Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - National law;Minor offences;Criminal offence);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The first , second , third , fourth and fifth applicants were born in DATE , DATE , DATE , DATE and DATE respectively and live in GPE . They are members of ORG , a NORP non - governmental organisation established in DATE ( “ the NGO ” ) . As part of its activities aimed at monitoring of the penal and law - enforcement authorities and promotion of the independence of the judiciary , the NGO held public press conferences and street demonstrations denouncing various serious human - rights abuses allegedly committed by ORG and in NORP prisons .

At TIME on DATE the applicants began a demonstration outside ORG to express their support for PERSON and Mr PERSON , owners of the CARDINAL private television channel , who were on trial DATE . The case of PERSON and PERSON received considerable public attention at that time ( for more details see PERSON and PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL , CARDINAL DATE ) .

As disclosed by the ORG written statements drafted on CARDINAL and CARDINAL DATE as a reminder of the exact circumstances surrounding the incident of CARDINAL DATE ( “ the ORG written statements ” ) , they entered the yard of ORG through the main gates ; the security guards noticed that one of the applicants was carrying a megaphone but did not object . The applicants stopped QUANTITY from the courthouse , and the first applicant , using the megaphone , began uttering the following slogans :

“ We should not have political prisoners in GPE ! ... We urge you to obey justice and not the private interests of a number of high officials ! ... Give me justice or give me death ! ... ” .

Furthermore , taking the view that the existing situation concerning human rights in GPE was similar to the terror unleashed by GPE in DATE , the first applicant disdainfully referred to the Minister of the ORG , Mr V.M. , as “ PERSON bastard ” . According to the written statements of the fourth and fifth applicants , they also called for the immediate release of PERSON PERSON and PERSON PERSON , as unlawfully detained , and urged ORG “ not to become an accomplice of the criminal activities of the [ Minister of the ORG ] ” .

According to the applicants , nothing was displayed or addressed to the court which could be construed as contempt : this could be confirmed by independent eyewitnesses to the incident , as well as by the images filmed by a cameraman from the CARDINAL television channel ( see a description of the video recording submitted by the applicants in paragraphs CARDINAL - CARDINAL below ) .

The first applicant ’s speech had lasted TIME when several uniformed court bailiffs approached the applicants and , allegedly without prior warning or explanation , restrained them by force . The applicants were then taken into the court - house and locked in the bailiffs’ duty room .

According to the ORG written statements , no record of their arrest was drawn up on the spot . In any event , they were not shown or asked to sign any such document . On the contrary , the bailiffs reassured the applicants that they were not formally under arrest , that it was a simple misunderstanding and that they would soon be released .

NORP The case file , however , contained CARDINAL separate records , on the arrest of each applicant . Those records indicated the name of the drafting bailiff as well as the name , date of birth , address and full serial number of the identification card of each of the applicants . The documents further stated that the applicants had been arrested at TIME on the basis of section CARDINAL(CARDINAL ) § CARDINAL ( f ) of ORG of DATE ( “ the LAW ” ) . In particular , the offenders had “ breached public order ” , which took the form of “ contempt of court , insults , disregard of the GPE lawful orders to stop the wrongdoing , resistance to the bailiffs , attempts to influence the court by actions and verbal expressions , impeding the administration of justice , and so on ” . All the records contained an entry , made in the drafting bailiff ’s handwriting indicating that the applicants had “ refused to sign this record or to receive a copy thereof ” . The President of ORG and the police were immediately informed of the offence and of the applicants’ arrest .

According to the applicants , these records of their arrest were drafted and added to the file concerning their case ex post factum .

Having been confined in the duty room of the court - house in complete unawareness of the reasons for their detention for TIME , the applicants were transferred by the police to an ORG remand centre ; the case file contains an excerpt from the relevant prison log showing that the fourth applicant entered the remand centre at TIME

The case file also contained explanatory memos from CARDINAL court bailiffs who had participated in the ORG arrest . Those memos were CARDINAL - page handwritten documents containing similar phrases , and were addressed to the Chief of ORG of ORG . Thus , according to those documents , the applicants , “ standing near the public entrance of the court at TIME ” , had started “ demanding the release of political prisoners ” and “ insulting the court by their expressions and actions ” . CARDINAL of the bailiffs added in his memo that the applicants’ actions had amounted to an encroachment upon the court ’s independence and impartiality , whilst another submitted that the wrongdoers had been trying to influence the court . All CARDINAL bailiffs stated that , prior to resorting to the measure of arrest , they had requested the applicants to stop the disturbance .

When they were transferred to the remand centre the applicants learnt that they had been detained on the basis of a decision of DATE issued by the President of ORG .

As disclosed by the decision of DATE , a CARDINAL - page document , the President of ORG , PERSON , sitting privately and without holding an oral hearing , decided , on the basis of the bailiffs’ written submissions alone , to detain the applicants for DATE under LAW § DATE ) of LAW ( “ the ORG ” ) . Thus , she took note of the bailiffs’ version of the incident of CARDINAL DATE ( see paragraph CARDINAL above ) , namely that “ [ the applicants ] , who were inside the court building , in its central entrance , were breaching public order , obstructing the normal functioning of the court and seeking to influence the court with respect to proceedings in a particular case ” . Despite the bailiffs’ request that they stop the disturbance , the applicants persisted with their conduct , which took the form of “ verbal expressions and actions ” . The President concluded that the applicants had “ breached public order , shown manifest and gross contempt towards the court and endangered the administration of justice . ”

The operative part of the decision of DATE indicated that no appeal lay against it , that the applicants were to serve their sentence in remand centre no . CARDINAL of ORG ( see paragraph CARDINAL above ) and that the GPE police department was responsible for its execution .

On DATE the applicants , referring to the suspension of the operation of Article CARDINAL § CARDINAL of the ORG by ORG decision of DATE ( see ORG judgment of DATE at paragraphs QUANTITY below ) and arguing that their detention was an administrative penalty , requested ORG of GPE to examine their complaint against the decision of DATE under LAW of the Code on Administrative Offences ( “ the ORG ” ) . They complained that the President of ORG had committed a manifest miscarriage of justice by punishing them under LAW ORG , which provision clearly envisaged liability only for acts committed inside court buildings ; a video recording of the applicants’ demonstration was submitted to show that it had taken place in the yard of ORG . Thus , the applicants argued that the above - mentioned provision could not be considered a foreseeable and therefore legitimate basis for their conviction and detention . They further complained that the President of ORG had violated the principles of a fair trial by delivering her decision entirely on the basis of the CARDINAL - sided account provided by the bailiffs . The applicants also complained that the President had chosen the severest sanction of those available under LAW of the ORG .

On DATE a ORG judge , Mr PERSON , examined , in absentia , the applicants’ complaint of DATE and dismissed it . The date of that examination was not communicated to the applicants in advance .

As disclosed by the decision of DATE , Judge PERSON first noted that the suspension of LAW ORG did not automatically entitle the applicants to lodge an appeal against their detention . However , acknowledging that their detention was , by its nature , an administrative penalty , he ruled that the complaint of DATE against the penalty could be examined under LAW ORG . Judge PERSON went on to criticise the applicants for abusing their right to freedom of expression . He found it established from the case materials that the applicants had truly exhibited “ manifest and gross contempt ” towards ORG by committing those acts “ inside the court building , namely in its central entrance hall ” . In any event , the aim of LAW § DATE ) of the ORG was , in the opinion of Judge PERSON , to protect public order not only inside court - houses but also outside them , in adjacent LOC . The President of ORG had no other choice but to sanction the applicants under LAW § CARDINAL(CARDINAL ) of the ORG , since what was at stake in the given situation was “ not the judge ’s own interests but the authority of the court and the proper administration of justice ” . In reply to the complaint that the President of ORG had made her decision entirely on the basis of CARDINAL - sided submissions , Judge PERSON stated that all the evidence – the records of the applicants’ arrest and the explanatory notes – had been drafted and submitted by the bailiffs for consideration by the President in accordance with a procedure envisaged by law . Judge PERSON also stated that the CARDINAL days’ detention had been an appropriate punishment , given the gravity of the acts committed .

The period of the ORG detention expired and they were released on DATE .

The recording showed excerpts from a television programme prepared by the CARDINAL channel concerning the incident of DATE .

The first scene briefly showed several uniformed bailiffs restraining some of the applicants in the yard of ORG . The first applicant , holding a megaphone , was hustled by the bailiffs towards the central entrance of the court - house . At the end of the scene , a man ’s hand was placed over the lens of the camera .

In a later episode of the programme , the President of ORG , PERSON , was shown at a press conference concerning the applicants’ arrest . She stated :

“ ... CARDINAL individuals , ... who have shown such direct and gross contempt towards the court and breached public order in the court ... I will impose upon them , by my ruling , a form of detention for DATE , and this will be another good example [ of the fact ] that respect towards courts and the maintenance of public order in court will be protected very strictly . ”

( “ ... ხუთ მონაწილეს ამ აქციის , ... რომლებმაც ასეთი პირდაპირი და უხეში უპატივცემულობა გამოხატეს სასამართლოს მიმართ და დაარღვიეს წესრიგი სასამართლოში ... მე გამოვიყენებ ჩემი განკარგულებით ოცდაათდღიანი დაპატიმრების ფორმას მათ მიმართ და ეს იქნება კიდევ ერთხელ კარგი მაგალითი იმისათვის , რომ პატივისცემის გამოხატვა სასამართლოს მიმართ და სასამართლოში წესრიგის დაცვა იქნება ძალიან მკაცრად დაცული. ” )

The commentator of the programme noted that , prior to taking office as President of ORG , PERSON had served as deputy to PERSON , the Minister of the ORG .

The remaining scenes in the broadcast showed interviews with the applicants’ advocates and supporters , some of whom stated that the applicants could not be held liable under LAW ORG , because their actions had taken place outside the court building .

Section CARDINAL(CARDINAL ) § CARDINAL listed court bailiffs’ rights and responsibilities :

Section CARDINAL(CARDINAL )

“ CARDINAL . Bailiffs shall

( a ) ensure the safety of judges , parties to proceedings and witnesses ;

( b ) maintain order inside the court - house and hearing rooms ;

( c ) enforce the instructions of the President of the court and of the hearing judge concerning the maintenance of order ;

( d ) protect the court - house ;

( e ) ensure that hearing rooms are well prepared for the conduct of proceedings ... ;

( f ) prevent offences from being committed inside the court - house , identify offenders and , if necessary , arrest them for the purpose of handing them over to the police , and draft a written record on such arrests ... ;

( g ) exercise all other powers envisaged by law . ”

Section CARDINAL(CARDINAL ) § CARDINAL ( a ) gave bailiffs the right to resort to physical force , to “ special equipment ” and even to firearms in the exercise of their duties . Section CARDINAL(CARDINAL ) § § CARDINAL and CARDINAL specified that the above - mentioned right could be exercised only if other less severe measures of constraint had been shown to be ineffective , and that bailiffs were obliged to issue a verbal warning to the persons concerned prior to resorting to force .

Article CARDINAL , on the basis of which the applicants were sanctioned by the decision of DATE , read as follows :

Article CARDINAL : “ Liability for breach of public order in court ”

“ CARDINAL . The President of the court shall ensure the maintenance of public order in the court , whilst the presiding judge shall be responsible for maintaining order during the hearing of cases ...

A party to the proceedings , or any other person who has either breached public order during a hearing , or disregarded the presiding judge ’s ruling or is in contempt of court , shall be fined and/or expelled from the courtroom . If the person expelled from the courtroom continues to breach such an order , the detention envisaged by this Article may be imposed upon him or her ....

If manifest and gross contempt of court has been shown , the judge presiding over the hearing may issue a decision to detain the offender for DATE . Such a decision shall be enforced immediately .... ”

CARDINAL ) . In the event of a breach of public order or contempt committed inside the court building , the President of the court shall be entitled to apply the measures envisaged by this LAW against the offender .

So far as the current Article is concerned , the decisions of the presiding judge and of the President of the court shall be delivered by on - the - spot deliberations and without an oral hearing , and no appeal shall lie against them . ”

Subsequent to the Constitutional Court judgments of DATE ( see paragraphs CARDINAL - CARDINAL below ) , LAW ORG was significantly revised on DATE . Thus , the newly added paragraph CARDINAL of that provision explicitly gave the court bailiffs the power to arrest a person who had either “ breached public order in the court , was in contempt , or had obstructed the normal functioning of the court ” . Bailiffs were obliged to draw up a record of such arrests and to bring the offenders before the President of the relevant court within TIME . The President had further twentyfour TIME to issue a decision on whether to punish the offender . LAW and CARDINAL of the amended LAW further stated that proceedings concerning the imposition of detention on an offender should always be adversarial , and conducted at an oral hearing at which the offender would be given an opportunity to defend him or herself . Should the President decide to detain the offender , the latter was entitled to lodge an appeal against that decision with the higher court within DATE .

The Code was adopted on DATE , when GPE was part of GPE . Subsequently , numerous amendments were introduced . At the material time the relevant provisions of this LAW read as follows :

Article CARDINAL : “ The notion of an administrative offence ”

“ An administrative offence is a wrongful action or omission , committed either deliberately or by negligence , which contravenes the ORG or public order , the rules on Governance , property or ORG rights and freedoms , and which attracts administrative liability .

Administrative liability shall be imposed only in those cases where the offences envisaged under the present Code do not call for criminal liability in the light of the applicable legislation . ”

Article CARDINAL § CARDINAL listed the forms of administrative penalties , of which administrative detention was the severest . Pursuant to Article CARDINAL § CARDINAL , administrative detention could be imposed by a district ( city ) court , only as an exception , for certain types of administrative offences and for a period not exceeding thirty days .

Article CARDINAL provided for measures of restraint in administrative proceedings , such as administrative arrest , search of the person or of objects , seizure of objects and of documents . Those measures , including arrest , could be used “ in order to prevent an administrative offence ... , to ensure a timely and proper examination of an administrative case , and to enforce any decision or ruling delivered in such a case ” .

Article CARDINAL contained an inclusive list of those authorities which were empowered to effectuate an administrative arrest . Court bailiffs were not among them .

Pursuant to LAW , administrative arrest must not exceed TIME , unless specific statutes provided for longer terms “ in cases of exceptional need ” .

Articles CARDINAL , CARDINAL and CARDINAL contained procedural and substantive rules on the conduct of administrative proceedings , and were similar to those normally applicable to criminal proceedings in court . In particular , a person charged with an administrative offence to fundamental procedural rights such as the right to examine the case materials , to submit arguments and evidence and requests , to benefit from legal assistance during the examination of the case , to plead in his or her native language or to be assisted by an interpreter , and to appeal against procedural rulings . An administrative case was always to be examined in the presence of the charged person during an oral hearing ; in absentia proceedings could take place only if that person had been duly summoned but had failed to appear .

Pursuant to ORG CARDINAL and CARDINAL , no appeal lay , as a general rule , against a court decision convicting a person of an administrative offence and imposing a penalty . However , a final decision could be quashed by means of an extraordinary review . These provisions read as follows :

Article CARDINAL § CARDINAL : “ The right to lodge an appeal ... ”

“ CARDINAL . The city ( district ) court ’s decision to impose an administrative penalty is final and not subject to an appeal in administrative proceedings , except for those cases where a law holds otherwise . ”

Article CARDINAL : “ Review of a case ... ”

“ The administrative judge ’s ( court ’s ) decision concerning an administrative offence can be quashed or amended by the delivering judge ( court ) at a prosecutor ’s request and , whether or not such a request has been lodged , by the President of the superior court ... ”

Article CARDINAL of LAW , explaining the notion of nonpecuniary damage , read as follows :

Article CARDINAL § CARDINAL : “ Non - pecuniary damage ”

“ CARDINAL . Non - pecuniary damage , which amount should be reasonable and equitable , can be claimed exclusively in the situations explicitly envisaged by law .

An individual is entitled to request compensation for non - pecuniary damage caused in respect of damage to his or her health . ”

Article CARDINAL of the Civil Code specified that ORG agencies were jointly liable for damage caused to a private party by intentional or negligent actions on the part of their officials , including such particular instances , the existence of which should first be established by a court , as unlawful conviction for a criminal or administrative offence or imposition of unlawful detention .

Subsequent to LAW ( f ) of LAW , a final judgment ( decision ) in a civil case could be reconsidered on the basis of newly discovered circumstances . FAC for such reconsideration were , amongst others , factual circumstances or evidence which , had they been submitted to the domestic courts pending the original examination of the case , would have led to a different outcome .

The case originated in constitutional appeals by CARDINAL advocates who had been detained under LAW of the ORG for breach of public order and contempt of court committed in courtrooms during the oral hearing of criminal cases .

In a decision of DATE , ORG declared the constitutional appeals admissible for an examination on the merits , and suspended the operation of LAW ORG pending the proceedings .

In a judgment of DATE , ORG abrogated LAW ORG as unconstitutional .

In its reasoning , ORG , referring to the ORG ’s case - law , found that LAW applied under its “ criminal head ” to the proceedings under LAW ORG . It further reasoned that those proceedings , which entitled the hearing judge to convict a person of a breach of public order / contempt of court by onthespot deliberations , without holding an oral hearing , negated the most fundamental safeguards of a fair trial , such as the right to equality of arms and adversarial proceedings , the right to have adequate time and facilities for the preparation of the defence , and so on .

ORG stated that , by denying a person convicted under LAW ORG the right to lodge an appeal , paragraph CARDINAL of that provision violated LAW No . CARDINAL . In support of the latter finding , ORG referred to the ORG ’s judgment in the case of PERSON v. GPE ( no . MONEY , § § DATE , DATE ) .

In its judgment , ORG also criticised the definition of the offence of contempt of court , as contained in paragraph CARDINAL of Article CARDINAL of the ORG , as vague . Notably :

“ the offence prescribed by the disputed provision is not clearly formulated ... and the interpretation may be ambiguous due to the lack of specificity and vagueness of the provision .... Where the legislation introduces a sanction such as detention , an offender must clearly understand the nature of the offence for which he is subjected to detention and , on the other hand , the judge applying the law should be able to do so correctly and adequately . ...

[ I]n the Constitutional Court ’s view , achieving and maintaining such important purposes as the protection of the authority of the courts and the smooth functioning of the justice system should not be carried out at the expense of the impairment of fundamental human rights . ”


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

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE .

On DATE an unidentified person or persons placed an advertisement on an Internet dating site in the name of the applicant , who was DATE at the time , without his knowledge . The advertisement mentioned his DATE of birth , gave a detailed description of his physical characteristics , a link to the web page he had at the time , which showed his picture , as well as his telephone number , which was accurate save for CARDINAL digit . In the advertisement , it was claimed that he was looking for an intimate relationship with a boy of his age or older “ to show him the way ” .

The applicant became aware of the advertisement on the Internet when he received an e - mail from a man , offering to meet him and “ then to see what you want ” .

The applicant ’s father requested the police to identify the person who had placed the advertisement in order to bring charges against that person . The service provider , however , refused to divulge the identity of the holder of the so - called dynamic Internet Protocol ( IP ) address in question , regarding itself bound by the confidentiality of telecommunications as defined by law .

The police then asked ORG ( käräjäoikeus , tingsrätten ) to oblige the service provider to divulge the said information pursuant to CARDINAL of LAW ( esitutkintalaki , förundersökningslagen ; Act no . CARDINAL/CARDINAL , as amended by Act no . CARDINAL ) .

In a decision issued on DATE , ORG refused since there was no explicit legal provision authorising it to order the service provider to disclose telecommunications identification data in breach of professional secrecy . The court noted that by virtue of LAW , section CARDINAL , of LAW ( pakkokeinolaki , tvångsmedelslagen ; Act no . GPE ) and section CARDINAL of ORG and Data Security in Telecommunications Act ( laki yksityisyydensuojasta televiestinnässä ja teletoiminnan tietoturvasta , lag om integritetsskydd vid telekommunikation och dataskydd inom televerksamhet ; Act no . CARDINAL ) the police had the right to obtain telecommunications identification data in cases concerning certain offences , notwithstanding the obligation to observe secrecy . However , malicious misrepresentation was not such an offence .

On DATE ORG ( hovioikeus , hovrätten ) upheld the decision and on DATE ORG ( korkein oikeus , högsta domstolen ) refused leave to appeal .

The person who had answered the dating advertisement and contacted the applicant was identified through his e - mail address .

NORP The managing director of the company which provided the Internet service could not be charged , because in his decision of DATE the prosecutor found that the alleged offence had become time - barred . The alleged offence was a violation of LAW ( henkilötietolaki , personuppgiftslagen ; Act no . CARDINAL , which came into force on DATE ) . More specifically , the service provider had published a defamatory advertisement on its website without verifying the identity of the sender .

LAW ( Suomen hallitusmuoto , NORP för GPE ; Act no . CARDINAL , as amended by Act no . CARDINAL ) was in force until DATE . Its section CARDINAL corresponded to LAW ( Suomen perustuslaki , ORG grundlag ; Act no . GPE ) , which provides that everyone ’s right to private life is guaranteed .

At the material time , LAW , LAW , of LAW ( rikoslaki , strafflagen ; Act no . CARDINAL/CARDINAL ) provided :

“ A person who in a manner other than that stated above commits an act of malicious misrepresentation against another by a derogatory statement , threat or other degrading act shall be sentenced for malicious misrepresentation to a fine or to imprisonment for a maximum period of DATE .

If the malicious misrepresentation is committed in public or in print , writing or a graphic representation disseminated by the guilty party or which the guilty party causes , the person responsible shall be sentenced to a fine or to imprisonment for a maximum period of DATE . ”

At the material time , LAW , section CARDINAL of LAW provided :

“ Preconditions of telecommunications monitoring

Where there is reason to suspect a person of

( CARDINAL ) an offence punishable by not CARDINAL months’ imprisonment ;

( CARDINAL ) an offence against a computer system using a terminal device , a narcotics offence ; or

( CARDINAL ) a punishable attempt to commit an offence referred to above in this section ;

the authority carrying out the criminal investigation may be authorised to monitor a telecommunications connection in the suspect ’s possession or otherwise presumed to be in his use , or temporarily to disable such a connection , if the information obtained by the monitoring or the disabling of the connection can be assumed to be very important for the investigation of the offence ... ”

Section CARDINAL , subsection DATE ) of ORG and Data Security in Telecommunications Act , which came into force on DATE and was repealed on DATE , provided :

“ Notwithstanding the obligation of secrecy provided for in section CARDINAL , the police have the right to obtain :

( CARDINAL ) NORP identification data on transmissions to a particular transcriber connection , with the consent of the injured party and the owner of the subscriber connection , necessary for the purpose of investigating an offence referred to in LAW , LAW , LAW , LAW ( a ) of LAW no . CARDINAL ) ... ”

Section CARDINAL of LAW provides that the service provider is under criminal liability to verify the identity of the sender before publishing a defamatory advertisement on its website . LAW provides that the service provider is also liable in damages .

At the material time , processing and publishing sensitive information concerning sexual behaviour on an Internet server without the subject ’s consent was criminalised as a data protection offence in section CARDINAL of LAW no . CARDINAL/CARDINAL ) and LAW , LAW no . MONEY ) of LAW , and as a data protection violation in DATE of LAW . Furthermore , it could have caused liability in damages by virtue of LAW no . CARDINAL/CARDINAL ) of LAW .

Section CARDINAL of the Exercise of Freedom of Expression in LAW ( laki sanavapauden käyttämisestä joukkoviestinnässä , lagen om yttrandefrihet i masskommunikation ; Act no . CARDINAL ) , which came into force on DATE , provides :

“ Release of identifying information for a network message

At the request of an official with the power of arrest , a public prosecutor or an injured party , a court may order the keeper of a transmitter , server or other similar device to release information required for the identification of the sender of a network message to the requester , provided that there are reasonable grounds to believe that the contents of the message are such that providing it to the public is a criminal offence . However , the release of the identifying information to the injured party may be ordered only in the event that he or she has the right to bring a private prosecution for the offence . The request shall be filed with ORG of the domicile of the keeper of the device , or with ORG , within DATE of the publication of the message in question . The court may reinforce the order by imposing a threat of a fine . ”

The rapid development of telecommunications technologies in DATE has led to the emergence of new types of crime and has also enabled the commission of traditional crimes by means of new technologies . ORG recognised the need to respond adequately and rapidly to this new challenge as far back as in DATE , when ORG R ( CARDINAL ) CARDINAL on computer - related crime . Resolved to ensure that the investigating authorities possessed appropriate special powers in investigating computer - related crimes , in DATE ORG R ( CARDINAL ) CARDINAL concerning problems of criminal procedural law connected with information technology . In point CARDINAL of the principles appended thereto , it recommended that :

“ Specific obligations should be imposed on service providers who offer telecommunication services to the public , either through public or private networks , to provide information to identify the user , when so ordered by the competent investigating authority . ”

The other principles relating to the obligation to cooperate with the investigating authorities stated :

“ CARDINAL . Subject to legal privileges or protection , most legal systems permit investigating authorities to order persons to hand over objects under their control that are required to serve as evidence . In a parallel fashion , provisions should be made for the power to order persons to submit any specified data under their control in a computer system in the form required by the investigating authority .

Subject to legal privileges or protection , investigating authorities should have the power to order persons who have data in a computer system under their control to provide all necessary information to enable access to a computer system and the data therein . Criminal procedural law should ensure that a similar order can be given to other persons who have knowledge about the functioning of the computer system or measures applied to secure the data therein . ”

In DATE , ORG set up a committee of experts to deal with cybercrime . It was felt that , although the previous CARDINAL recommendations on substantive and procedural law had not gone unheeded , only a binding international instrument could ensure the necessary efficiency in the fight against cyberspace offences . ORG was opened for signature on DATE and came into force on DATE . It is the first and only international treaty on crimes committed via the Internet and is open to all GPE . The LAW requires countries to establish as criminal offences the following acts : illegal access to a computer system , illegal interception of computer data , interference with data or a computer system , misuse of devices , computer - related forgery and fraud , child pornography , and the infringement of copyright and related rights . The additional protocol to ORG , adopted in DATE , further requires the criminalisation of hate speech , xenophobia and racism . The scope of the ORG ’s procedural provisions goes beyond the offences defined in the ORG in that it applies to any offence committed by means of a computer system :

“ CARDINAL . Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings .

NORP ... each Party shall apply the powers and procedures referred to in paragraph CARDINAL of this Article to :

( a ) the criminal offences established in accordance with Articles CARDINAL through CARDINAL of this Convention ;

( b ) NORP other criminal offences committed by means of a computer system ; and

( c ) the collection of evidence in electronic form of a criminal offence .

NORP ... ”

The procedural powers include the following : expedited preservation of stored data , expedited preservation and partial disclosure of traffic data , production order , search and seizure of computer data , real - time collection of traffic data and interception of content data . Of particular relevance is the power to order a service provider to submit subscriber information relating to its services ; indeed , the explanatory report describes the difficulty in identifying the perpetrator as being one of the major challenges in combating crime in the networked environment :

“ CARDINAL . Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order :

( a ) a person in its territory to submit specified computer data in that person ’s possession or control , which is stored in a computer system or a computer - data storage medium ; and

( b ) a service provider offering its services in the territory of the ORG to submit subscriber information relating to such services in that service provider ’s possession or control .

NORP The powers and procedures referred to in this Article shall be subject to Articles CARDINAL and CARDINAL .

For the purpose of this Article the term ‘ subscriber information’ means any information contained in the form of computer data or any other form that is held by a service provider , relating to subscribers of its services , other than traffic or content data and by which can be established :

( a ) NORP the type of communication service used , the technical provisions taken thereto and the period of service ;

( b ) the subscriber ’s identity , postal or geographic address , telephone and other access number , billing and payment information , available on the basis of the service agreement or arrangement ;

( c ) any other information on the site of the installation of communication equipment , available on the basis of the service agreement or arrangement . ”

The explanatory report notes that , in the course of a criminal investigation , subscriber information may be needed mainly in CARDINAL situations . Firstly , to identify which services and related technical measures have been used or are being used by a subscriber , such as the type of telephone service used , the type of other associated services used ( for example , call forwarding , voicemail ) , or the telephone number or other technical address ( for example , the e - mail address ) . Secondly , where a technical address is known , subscriber information is needed in order to assist in establishing the identity of the person concerned . A production order provides a less intrusive and less onerous measure which law enforcement authorities can apply instead of measures such as interception of content data and real - time collection of traffic data , which must or can be limited only to serious offences ( Articles DATE of ORG ) .

A global conference , “ Cooperation against Cybercrime ” , held in GPE on DATE adopted the “ Guidelines for the cooperation between law enforcement and Internet service providers against cybercrime ” . The purpose of the Guidelines is to help law enforcement authorities and Internet service providers structure their interaction in relation to cybercrime issues . In order to enhance cybersecurity and minimise the use of services for illegal purposes , it was considered essential that the CARDINAL parties cooperate with each other in an efficient manner . The LAW outline practical measures to be taken by law enforcement agencies and service providers , encouraging them to exchange information in order to strengthen their capacity to identify and combat emerging types of cybercrime . In particular , service providers are encouraged to cooperate with law enforcement agencies to help minimise the extent to which services are used for criminal activity as defined by law .

Out of a number of resolutions adopted in the field of cyberspace , the most pertinent for the purposes of the present case are ORG DATE and PERSON of DATE on combating the criminal misuse of information technologies . Among the measures to combat such misuse , it was recommended in ORG CARDINAL/CARDINAL that :

“ ( f ) legal systems should permit the preservation of and quick access to electronic data pertaining to particular criminal investigations ; ”

The subsequent ORG took note of the value of the various measures and again invited member GPE to take them into account .

On DATE ORG and ORG adopted Directive QUANTITY on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks , amending the previous data - retention Directive CARDINAL . The aim of the Directive is to harmonise member States’ provisions concerning the obligations of communications providers with respect to the retention of certain data , in order to ensure that the data are available for the purpose of the investigation , detection and prosecution of serious crime , as defined by each member ORG in its national law . It applies to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user . It does not apply to the content of electronic communications . The Directive requires member GPE to ensure that certain categories of data are retained for a period of DATE . LAW the data to be retained :

“ CARDINAL . Member GPE shall ensure that the following categories of data are retained under this Directive :

( a ) NORP data necessary to trace and identify the source of a communication :

( CARDINAL ) concerning Internet access , Internet e - mail and Internet telephony :

( iii ) the name and address of the subscriber or registered user to whom an Internet LAW ( IP ) address , user ORG or telephone number was allocated at the time of the communication ; ”

Member GPE had until DATE to implement the Directive . However , QUANTITY States , including GPE , made use of the right to postpone their application to Internet access , Internet telephony and Internet email until DATE .

A comparative review of the national legislation of the member ORG shows that in most countries there is a specific obligation on the part of telecommunications service providers to submit computer data , including subscriber information , in response to a request by the investigating or judicial authorities , regardless of the nature of a crime . Some countries have only general provisions on the production of documents and other data , which could in practice be extended to cover also the obligation to submit specified computer and subscriber data . Several countries have not yet implemented the provisions of LAW .

ORG submitted that the present case raises the question of balancing the protection of privacy , honour and reputation on the one hand and the exercise of freedom of expression on the other . It took the view that the present case offers the ORG an opportunity to define the ORG ’s positive obligations in this sphere and thereby to promote common standards in the use of the Internet throughout the member GPE .

It pointed out that the Internet is a very special method of communication and CARDINAL of the fundamental principles of its use is anonymity . The high level of anonymity encourages free speech and expression of various ideas . On the other hand , the Internet is a powerful tool for defaming or insulting people or violating their right to privacy . Due to the anonymity of the Internet , the victim of a violation is in a vulnerable position . Contrary to traditional media , the victim can not easily identify the defaming person due to the fact that it is possible to hide behind a pseudonym or even to use a false identity .


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in PERSON .

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

In DATE the applicant brought an action in compensation against his former employer before ORG . In DATE ORG partly found for him . The applicant appealed . On DATE the ORG upheld the first - instance decision . The courts relied on documentary evidence , the opinion of an auditor and testimonies of witnesses and the parties .

The applicant lodged a petition for review with ORG . On DATE ORG dismissed the applicant ’s petition . This decision was served on him on DATE .


No violation of P1-1 with regard to one set of proceedings;No violation of Art. 6-1 with regard to one set of proceedings;Violation of P1-1 with regard to other proceedings;Violation of Art. 6-1 with regard to other proceedings;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

The applicant was born in DATE and lives in GPE .

She is the owner of CARDINAL flats in ORG ( GPE ) , that she had let to different tenants .

In a registered letter of CARDINAL DATE , the applicant informed the tenant that she intended to terminate the lease on expiry of the term on DATE and asked him to vacate the LOC by DATE .

In a writ served on the tenant on DATE , the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on CARDINAL DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

On DATE , she informed the tenant that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .

On an unspecified date in DATE , the applicant recovered possession of the flat .

In a registered letter of DATE , the applicant informed the tenant that she intended to terminate the lease on expiry of the term on DATE and asked him to vacate the LOC by DATE .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant the applicant was not entitled to police assistance in enforcing the order for possession .

In DATE , the tenant entered into a new lease .

In a writ served on the tenant on CARDINAL DATE , the applicant informed the tenant of her intention to terminate the lease on expiry of the term on DATE and summoned him to appear before the Naples Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the Naples Magistrate upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful as the applicant was not entitled to police assistance in enforcing the order for possession .

On DATE , the applicant recovered possession of the flat .

On DATE , ORG died , PERSON succeeded in the lease .

In a registered letter of CARDINAL DATE , the applicant informed the tenants that she intended to terminate the lease on expiry of the term on DATE and asked them to vacate the LOC by DATE .

In a writ served on the tenants on CARDINAL DATE , the applicant reiterated her intention to terminate the lease and summoned the tenants to appear before the GPE Magistrate .

On DATE , the applicant served notice on the tenants requiring them to vacate the premises .

On DATE , she informed the tenants that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful as , the applicant was not entitled to police assistance in enforcing the order for possession . Following the entry into force of PERSON , the enforcement of the evictions proceedings was suspended until DATE .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V. Lastly , for some cases , a suspension of the enforcement of the orders for possession until DATE was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of CARDINAL DATE .

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of CARDINAL DATE reformed the tenancies and liberalised the rents .

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages ” .

However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

ORG declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


Violations of Art. 2 (deaths and failure to investigate effectively);No separate issue under Art. 6;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

NORP The applicants’ dates of birth and their relationship to the QUANTITY persons who were killed in the police operations described below are as follows :

ORG ( DATE ) was the father and ORG ( DATE ) was the wife of the late PERSON . PERSON ( DATE ) is the mother and ORG ( DATE ) is the father of the late PERSON . PERSON ( DATE ) is the brother of the late PERSON . GPE Özkaya ( DATE ) is the brother of the late Cavit Özkaya . Mahmut PERSON ( DATE ) was the father and PERSON ( DATE ) is the sister of the late PERSON .

On DATE the police carried out operations against activist members of PERSON ( “ GPE ” ) , an extreme left - wing armed movement , classified as a terrorist organisation by the NORP judicial authorities , in CARDINAL buildings located in different areas of GPE . CARDINAL alleged members of PERSON were killed during these operations . None of the police officers , who had been wearing helmets and bullet - proof jackets , was killed or injured .

In every case , the victims had been under surveillance for some time and the area was sealed off before the operation . According to some newspaper reports , the Minister of ORG at the material time had confirmed in a press statement that the victims had been under surveillance before the operations took place and that the operations had been coordinated .

According to some of the newspaper reports , after the operations Mr PERSON , Chief of ORG , had congratulated the members of the police force who had taken part in the raids .

The purpose of the operations , according to the ORG , had been to apprehend persons suspected of having been involved in terrorist activities and bring them to trial , and also to prevent possible terrorist attacks .

NORP The police reports suggest that in each case several calls to surrender were made , to which the deceased replied by opening fire with guns and rifles . All the suspected terrorists were killed . No member of the police force was killed or injured in any of the CARDINAL locations . The only person injured was a resident in CARDINAL of the buildings .

Certain newspaper reports suggest that there were calls to surrender , while some others claim that no call to surrender was made .

According to the police reports , the deceased had been heavily armed ; in each case the deceased had opened fire first ; and in each location , guns and rifles of various sizes , bombs , hand grenades and material used for producing explosives were found . ORG reports confirmed the police reports in this respect .

The circumstances of the CARDINAL operations , which were co - ordinated , were as follows :

According to the police reports , this apartment was the first to be raided , at TIME on DATE .

The police reports suggest that there was an armed clash for TIME between police and those inside the building . CARDINAL alleged terrorists were killed by the police at this location , namely PERSON and PERSON .

A resident ( ORG ) who had tried to run away from the scene of the incident was shot and wounded by the police .

The following details of the incident are given in the police reports :

“ In the course of the operations launched against the illegal LOC organisation ... we proceeded with the duty police officers to the address in question to arrest the militants of the organisation . ... [ NORP taking the necessary measures ... we went to flat No . CARDINAL on the ground floor ... and knocked on the door . ... [ A]s we were determining whether or not there was anyone inside , explosive materials were thrown from inside ... at the door at which we were waiting , and we officers withdrew and made calls to surrender and issued warnings to those inside . When it was observed that the people inside kept replying to our calls to surrender with hand grenades , and as it was observed that they had made a booby trap with explosive materials at the entrance , we made no attempt to enter the apartment . When securing the rear side of the building , we found a door opening onto the garden . This door was located in apartment no . CARDINAL . The building was surrounded , and the persons in the building were called on to give themselves up from the rear of the building as well . ... [ T]he militants inside kept throwing hand grenades into the garden ... and it became impossible to approach the garden and the door behind the building ... The calls from behind the building were likewise answered with gunshots and hand grenades . Since this persisted , we returned fire . Since the militants in the building were continually throwing hand grenades into the garden and into the access area of the apartment , the people living in the other parts of the building were evacuated for their own safety , as we had reason to assume that there could be large quantities of explosives in the building . They resisted the calls to surrender for CARDINAL , and with the aim of getting the militants , who kept throwing bombs and firing outside with guns , to leave the apartment , tear gas bombs were fired from a tear gas gun at the house from outside and we waited ... [ B]ut when it was observed that the militants inside were not affected by the gas bombs and continued to throw bombs ... the security ring was tightened , a close armed combat took place with the armedorganisation militants inside and the individuals were captured dead . ... When it was observed that there were large numbers of bombs inside the house ... bomb disposal experts were called . First they defused the booby traps on the doors in order to be able to enter and make a search ... [ I]t was observed that there were guns and hand grenades in the hands of the individuals who were dead in the room and lounge with the pins attached to their fingers ... ... [ NORP the hand grenades still in the hands of the ( dead ) individuals had been taken by the bomb disposal experts under the control of the PERSON Deputy Public Prosecutor , the CARDINAL militants observed to be dead were removed to hospital in an ambulance ... ”

NORP The police reports also contain details of weapons found on the premises :

“ ... during the searches made in the house , there was found a Colt pistol , serial no . CARDINAL and cartridge clip in the hand of CARDINAL individual captured dead , a QUANTITY bore PERSON pistol , serial no . DATE beside the other corpse , and inside the room in various places a CARDINAL x CARDINAL mm Beretta pistol , serial no . DATE , a cartridge clip with bullets , a CARDINAL PERSON bore NORP pistol , the writing on which was illegible and cartridge clips with bullets . [ I]n the pistol and the pistol cartridge clips in the room in which the individuals were found , CARDINAL Colt bullets , CARDINAL GDCO QUANTITY bore cartridges , CARDINAL x CARDINAL calibre ORG cartridges , CARDINAL x CARDINAL PERSON foreign - made cartridges , CARDINAL x QUANTITY empty cartridges and CARDINAL x CARDINAL PERSON bullet were found . In the vicinity of the room and in a specially equipped place beneath the room we found CARDINAL cartridges of QUANTITY and CARDINAL cartridges , CARDINAL deformed bullets , CARDINAL silencers , CARDINAL of them broken , CARDINAL large - piece silencers , ORG smaller parts such as those used in the manufacture of silencers , as well as CARDINAL hand grenades ( industrial products ) , CARDINAL offensive hand grenades with ready - made primer and triggering device , CARDINAL ORG mould ( industrial product ) , CARDINAL LANGUAGE - type offensive hand grenade , CARDINAL defensive hand grenades , CARDINAL small - size ORG moulds , CARDINAL offensive hand grenade ( industrial product ) , CARDINAL booby traps with walk - on triggering mechanism ( industrial product ) , CARDINAL pipe bombs ( handmade ) ready for detonation with fragmentation effect , CARDINAL GPE explosion flashes , model DN CARDINAL CA CARDINAL - CARDINAL , CARDINAL x CARDINAL battery power packs , CARDINAL ready - to - use electrical devices , CARDINAL electronic devices such as are used in bomb manufacture , CARDINAL electric primers , CARDINAL ordinary primers , CARDINAL electronic devices , QUANTITY batteries , CARDINAL electronic alarm clocks , CARDINAL chronometers , CARDINAL electric watches , CARDINAL calculators , QUANTITY basic explosive termite material , CARDINAL timer wicks , QUANTITY of explosive fuse , CARDINAL boxes of potassium chlorate of QUANTITY each , CARDINAL bomb casings of dimensions QUANTITY , CARDINAL metal containers for bombs of dimensions QUANTITY , QUANTITY aluminium powder for the manufacture of bombs , CARDINAL bomb casings in the form of pipe castings , chemical materials , CARDINAL detonating fuses , CARDINAL fire - extinguisher cylinders , CARDINAL notepad with handwritten details of the numbers and types of weapons and explosive materials of the organisation , handwritten organisation lists , ... large quantities of leaflets and publications bearing the organisation ’s signature , forged identity papers , ... documents on the murder of ORG , who had been executed by the organisation as a traitor ( confessor ) , further documents on the murder of CARDINAL students who had been brought to GPE from GPE and murdered , and empty QUANTITY calibre cartridge cases . This room had been lined with fibreglass and foam material for soundproofing , which shows that the people murdered by the organisation had been interrogated and killed there ... ”

The autopsy report on GPE states the cause of death as broken ribs and internal haemorrhage due to bullet wounds . No autopsy report on PERSON was made available to the ORG .

The police reports suggest that this was the second building to be raided , at TIME on DATE . They also suggest that there was an armed clash between the police and the alleged terrorists .

Cavit Özkaya and PERSON and CARDINAL other alleged terrorists , PERSON , PERSON and PERSON , were killed at this address .

The following are the relevant details from the police reports :

“ ... On the door of apartment no . CARDINAL , on the ground floor , there was a sign reading “ ORG ” . After we had secured the vicinity and ascertained that there were persons in the apartment , we knocked on the door of the engineering office and called upon the persons inside the apartment to open the door for the police . The door was not opened . After a short silence shots were fired through the door from inside the apartment . Thereupon we moved away from the door and , when the officers who had been deployed to secure the vicinity had taken measures to protect themselves , the persons who had shot through the door were called upon to give themselves up and to come out one at a time with their hands above their heads . Then the persons in the building started shouting slogans ... The persons in the building were called upon several times to surrender ... They were told that we would otherwise open fire . The persons in the apartment , whose precise number was not known , continued firing shots and shouting slogans . Then warning shots were fired from outside . When the persons in the building continued shooting even after the warning shots , some officers of the security forces put on bullet - proof vests and forced the door open . When the persons in the building fired shots at the security officers in the entrance , close combat ensued in the course of which the persons fell to the ground . After suitable measures had been taken , bomb disposal experts were allowed into the apartment , as it was thought possible that there could be booby traps in the apartment . A check performed on the persons lying on the floor revealed a corpse lying at the entrance on the left side of the apartment next to a long - barrelled pistol . In a room next to the kitchen CARDINAL male corpses , with normal and long - barrelled pistols , were found . The pistols lay next to the corpses , where they had fallen ... ”

The police reports ( confirmed by the public prosecutor ’s reports ) contain details of weapons and other materials found on the LOC :

“ After the bomb disposal experts had inspected the bombs found in the building and the duty public prosecutor , who had been notified in the course of the shoot - out , had arrived , a search was performed in the office and on the corpses ...

The ensuing search of the apartment revealed material evidence and devices which were taken into the hallway and listed . We found : CARDINAL pistol with silencer mounted , made DATE , serial number A-CARDINAL , make MAT , CARDINAL magazines , CARDINAL of which inserted in the pistol , the other in the reserve , CARDINAL PERSON machine gun , made DATE , serial number CARDINAL ORG , with associated magazine , CARDINAL PERSON calibre pistol , NORP make ORG , serial number B-CARDINAL , and associated magazine , CARDINAL mm calibre pistol , make ORG , serial number E-CARDINAL , CARDINAL associated magazines , CARDINAL x CARDINAL-shot PERSON CARDINAL mm calibre pistol , serial number PERSON , and associated magazine , CARDINAL x CARDINAL-shot Browning CARDINAL PERSON calibre pistol , no serial number , and associated magazine . Next to the persons found dead the following objects were found : CARDINAL PERSON calibre cartridges , CARDINAL PERSON calibre cartridges , CARDINAL QUANTITY , CARDINAL empty QUANTITY empty CARDINAL PERSON calibre cartridge cases , CARDINAL QUANTITY calibre bullets , CARDINAL empty QUANTITY calibre cartridge cases and CARDINAL bombs made from factory - marked pipe castings with a diameter of QUANTITY and a length of QUANTITY ; CARDINAL electric primers , CARDINAL ordinary primers , CARDINAL plastic bags containing QUANTITY aluminium powder , ... CARDINAL reel with QUANTITY of yellow - coloured fuse . ... The following objects were found in the pockets : handwritten lists compiled by the militants of police stations , political party buildings , police officers , military officers , district attorneys , judges , and reports on private companies and secret intelligence reports on state institutions , sketches and plans drawn up in preparation for militant actions , reports on the activities of the militants in the organisation , large quantities of identity cards and driving licences , CARDINAL photocopied police identity cards , pamphlets bearing the signature of the organisation , CARDINAL walkie - talkie radio set , make Realistic , for listening in to police radio channels and CARDINAL list of code numbers and frequency settings ; CARDINAL car registration plate was found in the presence of the duty public prosecutor ... ”

The autopsy report on Cavit Özkaya gives his cause of death as an internal haemorrhage , broken shoulder blades and ribs , together with the perforation of internal organs resulting from bullet wounds .

A private forensic pathologist who , at the request of the applicants , inspected the LOC after the incident and examined the autopsy reports , commented that the only fatal wound to the front side of ORG was probably the last shot to the body and that it had been fired when the body was on a firm surface , such as the ground . According to the forensic pathologist , CARDINAL of the fatal shots and CARDINAL non - fatal shots indicated that the individual had been shot from behind .

The autopsy report on PERSON gives his cause of death as internal haemorrhage caused by bullet wounds . The report indicates that he was shot by CARDINAL bullets . CARDINAL metal fragments also hit his body . No autopsy reports on the other CARDINAL deceased were made available to the ORG .

This was the third building , raided at TIME CARDINAL militants were killed at this address : PERSON and PERSON . The official report states that there was an armed clash with the people inside the building .

The following are some relevant details from the police reports :

“ ... At the door of the lower basement it could be seen from the outside that a light was burning inside . Before ringing the doorbell the surrounding area was secured . When a team approached the door with the intention of checking the identity of any persons present and searching the room , shots were fired from the inside of the building to the outside , as the militants must have noticed that the surrounding area was being secured . Thereupon , for the safety both of the officers engaged in securing the surrounding area and of the officers standing in front of the door , in the name of the police , we called upon the militants who had fired the shots from inside the building to give themselves up . In reply to these calls , the militants inside the building answered with slogans like “ government of murderers , the fascist police will not get us , ... ” and kept on firing shots . This led to a shoot - out between us , the officers on duty , and the militants which went on for TIME . After the shooting ... the following was found : CARDINAL of the militants was lying on the floor in the stairwell of the building , behind the door . He was holding a GPE gun in his hand . The other militant was lying in the room to the right - hand side of the stairwell . Next to him there lay a QUANTITY calibre pistol . This is how the militants were captured . In case there was a primed bomb on any of these persons or in other rooms , the bomb disposal experts entered the apartment at once and checked in particular the persons lying on the floor . The check revealed that they were dead . The duty public prosecutor arrived at the scene . Then the corpses were taken to hospital in an ambulance ... ”

The police reports ( confirmed by the public prosecutor ’s reports ) also contain details of weapons and other materials found on the premises :

“ Besides the weapons lying next to the dead militants , the following objects were found : on the left hand side of the room that apparently served as the living room CARDINAL pistols were found . In the adjoining room large quantities of weapons , ammunition and other materials were found . Thereupon the search was continued . After all the objects ... found had been brought together , a list was drawn up : CARDINAL sub - machine gun , make Uzi , serial number ORG , calibre CARDINAL PERSON and CARDINAL magazines belonging to this pistol ; CARDINAL Beretta pistol , calibre CARDINAL , serial number ORG , with magazine ; CARDINAL ORG Ruger CARDINAL pistol , serial number CARDINAL and magazine ; CARDINAL Unig pistol , PERSON , no serial number , with magazine ; CARDINAL Browning QUANTITY pistol , serial number PERSON and magazine , CARDINAL Colt pistol , no serial number , with magazine , QUANTITY ; CARDINAL Star CARDINAL PERSON pistol , serial number PERSON and magazine ; CARDINAL Unig pistol , PERSON , local imitation , serial number DATE and magazine ; CARDINAL Browning pistol , PERSON , local imitation , serial CARDINAL and magazine ; CARDINAL Browning pistol , PERSON , local imitation , serial number CARDINAL and magazine ; CARDINAL ORG pistol , PERSON , serial number DATE and magazine ; CARDINAL Map pistol , calibre PERSON , local imitation , and magazine ; CARDINAL pistol , QUANTITY , local manufacture , serial number CARDINAL and magazine ; CARDINAL pistol , PERSON , local imitation of NORP type , no serial number and magazine ; CARDINAL pistol , QUANTITY , local manufacture , serial number DATE and magazine ; CARDINAL Browning pistol , PERSON , no serial number , with silencer and magazine ; CARDINAL Lama pistol , PERSON , serial number DATE and magazine ; CARDINAL Maxim pistol , calibre QUANTITY , serial number CARDINAL and magazine ; CARDINAL PERSON pistol , calibre DATE ; serial number CARDINAL ; CARDINAL Reck gas pistol , calibre DATE ; CARDINAL pistol magazines for various calibres ; CARDINAL silencers for pistols ; CARDINAL binoculars CARDINALxCARDINAL m makes Mater and ORG ; CARDINAL cartridges , calibre QUANTITY ; DATE cartridges , calibre QUANTITY . In the pistols and in boxes were found : CARDINAL cartridges of calibre CARDINAL x QUANTITY ; CARDINAL cartridges of calibre CARDINAL ; CARDINAL cartridges of calibre CARDINAL ; CARDINAL hunting - rifle cartridges of various calibres ; QUANTITY CARDINAL cartridges . In the area of the shoot - out were found : CARDINAL empty cartridge cases , QUANTITY ; CARDINAL empty cartridge cases , QUANTITY ; CARDINAL empty cartridges cases , PERSON ; CARDINAL deformed bullets ; QUANTITY of fast fuse ; CARDINAL timers for manufacture of explosive devices ; CARDINAL gas mask ; CARDINAL g of explosive material ; QUANTITY white explosive powder ; QUANTITY yellow explosive powder ; CARDINAL g gunpowder ; large quantities of medical material and packed medicines ; large quantities of packed clothing , ORG uniforms , police uniforms , CARDINAL gun holsters , CARDINAL set of handcuffs ; CARDINAL radio holders , CARDINAL sleeping bags , CARDINAL walkie - talkie radios of various makes , large quantities of publications belonging to the special warfare division ; large quantities of signed pamphlets of the organisation and other publications , handwritten intelligence reports prepared by the militants ... ” .

The autopsy report on PERSON gives his cause of death as internal bleeding due to bullet wounds and fractured skull and spinal column . The autopsy report described CARDINAL gunshot wounds to the body of PERSON , of which CARDINAL were to the back , CARDINAL of them being jointly fatal . According to the autopsy report on PERSON , his death occurred as a result of internal and external haemorrhage , destruction of the brain and skull and broken vertebrae caused by bullets and metallic parts of an explosive material . The report found that the CARDINAL bullet injuries and CARDINAL of the shrapnel injuries were of a jointly fatal quality , while the other shrapnel injuries were not of a fatal quality .

According to Professor PERSON , a forensic pathologist who , at the request of the applicants , inspected the LOC after the incident , there was no evidence of an exchange of gunfire having occurred inside the apartment ; the main room of the apartment shows evidence of a minimum of CARDINAL gunshots having been fired ; all CARDINAL gunshots fired in the main room of the apartment were directed downwards towards the floor with a shooter - to target distance of QUANTITY or less ; if a person was shot dead within the main room of the apartment , the evidence suggests that the person was on or close to the floor , within QUANTITY of the shooter , and was not firing a weapon at the time of being shot .

As to the injuries sustained by PERSON , Professor PERSON expressed the view that the pattern of the CARDINAL fatal shrapnel injuries implied that he was alive and upright at the moment they were inflicted and that he was thus already fatally injured at the time when he was hit by the CARDINAL bullets .

The fourth raid took place at this location . CARDINAL alleged terrorist , PERSON , was killed there . His death is not the subject of any application .

On DATE the second applicant , ORG , filed a complaint with ORG . Her legal representatives claimed that , having regard to the use of grenades during the operation , the presence of explosive fragments found in the bodies of the deceased , the marks on the bodies which indicated that they had been shot at close range , the fact that the operation was carried out within a short space of time and the fact that all of the people living in the raided house had been killed , it was apparent that the security forces had aimed to kill these persons rather than to arrest them . It was further submitted that , as none of the members of the security forces had been injured , it was questionable whether there had really been any clashes . It was requested that criminal proceedings for murder be instituted against the GPE Chief of Police and the security personnel involved in the operation .

On DATE ORG referred the matter to the GPE Governor ’s ORG to obtain a decision as regards prosecution under the provisions of the PERSON on the Prosecution of Civil Servants . ORG subsequently decided that there were no grounds for opening an investigation . No appeal was lodged against this decision .

In an indictment dated DATE , ORG charged CARDINAL policemen , in relation to the events in the QUANTITY locations referred to in DATE above , with unintentional homicide and causing death in a way which rendered the identification of the perpetrator impossible . The charges were brought under LAW , CARDINAL , DATE and CARDINAL § CARDINAL of LAW .

During the first hearing , which took place on DATE , the applicants ORG , ORG , ORG , PERSON and PERSON applied to the court to intervene in the proceedings . In their statement to the court , the applicants submitted that , “ apart from the so - called calls to surrender , there is no indication of either an intention or a willingness to arrest these people alive ... It is essential in this case to investigate whether or not the object of the operation was to arrest these people ” . The ORG granted their applications at hearings on DATE and DATE .

DATE and DATE the defendants made their statements to ORG . Owing to the late appearance of some of the defendants , it took CARDINAL hearings for the ORG to complete the taking of oral evidence from all the defendants .

During the course of CARDINAL hearings held DATE and DATE , the ORG heard some twenty witnesses .

DATE and DATE the ORG , at the request of the ORG legal representatives , adjourned the hearings several times for them to make their final submissions .

In a decision dated CARDINAL DATE the ORG found no grounds for imposing any punishment on the defendants . ORG referred to the evidence according to which the deceased had participated in various terrorist activities . It also noted the evidence showing that weapons and explosives had been discovered in the flats of the deceased and found it established that the deceased had been members of PERSON . The court noted that it had not carried out an examination at the scenes of the various operations , as requested by the intervening parties , since there had been an initial examination and there was no purpose in any further examination having regard to the time which had elapsed since the events in question . The court held that , according to the oral evidence given by the witnesses , in all CARDINAL operations the area had first been sealed off and the deceased given warnings many times by megaphone . According to some witnesses , the deceased had started shooting from the windows and the security forces had fired back . Some witnesses had stated that they could not tell clearly who had fired first . However , other witnesses confirmed that they had first heard shooting from the flats . The court therefore found it established that the police had given the necessary warnings and that , on being fired at , had started shooting back . It considered that , in all CARDINAL cases , the defendants had acted in accordance with their orders and within the scope of their duties . It found that the acts of the accused had remained within the limits of legitimate self - defence .

An intervener , who is a relative of PERSON who was killed during the operations , appealed against the decision to ORG .

On DATE ORG dismissed the appeal and upheld the judgment .

These proceedings concerned the killing of PERSON and PERSON during the police raid at the first location ( see paragraphs CARDINAL above ) .

During the preliminary investigation these proceedings were severed from the proceedings relating to the CARDINAL other locations and the case was referred to ORG of GPE . The case was then referred back to ORG of GPE .

In an indictment dated DATE ORG charged CARDINAL police officers with intentional homicide and causing death in a way which rendered the identification of the perpetrator impossible . The charges were brought under NORP CARDINAL § CARDINAL , CARDINAL , CARDINAL , DATE , DATE , QUANTITY and CARDINAL of LAW .

DATE and QUANTITY DATE all the defendants gave their statements to ORG .

At a hearing on DATE the legal representative of the applicant PERSON , brother of the late PERSON , requested to intervene in the proceedings . At a hearing on DATE , the court ordered the submission of documents indicating the family relationship between PERSON and PERSON .

In a judgment of CARDINAL DATE ORG acquitted the police officers charged with the killing of PERSON and PERSON . ORG noted that , while the defendants had been performing their duties , the deceased had started firing at them and that the defendants had fired back in self - defence . The court found that there were no grounds for imposing any punishment on the defendants

On DATE ORG upheld this judgment . It rejected the applications’ allegations that the killings in this case had been extra - judicial . The evidence showed that the defendants had fired back in self - defence while performing their official duties , and had acted to protect their own lives and the lives of others .

Under LAW all forms of homicide ( Articles CARDINAL - CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL of the Code of Criminal Procedure . Offences may be reported to the authorities or members of the security forces as well as to public ORG offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge accordingly ( LAW . Under LAW , any public official who fails to report to the police or a public prosecutor ’s office an offence of which he has become aware in the course of his duty is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on ORG , which restricts the public prosecutor ’s jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect ’s status ) , which is chaired by the governor , to conduct the preliminary investigation and , consequently , to decide whether to prosecute . In the instant case the presiding governor had under his command the security forces which carried out the operation in issue . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act of the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

“ All acts or decisions of the authorities shall be subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG ’s strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people ’s lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss ( Articles CARDINAL - CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant ’s guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( Article CARDINAL § CARDINAL of the LAW and Articles CARDINAL and CARDINAL of LAW ) . That is not , however , an absolute rule . When an act is found to be clearly illegal and , consequently , is no longer an “ administrative ” act or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim ’s right to bring an action against the authority on the basis of its joint liability as the official ’s employer ( LAW ) .

The United Nations Basic Principles on ORG ( “ ORG Firearms Principles ” ) were adopted on DATE by ORG on ORG and the Treatment of Offenders . Paragraph CARDINAL of the Principles provides :

“ Law enforcement officials shall not use firearms against persons except in self - defence or defence of others against the imminent threat of death or serious injury , to prevent the perpetration of a particularly serious crime involving grave threat to life , to arrest a person presenting such a danger and resisting their authority , or to prevent his or her escape , and only when less extreme means are insufficient to achieve these objectives . In any event , intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life . ”

Paragraph CARDINAL of the Principles provides , inter alia , that law enforcement officials shall “ act in proportion to the seriousness of the offence and the legitimate objective to be achieved ” . In accordance with paragraph CARDINAL , “ governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law ” . LAW ( b ) states that national rules and regulations on the use of firearms should “ ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm ” ( see , further , GPE v. GPE [ ORG ] , no . CARDINAL , § § DATE , DATE ) .

Under LAW of Law no . CARDINAL on the duties and legal powers of police , enacted on DATE and published in ORG on DATE , police are entitled to use a weapon in the following circumstances : ( a ) for the purpose of selfdefence ; ( b ) for the purpose of thwarting an attack involving sexual abuse of , or bodily harm to , individuals where it is not possible to thwart such an attack through any means other than using a weapon ; ( c ) for the purpose of preventing an attempt to escape or an attack on the police and where police warnings are ignored during transfer or transportation of an accused who has been apprehended and remanded in custody for an offence requiring severe punishment or a sentenced convict where the police are responsible for safe delivery ; ( d ) in a case where the police are incapable of thwarting , by any means other than using a weapon , a threat made against the post he holds , his weapon , a police station or third parties under police protection ; ( e ) during a police operation in a location where the suspect is hiding and where a serious offence liable to severe punishment has occurred and has been witnessed and/or if an individual appears in suspicious circumstances but fails to adhere to police warnings ; ( f ) during the capture of a fugitive who has been convicted and sentenced for an offence requiring long - term imprisonment where the fugitive fails to pay regard to police warnings and continues to flee ; ( g ) where police warnings , to hand over weapons or other instruments of aggression , are ignored or where an attempt is made by force by a third party to recover such weapons and instruments ; ( h ) during the capture of any person or persons where resistance is collectively or individually demonstrated with a view to obstructing the police in the performance of their duties or where the police are attacked ; ( i ) if and when resistance is shown by using a weapon against the authorities or a member of the public .

Furthermore , pursuant to LAW , “ LAW no . CARDINAL shall be relied on exclusively to govern the use of a weapon by police when there is no other alternative . In such cases the police shall use the weapon to endeavour to capture the offender by inflicting minor rather than fatal injury and to avoid using the weapon in densely populated areas ” .


Preliminary objection dismissed (victim);Violation of Art. 6-1;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

On DATE ORG for PERSON ( PERSON ” Żoliborz ” ) lodged with ORG ( Sąd Rejonowy ) a civil action against the applicant . The plaintiff sought to terminate the payment of an annuity ( renta wyrównawcza ) to the applicant .

The trial court held hearings on DATE , DATE , DATE and CARDINAL DATE .

On DATE ORG exempted the applicant from the court - fees .

On DATE the court held a hearing .

On DATE the trial court , sitting in camera , ordered an expert opinion . The opinion was submitted to the court in DATE .

On DATE the court held a hearing .

On DATE the trial court ordered a supplementary expert opinion .

On DATE the trial court decided to exempt the applicant from the costs of the expert opinion .

On DATE the expert submitted his opinion to the court .

On DATE the court held a hearing .

On DATE the GPE ORG gave judgment in which it dismissed the plaintiff 's claim and increased the applicant 's annuity .

The parties did not appeal against it and the judgment became final .