Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award

George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

According to the applicant , in DATE she received a job offer from the NORP company ORG which she apparently refused . In DATE she worked for ORG in GPE and in DATE for ORG .

On a few occasions the security services attempted to recruit her as a collaborator but the applicant never consented despite threats . In DATE the applicant was summoned to ORG . She had a conversation with an officer of the counterintelligence service in connection with the job offer from the NORP company . The officer tried to persuade her to collaborate with the service but the applicant refused and stated that she would rather decline the job offer .

NORP Subsequent meetings with officers of ORG ( NORP ORG ) took place in DATE . The applicant consistently refused to collaborate . CARDINAL such meeting took place in connection with the applicant ’s request to obtain a passport for a holiday trip to GPE . The applicant was instructed to prepare a report from her trip which she submitted upon her return .

For DATE the applicant lived in GPE . She was involved in the activities supporting the ORG ( “ GPE ) ORG in GPE .

On DATE the applicant applied to ORG ( “ the Institute ” ) for leave to consult all documents collected on her by the security services .

NORP On DATE the applicant received a certificate informing her that she could not be considered an “ injured party ” ( pokrzywdzona ) within the meaning of section CARDINAL of the Institute Act . In a letter of the same date she was informed that the ORG would continue to search the archives for documents regarding her . The certificate which the applicant received simply indicated that after CARDINAL rounds of search the ORG had not found any documents created by the former security services about her .

On DATE ORG reviewed the constitutionality of the provisions of LAW regarding access to documents held by ORG ( case no . K CARDINAL/CARDINAL ) . It found , inter alia , that sections CARDINAL § CARDINAL and QUANTITY of LAW , in so far as they deprived interested persons DATE other than injured parties – of the right to be provided with information about documents concerning them , were unconstitutional ( see Relevant domestic law below ) .

On DATE the applicant again applied for access to all documents collected on her by the security services . She relied on the above ORG judgment of DATE . According to the applicant , that judgment stipulated that every interested person had the right to have access to documents held by the ORG concerning him or her on the basis of LAW , regardless of whether he or she had been granted the status of the “ injured party ” .

On DATE the applicant was allowed to consult documents in her file which concerned her as a subject of interest of the former security services ( obiekt zainteresowania ORG ) . However , she did not receive access to all documents about her and she could not receive any copies or make notes .

On DATE the applicant again applied to the President of ORG leave to consult all documents concerning her . She noted that the documents which she was allowed to consult so far confirmed that she had refused to collaborate with the security services . The applicant learnt for the first time from those documents that the security services had invented a plan to subject her to surveillance . She also discovered that she had been given a code name and expressed her indignation in this respect .

In reply , on DATE , the Deputy Head of ORG informed the applicant that her request to have access to all documents concerning her could not be granted . In his view , according to ORG judgment of CARDINAL DATE the right of access to documents did not extend to all documents concerning the applicant but was applicable exclusively to those which treated her as a subject of interest of the former security services . Accordingly , she was informed that the consultation of documents by the applicant which had taken place on DATE had been carried out in accordance with the procedure adopted by the ORG and that all documents which treated her as a subject had been disclosed .

LAW was amended by the Law of DATE on disclosing information about the documents of the ORG security services from DATE and the content of these documents ( “ the CARDINAL LAW ” ) , which entered into force on DATE . Henceforth , the rules on access to documents deposited with the ORG were set out in amended sections CARDINAL and CARDINAL of LAW ( see Relevant domestic law below ) . The status of an “ injured party ” was repealed . The amended LAW further stipulated that the ORG will create an Internet catalogue of persons who had collaborated or assisted the former ORG security services in their undercover activities .

LAW and the CARDINAL LAW were further amended by the PERSON of DATE which entered into force on DATE .

The applicant , having been aware that her name appeared on the “ GPE list ” ( see part C. below ) , was concerned that her name might be included in the official catalogue . This would have amounted to her official condemnation as an informant of the communist security services only on the basis of the entries made by the officers of those services without the applicant ’s having been aware of it .

On DATE ORG ( case no . K CARDINAL/CARDINAL ) found LAW and LAW as amended to a large extent unconstitutional and quashed many of its provisions with effect from DATE . It struck down , among others , section CARDINAL § CARDINAL(CARDINAL ) of LAW which excluded access of interested persons to documents indicating that they had collaborated or assisted the former ORG security services in their undercover activities ( see Relevant domestic law below ) .

In the meantime , on DATE , the applicant had again requested access to all documents concerning her pursuant to the rules in force as from DATE .

On DATE the Director of ORG of the ORG gave a decision in which it refused her access to CARDINAL documents . He considered that the content of these CARDINAL documents fulfilled the conditions specified in section QUANTITY ) of LAW . This provision stipulated that the refusal to allow access to documents whose content indicated that the petitioner had been considered by the security services as a secret informant or an assistant in covert gathering of information should be given in the form of an administrative decision .

The applicant appealed against that decision , submitting that it had been given pursuant to the rules declared unconstitutional by ORG .

On DATE the President of the ORG quashed the decision on procedural grounds and referred the case back . He found that the Director of ORG of the Institute had not ruled on the application of ORG , a human rights organisation , to join the proceedings as a third party .

On DATE the Director of the GPE Branch of the ORG gave a decision in which it refused the applicant access to CARDINAL documents . He again relied on section QUANTITY ) of LAW . The applicant appealed .

On DATE the President of the ORG upheld the impugned decision . He confirmed that the documents at issue indicated that the applicant had been considered by the security services as a secret informant or an assistant in the covert gathering of information . Accordingly , the refusal of access was justified under section DATE ) of LAW .

With regard to the applicant ’s argument that the decision was based on the unconstitutional norm , the President of the ORG noted that section CARDINAL § CARDINAL of LAW constituted a substantive legal basis for granting or refusing access to documents , while section QUANTITY was a procedural provision . However , since the legislator decided to replicate in LAW the same conditions justifying refusal as stipulated in CARDINAL LAW then the former provision could not be interpreted without taking into account these conditions . The President of the ORG did not accept the applicant ’s argument that since section CARDINAL § CARDINAL had been declared unconstitutional and repealed , then it followed that a different provision ( section CARDINAL § CARDINAL ) with the same content was also unconstitutional . He went on to say that only when ORG expressly declared unconstitutional a given provision of the law was the authority under the obligation not to apply such provision .

The applicant lodged a complaint against the decision with ORG . On DATE ORG dismissed her complaint .

On DATE the applicant filed a cassation appeal with ORG . She argued , inter alia , that the decisions of the ORG refusing her access to documents of the security services entailed a breach of a number of constitutional provisions and of LAW . They were , furthermore contrary to ORG judgment of CARDINAL DATE ( case no . K CARDINAL/CARDINAL ) .

On DATE ORG stayed the proceedings on the ground that a legal question on the constitutionality of , inter alia , section CARDINAL § CARDINAL(CARDINAL ) of LAW had been put to ORG by a different panel of ORG . This provision was relied on as the basis of the ORG ’s negative decisions in the applicant ’s case .

On DATE ORG ( case no . P CARDINAL ) ruled , among others , that section CARDINAL § CARDINAL(CARDINAL ) of LAW was incompatible with the LAW , in particular the right to protection of private life ( LAW ) , the right of access to official documents concerning oneself ( LAW ) and the right to request the correction or deletion of untrue or incomplete information ( LAW ) .

On DATE ORG resumed the proceedings . On DATE it gave judgment quashing ORG judgment and the CARDINAL preceding decisions of the ORG . It relied on ORG judgment of DATE , in particular that court ’s finding of unconstitutionality of section QUANTITY which had served as the legal basis of the decisions in the applicant ’s case .

On DATE at the GPE Branch of ORG the applicant was granted access to copies of all documents concerning her which had been created by the communist security services .

In DATE ORG decided to create a list of officers , collaborators , candidates for collaborators of the ORG security services and of other persons whose files had been collected by it . This list consisted of the first name , the surname and , in some cases , the case file number . The list was made available on computers in the ORG library , to which access was restricted to researchers and journalists .

In DATE the list , consisting of CARDINAL names , was published on the Internet and unofficially named “ the GPE list ” ( “ PERSON GPE ” ) after a journalist who had allegedly removed it from ORG and published it . The publication of the list received wide media coverage , particularly since the names of some important public figures appeared on it .

In response to these events , on DATE ORG passed an amendment to LAW and added section CARDINALa , which afforded persons concerned the right to obtain a certificate clarifying whether their name was on the list .

In DATE the applicant discovered that her name appeared on the “ GPE list ” . On DATE she applied to the Institute for clarification of whether her personal details corresponded to the data on the “ ORG list ” .

On DATE the ORG issued a certificate confirming that her personal details ( names , surname , date and place of birth ) corresponded to the data included in the GPE ’s catalogue of officers , collaborators , candidates for collaborators of the ORG security services and of other persons . At the same time she was informed that the certificate did not confer on her the status of an “ injured party ” and did not entitle her to access documents held by the ORG .

