Violation of Art. 3;Violation of Art. 8;Violation of Art. 13;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed

András Baka;Antonella Mularoni;Elisabet Fura;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze

The applicant was born in DATE . He is currently detained in FAC .

The applicant is a former member of ORG , an extreme left - wing armed movement . He was taken into custody in FAC on DATE after CARDINAL detention orders had been issued by a ORG investigating judge .

On DATE the applicant was sentenced to life imprisonment by ORG for attempted intentional homicide , armed robbery , and hostage - taking with a view to facilitating or preparing the commission of a criminal offence or committing a serious crime .

In a judgment of DATE ORG found him guilty of murder , multiple counts of attempted murder and attempted intentional homicide , armed robbery , handling stolen goods , conspiracy , possessing and carrying illegal weapons , forging cheques and using forged cheques , using explosives to destroy or damage immovable or movable property and an explosives offence . It sentenced him to life imprisonment , with a minimum term of DATE . On DATE the same court sentenced him to DATE imprisonment for unauthorised manufacture or possession of explosive substances or devices , theft , criminal damage and terrorism .

On DATE the applicant applied to ORG for judicial review of certain provisions of circulars issued by the Minister of ORG on DATE and DATE , the former relating to prisoner searches and the latter to prisoners ' written and telegraphic correspondence . He submitted that the circulars contained provisions breaching the decrees and laws in force .

He complained in particular about the procedure for full body searches as laid down in the technical note appended to the circular of CARDINAL DATE , arguing that it infringed human dignity and thus contravened LAW of LAW . He further objected to the fact that , with reference to LAW , the circular afforded prison staff the possibility of using force to compel prisoners to submit to such humiliating procedures .

The applicant also complained that the circular of DATE defined “ correspondence ” as “ written communication between CARDINAL named persons , as distinct from bulletins , letters , circulars , leaflets and printed matter , whose content does not specifically and exclusively concern the addressee ” . He argued that that definition , based on the content of the document , was at variance with freedom of correspondence as enshrined both in domestic law – which did not limit the number of letters that could be received and sent by convicted prisoners and other detainees and guaranteed them free choice as to their correspondents DATE and in Articles CARDINAL and CARDINAL of the Convention . In his view , it thereby introduced restrictions not envisaged by the law and conferred an arbitrary power of censorship on prison governors . He added that by depriving those held in punishment cells of the possibility of corresponding with their friends or relatives and prison visitors , the circular imposed more restrictive conditions than those laid down in LAW of LAW , which simply provided for restrictions on correspondence .

The applicant stated that the management of ORG had regularly sent him to the punishment block because of his refusal to open his mouth during full body searches in accordance with the first of the above - mentioned circulars . He added that on DATE the prison governor , referring to the second circular , had refused to dispatch a letter the applicant had written to a friend in another prison DATE supplying information to assist him in applying for release on licence – on the ground that the letter did not “ correspond to the definition of the concept of correspondence ” .

In an order registered on DATE with the secretariat of ORG of the ORG d'Etat , the President of ORG transmitted the application to the ORG d'Etat . On DATE the ORG d'Etat gave the following judgment :

“ As to the circular of CARDINAL DATE issued by the Minister of ORG on prisoner searches :

Article D. CARDINAL of LAW , as worded on DATE of the impugned circular , provided : ' Prisoners must be searched frequently and as often as the prison governor deems necessary./ In particular , they shall be searched on their admission to the prison and each time they are temporarily removed from and returned to the prison for whatever reason . They may also be searched before and after visits or meetings of any kind./ Prisoners may be searched only by officers of the same sex and in conditions which , while ensuring that the checks are effective , maintain respect for the dignity inherent in the human being . '

In the first place , PERSON seeks the annulment of the provisions of the circular of CARDINAL DATE by which the Minister of ORG envisaged that prisoners could be subjected to full body searches , during which they would be required to undress completely in the presence of a prison officer , and laid down the procedure for carrying out such searches .

Even in the absence of any statute or regulation expressly authorising him to do so , the Minister of ORG , being responsible for the prison service , was empowered to lay down certain of the conditions in which prisoner searches would be carried out , in accordance with LAW of LAW . Accordingly , Mr Frérot has no grounds for maintaining that the Minister of ORG was not competent to issue the disputed rules in the circular of CARDINAL DATE .

The disputed provisions of the circular of CARDINAL DATE are designed to ' ensure that prisoners do not have any object or product on their person that could facilitate assaults or escapes , be the subject of trafficking or enable the consumption of toxic products or substances ' . It does not appear from the evidence that the aims thus set forth could be achieved in equivalent conditions without the need to carry out full body searches . The impugned rules provide that a full body search should normally be carried out by a single officer , who is not allowed to have any contact with the prisoner ' except ... when the hair is being inspected ' , and must take place in a room set aside for the purpose , unless this is impossible because of the layout of the LOC , ' out of sight of other prisoners and of anyone not involved in the operation itself ' . Regard being had to the measures envisaged to protect prisoners ' privacy and dignity , and to the particular constraints inherent in the running of custodial facilities , the Minister of Justice neither interfered disproportionately with the principle set forth in LAW ... , nor breached the provisions of LAW of LAW , by which prisoner searches must be carried out ' in conditions which ... maintain respect for the dignity inherent in the human being ' .

It follows that PERSON has no grounds for seeking the annulment of the rules laid down in the circular of CARDINAL DATE as examined above .

Secondly , Article D. CARDINAL of the Code of Criminal Procedure , as in force at the material time , provided : ' Prison staff must not use force against prisoners except in self - defence or in the event of an attempted escape or resistance through violence or through physical unresponsiveness to ORG When resorting to force , they must limit themselves to what is strictly necessary . ' In reiterating through the circular of DATE that a prisoner 's refusal to undergo a search may give rise to a disciplinary sanction and , if the prisoner persists in refusing , to the use of force subject to the conditions set out in the above - mentioned provisions , the Minister of ORG did not issue a new rule . Consequently , PERSON arguments in relation to the references in the circular to the consequences of a prisoner 's refusal to undergo a search are inadmissible .

As to the circular of DATE issued by the Minister of Justice on prisoners ' written and telegraphic correspondence :

Article D. CARDINAL of LAW , as in force on DATE of the impugned circular , provided : ' Detention in a punishment cell ... shall entail restrictions on correspondence other than with the prisoner 's family . However , prisoners shall retain the possibility of communicating freely with their counsel ... '

By means of the impugned provisions set out in his circular of DATE , the Minister of ORG specified that remand and convicted prisoners placed in punishment cells would not be authorised during such placement to correspond with ' their friends or relatives ' or with prison visitors . Those provisions , which are binding , rank as subordinate legislation . On account of their general nature , they breach the regulations referred to above and constitute illegal interference with the freedom of correspondence which prisoners should continue to enjoy even when detained in a punishment cell , subject to the restrictions that may be decided by the prison governor . Accordingly , without it being necessary to examine the other arguments submitted by PERSON , his application for the annulment of the provisions in question is admissible and well - founded .

As to the refusal by the governor of ORG to dispatch correspondence from PERSON :

The decision by which the governor of ORG refused to dispatch a letter addressed by PERSON to another prisoner on DATE was , regardless of the content of such correspondence , an internal regulatory measure . As such , it is not amenable to judicial review . The submissions referred to above are manifestly inadmissible and can not be examined in court proceedings ; they must therefore be dismissed .

As to the decisions by the governors of ORG and ORG to place Mr Frérot in a punishment cell :

In support of his arguments challenging several decisions by the governors of ORG and ORG to detain him in a punishment cell , PERSON simply objects that the provisions of the circular of CARDINAL DATE , whose annulment he is seeking through the present application , are unlawful . It follows from the findings set out above that the applicant has no grounds for seeking the annulment of those decisions .

DECIDES :

Article CARDINAL : The circular by the Minister of ORG dated DATE is annulled in so far as it prohibits all correspondence between remand and convicted prisoners in punishment cells and ' their friends or relatives ' or prison visitors .

