CASE OF FALTER ZEITSCHRIFTEN GMBH v. AUSTRIA (No. 2)

Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information)

Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

NORP The applicant company is the owner and publisher of the DATE newspaper Falter .

On DATE the Wiener Neustadt Regional Court , sitting as a court with CARDINAL professional and CARDINAL lay judges ( ORG ) under Presiding Judge PERSON , acquitted PERSON , a security officer at ORG , of a charge of raping PERSON , an asylum seeker from GPE , basing its ruling on the principle of in dubio pro reo .

The reasoning of the judgment contained the following passage :

“ Lastly , the statement made by witness PERSON during her examination [ recorded on video tape in a separate room – kontradiktorische Einvernahme ] , to the effect that she had previously been engaged in prostitution in her country of origin , allows inferences to be drawn with regard to the statement by the accused [ P. ] that the witness might have become involved with him because she expected DATE for whatever reason – to gain some advantage . ”

NORP In issue no . CARDINAL of Falter , an article was published on page CARDINAL concerning the criminal proceedings against P. , which read as follows :

“ ‘ Sex with a nigger woman’

The courts : An asylum seeker lodges a criminal complaint alleging rape against a security officer . The case takes on a political dimension because it exposes conditions in the Traiskirchen centre . DATE only the victim is still before the courts . The chronicling of a judicial scandal .

PERSON

She thought she had made it to safety . PERSON ( name changed , ed . ) had been ill - treated by police officers in GPE , kicked by them in the abdomen and placed with CARDINAL other women in ‘ stinking , damp ORG for having demonstrated on behalf of her son , abducted by the authorities . She had survived her escape on a container ship , during which she ‘ nearly went mad’ because in mid - ocean she ‘ no longer knew whether it was TIME or day outside’ . Finally , after a lorry journey lasting DATE , she found herself in GPE , where all at once , she was ‘ surrounded by white people’ . She thought she was safe . Her case was so well documented that GPE , in the form of the normally very strict ORG , granted her asylum quickly and without red tape .

But then this country revealed its other side . PERSON , DATE , a well - groomed businesswoman and mother of CARDINAL , holds on tight to her handbag during the interview and breaks down in tears repeatedly , says her life is a mess [ and that ] she can no longer trust the authorities here because they treat her like a liar and a prostitute .

PERSON B. caused a media stir DATE when she became the first asylum seeker to lodge a complaint against a blind - drunk security officer who she claims abused his authority in the FAC centre in order to rape her . Now she faces trial for defamation . A few fellow NORP , as well as the campaigning lawyer PERSON and his colleague PERSON , are continuing to stand by her . ‘ Otherwise I would have killed myself’ , says PERSON .

It ’s difficult to know where to begin in this case . With the then ORG Minister ORG who , while the proceedings were in progress , told ORG that the woman ’s accusations were ‘ unfounded’ ? With the company ORG , engaged by him , which ostensibly ran the centre on a much smaller budget than ORG , but in fact used subcontractors employing drunken nightwatchmen who had to be dismissed for sexual assault ? With centre director PERSON , who later commented on the attacks in the washrooms of the women ’s quarters by telling the court : ‘ According to our information such incidents are very common and no one thinks anything of them’ ? Or with Judge PERSON , who at the end of the drama would no longer ‘ refute’ the suggestion that PERSON was just a ‘ prostitute’ – although not even the accused security officer claimed that that was the case ?

Spring DATE . With a thousand asylum seekers , PERSON is hopelessly overcrowded . CARDINAL arrive DATE . ORG is coming under political pressure and discredits ORG . Security officers at the centre later state in court that female asylum seekers could be paid for quick sex . They also tell of pimps rolling up to the centre in their cars . The sexual exploitation seems to have been unbearable . In a series of articles for profil , a female journalist published an email and statements from several women complaining of sexual assaults by security staff . ‘ Please help us!’ pleaded the women . ORG stated at the time that the police were confronted with a ‘ wall of GPE .

At that time PERSON from GPE demanded an interview with the head of the PERSON [ branch of the ] ORG . She placed a pair of torn red underpants on the interview room table and described ‘ through her ORG how a drunken security officer had pursued her for DATE , pointing to his uniform and threatening to have her thrown out of the centre and to slit her throat . TIME he had crept into the room , switched on the light and told her to go with him . PERSON , who had not yet been granted asylum and feared his authority , wrapped a towel around herself and followed the uniformed officer into the office , where there was a bed and a roll of kitchen towel . He had prepared the kitchen towel for ‘ ejaculating PERSON , as he later admitted . ‘ At first I did n’t realise what the man wanted . I thought I PERSON done something wrong . But there in that room I realised that he was going to rape GPE , stated PERSON could smell the drink on his breath and did n’t dare cry out .

The practising NORP from GPE is called upon to describe the incident many more times in the most intimate detail , without contradicting herself . She describes with precision how the man locked the door and removed the key . She tells of the pains in her lower abdomen afterwards and how she washed herself with warm water for DATE . She immediately identifies the security officer in a photo . The officials record in the minutes that PERSON appears disturbed .

‘ We were in no doubt that it happened as she described it . The woman was intimidated and seemed very anxious’ , recalls ORG PERSON , who investigated the case , DATE in court . His statement , like that of the victim , is disregarded .

Disturbing errors occur . For the first interview in the interview room no trained interpreter can be found ; moreover , the traumatised woman is initially interviewed by a man . In TIME the police officers at times refer to PERSON not by her name but as ‘ the nigger woman’ . She is repeatedly linked to prostitution .

ORG , DATE , is interviewed as the presumed perpetrator . When first questioned the trained bricklayer with the thick moustache states : ‘ I did n’t have sex with the nigger ORG The next time his recall is more accurate : ‘ It ’s possible that I had intercourse with the nigger woman . I PERSON had CARDINAL and a QUANTITY of beer and QUANTITY of herb lemonade mixed with red wine.’ He claims it was entirely consensual . However , he does n’t recognise PERSON in a photo . Police officer : ‘ Could the woman have left the room if she ’d wanted to?’ Answer : ‘ No , only I had a key’ . Again the question : ‘ Did you pay the nigger woman for sexual intercourse?’ Answer : ‘ No way!’ Third [ interview ] record : ‘ I ’d noticed the nigger woman DATE before we had sex . I fancied her from the beginning . I went into her room and gestured to her to come out.’ According to him , she followed him out of her own accord , undressed in front of him , took hold of his penis , inserted it and then got dressed again . Then she disappeared for good DATE without making any demands . ‘ Maybe she thought she PERSON be given asylum ORG speculates the security officer . Something else occurs to him . He had offered to buy the woman a drink in the bakery DATE before . She had stroked his back and ‘ cosied up’ to him .

PERSON B. denies this version of events . She says that she had other things on her mind at the time . She is not a whore . She felt repelled by this fat man with a moustache who smelled of alcohol , she was afraid of him . Also : if she had really been hoping to be granted asylum , why would she then have defamed the security officer ?