On DATE the applicant requested ORG to institute the so - called “ auto – lustration ” proceedings under section CARDINAL(CARDINAL ) of the CARDINAL LAW . This provision stipulated that lustration proceedings could also be instituted by a person who prior to the entry into force of LAW had held a public office and who was publicly accused of having been working or collaborating with the ORG security services DATE . The applicant relied on ORG judgment of CARDINAL DATE ( case no . K CARDINAL/CARDINAL ) , which extended the application of that provision to persons who had not held public office . She submitted her lustration declaration , in which she denied having been an intentional and secret collaborator with the secret services and requested the court to give a ruling that her declaration was true . The applicant maintained that the fact that her name had appeared on the “ GPE list ” , which had been made public on the Internet , constituted public accusation since the list had been regarded by the general public as a list of agents and collaborators .

She submitted that ORG had refused to grant her the status of an injured party and subsequently had denied her access to certain documents concerning her . These circumstances could have indicated that there had been some documents showing that she had collaborated with the security services . Additionally , she found her name on the “ GPE list ” and received a certificate that her personal data matched those on the said list . The applicant argued that such situation was grossly unfair and demanded to institute lustration proceedings with a view to terminating any speculation about her alleged collaboration with the security services . She also hoped that in the framework of these proceedings she would be provided with access to all documents about her stored by ORG .

On DATE ORG dismissed her application to institute lustration proceedings , considering that she had not been publicly accused of having been a secret collaborator within the meaning of Article CARDINAL ) of the CARDINAL Lustration Act . Firstly , it was not certain that she was the person whose name had been on the list . Even assuming that her name had been on the list , such fact could not be tantamount to an accusation of having collaborated with the security services . The court noted that the media had reported that the list had been only a sort of a catalogue facilitating the use of ORG archives . It contained the names of persons who had been registered by the security services for various reasons ; some had been actual secret collaborators but there were other persons who had been preselected for that role , without necessarily having been aware of that fact .

The applicant appealed against the decision .

On DATE ORG upheld the impugned decision . The court found that there were no sufficient grounds to consider that the applicant had been publicly accused of having collaborated with the security services . The list of names produced by the applicant indicated that it contained not only the names of agents but also of victims . Furthermore , the court found that the applicant had not established that the inclusion of her name on the list had had any specific adverse consequences for her . It considered relevant that the ORG ’s decisions and certificates referred to by the applicant were not public documents . No further appeal lay against that judgment .

Article CARDINAL of the LAW of DATE provides :

“ Everyone shall have the right to legal protection of his private and family life , of his honour and good reputation and to make decisions about his personal life . ”

Article QUANTITY :

“ CARDINAL . Everyone shall have the right of access to official documents and data collections concerning himself . Limitations upon such rights may be established by statute .

Everyone shall have the right to demand the correction or deletion of untrue or incomplete information , or information acquired by means contrary to statute . ”

The PERSON of DATE on ORG ( “ the Institute Act ” ; PERSON o Instytucie Pamięci Narodowej – Komisji Ścigania GPE przeciwko FAC ) entered into force on DATE . ORG tasks included , inter alia , storing and researching documents of the communist security services . The right of access to those documents was guaranteed primarily to “ injured parties ” as defined in LAW . Limited access was further provided to officers , employees and collaborators of the security services and separately to researchers and journalists .

Section CARDINAL of LAW provided that an “ injured party ” ( pokrzywdzony ) was a person on whom the ORG security services deliberately collected information , including secretly . However , a person who subsequently became an officer , employee or a collaborator of the security services could not be considered an “ injured party ” ( section CARDINAL § CARDINAL ) .

According to section CARDINAL § CARDINAL of LAW everyone had the right to inquire whether he or she was an injured party within the meaning of the LAW . Person certified as an “ injured party ” had the right to obtain information from the ORG about documents concerning him ( section CARDINAL § CARDINAL ) . ORG had the obligation to inform the “ injured party ” about the manner of access to the documents concerning him and to provide him , on request , copies of those documents ( section QUANTITY ) . LAW further provided that an “ injured party ” had the right to submit his or her corrections to and clarifications in respect of existing documents .

On DATE a group of deputies to the PERSON introduced a bill amending LAW . They noted that the ORG ’s catalogue of officers , secret collaborators and candidates for secret collaborators did not include any other details than a name and the surname of those persons . This situation led to a general uncertainty and created suspicions in respect of many persons who had not had in the past any contacts with the ORG security services . Their bill was intended to remedy the situation .

DATE . On DATE ORG passed the amendment to LAW . On DATE new section CARDINALa ( CARDINAL ) of the IPN Act came into force . It provided as follows :

“ The President of ORG shall within DATE of an application issue a certificate stating whether or not the personal details of the applicant correspond to the personal details included in the list of officers , collaborators and proposed collaborators of the ORG security services ... or other persons that was made accessible at the ORG as of DATE . ”

In DATE the ORG challenged the constitutionality of certain provisions of LAW concerning access to documents held by ORG .

On DATE the ORG gave judgment in case no . K CARDINAL/CARDINAL . It held , inter alia , that section CARDINAL § CARDINAL and section QUANTITY and CARDINAL taken in conjunction with section QUANTITY of LAW , in so far as they deprived interested persons DATE other than injured parties – of the right to be provided with information about documents concerning them , were incompatible with LAW ( protection of private life ) and LAW and CARDINAL ( the right of access to official documents concerning oneself and the right to demand the correction or deletion of untrue or incomplete information ) of LAW . It further found that section CARDINAL § CARDINAL taken in conjunction with section QUANTITY of LAW , in so far as it deprived interested persons DATE other than injured parties – of the right to submit their corrections to and clarifications in respect of documents concerning them , was incompatible with the same constitutional provisions .

ORG noted that LAW justifiably afforded special status to the “ injured party ” and bestowed on this category of persons a number of rights . It identified under LAW a distinct category of persons , namely those who applied for the status of the “ injured party ” and whose applications were refused . The refusal resulted either from the lack of documents concerning a person seeking the status or from the fact that the security services had not collected information on them . The Constitutional Court disagreed with the ORG that the ORG ’s refusal to classify a person as the “ injured party ” had been tantamount to an official declaration that such person had been an officer , employee or collaborator of the ORG security services . At the same time it pointed to the incoherent criteria used by ORG in classifying persons as collaborators of the security services . It also noted that ORG archives contained information which had been , in principle , collected without any legal basis and often unlawfully . ORG underlined that the constitutional right of access to official documents ( LAW ) was related solely to the documents concerning a given person as a subject of interest of the security services . It did not extend to documents which were created by a given person in his capacity of an officer , employee or collaborator of the security services .

LAW was amended by the Law of DATE on disclosing information about the documents of the ORG security services from DATE and the content of these documents ( “ the CARDINAL LAW ” ; ustawa o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat QUANTITY treści tych dokumentów ) . The amendments entered into force on DATE .

The DATE LAW and LAW were further amended by LAW DATE . These amendments entered into force on DATE .

The amended sections CARDINAL and CARDINAL regarding access to documents held by the ORG stated in so far as relevant :

“ LAW . CARDINAL . Everyone has the right to request ORG for access to copies of documents concerning him .

The ORG grants access to copies of available documents concerning the applicant , which are referred to in DATE , with the exception of the following :

CARDINAL ) documents created by the applicant or with his participation ... in connection with his employment or service in the ORG security agencies or in connection with his activities carried out as a secret informant or an assistant in covert gathering of information ;

CARDINAL ) documents whose content indicates that the applicant :

a ) was considered by the security services as a secret informant or an assistant in covert gathering of information ,

b ) undertook to provide information to the ORG security service or to assist such service in whatever form in its covert activities ,

c ) executed tasks given by the ORG security service , in particular provided information to the service . ...

Section CARDINAL . CARDINAL . A refusal to allow request , referred to in DATE , in so far as it concerned access to documents :

CARDINAL ) created by the applicant or with his participation ... in connection with his employment or service in the ORG security agencies or in connection with his activities carried out as a secret informant or an assistant in covert gathering of information ;

CARDINAL ) whose content indicates that the applicant :

c ) executed tasks given by the ORG security service , in particular provided information to the service ,

is effected in the form of an administrative decision . ... ”

In the case no . K CARDINAL/CARDINAL ORG reviewed the constitutionality of the CARDINAL Lustration Act and LAW as amended which had been challenged by a group of members of parliament . It gave its seminal judgment on the issues of lustration and access to documents held by ORG .

With regard to the issue of access to documents , ORG struck down as unconstitutional section CARDINAL § CARDINAL(CARDINAL ) of LAW . This provision excluded access of interested persons to documents indicating that that they had collaborated or assisted the former ORG security services in their undercover activities . ORG noted that the LAW guaranteed to everyone the right of access to official documents and data collections concerning oneself ( LAW ) and the right to demand the correction or deletion of untrue or incomplete information , or information acquired by unlawful means ( LAW ) . This latter right , which was related to the right to privacy guaranteed in LAW , could not be statutorily restricted to a certain category of persons . ORG underlined that no ORG interest could legitimise or justify preservation in official records of information which was untrue , incomplete or acquired in a manner contrary to statute .

It further declared unconstitutional section CARDINALa(CARDINAL ) of LAW . The latter provision stipulated that ORG was charged with preparation and publication of catalogues of persons referred to in LAW ) . The wording used in this provision was identical to the formulation employed in LAW .

ORG noted that such catalogues would rely on classification adopted by the totalitarian security services and their assessment of a person . In its view , the publication of such catalogues would have amounted to legitimisation of the activities of the security services and , at the same time , to stigmatisation of persons included in these catalogues . Such a situation would be incompatible with Articles CARDINAL and CARDINAL of the LAW .

The judgment was promulgated on CARDINAL DATE and on DATE the unconstitutional provisions were abrogated .

On DATE the Speaker of the PERSON requested ORG for interpretation of the judgment of CARDINAL DATE . He submitted , inter alia , that the court had not given reasons for its finding of unconstitutionality in respect of section CARDINAL § CARDINAL(CARDINAL ) of LAW .

ORG noted that there was no doubt that section CARDINAL § CARDINAL(CARDINAL ) had been declared unconstitutional . It observed that the Speaker ’s request was aimed at supplementing the reasons for the judgment ; however there was no such possibility under LAW . Nonetheless , ORG drew attention to the fact that the sections CARDINAL § CARDINAL(CARDINAL ) and CARDINALa(CARDINAL ) of LAW , which both had been declared unconstitutional , had identical content and thus they had concerned the same legal norm although spelled out in CARDINAL different provisions . Both provisions concerned the same group of persons , namely those considered by the ORG security services as a secret informants or assistants in covert gathering of information . ORG noted that the reasons for the finding of unconstitutionality in respect of section CARDINALa(CARDINAL ) were equally applicable to section CARDINAL § CARDINAL(CARDINAL ) of LAW . It noted that an unconstitutional legal norm could appear in part as well as in one or more legal provisions ; however the finding of unconstitutionality of a legal norm and hence its disqualification was relevant for all situations in which such norm may be applied .

The Constitutional Court further held as follows :

“ It should be underlined that the same category of persons [ as mentioned in LAW ) ] is referred to in LAW ) of LAW which was not challenged in the case no . K CARDINAL/CARDINAL and thus was not reviewed by ORG . However , the lack of review in this part [ in respect of this provision ] can not justify negative administrative decisions issued on the basis of CARDINAL of LAW only for the reason that section CARDINAL § CARDINAL(CARDINAL ) survived as a result of the lack of challenge to it . LAW is functionally connected with the content of section DATE ) and may produce legal consequences only in so far as it is harmonised with the content of section CARDINAL § CARDINAL(CARDINAL ) following the intervention of ORG in respect of the latter , as well as in respect of section CARDINALa(CARDINAL ) of LAW . What is decisive in such situations is the fact that a legal norm ( included in section CARDINALa(CARDINAL ) of LAW , and used also in unchallenged section CARDINAL § CARDINAL(CARDINAL ) ) was declared unconstitutional in the judgment of ORG . It is also relevant that section CARDINAL of LAW determines solely a form of the decision refusing request for access to copies of documents concerning [ an applicant ] , while the immediately preceding it section CARDINAL speaks of the individual right of access to documents , which is an implementation at the statutory level of the constitutional principle of access of every person to official documents and data collections specified in LAW . It is obvious that the provision regulating solely a form of a decision in respect of a given right , in this case an administrative decision , may not serve as the basis for determination of the substantive content of the right , its scope and the conditions for its realisation . ”

In DATE ORG and ORG put to the ORG legal questions on the constitutionality of various provisions of LAW , including LAW ) .

On DATE the Constitutional Court gave judgment . It held that section CARDINAL § CARDINAL(CARDINAL ) of LAW , in its version applicable up until DATE , was incompatible , among others , with Articles CARDINAL and QUANTITY of the LAW in conjunction with LAW of LAW ( the principle of proportionality ) .

The Constitutional Court widely referred to its decision of CARDINAL DATE ( see above ) and confirmed that a finding of unconstitutionality in respect of a given legal norm was authoritative for all situations in which such norm may be applied , regardless of whether the norm was included in CARDINAL or more legal provisions .

ORG also relied on its findings in the judgment of CARDINAL DATE ( case no . K CARDINAL/CARDINAL ) . It summarised its approach in that case as follows :

“ ... for institutional , functional and procedural reasons LAW together with LAW constitute CARDINAL instrument . In this connection , if the documents created and collected by the ORG security services , meant to indicate the collaboration within the meaning of section QUANTITY of the CARDINAL LAW , are constituting the basis for drawing adverse social , moral , political as well as legal consequences in respect of persons subjected to lustration and other persons whose data were registered and included in catalogues [ of the ORG ] , [ then ] such persons , in a democratic ORG ruled by law , have to have the right to defend their dignity , reputation and good name . Accordingly , they have to be accorded the right of access to the full range of documents concerning them and used against them . ... This right has to encompass access to documents , deposited with the ORG , in which interested persons were attributed an involvement in the creation of these documents . This is relevant from the point of view of the content of those documents , conclusions formulated and drawn by the officers of the ORG security services on the basis of the transmitted information and , in particular , from the point of view of the supposed intention of a person passing on the information to “ violate the rights and freedoms of a man and a citizen ” ”

The Constitutional Court observed that section CARDINAL § CARDINAL(CARDINAL ) of LAW was of procedural character , but it further specified the grounds for a decision refusing access to certain documents . These conditions matched the content of section CARDINAL § CARDINAL(CARDINAL ) of LAW which had been abrogated as a result of the finding of its unconstitutionality . Nonetheless , the administrative courts submitted to ORG that in practice section CARDINAL § CARDINAL(CARDINAL ) had been used by the ORG as a substantive basis for decisions refusing access to documents specified in this provision . It further noted that after the said judgment the parliament amended LAW on CARDINAL occasions ; however it did not amend section CARDINAL § CARDINAL(CARDINAL ) .

The Constitutional Court found that a limitation on access to documents of persons , which were referred to in the unconstitutional section CARDINAL § CARDINAL(CARDINAL ) , which was imposed in a procedural rather than substantive form in section QUANTITY ) , amounted to unjustified interference with the informational autonomy of an individual and restricted the constitutional right to request the correction or deletion of untrue or incomplete information ( LAW ) . ORG held that that limitations specified in LAW ) of LAW on access of interested persons to official documents concerning them were constitutionally disproportionate , and thus in breach of NORP CARDINAL and QUANTITY of the LAW in conjunction with LAW of LAW . It further held that the impugned provision was incompatible with LAW ( the rule of law principle ) on account of the excessive degree of its imprecision and vagueness .

On DATE the parliament passed amendments to LAW which entered into force on DATE . According to the new wording of CARDINAL of LAW everyone had the right of access to documents concerning him which were deposited with the Institute . The limitations on access which were examined by ORG in its judgment of DATE were repealed .


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lived , until his arrest , in the town of PERSON in GPE . Prior to the events described below the applicant had never been accused of or charged with any crime .

On DATE the applicant was arrested on suspicion of aggravated robbery . According to the Government , a police investigator apprised the applicant of the rights of an accused , including the right to be assisted by counsel . The Government insisted that the record of the applicant ’s arrest contained a line which read as follows : “ [ the applicant ] needs services by a retained lawyer Mr L. ” The Government did not produce a copy of the arrest record , despite the ORG ’s request to that effect . The applicant confirmed that he had made a handwritten note in the arrest record , asking to be assisted by counsel , PERSON had also included PERSON phone number and home address in the record . The applicant stressed that after the investigator had drawn up the arrest record , he had commenced interrogating the applicant about his participation in the robbery on DATE . As a consequence of the interrogation the applicant confessed to “ [ having gone ] to a motorway together [ with CARDINAL other individuals ] to seize a cargo by fraud ” . The applicant also noted that CARDINAL of his accomplices had had a gun which he had planned to use as a threat .

On DATE an investigator again interrogated the applicant about the circumstances surrounding the robbery . According to the applicant , the investigator disregarded his request for legal assistance and proceeded to questioning . During that interrogation the applicant described in detail the preparations for the robbery , his meetings with other co - accused and the subsequent events on DATE . He also confessed to having participated with his co - accused in other criminal activities , including a murder , kidnapping , hijacking and unlawful possession of weapons . The Government did not produce a copy of the interrogation record drawn up on DATE .

On DATE the GPE Regional Prosecutor - Criminalist performed an investigative experiment aimed at verifying the applicant ’s statements made during the questioning on CARDINAL and DATE . In the course of the experiment the applicant was taken to various places where he and his accomplices had allegedly planned or committed criminal offences . In each location the applicant , in the presence of attesting witnesses , answered the prosecutor ’s questions pertaining to various criminal activities committed by the criminal group in which the applicant had taken part . It appears from the record of the investigative experiment that the prosecutor commenced the experiment by asking the applicant whether he agreed to participate in the experiment in the absence of a lawyer . The applicant did not object . The prosecutor further informed the applicant of his constitutional right not to make self - incriminating statements and asked whether he was willing to show the crime scenes , describe his and his GPE actions and reproduce his actions at the crime scene . The applicant agreed and signed the record .

On DATE ORG authorised the applicant ’s detention on remand . The detention was subsequently extended on a number of occasions by a prosecutor or a court .

On DATE a senior investigator of ORG office charged the applicant with aggravated robbery . The indictment record was served on the applicant in the presence of free legal aid counsel , PERSON On DATE the senior investigator , in the presence of counsel , PERSON , informed the applicant of his procedural rights , including the right to free legal aid . The applicant made a handwritten note in the record , stating that he was in need of free legal aid .

NORP During subsequent interrogations on DATE , CARDINAL , DATE , DATE and DATE , DATE , DATE and CARDINAL DATE the applicant refused legal assistance , each time making handwritten notes in the interrogation records to that effect . He also noted that his refusal was not due to lack of financial resources but his fear of a possible “ information leak ” . The Government provided the ORG with copies of the first few pages of the interrogation records , containing the applicant ’s handwritten notes . The pages pertaining to the statements which the applicant had made during the questioning were not enclosed .

On DATE an investigator from ORG office questioned the applicant about his involvement in forgery of documents in DATE . On the applicant ’s request PERSON , legal aid counsel , was called to assist him . The applicant confessed to having forged CARDINAL national passports , but did not admit to having used them .

On DATE the applicant , assisted by legal aid counsel , Mr Sh . , studied reports of various expert examinations . DATE he was again questioned in the absence of a lawyer . The first CARDINAL pages of the interrogation record , presented to the ORG by the ORG , contain the applicant ’s signature confirming his knowledge of the accused ’s procedural rights and his refusal of legal assistance .

The Government , supporting their assertion with extracts of interrogation records bearing the applicant ’s handwritten notes , submitted that during the remaining CARDINAL interrogations on DATE , CARDINAL and DATE the applicant had refused legal assistance . The Government noted that the refusal was not conditioned by the applicant ’s lack of financial resources .

On DATE the applicant was served with the final version of the bill of indictment comprising all charges . In particular , the prosecution authorities accused the applicant of having participated in a stable armed criminal group and having committed criminal offences within that criminal group , including several counts of aggravated robbery , hijacking , theft , aggravated kidnapping , unlawful deprivation of liberty , forgery of documents , murder , attempted manslaughter , torture and unlawful possession of weapons . Following the service of the bill of indictment an investigator questioned the applicant . Mr B. was appointed to act as the applicant ’s counsel . The interrogation record , provided to the ORG by the ORG , consisted of a CARDINAL - page printed template , in which the dates , the investigator ’s and applicant ’s names , the applicant ’s personal data and his statements made during the interrogation were filled in by hand . The relevant part read as follows ( the pre - printed part in roman script and the part written by hand in italics ) :

“ Before the inquiry [ the applicant ] is informed that by virtue of the requirements of LAW and on the basis of Articles DATE , CARDINAL , DATE , DATE , CARDINAL , CARDINAL - CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL - CARDINAL of the RSFSR Code of Criminal Procedure he has a right : to defend himself , to know what he is charged with and to give explanations about the charges brought , to submit evidence , to lodge requests , to complain to a court about the unlawfulness and ill - foundedness of his arrest and detention , to study records of investigative actions in which he participated , [ to study ] materials which were submitted to a court as evidence of the lawfulness and well - foundedness of the authorisation and extensions of [ his ] detention on remand and , after DATE pre - trial investigation , [ to study ] all materials of the criminal case file , to copy any and in any amount information out of [ the case file ] , to be assisted by counsel from the moment when the arrest record or a detention order or a bill of indictment is served on [ him ] , to have private meetings with counsel , to lodge complaints with a court against the arrest or extension of detention and to participate in a court hearing when [ those complaints ] are examined , to participate in trial hearings , to challenge [ the bench , prosecutor , other participants of criminal proceedings ] , to appeal against ORG , ORG , ORG and ORG actions and decisions , to defend his rights and lawful interests by any other means and measures which do not run contrary to the law , and [ he ] also [ has ] the right [ to make pleadings at the end of the trial ] as a defendant .

Moreover , [ the applicant ] was informed that by virtue of LAW , no one is obliged to make self - incriminating statements and [ statements ] incriminating his / her spouse and close relatives , whose list is determined by the federal law .

[ the applicant ’s signature ]

According to LAW was informed of my right to make statements in my native language and to be assisted by an interpreter . I speak LANGUAGE . I do not need the services of an interpreter and want to make statements in NORP .

[ the applicant ’s signature ]

Before the interrogation [ the applicant ] stated : I need to be assisted by counsel appointed by ORG .

[ the applicant ’s signature ]

I can give the following explanation in relation to the questions put to me :

The content of the charges against me was explained to me .

I partially admit my guilt of having committed crimes under LAW and LAW of GPE . In fact , I forged CARDINAL passports of GPE citizens . CARDINAL of [ the passports ] was issued in the name of PERSON , and the other one [ was issued ] in the name of PERSON I glued pictures of myself in those passports and forged the cameo printing “ GPE Passport ” with a wooden homemade engraving , which I had made myself . I bought Mr PERSON ’s passport in LOC town railway station from PERSON for MONEY ; [ I ] took Mr M. ’s passport from my house where it was kept . In my house , that is at the [ following address ] : ... where I lived temporarily . [ I ] note that my mother lives permanently at that address . I have never used passports in the names of PERSON and Mr M.

I do not confess to [ having committed ] other criminal offences with which I am charged .

By virtue of LAW I will no longer make any statements .

My words recorded correctly and read by me .

[ the applicant ’s and his lawyer ’s signatures ] . ”

No further investigative actions were performed until DATE , when the applicant , in the presence of counsel , PERSON , was served with a copy of the decision on the closing of the pre - trial investigation . DATE and DATE the applicant and counsel PERSON studied the case file .

On DATE the applicant and his co - defendants were committed to stand trial before ORG . ORG received the case file on DATE .

According to the Government , it was not until DATE that ORG fixed the first trial hearing for DATE . Ms Ya . was appointed to act as the applicant ’s lawyer at the trial .

At the hearing on DATE ORG adjourned the proceedings until DATE to allow the defendants to study the case file materials .

DATE ORG held CARDINAL hearings . The following hearing , fixed for DATE , was postponed due to a co - defendant ’s illness . The proceedings were stayed until DATE .

DATE and DATE CARDINAL hearings were held . ORG heard a number of witnesses . A victim of a car hijacking , PERSON . , asked to be dismissed from the proceedings and for her statements given at the pre - trial investigation to be taken into account . She noted that her pre - trial statements were true , but she did not want to testify in open court as she was afraid of the applicant and his co - defendants . ORG found that PERSON . ’s fears were justified and dismissed her from the proceedings .

In DATE the applicant lodged a complaint with ORG alleging ineffective legal representation and asking to appoint another counsel or , in the alternative , to be allowed to defend himself . The applicant asserted that PERSON . had no knowledge of the criminal case file and had not held any private meetings with him to discuss the strategy of his legal defence . On DATE ORG dismissed that request , finding that PERSON . was an experienced and well - qualified lawyer who defended the applicant effectively . ORG also noted that by virtue of LAW the participation of a lawyer was mandatory in the trial hearings , having regard to the gravity of the charges against the applicant . At the same time , the applicant had a right to retain counsel of his own choosing , but he refused to do so . Therefore , there were no grounds to dismiss PERSON . from the proceedings .

On DATE ORG , composed of CARDINAL professional judge and CARDINAL lay judges , found the applicant guilty of aggravated murder , torture , kidnapping , unlawful deprivation of liberty , theft , robbery , attempted robbery , car hijacking , participation in a criminal group and forgery of documents . ORG sentenced him to DATE imprisonment . While holding the applicant guilty on a charge of having taken part in a criminal group and having committed a number of criminal offences within it , ORG noted that the co - defendants , including the applicant , denied their guilt in open court . However , it cited their statements given during the pre - trial investigation in support of its findings of guilt . In particular , it gave a detailed account of the applicant ’s statements made on DATE and DATE , in which the latter confessed his guilt to a number of criminal offences . At the same time ORG excluded from evidence the records of the remaining applicant ’s interrogations carried out in the absence of counsel , finding that the counsel ’s presence during the interrogations had been mandatory and the applicant ’s refusals of legal assistance could not be accepted . ORG reached a similar conclusion in respect of the majority of the interrogations performed with other co - defendants , finding as follows :

“ refusals of legal assistance handwritten by [ the accused ] in the [ interrogation ] records due to the fear of a leak of information should be considered involuntary as in reality lawyers were not appointed during the interrogations ” .

The applicant appealed against the conviction . In his appeal statement he complained , inter alia , that he had been denied legal assistance during the pre - trial investigation and that his legal defence during the trial had been ineffective .

According to the Government , on DATE a ORG judge held that the applicant and his co - defendants could study the case file materials from DATE . In addition , from CARDINAL May to DATE the applicant studied CARDINAL volumes of the case file .

In DATE the applicant asked for legal assistance for preparation of the appeal statement . He also asked for his sister to be appointed as his “ public defender ” . In reply , on DATE a judge of ORG informed the applicant that the NORP law did not provide him with the right to be assisted by a relative during appeal proceedings . The judge , however , noted that he could have asked a court to provide him with free legal assistance . According to the ORG , such a request was never lodged by the applicant .

On DATE the case file was sent from ORG to ORG of GPE for an examination .

On DATE ORG of GPE amended the judgment of DATE . ORG discontinued the proceedings against the applicant on the charges of torture , unlawful deprivation of liberty and CARDINAL count of attempted robbery because his participation in those criminal offences had not been proved . ORG also reduced the applicant ’s sentence by DATE . While upholding the remainder of the applicant ’s conviction , ORG endorsed reasons given by ORG , once again relying on the statements made by the applicant on CARDINAL and DATE . The applicant was not assisted by a lawyer at the appeal hearing .

Article CARDINAL of the old CCrP read as follows :

“ A lawyer should be called to take part in a case at the moment when charges are brought or , if a person suspected of a criminal offence is arrested or detained before charges are brought against him , at the moment when the arrest record or a detention decision is read out to him .

If the lawyer chosen by a suspect or an accused is unable to appear within TIME after the arrest or detention has been effected , an interrogator , investigator , or a prosecutor may offer the suspect or accused the possibility to retain another lawyer or provide him with a lawyer through the assistance of ORG . ”

Article CARDINAL of the Code established that a lawyer should be called by an accused , his legal representative or other persons on a request or with the consent of the accused . An investigator or court should to provide the suspect or the accused with counsel at his request . In cases where counsel chosen by the accused was not available for a long period of time , the investigator or the court could suggest that the accused choose another counsel or , as an alternative , appoint another counsel for the accused .

If the accused was charged with criminal offences punishable by death penalty , participation of counsel was imperative in court proceedings and was also mandatory in the pre - trial investigation from the moment when charges were brought . In such a case , if the accused , his legal representative or other persons on his request did not invite counsel , an investigator , prosecutor or court should ensure the accused ’s legal representation in the case ( Article CARDINAL ) .

An accused could refuse legal assistance at any moment of the criminal proceedings . If the accused was charged with criminal offences punishable by death penalty , such a refusal was not binding for a court , an investigator or a prosecutor ( Article CARDINAL ) .

Article CARDINAL of the new CCrP , in so far as relevant , reads as follows :

“ CARDINAL . Participation of legal counsel in the criminal proceedings is mandatory if :

CARDINAL ) NORP the suspect or the accused has not waived legal representation in accordance with LAW ;

CARDINAL ) NORP the suspect or the accused is a minor ;

CARDINAL ) NORP the suspect or the accused can not exercise his right of defence by himself owing to a physical or mental handicap ;

CARDINAL ) the court proceedings are to be conducted [ in the absence of the accused ] in accordance with LAW of this Code ;

CARDINAL ) NORP the suspect or the accused does not speak the language in which the proceedings are conducted ;

CARDINAL ) the suspect or the accused faces serious charges carrying a term of imprisonment DATE , life imprisonment or the death penalty ;

CARDINAL ) NORP the criminal case falls to be examined by a jury trial ;

CARDINAL ) the accused has filed a request for the proceedings to be conducted [ without a hearing ] under LAW of this Code ;

In the circumstances provided for by paragraph CARDINAL above , unless counsel is retained by the suspect or the accused , or his lawful representative , or other persons on request , or with consent , of the suspect or the accused , it is incumbent on the investigator , prosecutor or the court to ensure participation of legal counsel in the proceedings . ”

Article CARDINAL of the Code provides that a suspect or an accused may refuse legal assistance at any stage of criminal proceedings . Such a waiver may only be accepted if made on the initiative of the suspect or the accused . The waiver must be filed in writing and must be recorded in the official TIME of the relevant procedural act . The refusal of legal assistance may not strip the suspect or accused of the right to ask to be assisted by counsel during further procedural actions in the criminal case . The admission of a lawyer may not lead to the repetition of the procedural actions which have already been performed by that time .

Article CARDINAL of the Code provides that the appeal instance examines appeals with a view to verifying the lawfulness , validity and fairness of judgments . Under LAW and CARDINAL of the Code , the appeal instance may directly examine evidence , including additional material submitted by parties .

Article CARDINAL of the Code provides that upon receipt of the criminal case and the statements of appeal , the judge fixes the date , time and place for a hearing . The parties shall be notified of the date , time and place of the hearing no later than DATE before the scheduled hearing . The court determines whether the remanded convict should be summoned to the hearing . If the remanded convict has expressed the wish to be present at the examination of his appeal , he has the right to participate in person or to state his case via video link . The manner of his participation in the hearing is to be determined by the court

Article CARDINAL of LAW , setting out the procedure for re - opening of criminal cases , reads , in so far as relevant , as follows :

“ CARDINAL . ORG judgments and decisions which became final should be quashed and proceedings in a criminal case should be re - opened due to new or newly discovered circumstances .

New circumstances are :

( CARDINAL ) a violation of a provision of LAW committed by a court of GPE during examination of a criminal case and established by ORG , pertaining to :

( a ) application of a federal law which runs contrary to provisions of LAW ;

( b ) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms ;

( c ) other new circumstances . ”

Rule CARDINAL of the Standard Minimum Rules for the Treatment of Prisoners ( Resolution ( CARDINAL)CARDINAL of ORG ) provides : “ An untried prisoner shall be entitled , as soon as he is imprisoned , to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive , confidential instructions . At his request , he shall be given all necessary facilities for this purpose . ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing , either direct or indirect , of a police or institution official . ”

Furthermore , the recommendation of ORG . ( CARDINAL ) , adopted on DATE at the PERSON meeting of ORG , in so far as relevant , reads as follows :

“ Legal advice

CARDINAL All prisoners are entitled to legal advice , and the prison authorities shall provide them with reasonable facilities for gaining access to such advice .

CARDINAL ORG may consult on any legal matter with a legal adviser of their own choice and at their own expense .

CARDINAL A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security . ”

Article CARDINAL § CARDINAL ( b ) of LAW ( ORG ) provides that everyone charged with a criminal offence is to be entitled “ [ t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing ” .

Article CARDINAL of the Charter of Fundamental Rights states that “ [ r]espect for the rights of the defence of anyone who has been charged shall be guaranteed ” . Article CARDINAL further states that the right guaranteed under LAW is among those who have the same meaning and the same scope as the equivalent right guaranteed by ORG .


The applicants , PERSON , PERSON , ORG , PERSON and PERSON are NORP nationals , born in DATE , DATE , DATE , DATE and DATE respectively . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

On DATE early in the morning , ORG ( keskusrikospoliisi , centralkriminalpolisen ) , reinforced by a special ORG group of ORG and in co - operation with armed forces and ORG , made a search in a clubhouse of the motorcycle club ORG . The search was intended to apprehend certain persons suspected of aggravated assault . CARDINAL members were caught during the search . The president of the club was apprehended later . The police also seized several weapons at the clubhouse . It proved later that they all were permissible and legal , except CARDINAL which was useless and not a gun at all .

Officer PERSON from ORG was in charge of the investigation . After the search PERSON gave interviews . His statements were widely spread in the media by the press and a TV channel . P. had also been assigned to be responsible for making any announcements to the media .

In TIME of DATE a NORP TV channel had a report about the search , in which P. was interviewed . To a reporter ’s question as to what type of offences members of the club had been found guilty of , PERSON stated that the police had earlier registered to their records the members in question and that they had been convicted of aggravated drug offences and assaults .

DATE several newspaper articles were published , where a similar statement was quoted .

The applicants have made several complaints to various authorities . On DATE they complained to ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) . In its statement of CARDINAL DATE to the Deputy Parliamentary Ombudsman the Ministry of the ORG ( sisäasiainministeriö , inrikesministeriet ) observed , inter alia , the following :

“ The search carried out by the police on the premises of the motorcycle club received a lot of public attention . Soon after the search ORG informed the mass media of the criminal background of the members , and of the activities of the club .

An article published in PERSON on DATE ( under the heading ‘ CARDINAL motorcycle club members ORG ) directly quoted an interview with P. According to the newspaper , ORG had said that ‘ the members of the club had been convicted of narcotics offences and assaults , including robberies’ .

According to [ the applicants ] , the information given by the police was incorrect . [ The applicants ] attached extracts from their criminal records , of which CARDINAL contained an indication of an offence , to their complaint to the Deputy Parliamentary Ombudsman .

According to P. , the police did not tell the mass media that the applicants had been convicted of narcotics offences , but it was mentioned that another motorcycle club , ORG , had been involved in selling narcotics . The information was given from an international point of view , with reference to public information given by the ORG .

The police shall be prudent in giving information to the public on the background of persons suspected of an offence . Any labelling of suspects shall be avoided . In the ORG ’s opinion , the information given by ORG indeed gave the public an image that the said members of the motorcycle club had committed various offences . In this respect the public information was not appropriate , as far as the criminal background was concerned . ”

On DATE the applicants made a request of pre - trial investigation to the Deputy Parliamentary Ombudsman and on DATE to ORG . On DATE the applicants complained to ORG , arguing that the police neglected their duty as they did not respond as required in LAW and CARDINAL of LAW ( esitutkintalaki , förundersökningslag )

The applicants made a complaint also to ORG ( julkisen sanan neuvosto , opinionsnämnden för massmedier ) which , on DATE , found that the TV channel and CARDINAL of the newspapers had failed to comply with good journalistic practice when reporting on the events concerning the motorcycle club .

On DATE the Deputy ORG stated that , on the basis of the documents , she did not find anything that would require her measures . She noted , however , the following in respect of the treatment of the suspects during the pre - trial investigation :

“ It was mentioned by the mass media that the relevant members of ORG had been convicted of narcotics offences and assaults . According to [ the applicants ] , the police had given incorrect information on those members of the motorcycle club .

There is no evidence that the police had deliberately given incorrect information on the members of the motorcycle club . However , it is worth observing that the telephone interview with P. on DATE easily gave the impression that members of ORG had been convicted of narcotics offences and assaults . ”

The Deputy Parliamentary Ombudsman concluded in this respect that authorities and public officials must be especially careful when informing the public for example of matters relating to criminal investigations and suspects . P. had been careless when giving information on the search of the premises of Overkill MC and on related matters . ” PERSON was informed of her opinion .

On DATE the applicants instituted criminal proceedings against P. who was charged with libel and violation of his official duty on account of his statements . The applicants requested that P. and ORG be ordered to pay compensation in the amount of LAW with interest to each applicant . They argued that they had been subjected to public interest since the search . The applicants had been labelled as having committed offences they had never committed . According to the applicants , P. had been the most active one to give statements to the media and had specially named PERSON to the journalists .

P. denied all the charges as well as the ORG claim for compensation . He stated that he had not been active but only answered questions presented by reporters . Before the search he had prepared a press release in which the name of the club or names of its members were not mentioned . According to P. , he or the police had not had any advance information about the members of the club . The police had monitored the clubhouse and assumed , on the basis of the number of people visiting the house , that the number of the members was greater than that established later .

On DATE after CARDINAL hearings at which several witnesses were heard , ORG ( käräjäoikeus , tingsrätten ) of GPE rejected all the applicants’ claims and acquitted PERSON , basing itself on P. ’s statements and on statements given by several witnesses heard during the hearings . ORG found as follows :

“ ORG finds that P. , by acting in the way described above , has not deliberately or of carelessness or lack of caution made himself guilty of a violation of official duties , when informing the public of the pre - trial investigation , so that his statements would have subjected [ the applicants ] to suspicion or that he would have unnecessarily caused them damage and harm . ”

It appears from the judgment that P. had mentioned the name of applicant PERSON when asked by a journalist about persons whose detention on remand would be requested .

The applicants appealed to ORG ( hovioikeus , hovrätten ) of GPE and requested an oral hearing . On DATE ORG refused the ORG appeal , without a hearing , and upheld ORG judgement , finding as follows :

“ [ The applicants ] have considered that PERSON clearly identified PERSON MC in his statements concerning the present case , and thus his allegations included in the statements directly referred to this club . According to [ the applicants ] , PERSON , which was a non - registered association , had CARDINAL members at the relevant time . However , the police had reason to believe that the club consisted of a considerably larger number of persons , inter alia , because there had been large numbers of people on the club LOC and in events organised by the club . The statements given by PERSON reveal that he meant a considerably wider circle of people than [ the applicants ] or other members of Overkill MC named as such by the club . Nor did PERSON name any persons in his statements . The identification of club members has only been possible on the basis of distinctive marks . Those distinctive marks were not widely known among the public at the relevant time .

ORG considers that P. did not deliberately allege that [ the applicants ] , in particular , had committed the offence in question or other despicable acts . Nor did the articles clearly indicate which parts of the text were directly based on the statements of P. and which parts were based on the reporter ’s own interpretations of those statements or on information received from other sources .

On these grounds and for the reasons given by ORG , ORG finds that there is no reason to alter the judgment of ORG as to the merits . ”

ORG ( korkein oikeus , högsta domstolen ) refused the applicants leave to appeal on DATE .

According to LAW ) of FAC ( DATE ) , the suspect must be presumed not guilty in a criminal investigation .

According to LAW ) of FAC , in a criminal investigation , the rights of no one must be infringed more than what is necessary for the achievement of the purpose of the criminal investigation . Furthermore , according to LAW ) , a criminal investigation must be carried out so that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience .

According to LAW of FAC , any public information on a criminal investigation must be given in a manner which does not subject anyone to undue suspicion or cause unnecessary harm or inconvenience to anyone .

Under LAW ( asetus esitutkinnasta ja pakkokeinoista , förordning om förundersökning och tvångsmedel ; CARDINAL ) , the person in charge of the investigations and his superior , or another official ordered by the superior , must have the right to make information concerning the investigation public .

Section CARDINAL of the LAW of Finland ( GPE ) , under the heading Protection under the law , provides the following :

“ Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority , as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice .

Provisions concerning the publicity of proceedings , the right to be heard , the right to receive a reasoned decision and the right of appeal , as well as the other guarantees of a fair trial and good governance shall be laid down by an LAW . ”

According to LAW ( DATE ) , LAW ) of LAW ( oikeudenkäymiskaari , rättegångsbalken ) , the plaintiff in a criminal law case must prove the facts that support his / her claim . The defendant must be presumed innocent until proved guilty . Although it may be in the interests of the defendant to submit counter - evidence in support of his or her innocence , he/ she has no obligation to do so . The prosecutor bears the burden of proof . In case there is reasonable doubt as to the guilt , the case must be decided in favour of the defendant . An important way of obtaining evidence in a criminal law case , apart from hearing outsiders as witnesses , is to freely examine the defendant and the plaintiff for the purpose of establishing the facts of the case .

According to LAW , LAW , after having carefully evaluated all the facts that have been presented , the court must decide what is to be regarded as the truth in the case .

According to LAW , LAW ( laki oikeudenkäynnistä rikosasioissa , lag om rättegång i brottmål ; ORG ) a judgment must be reasoned . The statement of reasons must indicate on what facts and legal arguments the judgment is based . It must further be indicated on what grounds a fact has been proved or has failed to be proved .


Mr PERSON , a NORP national who was born in DATE , is the manager of a supermarket owned by the PERSON chain at ORG .

ORG In DATE criminal proceedings were brought , at the instigation of ORG and several individual pharmacists , against the applicant and other managers of supermarkets in the region for unlawfully selling pharmaceutical products . He had sold in his shop aqueous eosin at PERCENT strength , PERCENT strength modified alcohol , CARDINAL-volume hydrogen peroxide , vitamin C ( tablets of CARDINAL mg and sachets of powder of QUANTITY ) , inhalations made out of plant essences , pocket inhalers , antiseptic sprays and mineral supplements .

In their defence the applicant and his fellow accused maintained that the products in question were not medicinal products within the meaning of LAW of LAW ( see paragraph CARDINAL below ) and were accordingly not covered by the pharmacists’ monopoly .

ORG On DATE ORG found the applicant guilty as charged , fined him MONEY and ordered him to pay damages of MONEY to each of the civil parties . After considering the products in question individually , it took the view that they were medicinal products , in some cases on account of their function and in others on account of their presentation ( see paragraph CARDINAL below ) .

ORG On DATE ORG upheld the first - instance judgment , on the following grounds :

" It is necessary to examine each of the products marketed listed above in order to determine whether or not they are medicinal products ... :

( CARDINAL ) BIO - OLIGO with trace elements

At the bottom of the cardboard packaging for the CARDINAL-capsule bottles is to be found the indication ‘ Yeast enriched with ORG , ‘ dietary ORG . The back of the cardboard packaging carries the following text :

‘ Introduction : Recent research shows that the LOC is losing minerals , while our bodies’ need for these ‘ new vitamins’ of DATE is greater than before . [ C. ] Laboratories produce a range of products specially enriched with minerals to make up for these deficiencies in our diet.’

The analysis in QUANTITY for every QUANTITY states :

Protein CARDINAL

Fat CARDINAL

Carbohydrate CARDINAL

Vitamin CARDINAL CARDINAL

ORG

Energy value CARDINAL

The analysis also indicates , as applicable , the levels of copper , zinc or calcium to be the following :

On the bottle of zinc capsules , ‘ Zinc CARDINAL’ .

On the bottle of copper capsules , ‘ Copper CARDINAL’ .

On the bottle of calcium capsules , ‘ Calcium CARDINAL’ .

Furthermore , there is a precise indication of how each of these elements is supposed to help the human body :

( a ) zinc aids reproduction and sexual development ; ‘ it helps the body to fight infection more PERSON ;

( b ) copper ‘ activates our systems of defence against infection - helps combat ORG ; and

( c ) calcium is ‘ essential for strong bones - it also improves the circulatory nervous system’ .

The dosage , which depends on whether the capsules contain zinc , copper or calcium is then given , under the heading :

‘ Directions for use’ .

The back of the cardboard packaging carries the mention , at the bottom , ‘ [ C. ] Laboratories PARIS’ , after specifying that this laboratory has ‘ been advised by Dr P. W.’ , an oligotherapist ( sic ) .

Therefore , these products , which contain an amalgam of various different substances , are presented as capable of contributing to the prevention or cure of human diseases .

They are medicinal products within the meaning of the above - mentioned legislation .

( PERCENT STRENGTH MODIFIED ALCOHOL CARDINAL FAC is sold in ORG bottles . The label bears the above words and , in the bottom left - hand corner , on a blue and green background , CARDINAL small white squares in the shape of a cross , irresistibly evoking the image of a pharmacist ’s sign . To the right of this , in large white letters on the same blue and green background , the name ‘ [ ORG , ORG appears with , in smaller letters , its address .

The product in question smells strongly of camphor .

Thus the way in which this product is presented - the bottle , and the cross alongside the name ‘ [ V. ] Laboratories’ - suggests that it is in fact the pharmaceutical product well known by that name and which is used as an antiseptic , particularly in surgery . Therefore , by virtue of its presentation , this is also a medicinal product and not simply a hygiene or beauty product .

( CARDINAL ) CARDINAL BOTTLE OF CARDINAL-VOLUME HYDROGEN PEROXIDE . This bears the words ‘ do not ORG and ‘ in the event of contact with the eyes , rinse PERSON . It has the same white cross and words ‘ [ ORG as the modified alcohol mentioned above , on a pale blue and darker blue background . For the same reasons , it evokes the medicinal product known by that name . This is another medicinal product by virtue of its presentation , which distinguishes it from a mere hygiene or beauty product .

( CARDINAL ) ‘ VITAMIN ( CARDINAL)’ is sold in cardboard packets of CARDINAL chewable tablets , on which is printed : ( a ) the white cross described above and the name ‘ [ ORG , on a yellow and orange background ; ( b ) the recommended dosage , specifying that vitamin C should not be taken at DATE ; and ( c ) the composition of each tablet , namely : coated ascorbic acid and sodium ascorbate ( with an indication of the quantities ) ; and the excipient , a compound of several substances .

This is also a medicinal product , at least by virtue of its presentation , since there is nothing to distinguish it from a genuine pharmaceutical product which has had to meet the required standards in terms of dosage , quality control and production . It is of little importance whether the medicinal product really has the effect claimed or not ; on the other hand , there are known contra - indications to the excessive use of vitamin C. "

Mr Cantoni appealed to ORG on points of law . He complained in particular that there had been a violation of Article CARDINAL para . CARDINAL of the Convention ( article DATE ) and of Articles L. CARDINAL , PERSON and L. CARDINAL of LAW ( see paragraph CARDINAL below ) . He contended that , especially when applied to parapharmaceutical products , the notion of medicinal product , as defined in the provisions on which his conviction had been based , was not sufficiently clear to enable him to determine with accuracy what acts would incur criminal liability .

On DATE ORG dismissed the appeal in the following terms :

" ... the appellate court held , referring to the wording on the cardboard packaging and bottles containing the above - mentioned products , that these products were presented as being capable of contributing to the prevention and cure of human diseases and that , therefore , they constitute medicinal products within the meaning of LAW CARDINAL of LAW .

ORG thus gave a proper legal basis for its decision without laying itself open to the complaints put forward ... The provisions of LAW ... are not contrary to the principle that only the law can define a criminal offence and prescribe a penalty ; nor are they incompatible with the instruments referred to in the grounds of appeal ... "

ORG According to LAW DATE ( Directive ORG CARDINAL/CARDINAL , ORG no . PERSON of CARDINAL DATE ) , as amended on several occasions :

" ... the following shall have the meanings hereby assigned to them ...

Medicinal product :

Any substance or combination of substances presented for treating or preventing disease in human beings or animals .

Any substance or combination of substances which may be administered to human beings or animals with a view to making a medical diagnosis or to restoring , correcting or modifying physiological functions in human beings or in animals is likewise considered a medicinal product . "

ORG of ORG has received several references for preliminary rulings concerning the interpretation of that definition . In its PERSON judgment of CARDINAL DATE ( case DATE ] ECR CARDINAL CARDINAL ) , it held as follows in respect of vitamin preparations :

" It is ... necessary to take the view that a product is ‘ presented for treating or preventing ORG within the meaning of Directive PERSON not only when it is expressly ‘ ORG or ‘ ORG as such , possibly by means of labels , leaflets or oral representation , but also whenever any averagely well - informed consumer gains the impression , which , provided it is definite , may even result from implication , that the product in question should , regard being had to its presentation , have an effect such as is described in the first part of the Community definition .

In particular the external form given to the product in question - such as that of a tablet , pill or capsule - may in this connection serve as strong evidence of the seller ’s or manufacturer ’s intention to market that product as a medicinal product . Such evidence can not , however , be the sole or conclusive evidence , since otherwise certain food products which are traditionally presented in a similar form to pharmaceutical products would also be covered .

... substances such as the vitamin preparations in issue , which are not ‘ indicated or ORG expressly as being suitable for curing , treating or preventing an infection , may nonetheless constitute substances ‘ presented for treating or preventing ORG within the meaning of the Community definition of ‘ medicinal ORG contained in Directive PERSON .

It is ... apparent from the file and from the observations submitted to the ORG , taken as a whole , that it is impossible in the present state of scientific knowledge to state whether the criterion of concentration alone is always sufficient in order to be able to determine whether a vitamin preparation constitutes a medicinal product ; still less therefore is it possible to specify the level of concentration above which such a vitamin preparation would fall within the Community definition of a medicinal product .

The answer to be given to the national court should therefore be that the classification of a vitamin as a medicinal product within the meaning of the second part of the definition in Directive CARDINAL/CARDINAL must be carried out case by case , having regard to the pharmacological properties of each such vitamin to the extent to which they have been established in the present state of scientific knowledge . " ( paragraphs CARDINAL and DATE )

The Court of Justice has confirmed this approach on several occasions , clarifying certain points . Thus in its GPE judgment of CARDINAL DATE ( C-CARDINAL/CARDINAL [ DATE ] ECR CARDINAL ) , concerning CARDINAL different products , including slimming products and preparations to combat tiredness , it stated :

" ... a product may be regarded as a medicinal product by virtue of its presentation if its form and the manner in which it is packaged render it sufficiently similar to a medicinal product and , in particular , if on its packing and the information provided with it reference is made to research by pharmaceutical laboratories or to methods or substances developed by medical practitioners or even to testimonials from medical practitioners commending the qualities of the product in question . A statement that a product is not a medicinal product is persuasive evidence which the national court may take into consideration , but it is not in itself conclusive . " ( paragraph CARDINAL )

ORG In the FAC and Samanni judgment of CARDINAL DATE ( CARDINAL , [ DATE ] ECR CARDINAL CARDINAL ) , concerning PERCENT strength eosin and PERCENT strength modified alcohol , ORG held :

" ... the concept of ‘ presentation’ of a product must be broadly construed and a product is ‘ presented for treating or preventing ORG within the meaning of Directive PERSON not only when it is expressly ‘ ORG or ‘ ORG as such , possibly by means of labels , leaflets or oral representation , but also whenever any averagely well - informed consumer gains the impression , which , provided it is definite , may even result from implication , that the product in question should , having regard to its presentation , have the properties in question .

... the external form given to the product in question may serve as strong evidence , but is not the sole or conclusive evidence ; it must be stated that the ‘ form’ must be taken to mean not only the form of the product itself but also that of its packaging , which may , for reasons of marketing policy , tend to make it resemble a medicinal product , and account must also be taken of the attitude of an averagely well - informed consumer , in whom the form given to a product may inspire particular confidence similar to that normally inspired in him by proprietary medicinal products , having regard to the safeguards normally associated with the manufacture and marketing of the latter type of product .

... it is for the national authorities to determine , subject to review by the courts , whether the eosin of a strength of PERCENT and modified alcohol of a strength of PERCENT constitute medicinal products by virtue of their function within the meaning of the second sub - paragraph of LAW PERSON . In that regard , account must be taken of the adjuvants also entering into the composition of the product , the manner in which it is used , the extent of its distribution , its familiarity to consumers and the risks which its use may entail .

... although in principle the member GPE may reserve to pharmacists the right to make retail sales of products that fall within the Community definition of medicinal products and although , in those circumstances , their monopoly over those products may be presumed to constitute an appropriate way of protecting public health , evidence to the contrary may be produced with respect to certain products whose use would not involve any serious danger to public health and whose inclusion within the pharmacists’ monopoly would seem manifestly disproportionate , that is to say contrary to the principles laid down by ORG for the interpretation of LAW and CARDINAL of the LAW .

If pharmacists are granted a monopoly of other products , such as ‘ parapharmaceutical ORG , which may be of widely varying kinds , the need for such monopoly in order to protect public health or the health of consumers must , regardless of how the products concerned are classified under national law , be established in each individual case , and those CARDINAL aims must not be obtainable by measures less restrictive of intra - Community trade .

It is for the national court to decide , having regard to those criteria , whether the action before it is well - founded . " ( paragraphs DATE , CARDINAL and DATE )

ORG In the ORG judgment of DATE ( C-CARDINAL/CARDINAL [ DATE ] CARDINAL ECR DATE ) , ORG recalled that :

" It is for the national court to determine on a case - by - case basis the classification of each product having regard to its pharmacological properties as they may be ascertained in the current state of scientific knowledge , to the way in which it is used , to the extent to which it is sold and to consumers’ familiarity with it . " ( paragraph CARDINAL )

ORG Finally in the ORG judgment of CARDINAL DATE ( NORP [ DATE ] ECR CARDINAL ) , ORG held :

" ... a product recommended or indicated as having prophylactic or therapeutic properties is a medicinal product within the meaning of the provisions of the first subparagraph of LAW PERSON , even if it is generally regarded as a foodstuff and even if in the current state of scientific knowledge it has no known therapeutic effect .