LAW The remainder of the submissions in PERSON application are dismissed .

The applicant was held in solitary confinement from DATE and has been detained under the ordinary regime since DATE . He is registered as a “ high - risk prisoner ” ( détenu particulièrement signalé ) but has apparently never been officially notified of this .

He has been held in various prisons : PERSON ( DATE to DATE ) , ORG ( DATE ) , ORG ( DATE to DATE ) , PERSON ( DATE ) , ORG ( midSeptember DATE ) , ORG ( DATE ) , Bois d'Arcy ( DATE ) , ORG ( DATE ) , ORG ( DATE to DATE ) , PERSON ( DATE ) , PERSON ( DATE ) , GPE ( DATE to DATE ) and ORG ( since DATE ) , the last CARDINAL being prisons for offenders serving long sentences ( maisons centrales ) .

From the end of the trial in DATE until he was transferred to FAC in DATE , the applicant was detained under the ordinary prison regime in ORG and subsequently in LOC ; although his activities were severely restricted and he was placed in a wing with other high - risk prisoners , he was allowed to attend mass and to go to the weights room with the other detainees . However , on being admitted to ORG , he was again placed in solitary confinement , without any reasons being given by the management . This regime continued at FAC , where he was allowed to do exercise with a fellow prisoner only after an DATE hunger strike ; his solitary confinement was ended only after he was transferred to FAC , where , as subsequently in FAC , he was granted access to the sports hall , the exercise yard , mass and IT classes . However , in DATE , while in FAC , he was awoken TIME by the TIME patrol on the management 's orders ; in his submission , he was the only prisoner affected by this measure and when he protested , he was sent to a punishment cell for DATE .

On DATE , while in FAC , the applicant was for the first time required to open his mouth during a full body search . When he refused to obey , he was sent to the punishment block . From DATE to CARDINAL DATE ( when he was transferred to ORG ) he was ordered to open his mouth after leaving the visiting room on CARDINAL occasion , when leaving the prison LOC on QUANTITY occasions , and during all unannounced full body searches , which were conducted at the “ unusual frequency ” of CARDINAL DATE .

On DATE , on account of his refusals to obey orders and his repeated placement in the punishment block , he was transferred to the higher - security ORG . He was detained in the wing for high - risk prisoners ( until DATE ) , where there was CARDINAL other prisoner , who was seriously ill . Protesting at the “ oppressive social exclusion ” this entailed for him , he went on hunger strike for DATE from DATE . In addition , from DATE , each time he left the visiting room he was subjected to a full body search , which now included the obligation to “ bend over and cough ” . When he refused he was sent to a punishment cell . He was subjected to a similar search on DATE , after the first hearing during his trial in ORG , even though he had been permanently guarded by police officers or detained alone in a cell . When he refused to comply , he was immediately sent to the punishment block . His situation did not improve in that respect until DATE , after he had complained about the conditions of his detention at a hearing in ORG .

The applicant produced CARDINAL statements dated DATE and CARDINAL DATE by PERSON PERSON , President of the NORP section of ORG , who had himself been held in ORG DATE . They certified that in DATE all prisoners at ORG had been systematically subjected to a full body search on returning from the visiting room . Mr PERSON added that after refusing to comply on CARDINAL occasion in DATE , disciplinary proceedings had been instituted and he had been sent to a punishment cell for DATE .

The applicant produced a further statement dated DATE by PERSON , a prison visitor , attesting that he had endured “ inhuman humiliation and unacknowledged isolation ” during his DATE in FAC . In her statement , referring to and attaching CARDINAL letters which the applicant had sent her on DATE and CARDINAL and DATE and on DATE , PERSON mentioned the refusal of his request for permission to attend IT classes , to go to mass and to do sport with other prisoners . She added that the applicant had been deprived of personal items and belongings , that he had never received a reply to his letters of complaint , that he had undergone full body searches after each visit from his mother – and that , after refusing to comply , he had been sent to the “ cooler ” “ as a preventive measure ” ( thus being denied further visits from his mother , who came from GPE for DATE ) – that he had twice been subjected to a search of this kind while on hunger strike and that the authorities had acted negligently towards him on that occasion .

In her statement PERSON mentioned that she had met the applicant in ORG on DATE , when she had been able to gauge “ the severity of his suffering and his distress , but also the dignity with which he endured them ” . She concluded as follows :

“ ... Indeed , these repeated and distressing acts of harassment have not diminished the strength of PERSON self - control ; all this personal hounding of him has not made him submissive or desperate , but on the contrary , such vile behaviour has undoubtedly helped to strengthen his sense of fighting to ensure respect for prisoners ' elementary rights . Even through his prolonged experience of the extreme suffering and the moments of discontent that may affect even the strongest people , PERSON has managed to control these feelings of distress and incorporate them into his DATE life ; his moments of anger and revolt have not affected his reason and he has not sunk into the despair that can push an overwhelmed person beyond the point of no return in relation to others or himself . ... ”

The applicant produced CARDINAL other statements . CARDINAL of them , signed on CARDINAL DATE by Mr PERSON , a former national prison chaplain , confirms that the applicant was not allowed to attend mass while in ORG and also notes that he was plunged into “ deep despair ” as a result . The other , written by his mother and dated DATE , describes the conditions of his detention , with particular emphasis on the searches .

Article CARDINAL of the Code of Criminal Procedure provides : “ The organisation and internal regulations of prisons shall be determined in a decree . ”

At the material time LAW of LAW provided :

“ Prisoners must be searched frequently and as often as the prison governor deems necessary .

In particular , they shall be searched on their admission to the prison and each time they are temporarily removed from and returned to the prison for whatever reason . They may also be searched before and after visits or meetings of any kind .

Prisoners may be searched only by officers of the same sex and in conditions which , while ensuring that the checks are effective , maintain respect for the dignity inherent in the human being . ”

Other provisions of LAW state that prisoners are to be searched on their arrival at the prison ( LAW ) , before being transferred or temporarily removed ( LAW ) and before and after meetings in the visiting room ( LAW ) .

It is a second- and third - degree disciplinary offence respectively for a prisoner to refuse to comply with a security measure laid down in the internal regulations and instructions ( Article D. CARDINAL - CARDINAL , point ( CARDINAL ) , of LAW ) and to refuse to obey the orders of prison staff ( LAW , point ( CARDINAL ) , of the Code ) . Such an offence may result in a disciplinary sanction such as detention in a punishment cell for a specified period ( Article NORP CARDINAL - CARDINAL of the Code ) . The prison governor or a member of the prison staff to whom this power has been delegated in writing may , as a preventive measure and without waiting for a meeting of the disciplinary board , decide to place the prisoner in a punishment cell if the latter 's conduct constitutes a second - degree offence and if such a measure is the only means of putting an end to the offence or preserving order inside the prison ( LAW ) .

Article D. CARDINAL - CARDINAL ( former Article D. CARDINAL ) of LAW is worded as follows :

“ Prison staff must not use force against prisoners except in self - defence or in the event of an attempted escape or resistance through violence or through physical unresponsiveness to orders .

When resorting to force , they must limit themselves to what is strictly necessary . ”

Circular no A.P.CARDINAL - CARDINAL GCARDINAL of the Minister of ORG on prisoner searches , issued on DATE , reads as follows :

“ ORG , which is responsible for the implementation of custodial sentences imposed by the judiciary , has the primary function of ensuring custody of detainees . This function , which necessarily entails maintaining security and order in custodial facilities , must nevertheless always be discharged with due respect for human dignity .

The difficulty of reconciling these CARDINAL imperatives is especially apparent during full body searches , where prison staff are compelled to interfere with prisoners ' privacy , since the use of modern security equipment can not replace active staff intervention in this sphere .

The purpose of searches is to ensure that prisoners do not have any object or product on their person that could facilitate assaults or escapes , be the subject of trafficking or enable the consumption of toxic products or substances .

In this connection , experience shows that , on account of the ingenuity which certain prisoners are capable of displaying , it is essential to perform not only rub - down searches but also full body searches .

