CASE OF KRONE VERLAG GMBH AND KRONE MULTIMEDIA GMBH v. AUSTRIA

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

Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The first applicant company is the owner and publisher of the DATE newspaper ORG ; the second applicant company is the owner of the online newspaper ORG .

NORP In DATE criminal investigations were launched in respect of A and B who were suspected of the repeated and serious ill - treatment and sexual abuse of CARDINAL-year - old C , which had caused severe injuries . C is A ’s biological daughter and B ’s stepdaughter . C was taken to hospital and several media reported the case .

At that time D , C ’s biological mother , who had learned from the media about what had happened to her daughter , wanted to see her but , since she did not have custody of her , this request was refused . Thereupon she contacted the first applicant company in the hope that it would help her obtain contact with PERSON , a journalist for the first applicant company , visited her at her home , took pictures of her , received from D a picture showing C at DATE , accompanied D to the hospital where C was staying and took further pictures there . On the basis of this material , at DATE several articles on the case of C were published in GPE , as well as a call for donations ( GPE ) for C. Once PERSON ( ORG ) became aware of these events it advised D and her spouse that it would be in ORG ’s best interests if they refrained from providing pictures of her and further information to the media .

After C left hospital in DATE she stayed with NORP On DATE custody of C was transferred to ORG for the period of DATE to CARDINAL DATE and then from DATE it was transferred to NORP

The trial of B and A was held in DATE and media interest in the case grew again . At the same time C had a relapse and began suffering from severe psychological problems again , making it necessary for her to be re - admitted to hospital .

On DATE A and B were convicted of aggravated sexual abuse of minors ( schwerer sexueller PERSON ) , deliberate aggravated bodily harm ( absichtliche schwere GPE ) and ill - treatment of minors ( PERSON ) . They were sentenced to DATE imprisonment and ordered to pay compensation for non - pecuniary damage .

The first applicant company published CARDINAL articles in ORG on DATE and DATE respectively , using the first name of C , the full names of A and B , and illustrating them with photographs of A and B The second applicant company published CARDINAL articles on its website www.krone.at on CARDINAL and DATE and , in addition to the information contained in the articles published in ORG , it also published photos of C , including a close - up of her face .

On DATE , with D ’s consent , ORG transferred custody rights in relation to CARDINAL specific task back to ORG , namely on the issue whether , in respect of the reporting on the trial of A and B , C had compensation claims against certain newspapers and , if necessary , to take the appropriate measures .

On DATE an article was published in the first applicant company ’s newspaper ( ORG ) entitled “ C case : when humans turn into animals ” ( “ Fall C : PERSON zum Tier werden ” ) , which read as follows :

“ Modesty – what a fine word . A word that presupposes respect . But how out of place coming from the mouth of a father who kicked his CARDINAL-year - old daughter with his bare feet until several of her ribs were broken . How out of place when the same father claims that he did not treat his daughter ’s injuries caused by a red - hot iron because modesty prevented him from touching her breasts ...

X ORG . CARDINAL judges and CARDINAL jurors have to pronounce sentence in CARDINAL sets of proceedings against A and B ( both [ age ] ) : A and B , known to PERSON readers as the parent torturers . Their victim : C , A ’s daughter from his first marriage . A girl who , after her GPE divorce , lived for a long time with her grandparents in PERSON child who could n’t wait to join her father and his second wife B here in LANGUAGE – and ended up in hell . Literally ill - treated till she bled . Tortured and abused .

Members of the jury turn ghostly white when public prosecutor PERSON reads from the prosecution file : ‘ C was injured with red - hot spoons , deprived of her virginity with a cooking spoon , burnt with a hot iron . She was hurled against the wall until her skull fractured . C was also tied up to her bed in prayer position for TIME on end . She was badly injured with a kitchen knife ... ’

Why ? Sometimes it is not important why human beings behave like animals . Sometimes the facts are enough . And yet Judge PERSON proceeds brilliantly to shed light on every aspect of this crime against a child . For TIME on end he listens patiently to the whimpering defence of the father . He patiently sits through the hair - raising account of the stepmother .

The accused agree on CARDINAL thing . Neither will admit responsibility . Just a touch of corporal punishment to keep family life intact DATE that much they admit . Both say they were afraid of or were dominated by the other .

A : ‘ I ’m fond of all CARDINAL ( ! ) of my children , including C. I was dominated by my wife , and when she told me that C masturbated I believed her and had to do something’ he says . And his wife : ‘ I just wanted to protect my other children from C so I hit her once and I might have pulled her hair.’

Be that as it may , the way the couple defend themselves in court is nothing short of disgusting . As I just said , the facts speak volumes .

You listen to what went on for DATE in the flat in FAC . You close your eyes – and still see C. Who actually delivered the blows ceases to matter .

What matters is that C is now living safely with her real mother and a caring stepfather . She has just spent her first ever holiday in GPE . She ’s made friends in a new school .

She can certainly not understand everything that happened . It can only be hoped that DATE she ’ll be able to forget . And that the father ’s wish ( ‘ I ’d like to see my C again some day’ ) is never granted . ”

On DATE the second applicant company published an article on its website ( www.krone.at ) entitled “ Start of the trial in the C case ” ( Auftakt zum Prozess i m Fall C ) . Its text is identical to the above article .

On DATE a further article was published in the first applicant company ’s newspaper ( ORG ) , entitled “ Maximum sentence for parent torturers ! ” ( “ Höchststrafe für ORG ! ” ) , which read as follows :

“ The triangular shape of the iron is like a permanent reminder to C , ‘ branded’ into her child ’s body . ‘ The violence against this girl ranks as one of the most abhorrent of GPE says Judge PERSON in pronouncing judgment on the parent torturers . A total of DATE in prison DATE the maximum sentence .

What must C ’s small body have endured ? What thoughts must have gone through the CARDINAL-year - old girl ’s head when her stepmother and her father either ill - treated her or watched the other do it ?

It ’s not the sober words of forensic expert ORG that send a shudder down your spine . It ’s the thought of what the girl must have endured before ending up in hospital with multiple rib fractures , a fractured skull , burns to her skin , cuts going right through to the bone , stripped of her virginity and dignity . A child ’s mind damaged beyond repair .

The ‘ GPE listen with bowed heads to what the experts say about ‘ their child’ . They hear how cosmetic surgery can reconstruct , but how no medicine can cure the psychological damage . The effects of her ordeal will remain with her for life .

‘ She was a very nice , quiet ORG says her former head teacher . ‘ We never suspected anything . Her father enquired about her lovingly . When he came in to say that C would not be attending any more because she was in GPE , no one imagined that she was lying at home injured . ”

On DATE the second applicant company published an article on its website ( www.krone.at ) entitled “ Maximum sentence for parents in C case ” ( “ Höchststrafe für Eltern i m Fall C ” ) . Its text is identical to the above article .

On DATE C , represented by ORG , filed a claim for compensation against the first applicant company , relying on section FAC of LAW on the ground that the first applicant company had caused her suffering by revealing her identity as the victim of a criminal offence by publishing her first name , the full names and pictures of A and B in CARDINAL articles which had appeared on CARDINAL and DATE . C also filed a compensation claim against the second applicant company relying on sections CARDINAL and CARDINAL of LAW for revealing her identity as the victim of a criminal offence and for violating her right to protection of her strictly private life ( höchstpersönlicher PERSON ) in CARDINAL articles published on CARDINAL and DATE .

On DATE ORG ( PERSON für PERSON ) granted both requests for compensation . As regards the first applicant company it found that the CARDINAL articles published in the newspaper ORG on DATE and DATE had violated ORG right to protection of her identity as the victim of a criminal offence under section ORG of LAW and ordered the first applicant company to pay MONEY ( ORG ) in compensation to C for each of the articles , altogether ORG CARDINAL . It also found that C was entitled to compensation from the second applicant company as the articles published on its website on CARDINAL and DATE , including photos of her , had violated her right to protection of her identity as the victim of a criminal offence and had also interfered with her strictly private life in a manner which exposed and compromised her in public , thereby breaching her rights under section CARDINAL of LAW . ORG ordered the second applicant company to pay ORG CARDINAL,CARDINAL in compensation to C for each of the articles , altogether ORG CARDINAL . It also ordered the applicant companies to publish a summary of its judgment .

As regards the applicant ORG argument that D , C ’s biological mother , had consented to the disclosure of ORG identity and the publication of photos of her , ORG , having heard as witnesses D , her husband , and PERSON , a journalist writing for the applicant companies , considered that at the time of the publication of the impugned articles there had been no valid consent as neither the person with custody of C nor any other reference person ( PERSON ) had consented to the disclosure of C ’s identity or the publication of pictures of her . Even considering that D had validly consented to the applicant companies’ reporting on the case of C and to publishing pictures of her back in DATE , that consent could not automatically cover publications DATE in the context of the trial of A and B. After such a long period of time had passed , confirmation of D ’s consent should have been sought as in case of doubt nobody can be deemed to have consented to an interference with his or her personality rights for an indefinite period of time . Moreover , in DATE D had explicitly refused to give her consent to reporting in which ORG identity would be revealed to the public .

As regards the compensation claim under section CARDINAL of LAW , ORG found that a person was entitled to compensation if his or her strictly private sphere had been discussed in the media in a manner which was apt to expose and compromise him or her in public . Into this strictly private sphere fall the inner circle of one ’s private life ( engster ORG menschlichen Intimsphäre ) , emotions and physical sensations , one ’s sexual life , and contacts with one ’s closest persons of confidence ( FAC engsten ORG ) . The lurid presentation of the publications at issue , which made public highly sensitive details of the ill - treatment and sexual abuse to which C had been subjected and which were particularly humiliating , had interfered with ORG most intimate personal sphere . In weighing the interests of the applicant companies against those of C , ORG considered that the offensive details had not been necessary for informing the reader even in a detailed manner on the case of C , while on the other hand , a minor victim of crimes of this kind was entitled to particularly strong protection . ORG concluded that ORG interests protected by LAW had not been respected and that she was therefore entitled to compensation .

As regards the compensation claim under section ORG of LAW found that by mentioning the first name of the victim , her age , the full names of the offenders , indicating their family relationship to the victim , by publishing pictures of the father and the stepmother and in CARDINAL articles even publishing photos of her , the victim became recognisable to a wide number of persons beyond the circle of those directly informed .

In ORG view there was no predominant public interest which would have made revealing the victim ’s identity permissible . Such a predominant public interest must relate to the identity of the person , and that particular information should have a genuine news value . A merely general interest in appropriate press reporting on criminal cases was not sufficient . C was not a public figure and the mere fact that she had become the victim of a crime which attracted considerable public attention was not sufficient to consider her a person connected with public life . Also , the fact that the media had already reported on her in DATE , in some cases revealing her identity , did not make her a person connected with public life because a considerable amount of time had passed in the meantime and a newspaper ’s readership changed constantly . A genuine interest in the identity of the victim could not be established . There was no predominant public interest in revealing the identity of the offenders as the public could be informed on the psychological dynamics of crimes of violence and sexual abuse committed within the family without revealing the identity of the victim . Therefore , these articles , which had described in detail the severe illtreatment of the victim , constituted an intrusion into the victim ’s strictly private life and violated her interest in remaining anonymous . She was therefore entitled to compensation on this ground as well .

As to the amount of the compensation , ORG stated that it had taken into account the particular gravity of the interference and the particularly large dissemination of the applicant ORG media . As regards the second applicant company , a higher amount had to be awarded as the compensation was based on CARDINAL grounds .

On DATE the applicant companies appealed . They argued that there had been a predominant public interest in being informed of the identity of the offenders . The role of the media as public watchdog meant in the present case that they had the task of informing the public about a defenceless child who had become the victim in a family drama and to warn the public through giving a detailed report including personal details of the offenders and the victim , which was necessary for a public discussion of these events . They argued further that the reporting had been allowed because D had given her consent .

On DATE ORG dismissed the appeal . It found that according to section ORG of LAW the identity of the victim of a criminal offence could only be revealed if there was a predominant public interest in that specific item of information . The permissibility of revealing the identity of an offender did not mean that the identity of the victim could also be disclosed . This question had to be examined separately and carefully . C was not a public figure nor was she a person otherwise connected with public life . Even accepting that there was a public interest in being informed of crimes of violence and sexual abuse committed within the family , that interest could be met without revealing the victim ’s identity . Also , the conditions for compensation under section CARDINAL of LAW had been met because the articles at issue contained a detailed description of the criminal acts committed , in particular of the injuries caused including the defloration of the victim , and thereby had discussed her strictly private life in a manner that was apt to expose and compromise her in public . As to the alleged consent of D to the applicant ORG publications , ORG found that ORG had properly examined this matter and had concluded that there had been no valid consent . Given that the maximum amount of compensation was ORG CARDINAL , the sums actually fixed were moderate .

Section CARDINAL of LAW , which has the title “ interference with a person ’s most intimate personal sphere ” ( “ GPE des höchstpersönlichen FAC ) , reads as follows :

“ ( CARDINAL ) If a person ’s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public , the person concerned may claim compensation from the owner of the media for the injury suffered . The amount of compensation shall not exceed LAW ...