Next to take the witness stand are the employees of the bakery . The first to be examined is saleswoman PERSON : ‘ She gave him a kiss . She was fairly young , I ’d say CARDINAL . The CARDINAL of them were talking quietly . I could n’t describe the woman.’ When confronted with PERSON says : ‘ I ’m not quite sure whether it ’s her.’ At the second confrontation DATE she suddenly says : ‘ Yes , that ’s her!’ She has something else to get off her chest : ‘ I have to say that we ’re losing a lot of customers because of NORP . It ’s bad for business!’ Likewise the second saleswoman . The first time she gives evidence : ‘ I ’m not PERSON . The second time : ‘ I ’m CARDINAL per cent certain.’

PERSON B. is DATE and speaks neither NORP nor LANGUAGE – only NORP . The quiet talk described could not have taken place . CARDINAL detail , however , is never mentioned : at the time , the bakery was delivering CARDINAL of bread rolls to the reception centre .

ORG , which sees the NORP from ORG most often in connection with drug dealing , wants to discontinue the proceedings on the basis of the statements by the bakery employees . PERSON ’s lawyer , ORG , then brings a ‘ subsidiary private GPE ( PERSON ) before ORG . The victim can take over the role of the public prosecutor at his or her own risk . The unexpected happens : ORG finds in the woman ’s favour and orders ORG to prosecute the security officer . ‘ As the case file currently stands , both the factual element of the offence of rape and the element of coercion appear to be made out beyond PERSON , states the judgment . According to the court , the bakery employees could not have identified PERSON .

The trial with judges and lay assessors before ORG does not last long . No evidence is taken either from other asylum seekers or from the female staff in DATE . Judge PERSON acquits the security officer . Of course , if she has doubts as to the defendant ’s guilt , she has to do so . But this judge and her lay assessors are in no doubt as to the woman ’s guilt . They have unfinished business with the NORP woman and attribute the basest intentions to her – without furnishing any proof . The reasoning is diametrically opposed to that of ORG : ‘ It can not be established that the accused performed sexual intercourse against the will of PERSON And what of the statements of the bakery employees , called into question by ORG ? ‘ Clear proof’ that PERSON had also been lying about the sexual encounter . The fact that the bakery employees got her age wrong by DATE ? ‘ The difficulty of correctly estimating the age of persons with a different skin colour is known to the courts.’ And the constantly changing replies of the security officer ? ‘ He is a very simple man’ and it therefore spoke in his favour ‘ that he himself admitted that intercourse with the witness was not easy to achieve.’ The ‘ black African’ on the other hand , appeared ‘ very confident’ , with the result that ‘ it is hard to imagine that she could have felt so intimidated by the accused , who appears somewhat unsure of himself , that she left her quarters against her will.’ And what of the only piece of physical evidence , the torn red underpants ? ‘ These have no evidentiary value’ according to Judge PERSON Why not ? Because the accused said that the underpants had been ‘ GPE .

Not another word from the detectives who had been faced with a crying , completely intimidated woman . No mention of the fact that the security officer himself admitted locking PERSON in [ the room ] and removing the key . Not a single line about the predicament in which female asylum seekers found themselves at the time . Complete understanding , on the other hand , for the accused : ‘ The accused ’s objection that the woman may have hoped , since her asylum claim had not been decided , to obtain NORP citizenship by marrying him , has not been completely PERSON . Even if this were true , why would she then lodge a complaint against him DATE ?

The judgment fails to give rise to a scandal . ‘ Flirtation in Traiskirchen’ runs the title in the PERSON . Then , what women ’s shelters have been complaining of for years happens : the woman becomes the presumed perpetrator . With the approval of ORG Minister PERSON , the principal public prosecutor ’s office institutes preliminary proceedings for defamation . PERSON must appear before the investigating judge ‘ or be brought by force’ . She could face DATE in prison . ‘ That ’s just routine , nothing ORG says a ORG spokesman . According to principal public prosecutor P. : ‘ After [ the ] acquittal we have no choice but to initiate proceedings.’

Justice Minister PERSON has promised to do more to protect the victims of crime . She should study this case . She is the highest - ranking public prosecutor . She has the right to give instructions . She bears the political responsibility if this woman , in addition to everything else , faces charges . ”

Subsequently , Judge PERSON brought an action for defamation against the applicant company under section CARDINAL of LAW and LAW , and requested that the applicant company be ordered to pay compensation and retract the following statements made in the article , which she claimed amounted to a statement that she had grossly misused her office as a judge :

“ Judge PERSON alleges that the asylum seeker had immoral motives . ”

Judge PERSON alleges in the judgment – without giving any reasons – that the asylum seeker was driven by the basest motives .

“ Judge PERSON acquits the security officer . Of course , if she has doubts as to the defendant ’s guilt , she has to do so . But this judge and her lay assessors are in no doubt as to the woman ’s guilt . They have unfinished business with the NORP woman and attribute the basest intentions to her – without furnishing any proof . ”

Judge PERSON had no doubt about the woman ’s guilt .

The judge ignored relevant evidence and delivered a scandalous judgment ( “ The judgment fails to give rise to a scandal . ” )

On DATE the first hearing in the defamation proceedings was held . The applicant company argued that the impugned statements were true and sought to prove the truth of those statements by asking the court to call several witnesses and admit as evidence the files of the proceedings concerning PERSON ’s asylum request and the criminal proceedings against PERSON It considered that by publishing the impugned statements it had merely expressed criticism , protected by the freedom of speech , which had not concerned the acquittal itself but rather the way in which the victim of the crime had been treated in the written version of the judgment , which had neglected important evidence and had accused the victim , PERSON , of having been a prostitute .

NORP In DATE the applicant company sought the disqualification of Judge PERSON , the judge assigned to the media proceedings , for bias . It submitted that the lawyer representing the claimant , PERSON , had also represented PERSON in the past in court proceedings . As Judge PERSON had to decide on a case in which her previous lawyer was acting as representative of CARDINAL of the parties , there was reasonable doubt that she would not decide the case objectively . The president of ORG dismissed the motion on DATE and held that the issue raised by the applicant was not sufficient to give rise to doubt that Judge PERSON would not decide the case objectively .

On DATE a further hearing was held in the defamation proceedings . The hearing was adjourned in order to hear CARDINAL witnesses proposed by the applicant company . ORG refused to hear other witnesses proposed by the applicant company , as it considered that those persons could not make any statements relevant to the proceedings . The applicant company had sought to call NORP , who had been PERSON ’s lawyer in the criminal proceedings , in order to clarify the meaning of statements that PERSON had given during her examination as a witness which had been recorded on video in order to prevent her as the victim having to face the accused ( kontradiktorische Einvernahme ) . This request was refused by ORG on the grounds that the transcript of PERSON ’s examination had been included in the case file and therefore no additional witness was required .