Such searches must be carried out in conditions designed to ensure not only their effectiveness but also respect for the dignity of prisoners and of the staff performing the searches , in accordance with the provisions of LAW of LAW as resulting from the decree of DATE .

Section I : Different types of body searches and conditions for conducting them

Prisoners may be searched only by officers of the same sex .

Prisoners are not asked to undress during rub - down searches . For full body searches , however , prisoners are required to undress completely in the presence of an officer .

Contrary to rub - down searches , all contact between the prisoner and the officer is prohibited during full body searches , except when the hair is being inspected .

Full body searches must be carried out in a room set aside for the purpose , where the temperature is acceptable at all times of DATE and the location ensures both that the alarm and security facilities are effective and also that the searches take place out of the sight of other prisoners and of anyone not involved in the operation itself .

Collective full body searches are prohibited . Prisoners must therefore enter the room set aside for the purpose CARDINAL by CARDINAL .

The number of officers performing a full body search must be strictly limited to the needs assessed , taking into account the prisoner 's circumstances and personality . Usually , in the case of prisoners not presenting a risk of any particular incident , the search will be carried out by a single officer .

If architectural constraints do not allow a room to be set aside for individual searches , prisoners undergoing a full body search must be separated from their fellow inmates by a mobile partition ( screen , curtains , etc . ) .

Prisoners may not refuse to be searched ; refusal will render them liable to disciplinary sanctions . Should a prisoner persist in refusing , force may be used where appropriate ( Article D. CARDINAL of LAW ) .

The practical procedure for conducting searches is set out in the technical note appended to this circular .

Section II : Circumstances in which searches are to be carried out

I. Full body searches

( A ) On entering and leaving the prison

Full body searches are to be systematically performed on prisoners when they enter and leave the prison LOC .

( CARDINAL ) Entry

A full body search must be systematically performed on prisoners being taken into custody in the facility , whether they were formerly at liberty or have been transferred by an administrative or judicial authority .

A full body search is also compulsory where prisoners return to the facility after their temporary removal by court order or on medical grounds , or a period of leave . Searches are to be performed in the same conditions where prisoners return to the facility after an outside placement not subject to permanent supervision by prison staff or while they are subject to a semi - custodial regime , where the conditions of their accommodation mean that they are in contact with prisoners not subject to the same regime .

( CARDINAL ) Exit

All prisoners who are discharged , whether prior to their transfer , temporary removal or release , must undergo a full body search before leaving the facility .

The same applies to anyone who is temporarily removed by order of an administrative or judicial authority or for medical reasons ( admission to hospital or external consultation ) .

Prisoners who are granted leave are to be searched before their departure , as are prisoners who are granted an outside placement not subject to permanent supervision by prison staff .

( B ) Movements within the detention facility

A full body search is to be systematically performed on prisoners :

- after visits by any person ( relatives , friends , lawyers ) who has been issued with a visitor 's permit in accordance with Articles D. CARDINAL and D. CARDINAL , where the meeting has taken place in a visiting room with no partition ;

- prior to any placement in a punishment cell or in solitary confinement . To avoid any risk of an altercation , it is advisable for the search to be performed by a different officer from the one who reported the incident resulting in the prisoner 's placement in the punishment block .

( C ) Unannounced searches

Besides the cases listed in the preceding paragraphs , unannounced full body searches of CARDINAL or more prisoners may be performed whenever the prison governor or CARDINAL of his or her direct subordinates deems necessary .

Searches of this kind , which must , save in an emergency , take place on the basis of written instructions , may in particular be performed on occasions when prisoners move about within the detention facility ( exercise , workshops , activity rooms ) .

They concern chiefly , although not exclusively , high - risk prisoners ( détenus particulièrement signalés ) , remand prisoners and anyone whose personality and previous conduct make it necessary to carry out thorough checks .

II . Circumstances in which rub - down searches are to be carried out

Rub - down searches are to be carried out whenever the prison governor so requires , in particular when prisoners move about the detention facility individually or in a group , and must , save in an emergency , take place on the basis of written instructions .

Prisoners going to the visiting room must undergo a rub - down search , unless the prison governor issues a specific instruction for a full body search to be performed , on the basis of the prisoner 's personality , the particular circumstances or the regulations on unannounced searches .

While it is appreciated that performing such searches entails both practical and psychological difficulties for warders , they must all be made aware of the importance of strict implementation of these instructions for the protection of staff as a whole and for the proper performance of ORG custodial function .

Prison governors and senior managers must take particular care to ensure that the instructions which it is their responsibility to give to staff in this sphere are carried out correctly .

Training officers , both at ORG and in prisons , must endeavour to explain to trainees and newly recruited officers that , in this sphere especially , the proper implementation of instructions requires not only knowledge of techniques but also an appropriate psychological approach .

TECHNICAL NOTE

( A ) Rub - down searches

The prisoner stands in front of the officer with his arms and legs apart , the palms of the hands facing the officer and the fingers apart .

The officer inspects the prisoner 's hair , ears and neck as appropriate .

The officer then puts his hands on the prisoner 's shoulder blades , placing his arms around him and moving them , if necessary , under the prisoner 's unbuttoned jacket before sliding them from the shoulders down to the waist along the spinal column .

The officer continues the search in this way , inspecting if necessary the belt and the trouser hip pockets before proceeding to examine the rear thighs , the bend of the knees , the calves and finally the ankles .

After this inspection of the rear side of the body , the officer resumes the process from the level of the prisoner 's torso , and in particular the chest , checking if necessary any shirt pockets at this level before doing the same for the belt and front trouser pockets and continuing the inspection from the groin down to the front side of the ankles .

( B ) Full body searches

After ensuring that the prisoner 's personal effects are removed from him , the officer proceeds to carry out a full body search in the following order .

The officer examines the prisoner 's hair , ears and hearing aid if one is present , and subsequently his mouth by making him cough and also by asking him to lift his tongue and to remove any false teeth where necessary .

He then checks the armpits by making the prisoner raise and lower his arms , before inspecting the hands , asking him to keep the fingers apart .

As the crotch area may be used to conceal various objects , it is important for the officer to ensure that the prisoner 's legs are spread apart in order to inspect this area .

In the specific case of searches for prohibited objects or substances , the prisoner may be required to bend over and cough . A doctor may also be called to assess whether the prisoner should undergo an X - ray or a medical examination in order to detect any foreign bodies .

ORG , the prisoner 's feet are inspected , in particular the arch of the foot and the toes .

While returning the prisoner 's clothes in the reverse order in which the prisoner took them off , the officer inspects them , taking particular care to check the seams , hems , lining and especially the shoes , ensuring that the latter do not contain any hidden compartments . ”


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

On DATE ORG ( PERSON міський суд PERSON області ) awarded the applicant DATE hryvnyas ( ORG ) in salary arrears and compensations from his former employer , ORG ( “ the Company , ” PERSON міське госпрозрахункове управління комунального господарства ) .

This judgment was not appealed against , became final and the enforcement proceedings were instituted to collect the judgment debt .

On DATE the Company was declared bankrupt and subsequently liquidated .

The applicant unsuccessfully attempted to seek compensation from the Bailiffs for their failure to enforce the judgment .

The judgment remains unenforced to the present date .

The relevant domestic law is set out in the judgment of DATE in the case of ORG v. GPE ( no . CARDINAL , § § DATE ) .


Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE he was arrested and remanded in custody on charges of fraud . He was accused of having obtained in DATE a bank credit in the amount of MONEY ( which , at the relevant time were the equivalent of MONEY ) by presenting himself under a false identity and through the use of forged documents . CARDINAL other persons , the applicant 's alleged accomplices , were also charged in the same proceedings in relation to a number of separate counts of fraud and forgery .

The applicant had a criminal record which included convictions for thefts dating from DATE , when he was sentenced to DATE and DATE imprisonment . As a result , the charges brought against him in DATE concerned a case of aggravated recidivism , punishable by DATE imprisonment .

NORP The preliminary investigation was completed in DATE when an indictment was submitted to ORG .

The court held hearings on DATE and DATE , DATE , DATE , DATE and DATE , DATE , DATE and DATE , DATE , DATE and DATE . The hearings were adjourned as witnesses or representatives of the civil plaintiffs did not appear or could not be found and summoned . On some occasions adjournments were necessary as CARDINAL or more of the co - accused persons had not appeared . The applicant 's absence was the reason for CARDINAL adjournment , of the hearing held on DATE .

On DATE the presiding judge , PERSON , withdrew from the case . The reason for her withdrawal was pressure brought to bear by ORG in relation to PERSON decisions to release the applicant on bail ( see paragraph CARDINAL below ) . The examination of the case restarted .

The hearings listed for DATE , DATE , DATE and DATE could not proceed as some of the co - accused persons had not appeared . The applicant was present at those hearings .

On DATE the hearing was adjourned as the applicant 's lawyer withdrew from the case shortly before the start of the hearing .

NORP The hearings scheduled for DATE , CARDINAL May and DATE and CARDINAL DATE were also adjourned as several of the persons summoned had not appeared and additional evidence ought to be collected .

The applicant and another accused person did not appear at the hearing listed for DATE . ORG ordered the applicant 's arrest and remand in custody and adjourned the hearing . The applicant was not found before DATE hearing , DATE , which caused another adjournment .

The applicant appeared at the hearings on DATE and CARDINAL DATE , but the case was adjourned as another accused person had been unable to attend .

At the hearing on DATE and DATE the ORG heard several witnesses and adjourned the case as some of the witnesses had not appeared .

As of DATE the criminal proceedings against the applicant were still pending before ORG , a hearing having been listed for DATE .

NORP Throughout the proceedings the ORG sought police assistance to secure the presence of the persons summoned for the hearings and imposed fines or ordered the arrest of persons who had not appeared without good cause .

On DATE the applicant was arrested and remanded in custody .

The applicant appealed several times against his detention . Release on bail was repeatedly refused on the basis of LAW and the relevant practice , according to which remand in custody was mandatory in all cases where the sentence faced went beyond a certain threshold of severity . In the present case the authorities also relied on paragraph CARDINAL of LAW , as in force DATE , which provided that remand in custody was mandatory without exception where , inter alia , the accused person was a recidivist .

On DATE ORG decided to release the applicant on bail . Noting that to release the applicant would run contrary to the letter of LAW of LAW , the court stated that nevertheless the continuation of the applicant 's detention could not be reasonably justified . The court stated that numerous inexcusable delays had been caused by failure of witnesses or injured parties to appear or owing to police inaction and that the applicant should not bear the consequences . The court also noted that according to a medical report the applicant 's mental health had deteriorated . In particular , he was passive , depressed and his behaviour revealed a high risk of a suicidal crisis .

NORP The applicant paid the recognisance and was released on DATE .

Upon the prosecutor 's appeal , on DATE ORG quashed ORG order of DATE and ordered the applicant 's remand in custody . The court found that there were no exceptional circumstances warranting release , regard being had to the fact that the applicant had a criminal record and could re - offend or abscond .

The applicant remained free until DATE . On DATE he failed to appear at the hearing in the criminal case against him and was arrested TIME , apparently at his home address .

DATE the applicant unsuccessfully sought release on bail stating , inter alia , that he had had no intention to abscond , which was allegedly demonstrated by the fact that he had been found by the police at his address . The courts based their refusals on LAW and the relevant practice , while also noting that the applicant had not appeared at the hearing of DATE and that therefore there was a risk of absconding .

On DATE ORG ordered the applicant 's release on bail stating that the continuation of his pre - trial detention - which had exceeded CARDINAL years - was unjustifiable .

The applicant paid the recognisance and was released on an unspecified date in DATE .

Upon the prosecutor 's appeal , on CARDINAL DATE the ORG quashed ORG decision of CARDINAL DATE and ordered the applicant 's remand in custody , reiterating that there was a danger of absconding .

Despite ORG decision the applicant remained free . On DATE and DATE he appeared at the hearings in the criminal case .

On DATE ORG issued a new order for the applicant 's release .

Upon the prosecutor 's appeal , on DATE the ORG again ordered the applicant 's remand in custody . The court relied on LAW and the relevant practice .

The applicant was arrested on DATE pursuant to ORG decision .

At the hearing held on DATE the ORG found that it was unable to rule on the applicant 's request for release on bail . That was so because the prosecutor had requested from ORG , the body which appoints , promotes and dismisses judges , an authorisation to prosecute PERSON , the presiding judge , in relation to her decisions to release the applicant on bail .

On DATE the applicant appealed against his continuing pretrial detention .

On DATE the ORG dismissed the appeal . The court noted that the applicant was a recidivist and that therefore the danger of his absconding and re - offending was presumed under the new wording of LAW , as in force since DATE ( see paragraph CARDINAL below ) . Since the available evidence did not establish facts capable of overturning the presumption , the applicant should remain in custody .

Upon the applicant 's appeal , on DATE the ORG quashed ORG decision and ordered the applicant 's release on bail , criticising the lower court for having interpreted the relevant new provisions wrongly . The applicant was released on DATE .

All decisions of the Sofia Appellate Court were taken in private . On CARDINAL occasion ORG decided after having received comments by ORG which were not communicated to the applicant .

The applicant was arrested again on DATE , pursuant to the order of ORG of DATE , as he had failed to appear at the hearing listed on DATE ( see paragraph CARDINAL above ) .

On DATE the applicant appealed against his detention . On DATE his appeal was granted and he was released . The court accepted that the applicant 's failure to appear on DATE did not disclose a danger of him absconding , taking into consideration the applicant 's explanation and his diligent behaviour in the proceedings . The court also took into account the fact that the applicant had already spent an excessively lengthy period in pre - trial detention , which ran contrary to LAW .

According to the practice of ORG , LAW required that a person charged with a serious wilful offence had to be remanded in custody . Under LAW § CARDINAL an exception was only possible where it was clear beyond doubt that any danger of absconding or reoffending was objectively excluded since , for example , the accused was seriously ill . The detainee bore the burden to prove the existence of such exceptional circumstances .

Article PERSON ) of LAW provides that a “ serious offence ” is one punishable by DATE imprisonment .

Under paragraph CARDINAL of Article CARDINAL , as in force DATE , pre - trail detention was mandatory without exception where another preliminary investigation was pending against the accused person as well as in the cases of recidivism .

In accordance with the amended LAW CARDINAL of LAW , accused persons may be remanded in custody only where it is established that there is a real danger of them absconding or committing an offence . For purposes of the initial decision to detain the accused person , such a danger is presumed , inter alia , where the charges concern an offence punishable by DATE imprisonment or where the accused person was a recidivist . However , this presumption does not shift the burden of proof : the authorities must verify in each case whether or not a real danger exists of the accused person absconding or re - offending . Also , for purposes of subsequent decisions to extend pre - trial detention , the persistence of a real danger of the accused person absconding or re - offending must be established ( see ORG decision no . CARDINAL of DATE of ORG ) .

In a judgment of DATE in case no . ORG , ORG awarded damages to the plaintiff , whose appeal against detention had been examined DATE following its submission . The court found that that excessive delay had breached LAW CARDINAL § CARDINAL of the LAW . It further considered that damages were due despite the fact that the exact legal characterisation of the claim under LAW was unclear . In assessing the case , the court took into account the fact that the plaintiff had suffered a serious psychological trauma as a result of her continued detention and had tried to commit suicide by knocking her head against the wall .

In a judgment of DATE in case no . PERSON , ORG noted that the plaintiff 's request for release had been examined DATE following its submission , in violation of LAW . Nevertheless , the court considered that it was not possible to speculate whether or not the plaintiff 's release would have been ordered had his application been examined within the relevant time - limit . Therefore , no damages were due on account of the delay .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . He is represented before the ORG by Mr J. Pajcsics , a lawyer practising in GPE . The respondent Government are represented by Mr PERSON , Deputy ORG - Secretary , ORG .

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

The applicant is a professional hunter . At the relevant time he had a firearms licence ; through his interest in firearms he became acquainted with Mr PERSON and Mr PERSON In early CARDINAL PERSON gave the applicant a hand grenade as a present . In DATE Mr A.D. , an acquaintance of PERSON , met a person called “ PERSON ” in a club . PERSON asked GPE whether he could procure CARDINAL hand grenades for him . GPE promised to look into the matter and obtained the applicant ’s phone number from PERSON He repeatedly called the applicant to ask whether he could help him in procuring the hand grenades . The applicant eventually undertook to hand over to him the grenade he had received as a present . At their meeting PERSON was also present and discussed the price of the grenades with them .

Afterwards , PERSON called the applicant regularly , asking him to procure the CARDINAL grenades . The applicant contacted PERSON and requested CARDINAL hand grenades from him . On DATE the applicant obtained CARDINAL grenades from PERSON On the way home he met DATE and PERSON . They decided to conclude their business DATE . On DATE , instead of PERSON , police officers arrived at the meeting and searched the applicant ’s car . They found CARDINAL hand grenades in it . The applicant was arrested together with GPE

Subsequently , criminal proceedings were initiated against the applicant on charges of the abuse of explosives . During the investigation the applicant confessed to the offence . However , he maintained that he had been entrapped by PERSON into committing it .

On DATE the applicant ’s lawyer requested ORG to investigate the matter of police entrapment , having regard to the suspicion that the person called PERSON was an undercover police officer whose identity the Head of ORG refused to reveal . The Prosecutor stated that PERSON might be an undercover police officer who had secretly collected information about the applicant . However , he refused to open an investigation into the matter and took the view that the Head of ORG had proceeded lawfully throughout .

The Budapest XIV / ORG charged the applicant with the abuse of explosives . Subsequently , he was also charged with the abuse of firearms .

During the hearings before ORG the applicant maintained that , although he had committed the offence , he had not had any intention to trade in grenades and only did so because of the incitement by PERSON , an undercover police officer . He claimed that the officer ’s incitement had not been justified , since the police had no good reason to suspect the applicant of any prior involvement in selling hand grenades . He had no criminal record and there was nothing to suggest that he was predisposed to becoming involved in dealing in grenades until approached by PERSON .

On DATE ORG convicted the applicant of the abuse of explosives and firearms , and sentenced him , as a cumulative punishment , to CARDINAL years’ imprisonment , suspended for DATE . In reaching its conclusion ORG stressed the fact that the applicant had had no previous criminal record , that time had elapsed and that the applicant had confessed . The court established that a person called PERSON had been involved in the case , but could not be identified . It relied on the testimonies of the accused and CARDINAL witnesses , expert opinions and documentary evidence .

The applicant appealed . He argued that LAW had been violated in that he did not have a fair trial before FAC . He referred to the ORG ’s case - law , in particular the cases of Lüdi v. GPE ( judgment of DATE , Series A no . CARDINAL ) and PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV ) .

For its part , ORG appealed against the leniency of the sentence imposed on the applicant , having regard to the widespread bomb attacks taking place at the material time .

ORG examined the applicant ’s allegations concerning the fairness of the proceedings . It requested ORG to supply information about the identity of PERSON . It sought to have the police officer in charge of the operation exempted from his duty of confidentiality . The court intended to hear both men as witnesses . In reply to this request , the Head of ORG stated that PERSON was an informer acting on police instructions , pursuant to LAW CARDINAL ( a ) of LAW . He refused to give further information about PERSON or to exempt his handler from his duty of confidentiality .

In these circumstances , ORG was forced to endorse the first - instance court ’s findings of fact . In its judgment of DATE it upheld the applicant ’s conviction and sentence .

ORG held that the applicant and his accomplices would not have committed the offence without the pressure of the undercover police agent . However , it held as follows :

“ The act committed by the defendants is an act which is obviously dangerous for society and which therefore matches the notion of a criminal offence ( section CARDINAL § QUANTITY of LAW ) . Its danger for society can not be questioned even if there was indeed a provocation by the police , that is , if instigation DATE known to or encouraged by the police – took place . ”

The court considered that although the police instigation did not exonerate the applicant , his right to a fair trial was nevertheless infringed , notably in the light of the ORG and LOC cases . It also considered that the fact that the applicant would not have committed the offence , without incitement by PERSON , was a factor to be taken into account when imposing sentence . Consequently , it rejected the prosecution ’s request to increase the applicant ’s sentence , despite its own finding that the offence was particularly dangerous for society , given the frequency of bomb attacks at the time . However , it did not mitigate the applicant ’s sentence as requested by the latter in his appeal .

The court also noted that , in separate proceedings , the applicant had meanwhile been convicted of an abuse of ammunition by ORG on DATE .

Concerning the assessment of the evidence , ORG stated as follows :

“ The findings of fact are based on lawfully obtained evidence , namely the defendants’ admissions , the police report on their apprehension and the information contained in TIME of seizure . The doubt prevailing in the case ( whether or not PERSON instigated the crime ) was assessed in the GPE favour – the court accepted their testimonies in this connection . ”

“ [ ... R]eview proceedings may be initiated ... if ...

( a ) a person was ... convicted ... in breach of the substantive provisions of criminal law ; ... ”

“ ORG may quash the decision reviewed and instruct the lower - instance court ... to resume its proceedings , if :

a ) the second - instance court gave its decision on the merits in breach of the substantive provisions of criminal law referred to under LAW , ... . ”

“ In the hypothesis described under paragraph CARDINAL subparagraph a ) [ of section CARDINAL ] , ORG may itself deliver a decision in accordance with the law , if this will result in the acquittal of the defendant , ... the discontinuation of the proceedings , or the imposition of a less severe punishment . ”

“ ( CARDINAL ) A criminal offence is an act perpetrated intentionally or DATE if the law also punishes negligent perpetration – by negligence , which represents a danger for society and for which the law orders the infliction of punishment .

( CARDINAL ) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional , social or economic order of GPE , or the person or rights of citizens . ”

“ A person , whose act at the time of perpetration represents little danger to society so that even the most lenient punishment ... is unnecessary , shall not be punishable . ”

“ ( CARDINAL ) Any person who , without a licence , prepares , obtains , possesses or transfers to an unauthorised person explosives or blasting - agents or equipment for their use , commits a crime , punishable with imprisonment of DATE . ”

“ ( CARDINAL ) Any person who

a ) prepares , obtains , possesses or distributes firearms or ammunition without a licence ,

b ) exceeds the provisions of a licence relating to the preparation , obtaining , possession or trade of firearms or ammunition ,

c ) transfers his licensed firearm or ammunition to a person who has no licence ;

“ It is not allowed to deliver a judgment in which the court finds the defendant guilty of CARDINAL of the cumulative offences with which the latter has been charged and imposes a sentence , while discontinues the proceedings in respect of another offence , having regard to its negligible danger to society ( section CARDINAL of LAW ) . ”


At the material time the applicant was a journalist and editor of the NORP DATE newspaper ORG .

The applicant 's complaint under LAW relates to his conviction by the NORP courts of insulting PERSON in an interview he had conducted with another journalist , PERSON , which was published in ORG DATE . The interview was entitled “ PERSON denies theft ” and was prompted by an allegation made by ORG that Mr PERSON , who had helped her to write her memoirs , had published them without her consent . The interview had the following background .

PERSON is married to the NORP politician PERSON . In DATE , when Mr PERSON was still married to his first wife , he became Prime Minister of GPE . PERSON , who had already been working for him , became his assistant . She continued to work with him during DATE and in DATE , when PERSON held the post of Minister of the ORG , she was CARDINAL of his counsellors .

PERSON had been politically active in ORG ( GPE ) led by PERSON and was an editor of the party 's paper .

NORP In or around DATE PERSON gave birth to a child by PERSON . As she was unwilling to place her child in a kindergarten , the child was entrusted to her parents .

On DATE Mr PERSON was forced to resign as Minister of the ORG following the discovery of secret tape recordings of his conversations with other NORP politicians . On DATE PERSON issued a statement in which she claimed full responsibility for the secret recordings .

PERSON then left her post in ORG and began writing her memoirs with the help of a journalist , PERSON .

In her memoirs , as recounted to Mr PERSON , PERSON recalled her experiences in politics and the government . In considering the issue of the secret tape recordings she conceded that the statement she had made on DATE was not true . According to PERSON , she also reflected on her relationship with PERSON , a married man , asking herself whether she had broken up his family . She admitted that she had not been as good a mother as she had wished to be and wondered whether she had paid too high a price in sacrificing her child to her career .

In the course of the writing , a disagreement arose between her and Mr PERSON as to the publication and authorship of the memoirs .

On an unspecified date PERSON brought a civil action before ORG ( PERSON ) for the protection of her rights as the author of the manuscript .

On DATE ORG issued an order prohibiting Mr PERSON from publishing the manuscript pending the resolution of the issue of its authorship .

Following the court order , Mr PERSON decided to publish the material collected in a different form , namely in the form of the information Ms ORG had given him during their collaboration .

Mr PERSON 's account of PERSON story began appearing in the DATE newspaper ORG on DATE .

DATE , PERSON published her own memoirs . In her book she stated that some of the information published in the newspaper report of Mr PERSON 's story was incorrect , without specifying in which respect .

In the newspaper interview of DATE , mentioned in paragraph CARDINAL above , the applicant questioned PERSON on the issue of the publication of the memoirs and asked him , inter alia , the following question :

“ By the way , do n't you feel that you have made a hero out of the wrong person ? A person breaking up another 's marriage [ abielulõhkuja ] , an unfit and careless mother deserting her child [ rongaema ] . It does not seem to be the best example for young girls . ” [ Note by the Registry : The translation of the NORP words “ abielulõhkuja ” and “ rongaema ” is descriptive since no one - word equivalent exists in LANGUAGE . }

Following the above publication , PERSON instituted private prosecution proceedings against the applicant for allegedly having insulted her by referring to her as “ abielulõhkuja ” and “ rongaema ” .

NORP In the proceedings before ORG , the applicant argued that the expressions used had been intended as a question rather than a statement of his opinion and that a question mark after them had been left out by mistake in the course of the editing . He denied the intent to offend PERSON and considered the expressions used as neutral . He further claimed that PERSON actions had justified his asking the question .

By a judgment of DATE , ORG convicted the applicant under LAW of the offence of insulting Ms Laanaru and fined him QUANTITY kroons , the equivalent of CARDINAL times the “ DATE income ” rate ( see paragraph DATE below ) . In finding against the applicant , ORG took note of the expert opinion given by ORG ( ORG ) and of the applicant 's unwillingness to settle the case by issuing an apology . It also noted that under the relevant provision of the Criminal Code liability did not depend on whether or not the victim actually possessed the negative qualities ascribed to her by the applicant . According to the expert opinion , the words at issue constituted value judgments which expressed a strongly negative and disapproving attitude towards the phenomena to which they referred . The word “ rongaema ” indicated that a mother had not cared for her child , and the word “ abielulõhkuja ” indicated a person who had harmed or broken up someone else 's marriage . Both phenomena had always been condemned in NORP society and this was also reflected in the language . However , the words were not improper in their linguistic sense .

The applicant lodged an appeal with ORG ( Tallinna GPE ) in which he argued , inter alia , that the first - instance court had failed to take into account the context of the whole article in which the CARDINAL words appeared . He also disputed the qualification of his action as a crime on the grounds that he had lacked criminal intent and that the form used was not improper . He further stressed his right as a journalist freely to disseminate ideas , opinions and other information guaranteed by LAW and argued that the judgment of the first - instance court constituted a violation of his freedom of speech .

By a judgment of CARDINAL May CARDINALLaanaru by stating that she did not raise her child and that she had destroyed Mr PERSON 's marriage , it would not have constituted an insult . ORG pointed out that the LAW and LAW expressly provided for the possibility of restricting freedom of speech if it infringed the reputation and rights of others . Despite the special interest of the press in public figures , the latter also had the right to have their honour and dignity protected .

The applicant lodged an appeal on points of law with ORG ( NORP ) arguing , inter alia , that the CARDINAL expressions did not have any synonyms in the NORP language and he had therefore had no possibility of using other words . The use of a longer sentence omitting the words had been precluded by objective circumstances peculiar to journalism .

By a judgment of CARDINAL DATE , ORG rejected the applicant 's appeal and upheld ORG judgment . Its judgment included the following reasons :

“ I. The principle of freedom of speech , including the principle of freedom of the press provided for in LAW ( ' LAW ) and LAW of LAW ( ' the ORG ' ) , is an indispensable guarantee for the functioning of a NORP society and therefore one of the most essential social values .

According to LAW the restriction of any rights or freedoms may take place only pursuant to the LAW ; such restrictions must moreover be necessary in a NORP society and must not distort the nature of the restricted rights and freedoms . Freedom of speech , including freedom of the press , as a fundamental right may be restricted pursuant to LAW for the protection of public order , morals , the rights and freedoms of other persons , health , honour and good name . Under LAW of the ORG , freedom of speech may be restricted by law also for the protection of morals and the reputation or rights of others .

II . NORP In GPE a person has in principle the right to protect his or her honour as CARDINAL aspect of human dignity by bringing either civil or criminal proceedings .

According to section PERSON ) of the PERSON on General Principles of LAW , a person has the right to apply for a court order to put a stop to the besmirching of his or her honour , the right to demand rebuttal of the impugned material provided that the person defaming him or her fails to prove the truthfulness of the material and also the right to demand compensation for pecuniary or non - pecuniary damage caused by the attack on his or her honour .

Thus a person can seek protection through a civil procedure only if the person feels that his or her honour has been sullied with a statement of fact , as only a fact can be proved to be true . However , if a person feels that his or her honour has been besmirched by a value judgment , it is impossible to prove that allegation in a legal sense . In its GPE v. GPE ( DATE ) and PERSON v. GPE ( DATE ) judgments , ORG has also taken the view that a clear distinction must be made between facts and value judgments . Since the truth of a value judgment can not be proved , ORG has found that if a person offended by a journalist through a value judgment goes to a national court in order to prove the value judgment , this constitutes a violation of the freedom of speech provided for in LAW ORG . Therefore , a person in GPE has in fact no possibility of protecting his or her honour through civil - law remedies if he or she has been defamed by means of a value judgment . It follows that in [ such ] cases ... a person can only resort to criminal - law remedies for protecting his or her honour DATE by initiating a private prosecution under LAW . In the present case , the victim has availed herself of this sole opportunity .

III . ORG considers the judgments delivered by ORG and ORG on DATE and CARDINAL DATE respectively to be lawful and not subject to annulment .

In response to the arguments put forward in the appeal , ORG considers it necessary to note the following .

The appellant 's statement that the words ' rongaema ' and ' abielulõhkuja ' could not be offensive to PERSON since the sentence in the article which contained these words did not include the name of PERSON , meaning that the words have not been used against anyone personally , is groundless and fabricated . Both ORG and ORG have correctly concluded that the expressions ' rongaema ' and ' abielulõhkuja ' have been used by [ the applicant ] to characterise the victim ORG PERSON ) . ORG of ORG wishes to add that in the formulation of his next argument – that it is legitimate to use the impugned expressions towards public figures – the appellant has considered PERSON to be a public figure , thereby in fact invalidating his first argument .

Although LAW stipulates the equality of everyone before the law , ORG does not consider it necessary to question the special interest of the press towards public figures – a principle recognised in the practice of ORG . However , ORG wishes to stress that in GPE there is no legal definition of a public figure and in the practice of ORG no one has been considered a public figure for the reason that he or she is a spouse , cohabitant , child or other person close to a public figure . It must be emphasised nevertheless that it can not be concluded from the practice of ORG that the special interest of the press towards public figures means that public figures can not be offended . On the contrary , according to the criminal laws of several countries , such as GPE , the act of offending a public figure qualifies as a crime . The public has the right to expect the press to describe the life of public figures more thoroughly than the life of ordinary people , but the public has no right to expect the honour of public figures to be degraded , especially in the press and in an improper manner .

ORG does not agree with the standpoint put forward in the appeal that , since the words ' rongaema ' and ' abielulõhkuja ' are not vulgar or indecent , their use in referring to a person can not be considered as degrading that person 's honour and dignity in an improper manner , which is an obligatory element of the definition of the offence under LAW . Improper form as a legal category within the meaning of LAW does not only include the use of vulgar or indecent words , but also the use of negative and defamatory figurative expressions . Besides , improper form may also be non - verbal , for example a caricature . Both ORG and ORG have correctly taken the view , on the basis of an expert opinion , that by using the words ' rongaema ' and ' abielulõhkuja ' in reference to PERSON in the newspaper article [ the applicant ] has treated the victim in public in a defamatory and thus improper manner .

The statement of [ the applicant 's ] defence lawyer ... that ORG had no right to prescribe which style a journalist was to use when writing a newspaper article is without foundation . Such a statement can be accepted in so far as the journalistic style does not offend or degrade human dignity . Concerning the protection of the honour and dignity of a person , the court was correct in pointing out that the idea expressed in an improper form could also be expressed in a proper form in NORP .

The argument of the appellant that the offensive expressions ' rongaema ' and ' abielulõhkuja ' were used due to the absence in the NORP language of synonymous terms and that the use of a longer sentence avoiding these words was precluded by objective circumstances peculiar to journalism , is also ill - founded . There are probably no synonyms for several vulgar and indecent expressions in LANGUAGE . This , however , does not justify their use . Any objective circumstances inherent in the functioning of the press – such as consideration of newspaper space and information density , according to the appellant – being values whose scope is limited to a particular sphere , can not be compared to such values as human dignity .

Under LAW of LAW in Appeal and Cassation Proceedings , the ORG lacks competence to establish factual circumstances . Accordingly , ORG can not reconsider the decision which ORG and ORG took on the basis of an expert opinion that the use of these offensive expressions constituted a value judgment by the journalist and not a question . However , ORG finds it necessary to point out that the prevailing opinion in legal writing is that insult is in principle possible also in the form of a question . It is also important to stress that if the newspaper ORG has violated the rights of the author [ the applicant ] and distorted his intent by an incompetent technical editing [ by leaving out the question mark at DATE CARDINAL expressions ] ( letter of the chief editor of ORG DATE in the file ) , it would have been possible for [ the applicant ] or the newspaper to remedy the damage in an out - of - court settlement by simply publishing an apology as the victim had expressed readiness to reach such a settlement . However , neither [ the applicant ] nor the newspaper ORG was willing to acknowledge in public that they had made a mistake and this constituted further evidence of direct intent to insult . ”

The relevant provisions of LAW read as follows :

“ Everyone has the right to freely disseminate ideas , opinions , beliefs and other information by word , print , picture or other means . This right may be restricted by law to protect public order , morals , and the rights and freedoms , health , honour and good name of others . ”

“ Rights and freedoms may be restricted only in accordance with LAW . Such restrictions must be necessary in a NORP society and shall not distort the nature of the rights and freedoms restricted . ”

“ The degradation of another person 's honour and dignity in an improper form shall be punished with a fine or detention . ”

“ CARDINAL . A fine is a penalty which the court can impose up to a limit of CARDINAL times a person 's DATE income . The ' DATE income ' rate is calculated on the basis of the average DATE wage of the defendant following deduction of taxes and taking into account his or her family and financial status . ”


Violation of Art. 8;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant lives in GPE .

In DATE the applicant married Mr GPE On DATE their son J. was born .

NORP In DATE the applicant 's husband took their son for DATE but afterwards failed to return with him to the family 's flat . The applicant 's husband rented a new flat and started hindering the applicant 's contact with her son .

NORP In DATE the applicant filed for divorce .

On DATE ORG ( PERSON ) gave an interim order which stipulated that , during the divorce proceedings , the child 's place of residence would be with the applicant . The court ordered the applicant 's husband to pay child maintenance and granted him access to ORG and every other DATE and DATE . The interim order became final and enforceable on DATE .

On DATE ORG ordered the court - appointed guardians to enforce the decision of CARDINAL DATE and to remove the child from his father 's care .

On DATE one of the guardians made a first attempt to enforce the court 's order , which failed owing to the attitude of the father who refused to hand J. over to his mother . The guardian refused to call for police assistance or to inform the public prosecutor about the events .

NORP The applicant informed the prosecutor that her child had been kidnapped by her husband . However , on DATE ORG refused to institute criminal proceedings , finding that no offence had been committed . This decision was upheld by ORG on an unspecified DATE .

The applicant was unable to assist the same guardian in her next attempt to remove the child from his father 's care , which had been scheduled for DATE . Consequently , it had to be cancelled .

Given the subsequent inactivity of the guardians , the applicant lodged a complaint with ORG on DATE .

NORP In reply , she was informed by the President of ORG that the guardians had received an instruction from a family court judge to cease their attempts to remove the child .

Following her second complaint about the court - appointed guardians , on CARDINAL and DATE and CARDINAL DATE , the President of ORG ( Prezes PERSON ) wrote to the applicant informing her that he agreed that there had been shortcomings in the guardians ' attempts to remove the child from his father 's care and that new measures would shortly be taken . He noted , in particular , that before ordering a forced removal of the child , the applicant 's husband should have been invited to voluntarily hand PERSON over . This had resulted in the unsuccessful enforcement of the court 's order .

On DATE the guardians made another attempt to remove the child . However , the applicant 's husband had gone with the child to the adjacent flat . Both the guardians and the police refused to enter that flat .

On DATE ORG ordered the applicant 's husband to hand over the child voluntarily to his mother within DATE .

Since the father had failed to comply with this order , on DATE the ORG gave a decision in which it authorised the court - appointed guardians to forcibly remove the child .

At a hearing held on DATE , in the course of the divorce proceedings , the court heard experts who had prepared an expert opinion requested by the court . They testified that the child 's father had been manipulating the child with the aim of alienating him from his mother . The father had also made it difficult for the child to rebuild his relationship with his mother by ensuring that there was no private contact between her and the child . During visits the father was always present . In the best interest of the child , the experts recommended that custody be given to the applicant .

On DATE the guardians made a fourth attempt to remove the child while he was at school . However , it was unsuccessful because the father had been notified by CARDINAL of the guardians about the plan and thus did not bring the child to school on DATE .

The guardians scheduled the next attempt to remove the child for sometime between CARDINAL and DATE ; however , it did not take place as the applicant did not receive formal notification until DATE . On DATE the ORG considered that the late notification given to the applicant had been in violation of the domestic law .

On DATE CARDINAL of the guardians again attempted to remove the child ; however , the child 's father refused to open the door to the applicant and the guardian .

NORP In DATE the applicant 's former husband went into hiding with the child , so the guardians could not notify him of the next planned action . Even so , they did not inform the ORG about this fact until CARDINAL DATE . Subsequently , ORG ordered that the applicant 's former husband be heard by ORG ; for an unknown reason this order has never been carried out .

On DATE ORG dissolved the applicant 's marriage . The court also decided to award the applicant full parental rights over J. It further found that the best interests of J. required that his place of residence be with his mother . The parental rights of the applicant 's former husband were limited to decisions regarding the child 's health and education . He was ordered to pay child maintenance and authorised to visit J. according to the arrangements set out in the judgment . The court considered that the applicant 's former husband had been manipulating the child and alienating PERSON from his mother and other members of his family .

The applicant 's husband lodged an appeal against the judgment .

Since DATE the applicant 's child has not been attending school . On DATE the applicant was fined for not fulfilling ORG 's educational obligations . It appears that the decision was later quashed .

On DATE the applicant received a reply from the President of ORG to another of her complaints about the guardians ' inefficiency . The President considered that some delays had been caused by the father 's obstructive attitude but also by a lack of co - operation between the applicant and the guardians . Nevertheless , the last action by one of the guardians , which had taken place on DATE , had shown a lack of diligence , and the guardian had been instructed to make better use of the provisions of LAW ( Article DATE ) .

On DATE ORG ( Sąd Apelacyjny ) upheld the divorce judgment and dismissed the applicant 's husband 's appeal as manifestly ill - founded . The judgment is final .

On DATE ORG decided to discontinue the proceedings concerning the enforcement of the court 's order of DATE . It found that the enforcement proceedings had lost their legal basis in the light of the final judgment pronouncing the applicant 's divorce . On DATE ORG quashed that decision . The court considered that the enforcement proceedings should be continued since parental rights had been awarded to the applicant and she wished the proceedings aiming at the enforcement of the court 's decisions to be continued . Moreover , the child remained in the care of an unauthorised person .

On DATE the President of ORG again replied to the applicant 's complaints that the enforcement proceedings were taking too long . The President informed the applicant that he would be personally overseeing the enforcement proceedings . He also stated that “ the enforcement is still not effective and incorrect procedural decisions have again been taken , which have led to the proceedings being unnecessarily protracted ” .

On an unspecified later date the applicant 's former husband applied to be granted custody of J and to change the decision limiting his parental rights .

On DATE ORG , sitting in camera , gave a temporary order in which it decided that , until the matter of custody was re - examined on the merits , the child 's place of residence should be with his father . The court pointed to the fact that the child had been living with his father prior to the divorce proceedings and had very few ties with his mother . The court took into consideration that the child , who was DATE , had expressed his preference to live with his father . Moreover , the court considered that J. had been having contact with the applicant and that remaining temporarily with his father would be in his best interest .

The applicant appealed against the decision , complaining that she had not been informed of the proceedings to change the custody order instituted by her former husband and that the decision had been issued without holding a hearing . She maintained that the child 's father had not been properly caring for J. and had not fulfilled the court 's orders .

On CARDINAL DATE ORG upheld the decision and dismissed the applicant 's appeal . The court held that it had been necessary to legalise the existing status quo as J. had been in the care of his father since DATE .

To date J. has not been removed from his father 's care . Prior to CARDINAL DATE , that had been in breach of the interim order of CARDINAL DATE and the final divorce judgment of DATE . During that time , the applicant had only had infrequent contact with PERSON , always in public places and in the presence of the child 's father .

Article CARDINAL of the DATE ORG ( Kodeks Postępowania Cywilnego ) provides that if a person who is ordered to return a child does not comply with the court 's order , the court will instruct the guardian to forcibly remove the persons concerned ( przymusowe odebranie osoby ) .

Under Article CARDINAL ,

“ Upon a request of a court - appointed guardian , the police are obliged to help him or her to carry out the forcible removal of [ a minor ] . ”

Article CARDINAL § CARDINAL provides as follows :

“ If forcible removal of [ a minor ] is hindered because that person is in hiding or because other action is taken with the aim of stopping the enforcement of the order , the court - appointed guardian shall inform a prosecutor . ”

Pursuant to DATE ,

“ § CARDINAL The court - appointed guardian , in carrying out the removal of [ a minor ] , shall be especially careful and shall do everything to ensure that the well - being of the child is not damaged and that [ he or she ] does not sustain physical or moral harm . If necessary , the guardian shall request the assistance of the social services or another institution tasked with this function .

§ CARDINAL If the well - being of [ a minor ] would be placed at risk as a result of the removal , the guardian shall stop the enforcement of the order until the risk is over , unless by stopping the enforcement , the person would be placed at greater risk . ”

Article CARDINAL of the CARDINAL Criminal Code ( Kodeks Karny ) provides as follows :

“ Whoever , contrary to the will of the person having care or supervision , abducts or detains a minor DATE or a person who is helpless by reason of his mental or physical condition , shall be liable to a custodial penalty of DATE . ”


The applicant was born in DATE and lives in the town of GPE of GPE .

In DATE the applicant took part in the emergency operation at the GPE nuclear plant . As a result he suffered from extensive exposure to radioactive emissions . The applicant underwent medical examinations which established the link between his poor health and his involvement in the GPE events . He was consequently granted status of a disabled person and awarded a DATE pension and a special allowance from the ORG , to be adjusted once a year in line with the minimum subsistence amount ( величина прожиточного минимума ) .

At a certain moment in DATE the social security authorities ceased to increase regularly the amounts of pension and allowance , paid to the applicant in connection with his disability . Instead , he started to receive his pension in a fixed amount ( MONEY ) , which was less than he expected . Presuming that this practice was illegal , the applicant brought proceedings against the regional social security office ( “ the defendant ” ) claiming the increase of the DATE allowance and pension in line with the increase of the minimum subsistence amount during the relevant period .

On DATE ORG of GPE ( “ the Town Court ” ) rendered a judgment ordering the increase of the DATE allowance due to the applicant in line with the increase of the minimal subsistence amount in the GPE region . In re - calculating the amount of the applicant 's pension the court applied the multiplier of CARDINAL based on the data provided by the regional committee on statistics . As a result , the DATE pension of the applicant increased to MONEY . The court ordered the defendant to pay the applicant the recalculated amount as from DATE less the sums already paid .

The defendant appealed challenging , among other things , the multiplier of CARDINAL applied by the first - instance court .

On DATE ORG ( “ the Regional Court ” ) upheld the judgment of DATE in full . The enforcement proceedings were opened .

On DATE the defendant appealed to ORG by way of supervisory review seeking to quash the judgment of DATE , as upheld on QUANTITY .

On DATE the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the ORG of ORG ( “ the ORG ” ) .

On DATE the defendant complained to the President of ORG about the judgment of DATE , as upheld on appeal , and the judge rapporteur 's decision of DATE rejecting their previous application for supervisory review . They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal .

On DATE a judge of ORG requested the case - file from the court of first instance . On DATE judge B. of ORG initiated the review of the judgment of DATE , as upheld on DATE . The decision of DATE referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur 's decision of DATE . The case was transferred to the ORG for the examination on the merits .

On DATE the applicant was informed about the date and venue of the hearing of his case by the ORG .

On DATE the ORG quashed the judgment of DATE , as upheld on appeal , stating that the first instance court 's calculation of the minimum subsistence amount , based on the multiplier of CARDINAL , had been insufficiently supported by evidence . The ORG also noted that the first instance court had misinterpreted the domestic law . The case was remitted to the first instance court for a fresh examination .

On DATE ORG examined the case anew . In the course of the proceedings the court established that the allowance should have been multiplied by CARDINAL in DATE and by CARDINAL for DATE . The applicant maintained that he accepted that multiplier .

As a result , the court held that the amount of pension due to the applicant for DATE was MONEY per month . In DATE the pension of the applicant should have amounted to MONEY per month . The court ordered the social security authorities to compensate the applicant for previous underpayments and , starting from DATE , pay him MONEY DATE , with subsequent readjustment .

The judgment of ORG was not appealed against and became final .

On DATE the Code of Civil Procedure of GPE ( “ the CCivP ” ) entered into force introducing , in particular , an amended system of supervisory review .

The ORG , in the relevant part , provides as follows :

“ CARDINAL . Judicial decisions that have become legally binding ... may be appealed against ... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions .

Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... ”

“ A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination . ”

“ CARDINAL . Having examined an application for supervisory review , the judge issues an interim decision on –

( CARDINAL ) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision ;

( CARDINAL ) refusing to obtain the case file if the arguments in the application for supervisory review may not , in accordance with the federal law , result in quashing of the judicial decision .

NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to obtain the case file . In such case the President issues his own decision on obtaining the case file . ”

“ CARDINAL . Having examined the case file obtained by the supervisory review court , the judge issues an interim decision on –

– refusing to remit the case for examination on the merits by the supervisory review court ;

– remitting the case for examination of the application for supervisory review on the merits by the supervisory review court . ”

“ CARDINAL . NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to remit the case for examination on the merits by the supervisory - review court . In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court . ”

“ The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws ”