutral witness , in order to guarantee the fairness of the hearing . He had the opportunity to add comments at the end of the record of the hearing in the event that he had witnessed any irregularities , but did not note down any such observations .

The applicant again gave an account of the alleged events in GPE leading up to his escape . This time he stated that he had been imprisoned in Wi’a from DATE following his attempt to escape from the military . When confronted with the discrepancy in comparison with his previous account in that regard , he stated that he might have made a mistake in the first interview . When asked about the conditions of his detention , the applicant claimed that it had been very dirty and very hot , and that he had been locked up all the time . Other than beatings suffered due to his attempt to escape , there had been no particular incidents . He did not recall any rules other than fixed meal times and being brought outside in TIME to relieve himself .

When asked about his military training , the applicant claimed that he had only been there for a very brief period of time prior to his attempted escape . He had not learned how to use weapons . He could neither provide a name of his superior nor his unit nor his military number .

When questioned about his departure from GPE , the applicant described leaving PERSON ( a village ) on foot at TIME , together with a person living in the neighbourhood who knew the area . They had walked towards GPE , but had lost their way as it was TIME - time . They had been very afraid and also hungry and thirsty . There were lots of thorn bushes in their way and they had heard the howling of hyenas . They had not been sure whether they had reached NORP territory until soldiers who spoke PERSON had apprehended them at TIME When informed by the interviewer that his account in relation to his departure might not be considered credible , which would result in the conclusion that he had left the country legally , the applicant said that he could not give more details about the departure because he did not know the area well and had been following the person with whom he had fled .

The applicant claimed that he had always been in good health .

NORP In order to support his account , the applicant submitted the originals of his marriage certificate of DATE and his son ’s baptism certificate of DATE , as well as an attestation that he was a church deacon . He claimed that these documents had been sent to him from GPE .

The applicant was heard for a third time by ORG on DATE . Again , a member of a non - governmental organisation was present as a neutral witness , who did not note down any observations relating to irregularities .

The interviewer explicitly advised the applicant that the interview was taking place to give him another opportunity to describe his departure from GPE , and that the account he had so far provided in this regard would probably be dismissed as not credible , which would result in the conclusion that he had left the country legally .

The applicant responded that he had spent DATE at his GPE home in GPE after escaping from prison . His family had contacted a people smuggler from the GPE area . He and the smuggler had left GPE on foot at around CARDINAL p.m. When confronted with his previous account that he had left with a person from the neighbourhood , the applicant clarified that the person he had travelled with ( the smuggler ) came from a neighbouring village . During the night the smuggler had told him that he had taken many people across the border , but that he and the applicant had already been walking for too long a time , which meant that they must have lost their way . They had become disorientated and had only realised that they had crossed the border when they had been apprehended by NORP soldiers at TIME who had spoken to them in NORP .

On DATE ORG rejected the applicant ’s asylum request and ordered his departure from GPE . It found that his account was not credible , and concluded that , having failed to prove or credibly demonstrate his refugee status pursuant to section CARDINAL of LAW , the applicant was not a refugee as defined in CARDINAL of LAW .

ORG pointed out that the applicant had stated in the first hearing that he had been detained for DATE and DATE , from DATE , whereas in the second hearing he had said that he had been detained for DATE , from DATE . It added that the applicant had also contradicted himself a number of times in the second hearing in relation to the commencement of his military training and the end of his schooling . Furthermore , his account as regards his time in prison and his escape from prison lacked substance , and he could not provide details as to what he had learned during his military training .

ORG also found that the applicant ’s submissions regarding his illegal exit from GPE were not credible . Despite being asked several times to provide a detailed account of his departure or specific events in that connection , the applicant ’s statement in that regard was superficial and limited to phrases . ORG argued that , particularly in relation to TIME during which the applicant and the smuggler had lost their way , it could legitimately be expected that the applicant would provide a substantiated account , which he had failed to do . Nor had he provided a consistent account in that regard . Moreover , he had made contradictory statements as to how long he had stayed at home between escaping from prison and leaving the country .

On DATE the applicant lodged an appeal against that decision before ORG . He submitted that the authorities had initially refrained from drafting him because of his role as a deacon – the fact that he was a deacon not having been contested by the asylum authority . He referred to a report of ORG ( EASO ) , which stated that the relevant authorities had , at times , deferred the draft of clerics , until a change in practice in DATE had led to a stricter approach ( see paragraph CARDINAL below ) . The applicant submitted that he had had to undergo his military training in Wi’a , a place to which , according to a report by ORG ( see paragraph CARDINAL ) , students with poor grades were typically assigned . Shortly after reporting for duty , he had attempted to escape . He had been caught and , as a result , detained in DATE . He had managed to escape from detention in DATE after DATE . Fearing that he would be detained once again or forced to perform military service , he had decided in DATE to leave the country illegally . His family had organised a smuggler . They had fled during the TIME and , while attempting to cross the border at GPE , had lost their way . They had been apprehended by NORP soldiers early in the morning of CARDINAL DATE and taken to GPE . DATE , they had been transferred to the Hitsas refugee camp .

With regard to the alleged discrepancies relating to his schooling , the applicant submitted that he had difficulties with dates concerning the duration of his schooling and his age when he had started and left school , but emphasised that he had consistently stated that he had left school after eighth grade , having failed the exams to move on to secondary school , and referred to a report by ORG regarding the national examination at DATE grade ( see paragraph DATE below ) . Also , during the hearing he had corrected himself in relation to the commencement of his military training . Furthermore , it was comprehensible that he could not give a detailed account about things which he had learned during that training , given that he had attempted to escape almost immediately after reporting for duty .