( CARDINAL ) No compensation claim under paragraph CARDINAL exists if

NORP the publication at issue is based on a truthful report on a public session of ORG or ORG , ORG , a regional diet or a committee of CARDINAL of these general representative bodies ;

NORP the publication is true and has a direct connection to public life ;

in the circumstances it could have been assumed that the person concerned had agreed to the publication ;

it is a direct broadcast on radio or television ( live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence ;

the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence . ”

Section CARDINAL of LAW which has the title “ protection against divulging a person ’s identity in special cases ” ( “ FAC in besonderen NORP ” ) , reads as follows :

“ ( CARDINAL ) Where publication is made , through any medium , of a name , image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who

NORP has been the victim of an offence punishable by the courts , or

NORP is suspected of having committed , or has been convicted of , a punishable offence ,

and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person ’s position in society , of some other connection with public life , or of other reasons , the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered . The award of damages shall not exceed QUANTITY ; additionally , section CARDINAL ) , second sentence , shall apply .

( CARDINAL ) ORG interests of the victim shall in any event be injured if the publication

NORP in the case of subsection ( CARDINAL)CARDINAL , is such as to give rise to an interference with the victim ’s strictly private life or to his or her exposure ,

NORP in the case of subsection ( CARDINAL , relates to a juvenile or merely to a lesser indictable offence ( PERSON ) or may disproportionately prejudice the advancement of the person concerned .

NORP the publication of the information on the person has been decided officially , in particular for the purposes of criminal justice or public security ;

NORP the person concerned has agreed to the publication or if the publication is based on information given by that person to the media ;

Section CARDINAL(CARDINAL ) second sentence of LAW , to which reference has been made above , reads as follows :

“ The amount of compensation shall be fixed according to the extent of the publication , its impact and , in particular , the type of media and how broadly it is disseminated ; the compensation must not endanger the economic existence of the media owner . ”

DATE of ORG on ORG of DATE , PERSON No . CARDINAL , in so far as relevant reads as follows :

“ DATE General measures of protection

( CARDINAL ) Each party shall take the necessary legislative or other measures to protect the rights and interests of victims , including their special needs as witnesses , at all stages of investigations and criminal proceedings , in particular by :

( e ) protecting their privacy , their identity and their image and by taking measures in accordance with international law to prevent the public dissemination of any information that could lead to their identification ; ”

In the Explanatory Report to ORG , paragraph CARDINAL gives the following comment on LAW :

“ The article goes on to list a number of procedural rules designed to implement the general principles set out in LAW the possibility for victims of being heard , of supplying evidence , of having their privacy , particularly their identity and image protected , and of being protected against any risk of retaliation and repeat victimisation . The negotiators wished to stress that the protection of the victim ’s identity , image and privacy extends to the risk of “ public ” disclosure , and that these requirements should not prevent this information being revealed in the context of the actual proceedings , in order to respect the principles that both parties must be heard and the inherent rights of the defence during a criminal prosecution . ”

On DATE ORG adopted Recommendation Rec(CARDINAL)CARDINAL on the position of the victim in the framework of criminal law and procedure . In section F ( Protection of privacy ) point CARDINAL reads as follows :

“ Information and public relations policy in connection with the investigation and trial of offences should give due consideration to the need to protect the victim from any publicity which will unduly affect his private life and dignity . If the type of offence or the particular status or personal situation and safety of the victim make such a special protection necessary , either the trial before the judgment should be held in camera or disclosure or publication of personal information should be restricted to whatever extent is appropriate ; ”

On DATE ORG LAW on the protection of children against sexual exploitation . In LAW law , procedure and coercive measures in general ) point CARDINAL reads as follows :

“ Ensure throughout judicial , mediation or administrative proceedings the confidentiality of records and respect for the privacy of children who have been victims of sexual exploitation . ”

On DATE ORG Recommendation Rec(CARDINAL)CARDINAL on the provision of information through the media in relation to criminal proceedings . The Appendix to that Recommendation contains the following principles :

“ Principle CARDINAL - Information of the public via the media

The public must be able to receive information about the activities of judicial authorities and police services through the media . Therefore , journalists must be able to freely report and comment on the functioning of the criminal justice system , subject only to the limitations provided for under the following principles .

Principle CARDINAL - Protection of privacy in the context of ongoing criminal proceedings

The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW .

An even stronger protection is recommended to parties who are minors , to victims of criminal offences , to witnesses and to the families of suspects , the accused and convicted persons . ... ”


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

Elisabeth Steiner;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in GPE .

The applicant inherited a house in LOC from Ms B.M. in her will . On an unspecified date he moved into it .

NORP In DATE GPE , the stepson of PERSON , brought an action against the applicant for recovery of the property in issue , claiming that his inheritance rights had been breached and that the will was illegal .

NORP The matter was considered repeatedly by the courts and on CARDINAL DATE ORG ( “ the ORG ” ) granted ORG claims . The applicant lodged a supervisory - review complaint .

On DATE the ORG of ORG quashed the judgment of DATE for breach of procedural law and remitted the matter for fresh consideration . It appears the property was subject to an interim injunction which was still maintained by the court .

Three hearings fixed for DATE and DATE , were adjourned owing to both the applicant ’s and plaintiff ’s failure to appear .

Hearings scheduled for DATE and DATE were postponed owing to the applicant ’s failure to appear .

Seven hearings fixed for DATE and DATE were adjourned owing to the third parties’ and the plaintiff ’s failure to appear , and the need to collect additional evidence .

On DATE ORG dismissed the applicant ’s applications for the civil proceedings to be discontinued and the interim injunction lifted . The applicant lodged an appeal against that decision which was upheld on DATE .

On DATE ORG dismissed ORG claims .

On DATE ORG ( “ the ORG ” ) quashed the judgment of CARDINAL DATE on appeal and remitted the matter for fresh consideration .

Three hearings fixed for DATE did not take place owing to the applicant ’s failure to appear , and one was held as planned .

A hearing scheduled for DATE was adjourned until DATE owing to the applicant ’s failure to appear .

A hearing scheduled for DATE was postponed until DATE owing to the judge ’s involvement in other proceedings .

A hearing was held as planned on DATE . The court rejected the applicant ’s application for the discontinuation of the proceedings .

Of QUANTITY hearings fixed for DATE and DATE , CARDINAL were adjourned owing to the applicant ’s failure to appear .

On DATE the trial court held a hearing in the applicant ’s absence and granted ORG ’s claims . According to the applicant , he had not been duly summoned to that hearing .