On DATE ORG held another hearing in the defamation proceedings in which it examined CARDINAL of the witnesses proposed by the applicant company . The third witness proposed did not appear . On DATE ORG found against the applicant company . It held that the impugned statements had constituted defamation under LAW and that PERSON was therefore entitled to compensation , which it set at MONEY ( ORG ) . It also ordered the applicant company to publish a summary of the judgment .

ORG found that the contents of the article had given a biased account of the taking of evidence at the trial of PERSON , taking the side of PERSON and characterising any statement of a witness which did not coincide with hers as lacking credibility . According to the article , the judge had acted arbitrarily and out of racist motives and had disregarded evidence produced , whereas the rape asserted by PERSON had been described as proven and the assessment of evidence by ORG as absurd . Such an account was not an objective critique of the judgment .

As regards the criminal proceedings against ORG , ORG observed that : ( a ) they had been discontinued by ORG ; and ( b ) upon a subsequent decision by ORG had been committed for trial ( PERSON in den LOC ) . Following CARDINAL hearings at which a total of CARDINAL witnesses had been heard , the tape recording of the questioning of the victim had been viewed in part by the court and a confrontation between CARDINAL witnesses and PERSON had taken place , the court had acquitted the accused .

In its judgment of CARDINAL DATE the court had found that it could not be excluded that the sexual intercourse which had taken place between PERSON and the accused had been consensual , in accordance with the version of events given by the accused and which had , to some extent , been corroborated by the statements of witnesses who had seen the accused and PERSON together in a coffee shop in town . PERSON ’s assertion that she had been the victim of an assault had not been excluded but because it contradicted the statements of witnesses it had been considered to be partially implausible . The accused had not therefore been acquitted because his innocence had been proven but rather on the basis of the principle of in dubio pro reo .

ORG also referred to one passage of the written judgment on which the article had put much emphasis , namely a reference to a statement by PERSON made in the course of her questioning as a witness to the effect that she had previously been engaged in prostitution in her country of origin , which the judgment stated had allowed inferences to be drawn with regard to the statement by the accused that the witness might have become involved with him because she expected DATE for whatever reason – to gain some advantage .

ORG found that the applicant company had not succeeded in proving the truth of the impugned statements . From the case file concerning the proceedings against PERSON and , in particular , the written version of the judgment it appeared that Judge PERSON had dealt with all the evidence taken and had assessed each item of evidence extensively . Therefore , it could not be established that Judge PERSON had made base insinuations ( üble DATE ) or disregarded evidence . The judgment had clearly indicated the court ’s reluctance to accept the version of events given by PERSON also . In addition , the indication of PERSON having been a prostitute in the past had been based on a statement from the questioning of that witness and had not been made up out of thin air . The relevant part of the transcript in question read as follows :

< Original >

“ PERSON : PERSON . Er sagt aus : “ i m FAC . CARDINAL gibt es Frauen die auf den PERSON gehen . ” PERSON was PERSON ?

Zeugin : PERSON , ich nicht , nein . PERSON ich es nie gewagt . ”

< LANGUAGE translation >

“ Investigating judge : There is CARDINAL witness . He said : “ at no . CARDINAL there are women who walk the streets . ” Do you know anything about it ?

Witness PERSON : No idea , not me , no . Since leaving my country I have n’t dared it . ”

An error in the translation of that statement could not be excluded , but that did not allow the conclusion that there had been no basis in the file for the above finding of Judge PERSON

The accusation that a judge , who was under the duty to act objectively and impartially , had without any factual basis and out of racist motives deliberately disregarded evidence in order to acquit an accused from the same country ( inländischen ORG ) had to be qualified as defamation and there was hardly a more severe accusation which could be levied against a judge . The term scandal of justice was a value judgement , which , however , was based on assertions of fact which had been disproven in the proceedings .

Insofar as the applicant company had relied on LAW , ORG referred to the case of GPE and PERSON v. GPE ( DATE , Series A no . CARDINAL ) , and observed that the press had the right and the duty to impart information on matters of public interest , including questions concerning the functioning of the justice system , and to criticise any shortcomings found , but in doing so it had to be mindful of the special role of the judiciary in society . It was therefore necessary to protect public confidence in the judiciary against destructive attacks that were essentially unfounded . Taking these principles into account , the sharp critique of Judge PERSON in the impugned article , which had lacked any sufficient factual basis , had been excessive .

Taking the gravity of the attacks on the claimant ’s professional reputation , the broad public attention the article had received and the consequences it had had for the claimant , ORG found that the amount of ORG CARDINAL,CARDINAL in compensation was appropriate .

The applicant company appealed on DATE against ORG judgment . On DATE ORG dismissed the appeal and upheld the judgment . This judgment was served on the applicant ’s company lawyer on DATE .

Section CARDINAL of LAW ( Mediengesetz ) , as in force at the time of the events , read as follows :

“ CARDINAL ( CARDINAL ) If the factual elements of the offence of defamation ... are established in a medium , the person affected shall be entitled to claim compensation from the owner of the medium for [ any ] damage sustained . ...

( CARDINAL ) No claim shall lie under ( CARDINAL ) , if :

( ii ) in the case of defamation :

( a ) the statements published are true ;

Article CARDINAL of LAW ) reads as follows :

“ CARDINAL . Anyone who accuses another of having a contemptible character or attitude , or of behaving contrary to honour or morality , in such a way as to make the person concerned appear contemptible in the eyes of a third party or otherwise lower him in the public esteem , shall be liable to imprisonment not exceeding DATE or to a fine ...

Anyone who commits this offence in a printed document , in a broadcast or otherwise in such a way as to make the defamatory statement accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or to a fine ...

NORP The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . ”


The first applicant , Mr PERSON , and the second applicant , Ms PERSON , are a married couple and are both NORP nationals . They were both born in DATE and live in GPE ( Genoa ) . Before the ORG they stated that they were also acting on behalf of ORG ( the third applicant ) , a NORP national who was born on DATE and currently lives in GPE . The first CARDINAL applicants signed powers of attorney authorising PERSON and PERSON , lawyers practising in GPE , to represent them before the ORG . No power of attorney was signed either by the third applicant or by her statutory guardian .

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

In DATE the first CARDINAL applicants submitted a request to the non - governmental association ORG to put up a child from the area affected by the GPE nuclear disaster . On DATE the couple took in the third applicant for the first time . PERSON 's father was unknown , while her mother , who had been deprived of parental responsibility , was dead . PERSON , who had been declared eligible for adoption , was living in an orphanage ( PERSON ) in PERSON ( GPE ) .

ORG stayed with the first CARDINAL applicants on a regular basis , for DATE and DATE in DATE . The first CARDINAL applicants visited her in GPE for periods of DATE in between her trips to GPE . The couple maintained that they had spent DATE with ORG during DATE , developing a relationship similar to that between parents and their children .

On DATE ORG declared the first CARDINAL applicants fit for international adoption . However , they were unable to adopt ORG because in DATE GPE decided to suspend all international adoption procedures .

On DATE GPE and GPE signed a bilateral protocol in which GPE undertook to conclude , by DATE , CARDINAL adoption procedures pending with ORG . The first CARDINAL applicants instructed ORG association to take the relevant steps concerning their application for adoption , while continuing to look after PERSON for DATE . By DATE only forty adoption procedures had been dealt with by ORG .

According to the first CARDINAL applicants , whenever she arrived to stay with them , PERSON was bruised , had trouble sleeping and her behaviour was bordering on autistic . Those disorders would subside once the child had spent a certain amount of time in GPE , but would reappear as the date of her return to GPE drew nearer . This was confirmed by a report issued on DATE by a psychologist , PERSON , who found , among other things , that the symptoms in question appeared to “ demonstrate the child 's extreme suffering as a result of her precarious situation and highlight[ed ] the urgent need to provide her with stable living conditions among the family who have de facto adopted her ” .

Furthermore , in DATE the first CARDINAL applicants had noticed cigarette burns on ORG 's abdomen . Having been advised not to report the matter to the NORP authorities , they simply informed the director of the PERSON orphanage . In DATE PERSON told the second applicant that the oldest boy in the orphanage had forced her and other girls to join in a game in which the girls had been undressed , tied up , kissed and bitten . According to a report drawn up on DATE by PERSON , although the acts of violence suffered by ORG “ were not explicitly connected by her to the sphere of sexuality , they at least caused a state of confusion regarding displays of affection ” .

Before leaving for DATE , ORG allegedly told the second applicant on the telephone that she had found a way to remain in GPE : killing herself and becoming an angel . The personnel responsible for taking PERSON from the airport to the first CARDINAL applicants ' home confiscated razor blades in ORG 's possession . According to the first CARDINAL applicants , she was intending to use them to commit suicide . PERSON subsequently attempted to drown herself , but her plan was thwarted when other people intervened .

During DATE , ORG told the second applicant that on several occasions she had been undressed , tied to a chair or bed , burned with cigarettes or lighters and forced to have oral or anal intercourse . The first CARDINAL applicants suggested that PERSON visit another NORP child named PERSON , who was born on DATE and was staying with a family in the GPE region . PERSON reacted hysterically to that suggestion . She then explained that in the PERSON orphanage she had been sexually abused by several people , including PERSON . It appears that PERSON confirmed that fact . In a report drawn up on DATE Dr B. found the CARDINAL children 's versions of events to be credible . He added that ORG 's suicidal fantasies were not the result of depression but an expression of the child 's “ magical thought ” in response to her feeling of helplessness .

A file on the matter was opened by the GPE public prosecutor 's office . A gynaecological examination performed on ORG on DATE revealed slight abnormalities and a doctor noted the presence of “ multiple haematomas [ resulting ] from bruising ” to the child 's thorax and abdomen . It was suggested that ORG undergo therapy .

On DATE the first CARDINAL applicants applied to ORG to adopt ORG

In an order of CARDINAL DATE , the text of which was deposited at the registry on DATE , ORG refused the application . It observed that international adoption was subject to an adoption order by the NORP authorities . The court added that the information of which it had been made aware might have justified urgent measures under LAW and CARDINAL of LAW of DATE ; however , such measures already formed the subject of separate proceedings . In any event , the NORP authorities had to be informed of the need to conclude adoption procedures as a matter of urgency where children had been materially and morally abandoned .

In the meantime , in a memorandum of CARDINAL DATE ORG had expressed strong concern about the “ improper conduct ” of NORP families seeking to keep NORP children with them . It added that hearings held in the absence of official representatives of the children 's interests ( a ORG - appointed guardian and the NORP Consul ) were unlawful , and demanded PERSON 's immediate repatriation . It also stated that the conduct referred to above was jeopardising the implementation of joint humanitarian projects .

On DATE ORG asked ORG to order the immediate repatriation of ORG In an appended note ORG criticised the judicial decisions taken by the NORP authorities as being liable to undermine relations between GPE . It asserted that the children had been placed under psychological duress by the host families . If a decision to place ORG in the care of an NORP family had been taken , ORG demanded that it be revoked .

On DATE ORG ordered that ORG be entrusted to the care of ORG , which was to maintain her placement with the first CARDINAL applicants . The court also instructed the ORG social services and the mental - health and neuropsychiatry departments to “ assume responsibility for the child 's situation through assessment , diagnosis and treatment ” . In addition , ORG was to submit a report by DATE .

The court observed in particular that there was strong evidence that ORG had been subjected to “ sexual and other forms of violence ” at the PERSON orphanage . Furthermore , as indicated by reliable sources , the child 's behaviour gave rise to fears of serious and irreversible consequences if she was not given “ immediate therapy ” . Accordingly , measures for her protection were required pursuant to LAW .

On DATE V. met CARDINAL NORP doctors at ORG offices . According to a report by ORG head of social services , ORG arrived at the meeting in the second applicant 's arms and showed signs of stress as soon as the applicant had gone away . PERSON stayed close to the NORP staff , gave very brief replies to the questions and sometimes spoke in NORP . She firmly refused to take her clothes off .

In a memorandum dated DATE ORG provided ORG with a “ comprehensive psychological , educational and medical rehabilitation programme ” for ORG The programme , approved by ORG , was to be carried out at ORG in GPE . ORG undertook to inform the NORP Government periodically of the progress of ORG 's rehabilitation .

The programme in question contained a CARDINAL - page description of the recreational and sports activities planned for ORG , her diet , the health checks and psychological counselling she would receive , and the persons responsible for each stage of her rehabilitation .

In a memorandum dated DATE ORG informed ORG that the NORP authorities had taken urgent steps to clarify the situation in the PERSON orphanage . They undertook to keep ORG informed of the outcome of their enquiries . ORG would be placed in a specialist rehabilitation centre , thus avoiding a return to the orphanage in question . In addition , a medical and psychological rehabilitation programme had been devised and ORG had been notified of its contents . GPE would be informed of any developments in the programme .

Moreover , NORP medical specialists had examined ORG and had ruled out the possibility that her repatriation might affect her physical or mental health . She would be accompanied on the journey by specialist personnel .

In the light of the above factors , ORG considered that there was no objective justification for PERSON to remain in GPE . It requested the NORP authorities to take action by DATE . Failing that , GPE would be obliged to suspend international adoptions with GPE and programmes for visits there by NORP children .

Before the ORG , the applicants produced a document dated DATE by which ORG had forwarded to ORG the memorandum of DATE from ORG . The document of DATE read :

“ Ministry of Justice PERSON The Minister 's Office

N. CARDINAL/CARDINAL ORG , DATE

To ORG To ORG PERSON For information : to ORG For information : to ORG For information : to ORG information : to ORG attached to ORG

Re . : Transmission of memorandum no . CARDINAL dated DATE from ORG

For information , and fully respecting the powers of [ your ] judicial authority , we hereby forward you memorandum no . CARDINAL/CARDINAL sent DATE to [ our ] Ministry by ORG concerning the cases of the children ... and [ ORG ] , [ who are the subject ] of proceedings pending before the ORG and ORG .

The memorandum , after recapitulating the requests made by the above judicial authorities , which have apparently been fully satisfied , mentions the possibility of suspending international adoptions with GPE and programmes for the rehabilitation ( risanamento ) of NORP children [ in GPE ] if the CARDINAL children are not returned to GPE by DATE .

In order to facilitate communication with ORG in GPE and with the authorities to which this [ memorandum ] is being forwarded for information , notification of the decisions taken is expected forthwith . ”

The President of ORG replied to the above letter on DATE . He stated that ORG had on several occasions contacted ORG , which had always informed them of any decisions . The court was aware of the sensitive nature of the matter . On account of ORG 's state of health , the court had entrusted her to the case of ORG . That decision had not been taken in connection with an adoption procedure ; on the contrary , an application for the child 's adoption under LAW no . CARDINAL ( adoption in special cases ) had been rejected . The reply by the President of ORG further stated :

“ As soon as her health allows , in the opinion of the medical team looking after her , the child will return to GPE , with due regard to the relevant provisions and the relations between GPE .

It should also be noted that the letters we have been sent by the ORG sometimes employ surprisingly peremptory language and indicate some confusion between the issue of adoption and the urgent procedures followed in accordance with ORG CARDINAL and CARDINAL of LAW of DATE , cited above .

While it is aware of the serious implications referred to in the memorandums from ORG , the court is clearly unable to order the transfer of a child against the appropriate medical advice . ”

According to a report drawn up on DATE by a child neuropsychiatrist , PERSON , PERSON was very tense and anxious about her possible repatriation , which she viewed in dramatic terms , mentioning suicidal intentions . She had said that she had been sexually abused in GPE by boys aged DATE who had found their way into the orphanage . PERSON showed that she had a deep relationship of trust with the first CARDINAL applicants , whom she regarded as her own parents . In her opinion , her family was in GPE . PERSON considered it necessary to continue the sessions with the child . Although she was probably fit to be “ transported ” in physical terms , she was not psychologically fit , because the frustration of her expectations was likely to cause trauma that would be difficult to overcome , resulting in permanent damage to her psychological and emotional stability .

In a note of DATE to the President of ORG , ORG attached to ORG stated that , while it appreciated and accepted the court 's decision and the initiatives taken by the NORP authorities to protect ORG , it wished to “ offer the broadest , most practical means of cooperation to facilitate the repatriation ” of ORG After confirming the NORP authorities ' consent to ORG 's being accompanied by an NORP doctor , the commission said that it was awaiting “ notification of the decisions taken by the court as regards the steps to be taken to ensure the child 's repatriation on the scheduled date ” .

In an order of DATE , the text of which was deposited at the registry on DATE , ORG set aside its decision of DATE . It stated that the first CARDINAL applicants were authorised to accompany ORG on her journey back to GPE or , failing that , to join her there and remain , with the local authorities ' consent , for “ as long as was deemed appropriate ” . Lastly , the court asked ORG , ORG to inform it periodically of any developments concerning the child 's treatment and compliance with LAW in her case .

The court observed firstly that the NORP authorities had devised a detailed programme of treatment for ORG , making it possible for her , at her request , to stay in contact with the first CARDINAL applicants . In addition , GPE had undertaken not to prevent the first CARDINAL applicants and NORP doctors from entering and staying in its territory . Accordingly , the NORP authorities were under an obligation to cooperate with their NORP counterparts in the child 's best interests as guaranteed by LAW , to which both GPE were parties . The court observed at the same time that ORG was “ physically fit ” to travel to GPE , but that her immediate separation from her host family and doctors might cause her psychological trauma .

On DATE the first CARDINAL applicants were contacted by the ORG carabinieri , who reproached them for failing to attend an appointment scheduled for ORG 's repatriation . According to the applicants , they had not been informed of the order of DATE , which was not served on their lawyer until DATE . They also refused to disclose ORG 's whereabouts , for her own protection . Proceedings were instituted against them for false imprisonment of a minor .

On DATE ORG directed that PERSON was to be found as soon as possible and placed in a care home for as long as was strictly necessary to arrange for her repatriation . In addition , it prohibited PERSON from being entrusted to the care of anyone other than the persons indicated by the NORP authorities , and confirmed that she should be accompanied to GPE by PERSON and PERSON

On DATE the first CARDINAL applicants appealed against the order of DATE . They sought a stay of execution of the decision in issue , which was immediately enforceable .

On DATE the carabinieri found PERSON in PERSON , in the company of the first CARDINAL applicants ' mothers . She was transferred to an institution run by nuns in GPE . The first CARDINAL applicants were initially not told the name of the institution and were subsequently not allowed to contact PERSON

According to the first CARDINAL applicants , pressure was put on them by the ORG Secretary for ORG and the ORG of PERSON ( who claimed to be acting on behalf of the Minister of Justice ) to withdraw their appeal .

The hearing in ORG was held on DATE . The representative of GPE asserted that it was no longer possible for ORG 's repatriation to take place under the conditions initially set by ORG ; in particular , the first CARDINAL applicants could not accompany ORG or keep in contact with her .

According to the applicants , at the end of the hearing ORG informed their lawyers that the decision would be delivered “ in DATE ” . It did not rule on the first CARDINAL applicants ' request for a stay of execution of the order appealed against .

On DATE at TIME , accompanied by PERSON and PERSON , was taken by taxi to FAC . She was escorted by a car with carabinieri inside . According to the first CARDINAL applicants , the taxi driver said that ORG had been screaming and crying throughout the journey .

On DATE at TIME the first CARDINAL applicants discovered on television that ORG had been transferred to the airport . They went to the airport , together with their lawyers . They also contacted CARDINAL other lawyers from GPE – their representatives before ORG asking them to submit a request for interim measures under LAW . The request was duly submitted but it arrived at ORG at TIME , by which time ORG was already on board the aircraft bound for GPE . The applicants subsequently withdrew their request , which the ORG was therefore not required to examine .

The first applicant was initially informed that a flight for GPE had taken off at TIME In fact , the flight , with ORG on board , did not leave PERSON until TIME After a stop in GPE , it continued its onward journey to GPE at TIME

On DATE at TIME ORG deposited with the registry an order by which it dismissed the applicants ' appeal . It appears from the case file that that decision had been adopted on DATE .

ORG observed that the order appealed against had been made by ORG in an unusual factual context . In particular , on DATE ORG had sought ORG 's repatriation . When interviewed the following day by the ORG carabinieri , she had stated that she had been subjected to violence in her own country and did not wish to return there . Furthermore , on DATE ORG had noted , among other things , that ORG showed signs of “ profound psychological suffering ” . On DATE V. had been examined by CARDINAL NORP doctors , in the presence of NORP specialists including a psychologist . She had replied to the questions in NORP and had refused to take her clothes off ; as a result , only a superficial and external examination had been possible .

ORG had then stated that the programme of treatment devised for ORG was in her interests and that any refusal to repatriate her would have “ serious repercussions ” for relations between the CARDINAL countries as regards visits by NORP children to stay with NORP families . At the same time , ORG had suggested extending ORG 's stay in GPE , stating that it was willing to provide the necessary assistance to that end . The neuropsychiatrist who had treated PERSON had said that the sudden removal of the child from what she regarded as her own environment would entail serious risks .

ORG explained that under the relevant provisions of NORP law , guardianship of ORG was assumed by the director of the institution in which she had been placed .

The first CARDINAL applicants had agreed , as part of a cooperation scheme between GPE and many other GPE , to take in a foreign child for DATE , for humanitarian purposes . Contact with the foreign care homes had been arranged by non - governmental organisations . ORG had stayed CARDINAL times with the first CARDINAL applicants , a couple who had been declared fit to adopt a foreign child . PERSON had developed excellent relations with the couple in question , to such an extent that she wished to remain in GPE with them and saw them as her “ parents ” . Indeed , such aspirations were fairly common , since it was natural for children who did not have a family and came from less wealthy countries than GPE to find that NORP couples gave them the comfort and affection they needed . Difficulties thus frequently arose when the time came for the children to return to their own country .

In the instant case , the ties between ORG and the first CARDINAL applicants were especially intense and this deep attachment , when set against her troubled experiences in the orphanage , had caused the child to attempt suicide in order to avoid being repatriated .

Those tribulations had aroused strong reactions among the public , but that did not mean that the legal context of the present case could be disregarded . ORG 's trips to GPE had not been intended to provide her with a new family . If the first CARDINAL applicants had wished to take steps to that end , they should have applied to adopt ORG in accordance with the procedure set out in the protocol between GPE and GPE . Failing that , their position was that of assistants to the institution in which ORG had been placed . In such circumstances , they lacked the capacity to appeal against ORG decision , which could have been challenged only by the institution in question , PERSON 's guardian or ORG office . The first CARDINAL applicants did not have any parental responsibility over PERSON and were therefore not “ parties ” to the judicial proceedings concerning her .

That fact would have been sufficient to dismiss the appeal . However , in view of the media attention attracted by ORG 's story , ORG considered it necessary to point out that , even assuming that the first CARDINAL applicants had had locus standi , their allegations could not in any event have been upheld .

ORG was competent to order measures to protect ORG under LAW , provided that the child was in NORP territory and in danger . The NORP judicial authorities ceased to have jurisdiction once GPE had taken the “ steps demanded by the situation ” . This was borne out by case - law of ORG ( judgment no . CARDINAL of DATE ) . The relevance and sufficiency of the measures taken by the NORP authorities could be assessed by the NORP courts from a formal standpoint only ; moreover , the courts in question had rightly adjourned consideration of the situation until the experts responsible for examining ORG had submitted their conclusions .

Nevertheless , under LAW on the Rights of the LAW , all children were entitled to receive such care as was necessary for their well - being and to live in conditions guaranteeing their balanced development . In order to observe those principles , ORG had a duty to ensure that ORG 's repatriation would not be traumatic and that the psychological aspect had been taken into account .

In the instant case ORG had laid down appropriate arrangements for the child 's repatriation and GPE and GPE had concluded agreements on that basis . ORG thus reaffirmed that CARDINAL NORP specialists should have “ planned ” the repatriation in conjunction with their NORP counterparts . The first CARDINAL applicants could have been involved in such cooperation in ORG 's interests , in accordance with the procedure suggested by ORG for further elaboration by the NORP and NORP central authorities .

It was true that GPE had stated that it was “ not very receptive ” towards the first CARDINAL applicants ; that , however , was not a factor that could alter ORG conclusions . It had not proved necessary to interview ORG , seeing that she had already been interviewed and made her wishes clear . Summoning the child would have caused unnecessary trauma at a later stage .

ORG stated , lastly , that during the drafting of the statement of reasons for its order , it had learned informally that ORG had already been repatriated on the initiative of the NORP authorities , under different conditions from those set out by ORG . ORG new order , adopted after the first CARDINAL applicants had failed to hand over PERSON , was said to have justified that act . ORG , before which only an appeal against the order of DATE had been brought , was unable to make an assessment in that regard .

On DATE the doctors who had accompanied GPE to GPE returned to GPE . They submitted a report to ORG stating that the child was in good psychological and physical health . The report was not sent to the first CARDINAL applicants , who learned of its contents through the media . On DATE they asked to be given access to it and to make copies , but their request was refused by ORG on the ground that ORG decision indicated that the first CARDINAL applicants did not have locus standi in the proceedings concerning ORG 's repatriation .

According to information supplied by the first CARDINAL applicants on DATE , they had not received any news from the NORP authorities by that date as to ORG 's state of health and had been unable to contact her , even by telephone . “ Indirect ” information had reached them through the NORP authorities . In addition , the director of the orphanage in PERSON had stated that ORG 's allegations of being ill - treated in his institution were false . Accordingly , ORG would be able to return to the orphanage in question after completing her psychological and educational rehabilitation programme .

Following a request by ORG , the first CARDINAL applicants submitted fresh information on DATE as to ORG 's circumstances . They stated that , since lodging their application , they had had no contact with the child and had not received any news of her health . However , they had learned through the media that PERSON was living with PERSON and PERSON , QUANTITY from GPE . The PERSON family were also looking after PERSON 's DATE brother , PERSON authorities had apparently given the first CARDINAL applicants cause to hope that they might be able to adopt ORG The newspapers had also reported that ORG had been given assurances about her return to GPE , which was said to be imminent . However , the first CARDINAL applicants were not in possession of any evidence that steps to that end had been taken by GPE . In addition , on several occasions PERSON had apparently reiterated her desire to live in GPE with the first CARDINAL applicants .


Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger

The applicant was born in DATE and lives in GPE .

In DATE the applicant started to study food chemistry at ORG . He obtained a certificate in mathematics in a re - examination in the second term . In his intermediate examination , accomplished in his CARDINALth term of studies , he failed examinations in chemistry . A re - sit was scheduled for DATE .

On DATE the applicant was attacked and robbed by CARDINAL masked and armed men . He subsequently underwent psychological treatment for post - traumatic disorders .

On DATE the applicant applied for compensation under LAW ( NORP , see “ Relevant domestic law ” below ) . On DATE ORG Versorgungsamt ) found that the applicant was suffering from “ psychological reactive disturbances ” ( psychoreaktive ORG ) and that his earning capacity was reduced by PERCENT ( GPE PERSON ) . It established that he did not qualify for a pension because LAW only provided for a pension in cases where the earning capacity was reduced by PERCENT .

In DATE , following his failure to pass a re - examination at ORG , the applicant broke off his studies . He subsequently started and finished in DATE the study of food technology at ORG .

On DATE the applicant requested the withdrawal of the decision of CARDINAL DATE and the recognition that his earning capacity was reduced by PERCENT . A medical report was issued by PERSON on DATE .

On DATE the applicant asked for the proceedings to be suspended until he started to work again . On DATE the applicant ’s representative requested a review of the decision of CARDINAL DATE .

On DATE ORG submitted a medical opinion .

On DATE ORG rejected the applicant ’s request .

On DATE the applicant lodged an administrative appeal against the decision . On CARDINAL DATE the applicant was informed that , in the light of a fresh report , ORG intended to set aside the decision of CARDINAL DATE . On DATE the applicant ’s representative asked for the percentage as regards the reduction of earning capacity to be increased .

On DATE the Hildesheim Pension Office quashed the order of CARDINAL DATE .

On DATE ORG ( Landesversorgungsamt ) rejected the applicant ’s administrative appeal .

On DATE the applicant filed an action with ORG against the order of ORG and the order of ORG dated DATE .

Upon request by ORG two further medical statements were rendered by PERSON and a PERSON on DATE and CARDINAL DATE respectively . On DATE ORG appointed another expert , PERSON , to provide a new medical report . On DATE he submitted his report .

DATE three further neurological statements were delivered by PERSON on behalf of the defendant Land .

In his written submissions of DATE the applicant suggested that a new medical report should be prepared . On DATE the court asked the applicant to submit possible further written statements by DATE at the latest . It furthermore referred to LAW of FAC ( see “ Relevant domestic law and practice ” below ) . On DATE the applicant asked for a medical report to be prepared pursuant to LAW of FAC and moreover requested an extension of the time - limit for the naming of an expert . On DATE he asked the court to designate PERSON as expert . On DATE the court appointed the expert . His medical report dated CARDINAL DATE was received by the court on DATE . The expert found that the applicant was suffering not only from psychological reactive disturbances but also from a panic syndrome with agoraphobia and depressions .

Following further written pleadings by the applicant submitted to the court on DATE and CARDINAL DATE respectively and a further neurological statement rendered on DATE by PERSON upon the defendant ’s request , ORG acknowledged ( NORP ) on CARDINAL DATE that the applicant ’s earning capacity had been reduced by PERCENT DATE and by PERCENT DATE . This acknowledgement did not , however , fully satisfy the applicant ’s claims and he did not withdraw his action as to the remainder .

DATE and DATE the parties submitted further written pleadings . Another neurological statement by PERSON was submitted on DATE .

On DATE ORG rejected the remainder of the applicant ’s action . It found that on the basis of the extensive medical documentation a finding of a higher percentage as regards the reduction of earning capacity was not justified .

On DATE the applicant lodged an appeal with ORG .

With regard to the partial acknowledgment of CARDINAL DATE the competent authority issued on DATE an implementing order to retrospectively pay the applicant a sum amounting to some CARDINAL,CARDINAL euros ( ORG ) .

Following several written pleadings both issued by the applicant and the defendant in DATE , PERSON issued another medical statement at the court ’s request on DATE , received by the court on DATE . Dr B. submitted another neurological statement on CARDINAL DATE .

On DATE the applicant ’s lawyer requested the court to expedite the proceedings .

On DATE ORG appointed PERSON to draw up a psychiatric expert report . The following day , on DATE , the applicant again requested to expedite the proceedings .

On DATE the Federal Constitutional refused to admit the applicant ’s complaint about the refusal of ORG to decide upon his appeal . The decision was served to the applicant ’s lawyer on DATE .

On DATE PERSON submitted the expert report . On DATE , upon the court ’s request , she supplemented it . On DATE and CARDINAL DATE respectively PERSON issued further neurological statements .

On DATE ORG appointed PERSON to draw up a further report opinion , which the court received on DATE . The expert found that the applicant was suffering not only from psychological reactive disturbances but also from a panic syndrome with agoraphobia and depressions and from chronic lumbago .

A hearing scheduled for DATE was subsequently postponed ; the reason for this is disputed between the parties .

On DATE the defendant Land acknowledged the impairments to the applicant ’s health as found by Dr P .- W. and assessed that his earning capacity was reduced overall by PERCENT and by PERCENT as from DATE . The applicant accepted the acknowledgment on DATE but upheld his claim as to the remainder .

DATE and DATE the applicant ’s counsel and the defendant submitted several sets of pleadings to the court . On DATE the applicant applied under LAW of ORG for a further medical report to be prepared by PERSON written statements by the parties followed DATE .

With regard to the partial acknowledgment of CARDINAL DATE the competent authority issued on DATE an implementing order to retrospectively pay the applicant pension and related benefits plus interest amounting to CARDINAL ORG and a DATE pension of CARDINAL ORG as from DATE .

On DATE ORG appointed PERSON as expert . His report of DATE was received by the court on DATE .

On DATE ORG asked the applicant whether he wished to pursue his claim . By letter of DATE the court was informed by the applicant ’s counsel that he no longer acted for the applicant .

In his written submissions of DATE and DATE respectively , consisting of CARDINAL . CARDINAL pages , the applicant challenged Dr W. ’s report . Dr W. ’s comments were received by the court on DATE . On DATE ORG asked the expert to supplement his submissions as regards the question whether the current impairment to the applicant ’s health could be considered as a consequence of the attack in DATE or as a result of the length of proceedings . In his reply of DATE , the expert stated that , in his opinion , the current problems could not be traced back to the length of proceedings , which was of only minor importance in the light of the applicant ’s developing illness . He furthermore underlined that he considered the health problems to be wholly the consequence of the attack in DATE .

On DATE the court held a hearing at which Dr P .- W. made a supplementary statement . On DATE ORG rejected the applicant ’s appeal .

On DATE the applicant requested ORG to establish the degree of his disability ( Grad PERSON ) under LAW ( governed from DATE by LAW ) and to issue him a disabled ORG pass ( PERSON ) . On DATE ORG rejected his request , assessing the degree of disability at PERCENT .

On DATE the applicant lodged an administrative appeal .

According to the Government the proceedings were apparently subsequently suspended to await the outcome of the proceedings under LAW . The applicant agreed , and added that he had been informed by ORG that the proceedings had been suspended for that reason . In a letter addressed to ORG as regards the compensation proceedings , the applicant ’s counsel informed the court on DATE inter alia that the applicant was interested in a speedy decision on his appeal in the degree of disability proceedings .

On DATE the applicant complained to the ORG about ORG inactivity . On DATE ORG informed him that his complaint would be recorded in the general register pursuant to LAW ) .

On DATE ORG rejected the applicant ’s administrative appeal .

On DATE the applicant filed an action with ORG .

The applicant was granted access to the files in DATE . On DATE ORG informed the parties of its intention to decide without a hearing and invited comments . On DATE the applicant filed his statement of claim and claim for relief .

On DATE the files of the proceedings under LAW were transmitted to the court . On DATE ORG informed the applicant that his claim lacked reasonable prospects of success .

On DATE ORG again requested the applicant to comment on its intention to decide without a hearing . The applicant replied on DATE .

On DATE the applicant informed the court that it was unclear whether the action was to be continued . On DATE the applicant requested the court to pursue the proceedings .

Following a hearing on DATE ORG rejected the applicant ’s claim . It held that the degree of the applicant ’s disability had already been ascertained in the compensation proceedings . As for alleged further damage to his health , the court assessed any additional disability at PERCENT , which was not sufficient to increase the total degree of disability .

On DATE the applicant lodged an appeal with the ORG .

On the applicant ’s request , ORG suspended the proceedings on DATE .

The relevant part of LAW of LAW reads as follows :

“ ( CARDINAL ) A person who , in the territory in which this LAW is applicable ... has sustained personal injury attributable to a wilful and unlawful attack upon himself or another person or the lawful prevention thereof shall , on application , be granted benefits in accordance with LAW on ORG in respect of resulting health impairments and financial loss . “

LAW of FAC provides :

“ ( CARDINAL ) Where no decision has been made regarding an application for the performance of an administrative act within a reasonable time and without sufficient grounds , a court action shall be admissible DATE after an application for the performance of the administrative act has been submitted . ( ... )

( CARDINAL ) The same applies where no decision on an administrative appeal was made , providing that a DATE time - limit shall apply as a reasonable time limit . ”

Section CARDINAL of FAC reads as follows :

“ ( CARDINAL ) On application by the insured person , the disabled person , the person entitled to benefits or his surviving dependants , a physician to be determined shall be heard as an expert . The hearing in respect of this expert opinion may be made dependant on whether the applicant advances the costs and , unless the court decides otherwise , the applicant in the end bears the costs .

( CARDINAL ) The court may reject an application where its admission would delay the settlement of the legal dispute and the court is convinced that the application was submitted in attempt to delay proceedings or the application was not submitted earlier due to gross negligence . ”

In view of the requirements of LAW of this provision , national courts in practice rarely reject such a request .

Section CARDINAL § CARDINAL of LAW ORG provides :

“ ( CARDINAL ) No assessment of the degree of disability shall be made where it has already been established that the applicant is disabled and the degree of the reduction of the earning capacity based on the disability has already been established in a pension payment order , a corresponding decision by an administrative authority or by a court , or preliminary documentary proof has been issued by a competent public authority unless the disabled person can substantiate an interest in a re - assessment in accordance with para . ( CARDINAL ) . An assessment in accordance with sentence CARDINAL shall thereby also serve to determine the degree of disability . ”


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Trial within a reasonable time)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

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

On DATE the applicant was arrested on suspicion of aggravated assault and causing death by negligence in order to extract a confession from a suspect .

On DATE the NORP ORG of GPE ( “ the ORG ” ) ordered that the applicant be placed in detention . The court noted , in particular , that the applicant was suspected of a particularly serious criminal offence and that , being a police officer , he could use his professional experience in order to influence witnesses and obstruct the investigation . The decision was upheld on appeal by ORG ( “ the ORG ” ) on DATE .

On DATE ORG extended the applicant ’s pre - trial detention until DATE , stating that he was charged with serious and particularly serious offences and that , if at liberty , he could obstruct the establishment of the truth and influence witnesses . On DATE ORG upheld that decision on appeal .

According to the applicant , on DATE of the period of his pre - trial detention authorised by ORG in its decision of DATE the authorities of a detention centre where he was being held at that moment refused to release him with reference to a letter of the PERSON prosecutor stating that on CARDINAL DATE the file of his criminal case had been sent to a court . In the applicant ’s submission , the case file was not in fact sent to the court until DATE .

On DATE ORG scheduled a hearing in the applicant ’s case and ordered that the applicant remain in detention . It did not specify the time - limit for the applicant ’s detention , nor did it give any reasons for that decision .

On DATE ORG ordered that the case file be returned to the investigating authorities so that the applicant would have an opportunity to study it . It also stated that the preventive measure applied in respect of the applicant “ should remain the same ” . It did not specify the time - limit for the applicant ’s detention , nor did it give any reasons for that decision .

NORP On DATE ORG scheduled a hearing in the applicant ’s case and ordered that he remain in detention . It did not specify the time - limit for the applicant ’s detention , nor did it give any reasons for that decision .

By a decision of CARDINAL DATE ORG extended the term of the applicant ’s detention pending trial until DATE . It referred to the applicant ’s personality , the fact that he was charged with serious and particularly serious criminal offences and the fact that he had pleaded not guilty , which , in the court ’s opinion , suggested that he might obstruct the establishment of the truth , if released .

On DATE ORG further extended the applicant ’s pre - trial detention until DATE , relying on the same reasons as those indicated in the decision of CARDINAL DATE . That decision was upheld on appeal by ORG on DATE .

By a judgment of CARDINAL DATE ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment . That judgment was upheld on appeal by ORG on DATE .

At some point the applicant attempted to have criminal proceedings instituted against the GPE Town prosecutor who , according to him , had provided the authorities of a detention centre where he had been held at the material time false information stating that the file of his criminal case had been sent to a court on DATE , whereas in reality it had not been sent there until DATE . The applicant complained that on the basis of that false information , he had remained in detention after CARDINAL DATE , when the term of his pre - trial detention established in the court order of DATE had expired .

On DATE the ORG of GPE rejected the applicant ’s complaint against the decision of the prosecutor ’s office of LOC to dispense with criminal proceedings against the GPE Town prosecutor . This decision was upheld on appeal by ORG on DATE . The courts confirmed that the prosecutor ’s office ’s decision was lawful and well - founded , since there was no evidence of any criminal offence in the actions of the official in question , as he had not breached any provisions of domestic criminal law , or law on criminal procedure , and there was no evidence of any unlawfulness of the applicant ’s detention during the period complained of .

Since DATE , criminal - law matters have been governed by LAW ( Law no . CARDINAL of DATE ) .

“ Preventive measures ” include an undertaking not to leave a town or region , personal surety , bail and detention ( Article CARDINAL ) . When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , reoffend or obstruct the establishment of the truth ( Article CARDINAL ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( Article CARDINAL ) . In exceptional circumstances , and when there exist grounds provided for by Article CARDINAL , a preventive measure may be applied to a suspect , taking into account the circumstances listed in LAW . If necessary , the suspect or accused may be asked to give an undertaking to appear in court ( LAW ) .

The Code makes a distinction CARDINAL types of custody : the first being “ pending investigation ” , that is , while a competent agency – the police or a prosecutor ’s office – is investigating the case , and the second being “ before the court ” ( or “ pending trial ” ) , at the judicial stage .

A custodial measure may only be ordered by a judicial decision in respect of a person who is suspected of , or charged with , a criminal offence punishable by DATE imprisonment ( LAW ) . The maximum period for detention pending investigation is DATE ( Article CARDINAL ) . A judge may extend that period DATE ( LAW ) . Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences ( LAW ) . No extension beyond DATE is permissible and the detainee must be released immediately ( LAW ) .

From the time the prosecutor sends the case to the trial court , the defendant ’s detention falls under the category of “ before the court ” ( or “ pending trial ” ) . The period of detention pending trial is calculated up to the date on which the first - instance judgment is given . It may not normally exceed DATE from the moment the case file arrives at the court , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW CARDINAL and CARDINAL ) .