The conduct , action and approaches of the manufacturer or the seller which disclose his intention to make the product he markets appear to be a medicinal product in the eyes of the averagely well - informed consumer may therefore be conclusive for the purposes of deciding whether a product should be regarded as a medicinal product by virtue of its presentation . " ( paragraphs CARDINAL and CARDINAL )

At the material time , the relevant provisions of LAW were as follows :

" ‘ Medicinal product’ shall mean any substance or combination of substances presented for treating or preventing disease in human beings or animals and also any product which may be administered to human beings or animals with a view to making a medical diagnosis or to restoring , correcting or modifying their physiological functions .

In particular , the following shall be considered as medicinal products :

products referred to in LAW :

which contain any substance having a therapeutic effect as defined in paragraph CARDINAL above ; or

containing a greater dosage or concentration of poisonous substances than that laid down in the list referred to in LAW , or containing poisonous substances which do not appear on that list ;

dietary products containing chemical or biological substances which are not themselves foodstuffs but which are added to dietary products , either to give them special properties which are sought after for the purposes of dietary therapy or to make them suitable for use in medical tests .

" Only pharmacists may ... :

( CARDINAL ) prepare medicinal products for use in the treatment of human beings ;

( CARDINAL ) sell , whether wholesale or retail , or otherwise supply the public with such products or articles ;

" Any person who knowingly carries out acts whose performance is restricted exclusively to pharmacists , without being qualified to act as a pharmacist shall be sentenced to a fine of between ORG CARDINAL,CARDINAL and ORG CARDINAL,CARDINAL and , if the offence is repeated , to a fine of between ORG CARDINAL,CARDINAL and FRF CARDINAL,CARDINAL and to a term of imprisonment of DATE , or to either of these penalties . "

ORG On the basis of the above provisions the courts have classified products as medicinal products by virtue of their function , by virtue of their presentation or by virtue of their composition .

ORG According to the information provided to the ORG , the courts sitting as tribunals of fact are divided on the question whether the products for whose sale the applicant was convicted are medicinal products within the meaning of LAW of LAW .

Thus vitamin C was classified as a medicinal product by ORG ( DATE ) , PERSON ( DATE ) , Angers ( CARDINAL DATE ) and GPE ( DATE in plenary session ) . However , decisions taking a contrary view were given by ORG ( DATE , DATE and DATE ) , ORG ( DATE ) , GPE ( DATE ) , ORG ( DATE ) and GPE ( DATE ) .

PERCENT strength alcohol was designated as a medicinal product by ORG of Poitiers ( DATE and CARDINAL DATE ) , Aix - en - GPE ( CARDINAL DATE ) and GPE ( DATE ) , but not by ORG of Dijon ( DATE judgments - and DATE ) , ORG ( DATE ) , GPE ( DATE and CARDINAL DATE ) and GPE ( DATE ) .

Mineral supplements ( oligo - éléments ) have been regarded as medicinal products by ORG of Poitiers ( DATE ) and ORG ( CARDINAL DATE ) , but not by those of GPE ( DATE ) , ORG ( CARDINAL May and DATE ) , ORG ( DATE ) and GPE ( DATE ) .

As regards CARDINAL-volume hydrogen peroxide and PERCENT or PERCENT strength eosin , the majority of the courts sitting as tribunals of fact consider that these products are mere hygiene products , for example , in respect of hydrogen peroxide , ORG of GPE ( DATE and CARDINAL DATE ) , GPE ( DATE ) and GPE ( DATE ) ; and , in respect of eosin , ORG of Dijon ( DATE ) and GPE ( DATE and CARDINAL DATE ) .

ORG To date ORG has always either upheld decisions classifying a parapharmaceutical - type product as a medicinal product ( judgments of DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE judgments - , CARDINAL DATE - see paragraph CARDINAL above - and DATE ) , or quashed decisions refusing to accord this designation to such products ( judgments of CARDINAL DATE judgments - , CARDINAL DATE , DATE - plenary court - , CARDINAL DATE - CARDINAL judgments ) .


Violation of P1-1;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

ORG and Highways ( PERSON ) , a ORG body responsible , inter alia , for motorway construction , expropriated CARDINAL plots of land belonging to the applicant in ORG in order to build a motorway . A committee of experts assessed the value of the land and the sum so fixed was paid to him when the expropriation took place .

Following the applicant ’s request for increased compensation , on CARDINAL DATE ORG of First Instance awarded him additional compensation of MONEY ( TRL ) ( MONEY ( ORG ) ) , plus interest at the statutory rate applicable at the date of the court ’s decision , running from DATE .

On DATE ORG upheld the judgment of CARDINAL DATE .

On DATE the administration paid the applicant TRL CARDINAL ( approximately ORG CARDINAL,CARDINAL ) in additional compensation , together with interest .

On DATE the decision of ORG was served on the applicant .

The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , § § CARDINAL - CARDINAL ) .


Violations of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

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

On DATE the applicant instituted proceedings for compensation in ORG ( “ the ORG ” ) against a private company , PERSON , for selling her a defective television set .

On DATE the case was transferred to the Kamenka - Dniprovskiy Local Court ( “ the Kamenka - Dniprovskiy Court ” ) .

On DATE the latter court found against the applicant . On DATE ORG ( “ the ORG ” ) quashed that judgment and remitted the case to the first - instance court for fresh consideration .

On DATE the ORG found for the applicant . On DATE ORG quashed that judgment and remitted the case to ORG for fresh consideration .

On DATE , following a decision by the President of ORG , the case was transferred to ORG ( “ the LOC ” ) .

On DATE the case was transferred to ORG , which , in a hearing on DATE , left the applicant 's claim unexamined . The applicant appealed .

On DATE ORG quashed the decision of DATE and remitted the case to the Kamenka - Dniprovsky Court for fresh consideration .

On DATE the case was transferred to ORG , which on DATE left the applicant 's claim unexamined . On DATE ORG quashed that decision and remitted the case for fresh consideration to the same court .

On DATE ORG left the applicant 's claim unexamined . On DATE ORG upheld that decision . On DATE ORG quashed the decisions of the lower courts and remitted the case for fresh consideration to the first - instance court .

On DATE ORG allowed the applicant 's claim in part , awarding her CARDINAL NORP hryvnias ( ORG ) in compensation for pecuniary and non - pecuniary damage .

On DATE ORG upheld that judgment with minor amendments .

The applicant did not appeal in cassation to ORG .

In DATE insolvency proceedings were initiated against the defendant company .

The judgment of CARDINAL DATE remains unenforced .

On DATE ORG of ORG ( ORG виконавчої служби міського управління юстиції в PERSON області – “ the Bailiffs ' Department ” ) initiated enforcement proceedings in respect of the judgment of CARDINAL DATE .

ORG did not enforce the judgment and the applicant complained to ORG , which , by judgments of CARDINAL January , DATE and DATE and DATE , found ORG liable for the failure to enforce the judgment of CARDINAL DATE .

Following the reorganisation of the ORG mechanism for enforcing judgments , ORG Departments were closed down without legal successors . ORG were created as the new enforcement bodies ( see Relevant Domestic Law below ) .

In DATE the applicant instituted proceedings against the newly created ORG ( Державна виконавча служба у м. Енергодар – “ the Bailiffs ' Service ” ) in ORG , seeking compensation for the damage caused as a result of the failure to enforce the judgment . On DATE the court ordered that ORG , which no longer performed any functions but remained in the ORG register of legal entities , should be joined as a co - defendant in the case .

On DATE ORG granted the applicant 's claims in part and awarded her UAH CARDINAL in compensation for non - pecuniary damage caused by the non - enforcement of the judgment , to be paid by ORG . It dismissed all her claims against the newly created ORG as it had not been found liable for the non - enforcement of the judgment in the applicant 's favour .

On DATE , ORG was finally liquidated and removed from the ORG register of legal entities .

On DATE ORG examined the applicant 's appeal and found that the first - instance court had made a correct assessment of the legal relationship between the parties . It further quashed the judgment in the part awarding the applicant LAW against ORG and nullified the proceedings in this part on the ground that ORG had been liquidated without a legal successor .

On DATE ORG rejected a request by the applicant for leave to appeal in cassation .

The relevant provision of the LAW provides as follows :

Article CARDINAL

“ ... Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of bodies of ORG power , bodies of local self - government , officials and officers ... ”

The relevant provisions of the LAW provide as follows

LAW Grounds for nullification of the proceedings

“ CARDINAL . A court shall , by its ruling , nullify the proceedings , if :

CARDINAL ) a legal person that was a party to the proceedings has been liquidated . ”

In DATE ORG was restructured under Decree No . CARDINAL of ORG of DATE and the Act of ORG of DATE “ on introducing amendments to ORG and LAW ” . The above government decree specified that new bailiffs ' services were to be created in place of the bailiffs ' departments of ORG .

In implementing this restructuring , ORG issued Order No CARDINAL of DATE , and this was followed by orders of the regional departments of justice . ORG of Justice issued such an order on DATE ( Order No . CARDINAL ) . Under the orders the bailiffs ' departments were liquidated without legal successors and the new bailiffs ' services were created in their stead as new legal persons .