On DATE ORG upheld the judgment of DATE on appeal . The applicant brought a supervisoryreview complaint .

On DATE the ORG of ORG quashed the judgments of DATE and DATE by way of supervisory review for breach of material and procedural law , and remitted the matter for fresh consideration . The hearing was listed for DATE .

The hearing of CARDINAL DATE was adjourned owing to the third parties’ failure to appear .

A hearing scheduled for DATE was postponed until DATE as the plaintiff was ill .

On DATE ORG held a hearing and left ORG ’s action without examination owing to his failure to appear without valid reasons .

On DATE the applicant requested the trial court to lift the injunction . On DATE his request was granted .

On DATE B.S. informed ORG that he had failed to attend the hearing because of illness and asked it to quash the decision of DATE .

Of CARDINAL hearings fixed for DATE , CARDINAL were postponed owing to the applicant ’s failure to appear and CARDINAL were held in his absence . According to the applicant , he was not duly summoned to those hearings .

On DATE ORG quashed the decision of CARDINAL DATE .

On DATE ORG decided to discontinue the civil proceedings . The court found that ORG had no legal standing under domestic law to challenge the legality of PERSON ’s will because his rights and interests had not been affected by the impugned will : he was not related by kinship to PERSON and was not listed in her will .

On DATE ORG upheld that decision on appeal .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Regen .

The applicant was the owner of several plots of land near ORG . ORG planned the construction of DATE houses , sport and play grounds and a restaurant on this site which was composed of marshes and wetland . On DATE ORG decided that the intended development did not comply with the objectives of spatial planning . CARDINAL of the main grounds for that refusal was that the site was located in a nature preserve . There was also the danger of dissection of landscape by secondary residences and of an undesirable effect on the promotion of tourism .

On DATE and DATE , when purchasing further plots of land ( parcels nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) located in this area , the applicant was informed by ORG ( PERSON ) that the land in question was part of a natural habitat intended to be designated as a nature conservation area .

On DATE the Regen Municipality published a development plan despite the objections of ORG .

By decisions of DATE , DATE and CARDINAL DATE ORG prohibited the applicant from altering the natural condition of the land ( parcels nos . CARDINAL , CARDINAL and CARDINAL ) , ordered him to refill the drainage ditches and informed him that the decisions would be implemented by the administrative authority at his own expense if he failed to carry out the expected activity within the time - limits fixed at DATE and DATE respectively . On CARDINAL and CARDINAL DATE ORG proceeded to refill the ditches on CARDINAL of the land parcels concerned ( no . CARDINAL ) .

After a suspension for DATE of appeal proceedings brought by the applicant , ORG ( Bayerisches Verwaltungsgericht ) , by a judgment of DATE , found that the limitation periods were too short and that the implementation of the decisions was unlawful .

On DATE ORG refused to grant the applicant a planning permission for the development of the land . This decision became final .

By a decree of DATE the Government of ORG designated the area , including in part the applicant ’s land ( parcels nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) , as a nature conservation area .

On DATE ORG transferred , as requested by the applicant , his real property situated in this area to the ORG of GPE fixing the compensation to be awarded to him at MONEY ( ORG ) . It refused to purchase parcel number CARDINAL on the ground that the use for agriculture on this respective plot of land remained unaffected by LAW of DATE . It also refused to purchase the other remaining plots of the applicant ’s land .

By a judgment of DATE ORG dismissed the appeals lodged by the applicant and the State of GPE against this decision . The judgment became final , the parties having withdrawn their respective appeals .

In DATE the applicant sold the land not included in the area covered by the nature conservation decree ( parcels nos . CARDINAL , CARDINAL and CARDINAL ) as pasture respectively forest land .

On DATE ORG supplemented its decision of DATE , taking into account changes brought about in respect of the applicant ’s land , such as the construction of a new road . No appeal was filed against this decision by the applicant . It accordingly became final .

By a judgment of CARDINAL DATE ORG ( ORG ) quashed a judgment of ORG ( Landgericht ) of CARDINAL DATE and increased the amount of compensation initially awarded to the applicant from DEM CARDINAL,CARDINAL to DEM CARDINAL,CARDINAL . It refused to grant compensation in respect of parcel number CARDINAL , having regard to the binding effect of the judgment of ORG of DATE . On DATE the ORG ( ORG ) dismissed the applicant ’s appeal on points of law . In DATE ORG ( Bundesverfassungsgericht ) , sitting as a bench of CARDINAL judges , refused to admit the applicant ’s constitutional complaint lodged against these decisions for adjudication .

On DATE the applicant requested that the proceedings be re - opened and he be awarded compensation .

By a judgment of DATE ORG dismissed the applicant ’s application for the re - opening of the proceedings . It ordered , however , the administrative authorities to decide on the applicant ’s compensation claim in respect of the remaining plots of land ( parcels nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL and CARDINAL ) .

On DATE ORG dismissed the applicant ’s compensation claim . It found that the land was situated outside the nature conservation area and was thus not affected by restrictions of the land use . The development plan for the DATE residences had never been validated , nor had the applicant ever been the owner of building land . Furthermore , with the exception of parcel number CARDINAL he had sold the plots of land ( parcels nos . CARDINAL , CARDINAL and CARDINAL ) in DATE . At the time of filing the compensation claim with ORG in DATE he did not own the land any longer . In any event , his compensation claim had not been filed within DATE after the date on which the nature protection decree had been issued .

The applicant appealed against this decision claiming to be entitled to be awarded by ORG Bavaria an adequate compensation for all the parcels of his land .

By a judgment of DATE ORG dismissed the applicant ’s claim .

The applicant appealed against this judgment .

By a judgment of DATE ORG dismissed the appeal . It found that ORG , by a final judgment of DATE , had confirmed the decision of ORG of DATE concerning the question of the transfer of the applicant ’s land . The question of compensation in respect of that land had been definitively settled by the judgment of ORG of DATE following the dismissal of the applicant ’s appeal on points of law by ORG on DATE .

According to ORG , the same reasoning applied to the applicant ’s request to re - open the proceedings with a view to being granted a higher compensation under the compensation provisions of LAW ( Bundesbaugesetz ) . By a final judgment of DATE the applicant ’s appeal on points of law had been dismissed by ORG ( ORG ) on DATE – ORG had refused to re - open the proceedings with a view to reassessing the amount of compensation in respect of the land whose property had been transferred to ORG .

The remaining plots of land ( parcels nos . CARDINAL/CARDINAL , CARDINAL and CARDINAL ) were situated outside the area originally zoned for development and were thus neither adversely affected by the nature conservation decree nor by the decisions of ORG of DATE and DATE and DATE DATE prohibiting the applicant from altering the natural conditions of this land ( parcels nos . CARDINAL , CARDINAL and CARDINAL ) .

According to ORG , important considerations of nature conservation made the proposed development incompatible with the preservation of the valuable wetland in the area concerned . The applicant had never enjoyed a right to develop the land in question nor had he ever had a legitimate expectation of carrying out the proposed development since the development plan had been invalid from the beginning . Furthermore the applicant was not entitled to compensation because agricultural use of the land was not prohibited . ORG advised the applicant to accept the numerous court decisions given in his case which confirmed that the development plan had no legally binding effect and that the land in question was never designated for construction purposes .

On DATE ORG ( ORG ) dismissed the applicant ’s appeal against the decision refusing him leave to appeal on the ground that the case raised no issue of principle .

In the meantime , by notices of DATE and DATE , ORG ( PERSON ) had assessed the applicant ’s income tax taking into account the compensation paid to him by ORG . The applicant ’s appeals lodged against these decisions were dismissed by ORG on DATE , ORG ( ORG ) on DATE and ORG ( GPE ) on DATE . On DATE ORG , sitting as a bench of CARDINAL judges , refused to admit the applicant ’s constitutional complaint for adjudication .

On DATE ORG issued a new revised tax assessment claiming payment of income tax for DATE . The appeals lodged by the applicant were dismissed by ORG on DATE and ORG on DATE . On DATE ORG rejected the applicant ’s appeal against the decision refusing him leave to appeal on points of law . It found that the applicant ’s grounds of appeal did not satisfy the procedural requirements of the relevant provisions of LAW ( GPE ) . It noted in particular that the complaints concerning the fairness of the proceedings and the interpretation of the facts allegedly in contrast to the clear contents of the files had not been submitted within the statutory time - limit .

On DATE ORG notified the applicant an enforcement decision of DATE in respect of his tax liability relating to the period from DATE to DATE in an amount of ORG CARDINAL,CARDINAL.CARDINAL , including interests , penalties for late payment and costs of the proceedings .

Simultaneously the ORG claimed from the applicant the payment of court costs . On DATE ORG ( ORG ) issued a warrant of arrest against the applicant because he did not make an affidavit ( eidesstattliche ORG ) as to his assets .

On DATE the ORG assessed the value of the applicant ’s real estate at ORG and fixed the date for its compulsory sale at DATE .


Violations of Art. 3;Violation of Art. 5-3;Violation of Art. 6-1;Violations of Art. 8;Violations of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE . He was the director of a diamond manufacturing and export company ( “ the company ” ) .

On DATE a criminal case ( no . DATE ) was opened against the applicant . He was suspected of having smuggled diamonds by using forged export contracts , an offence under LAW .

On DATE the applicant was arrested . On DATE a prosecutor remanded him in custody .

On DATE the Preobrazhenskiy District Court of GPE dismissed the applicant ’s request for release on bail . On DATE ORG upheld the refusal on appeal .

On DATE a deputy Prosecutor General extended the applicant ’s detention until DATE . On DATE ORG dismissed the applicant ’s challenge to the extension order because , in the court ’s view , the applicant ’s “ character ” justified the detention . On DATE ORG upheld that decision on appeal .

On DATE a deputy Prosecutor General extended the applicant ’s detention until DATE . On DATE ORG dismissed the applicant ’s appeal against the extension order , finding that the order had been “ lawful and justified ” , but without giving further grounds in support of this finding .

On DATE a deputy Prosecutor General extended the applicant ’s detention until DATE . On DATE ORG dismissed the applicant ’s challenge to the extension order , finding that it had been lawful and justified . On DATE ORG upheld that decision on appeal .

On DATE and DATE the acting Deputy Prosecutor General extended the applicant ’s detention until DATE and DATE respectively . On DATE the ORG of GPE dismissed the applicant ’s challenge to the extension orders , finding that they had been justified on account of the applicant ’s “ character ” and the absence of “ gross violations ” of the criminal - procedure laws . On DATE ORG upheld that decision on appeal , referring to the applicant ’s “ character ” and the gravity of the charges against him .

On DATE the Prosecutor General extended the applicant ’s detention until DATE . On DATE the ORG of GPE dismissed the applicant ’s challenge to the extension order , finding that the applicant ’s “ character ” and the gravity of the charge rendered his detention lawful and justified . On DATE ORG upheld that decision on appeal .

On DATE the applicant was additionally charged with offences under ORG CARDINAL § CARDINAL ( smuggling ) , CARDINAL § CARDINAL ( unlawful trade in precious stones ) , and CARDINAL ( forgery of official documents ) of LAW .

On DATE counts of smuggling , unlawful export of precious stones and forgery of documents were severed into a new criminal case , which was given the number DATE .

On DATE the investigation into the remaining charges in the framework of case no . DATE was stayed . On DATE the investigation resumed and has since been pending .

On DATE the applicant was given access to the case file . Further to the prosecution ’s requests , on DATE and DATE ORG extended the applicant ’s detention until DATE and DATE respectively . On each occasion the court noted that there were no grounds to vary the preventive measure imposed on the applicant , in spite of the arguments advanced by the defence and the personal sureties offered on the applicant ’s behalf by a Member of ORG and a member of ORG . It also referred to the gravity of the charges and to the applicant ’s “ character ” . On DATE and DATE ORG upheld ORG decisions on appeal , finding that there were “ no sufficient grounds to vary the preventive measure ” .

According to the Government , the applicant ’s counsel , PERSON and PERSON , were deliberately dilatory in dealing with the case - file materials . On DATE the investigator asked the president of the GPE bar to ensure counsel ’s regular attendance . On DATE and DATE the investigator ’s superior repeated that request . The Government produced CARDINAL reports of CARDINAL , DATE and DATE . In these reports investigation officers described private conversations with the applicant ’s representatives , who allegedly stated that they would procrastinate until the maximum period of the applicant ’s detention had expired .

On DATE case no . DATE was submitted for trial before ORG of GPE .

On DATE ORG remitted the case for further investigation . On DATE that decision was set aside by ORG , and the trial resumed .

On DATE ORG fixed a hearing for DATE but then adjourned it to DATE because the applicant ’s counsel had gone on holiday .

On DATE ORG refused the applicant ’s petition for release . On DATE ORG upheld that decision on appeal .

On DATE ORG extended the applicant ’s detention until DATE , finding that his release would hinder “ a thorough , comprehensive , and objective examination of the case ” .