NORP The applicant claimed that the discrepancies between his statements in the first and the second hearings concerning the duration of his detention were due to his poor level of education . He emphasised that his statements as regards the time of the end of his detention , DATE , were consistent . In relation to the conditions of detention , he argued that the account he had given to the asylum authorities very much reflected his personal experiences : he had stated that the prison had been dirty , that it had been very hot , that detainees had had lice , that there had been fixed meal times , and that he had been taken outside in TIME to relieve himself . In light of this monotonous pattern , the mistake , if any , had been on the part of the interviewer , who had asked for a description of specific events . In that regard , the applicant argued that his account that he had been beaten with a wooden stick and kicked while lying on the ground in front of everyone as punishment related to a specific personal event . He emphasised that the interviewer had not questioned him about his scars , which he alleged were the result of that incident , or about specific events surrounding his escape from prison , pointing out that the latter issue had been raised by the representative of the non - governmental organisation who had been present as a neutral witness at the second hearing . As to the time between his escape from prison and his departure from GPE , the applicant argued that his first statement that he had left GPE DATE after escaping from prison , and his second statement that he had spent DATE at his GPE home in A. during that time , were not contradictory .

With regard to the circumstances of his departure from GPE , he emphasised that his account had been consistent as regards the time when he and the smuggler had left the village and when they had been apprehended by NORP soldiers . It was only logical that he could not make detailed statements about the area , as he had no knowledge of that area and had fled during TIME . His most prominent memory related to the fears he had experienced when they lost their way . He could also recall the exact words in LANGUAGE used by the NORP soldiers when they had been apprehended . His account , which revolved around feelings of thirst , hunger and fear , and which mentioned the many thorn bushes in their way and the howling of hyenas , corresponded to his young age and poor level of education . Moreover , ORG had wrongfully concluded that there was a contradiction in his statements concerning the smuggler ’s reaction when they had lost their way .

Lastly , the applicant submitted that he did not belong to any of the groups of people who could possibly obtain a visa to exit GPE . Referring to a letter from ORG – the original of which he presented – stating that he was registered in the Hitsas refugee camp in GPE on DATE , and to the fact that crossing the border to enter GPE by land was always unlawful ( see paragraph DATE below ) , he argued that he had proved his illegal exit from GPE .

In conclusion , the applicant argued that he was a refugee as defined in section CARDINAL of LAW , on account of his fear of ill - treatment for having deserted from military service . In the alternative , he claimed to qualify for temporary admission because of “ subjective post - flight grounds ” ( as set out in LAW ) , notably his illegal exit from GPE and his asylum application in GPE . Further , in the alternative , he alleged that his removal to GPE was neither permitted in the light of LAW nor reasonable , entitling him to temporary admission to GPE .

On CARDINAL DATE ORG rejected the applicant ’s appeal , finding that he had failed to credibly demonstrate his asylum claim . It noted that it was not apparent why the applicant ’s DATE he was DATE at the time of his interviews – or level of education should lead to different conclusions as to the credibility of his account , and considered that his CARDINAL statements concerning the end of his schooling , either in DATE , could not be reconciled with each other or with his student identity card , which indicated that he was a student in DATE . The court also considered that the applicant ’s statements regarding the time and content of his military training lacked substance . It commented that , even if the applicant had left the military shortly after reporting for duty , he could be expected to provide a detailed and specific account of it , given that he merely had to talk about something which he had experienced in person . Viewing the duration and dates of the applicant ’s detention as key elements of his asylum claim , the court noted that a discrepancy of DATE as regards the duration , and the different dates given in the first CARDINAL hearings as regards the end of the detention , constituted fundamental contradictions which could not be resolved by his references to conditions of poor hygiene and being let outside twice a day to relieve himself .

Referring to its judgment in an earlier case concerning GPE , the court reiterated that the only way to exit GPE legally was with a valid passport and an additional exit visa , and that the practice concerning the issuance of an exit visa was very restrictive . They were issued to a few people who were considered loyal , in exchange for payment of significant sums . As a rule , children aged CARDINAL or more , men under DATE , and women under the age of DATE , were not granted exit visas . People attempting to leave the country without authorisation risked their life , as the border guards were under orders to prevent attempts to flee by way of targeted shots ( a “ shoot to kill ” policy ) , in addition to imposing punishment as set out by law . ORG viewed illegal exits as an indication of political opposition , and tried to get both the reduction in defence readiness and the mass exodus under control through draconian measures .

ORG noted that finding that the applicant had concealed the true circumstances of his departure was not in itself sufficient to conclude that he had left the country legally . However , the burden of proof did not shift to the authorities , and the applicant was required to provide a substantiated and consistent account concerning the reasons for and circumstances of his departure . Considering that his account given at first - instance level was not credible , which also raised doubts about his overall credibility , and that he had not provided comprehensible explanations in his submissions on appeal , the court found that the applicant had failed to credibly demonstrate that he had left GPE illegally .

ORG added that the applicant could not rely on the letter from ORG stating that he was registered in the Hitsas refugee camp in DATE , since the conditions in NORP refugee camps were chaotic and , in the case of people of NORP origin , there was no comprehensive assessment of whether they faced persecution at the time they were registered in those camps . This was supported by the wording of the registration , which read that it constituted a recognition prima facie that the applicant was a refugee within the mandate of ORG .

Furthermore , the court found that the applicant ’s removal was possible , permitted and reasonable within the meaning of section CARDINAL(CARDINAL)-(CARDINAL ) of LAW . In particular , the applicant was a young man in good health who had a support network in his hometown , notably his wife and their son , who lived in the same house as his parents .

On DATE ORG set a deadline for the applicant ’s voluntary departure , which passed on CARDINAL DATE .