On DATE ORG remitted case no . DATE for further investigation . It found that the charges were formulated vaguely , that the applicant had not been questioned as a suspect , that his access to the file had been unlawfully restricted , and that the severing of certain charges had not been justified . These defects were to be remedied by the investigation . The court authorised the applicant ’s further detention .

On DATE the ORG released the applicant on bail .

The hearing fixed for DATE had to be adjourned until DATE because CARDINAL lawyer was involved in concurrent proceedings and the other was on leave .

On DATE the hearing was adjourned on account of the prosecutor ’s illness . On DATE and CARDINAL DATE the hearings were postponed at the applicant ’s request .

On DATE the ORG found the applicant guilty of smuggling and unlawfully trading in diamonds . The applicant was sentenced to DATE and CARDINAL months’ imprisonment , suspended for DATE . On DATE ORG upheld that judgment on appeal .

On DATE the investigator refused leave for a visit by the applicant ’s mother and his wife . She stated that the investigator had discretion to authorise visits , but was not obliged to do so .

According to the Government , on unspecified dates in DATE the applicant was allowed to see his wife on “ humanitarian grounds ” .

On DATE the investigator refused counsel ’s request of CARDINAL DATE to allow the applicant to see his wife . The investigator indicated that the applicant ’s wife was aware “ of certain circumstances that [ were ] relevant to the matters under investigation ” and also had “ an interest in the outcome [ of the case ] ” . As “ family visits [ could ] be used to establish contact with other members of the organised criminal group or obstruct the establishment of the truth ” , the wife ’s visit would be “ inopportune ” .

On DATE the investigator refused a visit by the applicant ’s DATE daughter , stating that the applicant could use the visit to obstruct the investigation .

On DATE , DATE , DATE , DATE , DATE , DATE and DATE the investigator allowed the applicant to see his mother and/or daughter . According to the ORG , in DATE and DATE the applicant was granted CARDINAL family visits .

On DATE the applicant sent a complaint about the refusal to allow family visits and interference with his correspondence to ORG of GPE . On DATE the head of the correspondence department of the remand centre refused to post the complaint , citing the following reasons :

“ The court will not accept the complaint for examination in its present form . I also consider it necessary to explain that , under LAW :

( a ) the investigator may approve CARDINAL visits per month but by law he is not obliged to do so ( section CARDINAL § CARDINAL ) ;

( b ) pursuant to section CARDINAL § CARDINAL , all correspondence is subject to censorship , including by the investigator who is in charge of the criminal case .

The complaint has no prospects of success ( жалоба бесперспективна ) . ”

On DATE the applicant complained to ORG and ORG that his complaint had not been posted . On DATE the applicant ’s complaint to ORG was returned to him . No reply from ORG was received .

On DATE the investigator refused to post the applicant ’s letters to his wife and mother . She returned them to the director of the remand centre with the following note :

“ I am returning you the letters by PERSON , the defendant in criminal case no . DATE , addressed to PERSON and dated DATE , DATE and DATE , and to PERSON , of DATE and DATE .

On the basis of section CARDINAL LAW of LAW these letters may not be sent to the addressees . ”

The applicant submitted to the ORG copies of handwritten letters to his mother , dated CARDINAL , DATE and DATE .

On DATE the applicant issued forms of authority to his counsel , Mr GPE and ORG . By a letter of DATE , the first deputy director of ORG of ORG returned the forms to the director of the remand centre , advising him as follows :

“ I would ask you to explain to Mr PERSON , the defendant in criminal case no . DATE , that , pursuant to section CARDINAL of LAW and paragraph CARDINAL of ORG ( approved by order no . CARDINAL of DATE ) , detainees may enter into civil transactions on the basis of a form of authority certified by the head of the remand centre .

Since the forms of authority issued by PERSON to Mr GPE and ORG list actions which , under the civil legislation currently in force , are not civil transactions , there are no grounds for forwarding these forms to Mr GPE . ”

On DATE the applicant ’s counsel submitted to the investigator a series of documents concerning the customs proceedings to which the applicant ’s company was a party . On DATE the investigator refused to transmit these to the applicant and appended them to the case - file , indicating that the applicant would be able to read them only after the investigation had been completed .

According to the Government , in DATE the applicant sent no letters to his relatives . His letters to public authorities were not subject to censorship and were posted without delay . Incoming letters were handed over to him on DATE of receipt .

On DATE counsel for the applicant asked for permission to pass to his client ( i ) a copy of a complaint to ORG , and ( ii ) a book “ International instruments on human rights ” . The director of the remand centre made a handwritten note on the petition : “ I agree to accept a copy of the complaint ” .

On DATE and CARDINAL DATE the applicant complained to ORG of GPE about the interception of the authority forms and commercial documents . By decisions of DATE and DATE , ORG disallowed the applicant ’s complaints , finding that the law did not provide for judicial review of the investigator ’s decisions concerning restrictions on family visits , correspondence or exchange of documents . On DATE the ORG confirmed on appeal that the applicant ’s complaints were not amenable to judicial review .

On DATE and CARDINAL September CARDINAL the applicant complained to ORG of GPE about the restrictions on family visits and correspondence imposed by the investigator . On DATE ORG , by a non - procedural communication , informed him that these complaints could not be examined by a court .

The applicant complained to ORG that he had not been able to obtain judicial review of restrictions on family visits , correspondence and exchange of documents .

By a decision of DATE ( no . CARDINAL ) , ORG confirmed its constant case - law to the effect that all decisions by an investigator or prosecutor which affected an interested party ’s constitutional rights and were not related to the merits of the criminal charge were amenable to judicial review ( see paragraph CARDINAL below ) . It emphasised that this approach was fully applicable to the investigator ’s decision concerning restrictions on family visits , correspondence or exchange of documents . ORG held that the judicial decisions refusing examination of the applicant ’s complaints were to be reviewed in accordance with the established procedure .

On DATE the Presnenskiy District Court of GPE re - examined many of the complaints lodged by the applicant in course of the criminal proceedings in DATE and DATE , including those concerning restrictions on correspondence , exchange of documents and family visits . ORG dismissed those complaints for the following reasons .

ORG found that the refusal to transmit customs documents from the lawyer to the applicant had been justified because the former had indicated that the documents were related to the criminal case . On that basis the documents had been included in the case file as evidence , in accordance with LAW . The applicant had been advised that he would be able to study the documents in question when examining the case file following completion of the preliminary investigation .

With regard to the refusal to pass the power of attorney of DATE , ORG held that ORG ( those issued both by ORG and by ORG ) prohibited detainees from authorising their representatives to carry out any actions other than civil transactions . As the scope of the applicant ’s power of attorney had not been confined to civil transactions , the refusal had been lawful . ORG did not refer to a specific provision of ORG .

As to the restrictions on family visits , ORG referred to the relevant provisions of LAW and LAW . It noted that the decision on whether or not to allow a family visit was to be taken by the investigator in the light of the The decisions made by the investigator in the applicant ’s case had subsequently been reviewed and approved by ORG and by ORG . Accordingly , ORG concluded that the decisions had been lawful and justified .

Finally , ORG found that CARDINAL of the applicant ’s letters to his relatives had been intercepted by the investigator because they either contained information on the criminal case , revealing secret information from the preliminary investigation , or expressed contempt for the law - enforcement authorities , which might foster a negative attitude among his relatives towards the law - enforcement bodies and thus obstruct the establishment of the truth in the criminal case . ORG held that the interception of those letters had been compatible with the domestic law and with international treaties , including LAW .

On DATE ORG endorsed , in a summary fashion , the findings of ORG .

From DATE until his release on DATE the applicant was held in special - purpose remand centre no . IZ-CARDINAL/CARDINAL ( formerly no . IZ-CARDINAL/CARDINAL , commonly known as “ PERSON ” ) .

The applicant was held in CARDINAL different cells that measured either QUANTITY . m and had CARDINAL sleeping places , or QUANTITY . m and contained QUANTITY . The design capacity of the cells was not exceeded .

The window frames were bricked in with semi - transparent glass cubes . In addition , there was a layer of thick bars with so - called “ eyelashes ” , that is , slanted plates , QUANTITY apart , welded to a metal screen . This construction gave no access to natural air or light . The Government submitted that the “ eyelashes ” had been removed on DATE . The applicant indicated that DATE private fans had been prohibited in the cells , but that ventilation was on during DATE .

The lavatory pan was placed in the corner of the cell . The Government produced a photo of the pan showing that it was separated from the living area by an QUANTITY tiled brick partition and shower curtains above it . The applicant responded that the partition and curtains had apparently been a recent development ; during the period of his detention there had been no tiles and the hanging of curtains of any kind had been prohibited . Furthermore , until DATE the walls had been covered with so - called shuba , a sort of abrasive concrete lining , designed to prevent detainees from leaning on the walls or writing on them .

Open - air exercise was permitted for TIME a day and a shower could be taken for TIME once a week .

The cells were constantly lit with fluorescent lighting . The applicant claimed that insufficient lighting had impaired his eyesight , which had fallen by CARDINAL dioptres . On DATE he asked to see an ophthalmologist and repeated his request CARDINAL times DATE and DATE . The ORG explained that no consultation had been arranged because the medical unit of the remand centre had no resident ophthalmologist and because the applicant had often been absent for court hearings . The applicant responded that the hearings had not started until DATE , that is , DATE after he had asked for consultation .

Finally , the applicant submitted that he had been the only non - smoker in his cells and had suffered from passive smoking . The Government indicated that the separation of non - smokers from smokers had been materially impossible .

NORP In support of his submissions the applicant produced affidavits by his former cellmates , PERSON , PERSON . and PERSON .

The applicant was transported from the remand centre to the courthouse and back CARDINAL times . Transport was arranged by officers of ORG of ORG ( конвойный полк ORG г. GPE ) .

NORP The prison vans ( Gaz-CARDINAL and Gaz-CARDINAL ) in which the applicant was transported had a passenger cabin which was QUANTITY long , QUANTITY wide , and QUANTITY high . The cabin was divided into CARDINAL multi - occupancy cubicles , designed for CARDINAL inmates each , and CARDINAL single - occupancy cubicle . The cubicles were equipped with benches . On DATE , in response to the applicant ’s complaints , the officer - in - command of ORG ordered that he be transported in a separate van . The applicant specified that a separate van had been made available to him CARDINAL times .

The Government submitted that the prison - van heaters and interior lights had been powered by the van engine . The vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow . The Government asserted that the applicant had received breakfast and dinner at the remand prison and that he had been allowed to bring his own food to court . It follows from the certificate issued by the head of remand centre no . IZ-CARDINAL/CARDINAL that dry rations had been given to detainees from DATE onwards .

In their post - admissibility submissions the Government enclosed CARDINAL reports prepared by the officer - in - command of ORG on DATE and DATE . According to these reports , the design capacity of prison vans had never been exceeded in DATE and the travel time from remand centre no . CARDINAL to ORG had been in the range of TIME , depending on traffic .

The applicant denied that the van had been heated or sufficiently ventilated . He indicated that the travel time between the remand centre and the court had been excessively long , and sometimes as long as TIME . During the entire journey he had been kept in the locked van without food or drink or access to a toilet .

The applicant produced a detailed table which listed the time he had spent before departure in the “ waiting cubicle ” at the remand centre , the time on the way to the courthouse and the time on the way back . The table covered the period from DATE to CARDINAL DATE , in which he had been transported on DATE . Of those CARDINAL times , on CARDINAL occasions the aggregate travel time on DATE had ranged from TIME and on a further CARDINAL occasions it had been TIME , with a maximum of TIME on DATE . The table also indicated that on DATE the design capacity of the prison van had been exceeded by CARDINAL additional persons .

DATE and DATE the applicant sent CARDINAL complaints about the “ torturous ” conditions of transport to many officials , including the director of the remand centre , ORG and the officer - in - command of ORG . According to the Government , the officer - in - command of ORG had acknowledged that there had been “ some irregularities ” in the transport of detainees and ordered that the applicant be transported by a separate van . A copy of that report was not made available to the ORG .

DATE . LAW of DATE establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) . At the material time , a decision ordering pre - trial detention could be taken by a prosecutor or a court ( Articles CARDINAL , CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure , the “ CCrP ” ) .

Before DATE , pre - trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment ( LAW CCrP ) . The amendments of DATE repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed .

After his or her arrest the suspect was placed in custody “ pending investigation ” for an initial DATE period ( LAW of the ORG ) . Further extensions could be granted by prosecutors at ascending levels of jurisdiction .

Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file , the file was submitted to a trial court . From that date a defendant ’s detention was “ before the court ” ( or “ pending trial ” ) . Until DATE LAW set no time - limit for detention “ pending trial ” . On DATE a new LAW was inserted , which established that the period of detention “ during trial ” could not normally exceed DATE from the date the court received the file .

LAW ( Federal Law on ORG and Defendants , no . CARDINAL of DATE ) provides as follows :

“ Suspects and defendants have the right :

( CARDINAL ) to meet with relatives and other persons listed in section CARDINAL ;

( CARDINAL ) to keep documents and records relating to the criminal case or to exercise of their rights and lawful interests ...

( CARDINAL) to maintain correspondence and to use writing utensils ;

( CARDINAL ) to enter into civil transactions . ”

“ Upon written consent of the official or authority in charge of the criminal case , a suspect or defendant may have up to CARDINAL meetings per month with relatives and other persons , each visit to last for TIME ... ”

“ Suspects and defendants may correspond with relatives and other persons , without any limitation on the number of incoming and outgoing letters or telegrams ...

Correspondence by suspects and defendants is to be carried out through the administration of the remand prison and is subject to censorship . Censorship is carried out by the administration of the remand prison and , if necessary , by the official or authority in charge of the criminal case .

Letters that contain information which may obstruct the establishment of the truth in a criminal case or facilitate the commission of a crime , are drafted with use of cryptography or cipher , or contain ORG or other secrets protected by law , may not be sent to the addressee or returned to the suspect or defendant . Instead , they are remitted to the official or authority in charge of the criminal case ... ”

The Internal Rules for Remand Centres of ORG ( order no . CARDINAL of DATE , in force until CARDINAL DATE ) provided as follows :

“ CARDINAL.CARDINAL Suspects and defendants may send and receive any number of letters or telegrams .

CARDINAL Letters and telegrams are sent and received through the administration of the remand centre . Correspondence by suspects and defendants is subject to censorship .

CARDINAL Letters and telegrams addressed to victims or witnesses , as well as those containing any information whatsoever in respect of the criminal case [ in issue ] , insults , threats , calls to violence , commission of crimes or other offences , information on security measures in the remand centre , its employees , ways of transmission of prohibited items , and any other information that may impede the establishment of the truth in the criminal case or facilitate criminal activities ... are not dispatched to the addressee ... and [ are ] handed over to the official or authority in charge of the criminal case .

CARDINAL A suspect or defendant may draft a power of attorney authorising another person to carry out a civil transaction . The power of attorney must be drafted in an established form and certified by the head of the remand centre in accordance with LAW of LAW .

The administration of the remand centre must supply a blank power of attorney to a suspect or defendant , at his or her request and at his or her own expense , and , if necessary , explain the procedure for filling it out . The power of attorney is passed or sent to the person whose is named therein , through the official or authority in charge of the criminal case .

CARDINAL A suspect or defendant may be allowed a family visit on the basis of a written consent issued by the official or authority in charge of the criminal case . The consent is valid for CARDINAL visit only . ”

The Internal Rules for Remand Centres of ORG ( order no . CARDINAL of CARDINAL DATE ) provided as follows :

“ CARDINAL . Letters ... are received and dispatched through the administration of the remand centre . Correspondence of detainees is subject to censorship .

Letters and telegrams addressed to suspects and defendants who are at large , victims , witnesses , as well as those containing any information whatsoever in respect of the criminal case [ in issue ] , insults , threats , calls to violence , commission of crimes or other offences , information on security measures in the remand centre , its employees , ways of transmission of prohibited items , and any other information that may impede the establishment of the truth in the criminal case or facilitate criminal activities ... are not dispatched to the addressee ... and [ are ] handed over to the authority in charge of the criminal case .

All correspondence by the detainees shall be recorded in a special register in which the dates of receipt and dispatch are noted ...

NORP By consent of the official or authority who is in charge of the criminal case , a suspect or defendant may issue a power of attorney to his or her representative for conducting a civil transaction . The power of attorney must be certified by the head of the remand centre , in accordance with LAW of LAW . ”

On DATE ORG issued Ruling no . DATE on the constitutional compatibility of those provisions of LAW which restricted the possibility of lodging appeals against an investigator ’s decisions to certain procedural actions . ORG considered that the constitutional right to judicial protection against actions or decisions impairing ORG rights and freedoms could not be restricted and that the interested party should therefore have the right to lodge a complaint with a court . It held that all decisions by the investigative authorities affecting constitutional rights and freedoms should be amenable to judicial review , provided that examination of their lawfulness and justification would not prejudge the merits of the criminal case .


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

A.

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

The applicant and his family lived in the GPE village of the LOC district attached to the NORP province .

On DATE the applicant and his family left their village taking their belongings as a result of pressure from security forces and terrorist organisations . The applicant sold his animals at a very cheap price prior to their departure . He and his family settled in GPE .

On DATE security forces carried out an operation in the region including the applicant ’s village . During the operation the security forces burned down the applicant ’s house and dairy farm .

On DATE the applicant learned of the destruction of his property via a press conference held by ORG and ORG in GPE .

On DATE the applicant filed petitions with the NORP Governor ’s office , the Prime Minister ’s office and the President of the GPE ’s office and on DATE with the ORG Minister ’s office . He complained to the authorities that he and his fellow villagers had been forced to leave their village as a result of pressure and that his house and dairy farm had been burned down by security forces .

On DATE an investigation was carried out into the applicant ’s allegations on the orders of the NORP Governor . The investigation concluded that the applicant and his fellow villagers had left their village as a result of the pressure from ORG terrorists and that the houses in the village had been destroyed due to bad DATE conditions .

On DATE and DATE the NORP Deputy Governor sent letters in reply to the applicant stating that his house and dairy farm had not been destroyed by the security forces but because of DATE conditions .

In DATE the NORP Governor ’s office carried out another investigation in the applicant ’s village GPE . The authorities found that there was no trace of burning of the applicant ’s house and that the only damage seen on the house was a hole on the roof which have been caused as a result of the DATE conditions , namely heavy snow .

According to the official records kept by the military authorities , State security forces did not carry out any operation around the applicant ’s village , GPE .

B. Relevant domestic law and practice

Administrative liability

Article CARDINAL of LAW provides as follows :

“ All acts or decisions of the administration are subject to judicial review ...

The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

The principle of administrative liability is reflected in the additional section CARDINAL of Law no . CARDINAL of DATE on ORG , which provides :

“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . ”

Criminal responsibility

LAW makes it a criminal offence :

( a ) to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil servants ) ,

( b ) to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ,

( c ) to issue threats ( LAW ) ,

( d ) to make an unlawful search of an individual ’s home ( Articles CARDINAL and CARDINAL ) ,

( e ) to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or aggravated arson if human life is endangered ( Article CARDINAL ) ,

( f ) to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) , or

( g ) to damage another ’s property intentionally ( Articles ORG ) .

For all these offences complaints may be lodged , pursuant to Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , with the public prosecutor or the local administrative authorities . ORG and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of ORG not to institute criminal proceedings .

If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of LAW . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected ORG hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .

If the alleged author of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .

Provisions on compensation

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .