CASE OF VERLAGSGRUPPE NEWS GMBH AND BOBI v. AUSTRIA

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

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The first applicant , PERSON , is a limited liability company established under NORP law with its registered office in GPE . It publishes the DATE news magazine ORG . The second applicant , Mr PERSON , is a journalist and editor - inchief responsible for certain sections of the DATE news magazine ORG . He lives in GPE .

In the issue of ORG of DATE an article was published on searches carried out by police in the NORP seminary in PERSON . According to the article , police had searched the seminary on suspicion of someone having downloaded child pornography from the Internet . The article further stated that , according to rumours , police had also found photographs showing seminarians engaging in homosexual activities , and that there were rumours of unwanted homosexual advances towards seminarians involving abuse of authority . The article was accompanied by a photograph of the principal ( Regens ) of the seminary , PERSON , showing him standing in a garden , and by an interview with him in which he said that he did not believe that there had been any unwanted sexual advances by superiors and that the rumours were part of an intrigue or a revenge plot by a former seminarian . He denied involvement in any such incidents .

On DATE the second applicant called PERSON and said he had received photographs which showed the latter engaging in homosexual activities . PERSON stated that this was impossible and that any such photographs could be interpreted in different ways .

NORP In its issue of CARDINAL DATE ORG published an article entitled “ Go on ! ” ( Trau dich doch ) . The sub - heading read “ NORP scandal . Photographic evidence of sexual antics between priests and their students has thrown the diocese of PERSON into disarray . First the principal and now the deputy principal have resigned . High - ranking dignitaries expect PERSON [ the bishop of the diocese ] to be removed from office . ”

The article stated that PERSON had had sexual relations with seminarians and that CARDINAL of them had regularly spent DATE or longer periods with him at the GPE monastery . It also stated that there was nothing to corroborate the rumours of unwanted homosexual advances which had been reported DATE . The article further reported that some seminarians had downloaded pornography and child pornography onto their computers . According to the article , the existence of homosexual relations was well - known within the seminary and was even known to the bishop , who had tried to “ hush up ” the case at first . The article contained a photograph showing Mr GPE with his left arm around one of the seminarians , holding the DATE ’s wrist with his left hand and with his right hand on the man ’s crotch . This picture had been taken by CARDINAL of the seminarians at a birthday party and PERSON was shown looking into the camera , apparently aware that he was being photographed . In the article Mr GPE was identified by name , while the ORG identities were not disclosed . Likewise , in the published photograph , Mr. PERSON ’s face was visible while that of the seminarian was blurred . The article was also accompanied by a statement from Mr GPE saying that the photograph could be interpreted in different ways .

On DATE the magazine again published the photograph and an article on recent events in the diocese in the wake of the child pornography scandal . The article also contained a letter from PERSON to members of the parish in which he said that the photograph had been taken from an unfortunate angle ( unglückliche ORG ) and that he had never approached any seminarian in a sexual context .

On DATE Mr GPE initiated proceedings under LAW ( Mediengesetz ) against the applicant company in relation to the article published on DATE . Those proceedings are the subject of application no . ORG , GPE v. GPE . They are summarised here , in so far as is necessary for the examination of the present case .

Relying on sections CARDINAL and CARDINAL of the said LAW , Mr GPE ( “ the claimant ” ) requested compensation for defamation ( üble GPE ) and for the violation of his strictly personal sphere ( höchstpersönlicher Lebensbereich ) caused by the publication of the photograph and the impugned article , especially the following passages :

“ ‘ NORP scandal . Photographic evidence of sexual antics between priests and their students has thrown the diocese of PERSON into disarray’ . ‘ A painful truth : PERSON ’s principal engaged in sex with subordinates , also PERSON ’s private secretary and legal adviser ... ’ ; ‘ Photos showing , among others , seminarians from PERSON in kinky situations , in some cases with their superiors ... and because they were doing it with the boss and his deputy too , it was all quite normal and they felt perfectly safe ... ’ ; and ‘ In DATE of DATE principal PERSON allegedly performed a kind of ‘ sacrament of GPE DATE and NORP priest ORG in a PERSON restaurant.’ ”

On DATE , after holding several hearings at which evidence was heard from a number of witnesses , ORG ( PERSON , hereinafter “ the Regional Court ” ) dismissed PERSON GPE ’s request for compensation .

ORG observed that a large percentage of readers of the DATE ORG that had published the impugned article and the photograph would read the news magazine in only a cursory manner and would also consult other media before forming their opinion . Those readers would learn that there had been homosexual contacts between the applicant and seminarians and also among seminarians , and that there existed photographs to support this . The published photograph showed that the applicant and the seminarian were more than just friends and had had homosexual contacts . It represented the applicant with his left arm around the seminarian and his hand on the man ’s crotch . The article made clear that such contacts had been entered into without coercion .

Giving a detailed evaluation of the various witness statements , ORG found it established that the applicant had had consensual homosexual relationships with several seminarians , one of whom had repeatedly spent DATE at GPE monastery ; this had led to an explicit instruction from Bishop PERSON prohibiting such visits by seminarians . Furthermore , the court found that the applicant had spent DATE with a seminarian during which they shared an apartment in a hotel . It also found that the applicant had performed a ceremony in a restaurant which an outside observer could have understood as bestowing a kind of “ sacrament of marriage ” on CARDINAL seminarians . Moreover , the statements of the witnesses had confirmed that the published photograph had been taken in the applicant ’s apartment at GPE monastery during a birthday party for CARDINAL of the seminarians . ORG thus held that the facts contained in the article were in essence true .

Owing to the considerable importance of ORG as a role model , the public had a great interest in being informed about what was going on within the ORG . The public also had an interest in knowing what happened in the seminary , especially since it had become known that pictures containing child pornography had been downloaded from the Internet . The circumstances leading to such incidents were a subject of public interest and had a direct connection with public life . Mr GPE , as the head of the seminary , was a public figure in that capacity . Even though the impugned picture had been taken in his private residence there was a connection to his public life . While accusing a dignitary of ORG of having homosexual contacts constituted the actus reus of defamation within the meaning of section CARDINAL of LAW and exposed his strictly personal sphere within the meaning of section CARDINAL of LAW , the newspaper publisher had proved that the reported facts were essentially true . Accordingly , PERSON claim for compensation had to be dismissed .

ORG ( Oberlandesgericht ) dismissed the appeal in a judgment of DATE . It upheld the judgment of ORG , ruling that the said court had not erred in fact or in law and had rightly held that the newspaper editor had managed to prove that the content of the article was true . Furthermore , ORG held that , in reporting on photographic evidence of seminarians in “ kinky situations ” , the applicant company had provided proof that the statements were true . The average reader of the magazine would understand the term “ kinky ” to mean a deviation from what was considered normal , which would include a photograph of priests and seminarians in a sexual pose wearing clerical clothing , especially as the persons concerned belonged to a group of people who publicly spoke out against homosexuality and denounced homosexual contacts as a sinful . ORG went on to state as follows :

“ The court can not accept the additional arguments to the effect that the substantive law was incorrectly applied because the conduct reported on fell within the sphere of strictly private life and had no connection with public life . ORG , to which the majority of the NORP population belongs and which , according to LAW ( BGBl . II No . CARDINAL/CARDINAL ) , has public - law status , has a level of importance in GPE going beyond that of a small association , as is clear from the overall content of the ORG and the circumstances in which it was ratified . Accordingly , conduct on the part of ORG dignitaries which is in flagrant contradiction with NORP teachings may very well be of public interest , particularly where DATE as in the present case – homosexual contacts take place and are maintained , albeit on a consensual basis , between staff and students in an educational establishment and between students themselves . ORG strives for acceptance and credibility among the public at large , and the activities of a principal and a deputy principal , particularly those in charge of a training college for future priests , are directly related to public life . ORG is engaged in public relations work in many spheres and regularly makes its views on ( sexual ) morality known to the population as a whole , with the result that the general public is also entitled to be informed if individual officials are failing to practise what they preach , condemning homosexuality as a sin in public while practising it in private , even between staff and students . It should also be taken into consideration that the teachings of ORG on the subject of homosexuality are contrary to the fundamental right to sexual self - determination under LAW and to the prohibition on discrimination ; hence , on this basis also , there is a public interest in the publication of specific allegations that Church dignitaries are failing to observe their ORG ’s teachings on sexual morals . This is even more so where the reports concern homosexual contacts between a teacher and his students . Such relationships of dependency call for particular vigilance in order to avoid potential breaches of a fundamental code of conduct designed to protect the physical and psychological integrity of the students . The media have a vital role in publicly exposing misconduct in a democratic society governed by the rule of law .

The exposure and public condemnation of such misconduct is thus in any event in the public interest ; the same is true of the reports identifying those concerned , without which it would not be possible to express credible criticism of specific inadmissible situations and thus fulfil the role of “ public watchdog ” . The weighing of interests in the present case should undoubtedly lead to the conclusion that the public right to information prevails . The professional activity of an ordained priest who is active in public life both as a clergyman and as head of a seminary does not take place merely within the ORG ; ORG has an important and , in some respects even a ORG role , and the credibility of its officials , who demand moral standards from the population and compliance with the ORG ’s rules of community life , occupies an important position in that regard . In particular , the fact that the events involved students who as future officials of ORG are supposed to be taught these moral precepts by example , lends those events a public - interest dimension extending beyond the ORG itself and affects all sections of the population ... ”

ORG concluded that since the article had reported essentially true facts and there was a public interest in their being reported , ORG had rightly rejected the applicant ’s request for compensation .

On DATE , after publication of the first article , Mr GPE brought proceedings against the applicant company and the second applicant before ORG ( ORG ) . Relying on section CARDINAL of LAW ) , he asked ORG to order the applicant company and the second applicant to

( i ) refrain from making and publishing express statements or statements to the effect that photographs existed which showed him having homosexual contacts or appeared to show that he was homosexual and

( ii ) refrain from publishing photographs of the claimant which violated his legitimate interests , especially in connection with allegations of unwanted homosexual advances involving abuse of authority , which were damaging to his honour and reputation .

The claimant also requested ORG to issue an interim injunction prohibiting the applicant company and the second applicant from publishing the above - mentioned statements and pictures .

After publication of the second article in the issue of ORG , showing for the first time the photograph of the claimant with his hand on the seminarian ’s crotch , the claimant notified ORG of the further statements contained in that article and of the fact that the photograph had been published . He repeated the requests made on DATE .

In so far as relevant in the context of the present case , the claimant ’s request for an interim injunction was rejected by ORG , which gave its decision on DATE , and by ORG , which gave its decision on DATE .

In a decision of DATE ORG varied the lower courts’ decisions , granting point ( ii ) of the claimant ’s request for an interim injunction . The applicant company and the second applicant were thus prohibited from publishing photographs of the claimant , in particular in connection with allegations of unwanted homosexual advances involving abuse of authority which were damaging to the claimant ’s honour and reputation . However , ORG dismissed point ( i ) of the claimant ’s request , namely that the applicant company and the second applicant be ordered to refrain from making and publishing express statements or statements to the effect that photographs existed which showed the claimant having homosexual contacts or appeared to show that he was homosexual .

ORG ( Oberster Gerichtshof ) held that even the publication of true statements was capable of interfering with a person ’s right to privacy and thus might become unlawful . In such cases the interests of the persons concerned in the protection of their reputation or the intimate sphere of their private lives had to be weighed against the interests of the recipient of the information . Referring to the ORG ’s case - law under LAW , ORG noted the importance of freedom of the press , in particular where the latter reported on issues of general interest . In the present case , information about the homosexuality of officials of ORG was an important issue and as such was often the subject of public attention and discussion . It was the media ’s task to report and comment on actual cases . Thus , the claimant ’s interest was outweighed by the applicants’ right to publish the statements , the truth of which was not in dispute .

As to the publication of the photograph , ORG held as follows :

“ CARDINAL . The publication of images that would cause injury to legitimate interests is prohibited ( section CARDINAL ) of LAW ) . The injury must arise out of the actual publication of the image ( ORG ) . However , not only the image itself must be assessed , but also the manner of its dissemination and the context in which it is set ( PERSON ) . The assessment as to whether legitimate interests have been infringed must aim to establish whether the interests of the person depicted can be objectively said to be worthy of protection ( CARDINAL ORG CARDINAL/CARDINALy = MR DATE , CARDINAL with further references ) .

NORP On the basis of these principles , the interests of the claimant in the present case should be considered worthy of protection , contrary to ORG view .

The accompanying text portrays the claimant in a negative light . He is neither a ‘ figure of contemporary society ‘ par excellence ’’ ( to use the terminology of the NORP case - law ) nor a ‘ public figure’ ( the term used in NORP legal practice ) whose appearance was already known to the general public before the picture was published ( CARDINAL ORG CARDINAL/CARDINAL ) . It is clear that the publication of the picture intensifies the demeaning effect of the accompanying text , which is damaging to the honour of the person concerned ( ‘ pillorying effect’ ) . In such cases , therefore , publication of the picture can be justified only if , after the required weighing of interests , the interest of the publisher in publishing is found to prevail ( RIS - Justiz RSCARDINAL ) . However , that is not the case here . The protection of the intimate sphere of the claimant ’s private life carries greater weight in this case than the public interest in being informed of the image , in contrast to the case already examined concerning the text of the article . Of course , there is some force to ORG argument that publication was designed to some extent to ‘ prove the claimant guilty’ after he had denied the accusations as ‘ ORG , and thus to allow the public to make up its own mind on the basis of the photograph . In ORG view , however , this argument is not sufficiently decisive to justify intruding upon the intimate sphere of the claimant ’s private life and providing documentary ‘ evidence’ of the allegations denied by the claimant . It must first be taken into consideration that the photograph was taken at a private party and thus indisputably fell within the private sphere protected by LAW ORG . If sexual freedom between consenting adults is recognised as an absolute personal right and the innermost private sphere is protected under the LAW , then this must also apply in principle to members of religious organisations and ORG officials , even if the practice of that sexual freedom is contrary to the ORG ’s teachings . Forfeiture of the right to anonymity requires particularly weighty reasons which do not apply here to the required degree . There is no overriding interest for the public at large to be informed of the claimant ’s appearance and to identify him via publication of his photograph . Even when publication takes place in connection with a criminal offence , the principle of proportionality of the interference applies . Likewise , even a genuine need to inform must not go beyond what is strictly necessary , so that it can not be accepted in all cases in which the public has reason to take an interest in a particular individual that there is a genuine need to be shown a picture of that person ( RIS - PERSON ) . The interest in dissemination of a picture can only take precedence if the picture has a particular news value – for instance , to warn the public about an escaped criminal ( CARDINAL ORG CARDINAL/CARDINAL = SZCARDINAL CARDINAL Ob CARDINAL/CARDINAL ) . In any case , the proportionality principle prohibits publication merely in order to satisfy an appetite for scandal . The interest in being informed can be sufficiently met without publication of an image , simply by reporting the facts and referring to the existence of a photograph ( several photographs ) as evidence . ”

On DATE Mr Küchl narrowed his previous claim to the publication of pictures , amended the wording of the injunction sought , and added a claim for damages . He thus requested the court to order the applicants to refrain from publishing photographs of him which violated his legitimate interests , especially in connection with allegations of unwanted homosexual advances towards seminarians involving abuse of authority , and/or of engaging in sexual antics or “ kinky ” situations with seminarians or similar allegations .

In a judgment of CARDINAL DATE ORG rejected the claims .

Referring to the decisions in the proceedings under LAW and to ORG decision of DATE in the interim injunction proceedings , ORG observed that the statements made in the various articles in ORG were true , namely that the claimant had had homosexual relationships with seminarians , including PERSON , with whom he was shown in the impugned picture . However , it had to be assessed whether the publication of his picture in connection with those true facts had violated his legitimate interests . The claimant ’s interest in the protection of his private life as guaranteed by LAW had to be weighed against the freedom of the press to impart information as protected by LAW .

ORG held that LAW protected not only the freedom to impart information , but also the form in which such information was imparted . Thus , the publication of the photograph had been lawful , especially as the accompanying text was not capable of damaging the claimant ’s honour or of having a pillorying effect . Quoting the courts’ decisions in the proceedings under LAW , ORG also held that , owing to the status of ORG and its dignitaries in GPE , and its teachings that homosexuality was a sin and an aberration , the public had a right to be informed about the conduct of the principal of a seminary who was responsible for the education of future priests . In the present case , proportionality between the interests at stake had been maintained , as the photograph had not been published simply in order to satisfy the public ’s interest in scandals , but had served to inform the public .

In a judgment of CARDINAL DATE ORG partly granted PERSON appeal . Relying on section CARDINAL of LAW , it prohibited the publication of photographs of the claimant which violated his legitimate interests by accusing him of unwanted homosexual advances towards seminarians , especially involving abuse of authority , and of engaging in sexual antics or “ kinky ” situations with seminarians or similar accusations . However , it dismissed the claim for compensation .

ORG summarised the content of the articles published in ORG on CARDINAL , DATE and DATE and the reasoning set forth by ORG in its decision of DATE in the interim injunction proceedings . It went on to state as follows :

“ No factual circumstances came to light in the main proceedings which would cause ORG to alter the manner in which it weighed the interests at stake in the preliminary injunction proceedings .

It was established that the photograph was taken in GPE monastery at the birthday party of CARDINAL of the seminarians , attended by the claimant and CARDINAL students of the seminary . The party was held in a meeting room and a ‘ reception GPE of the apartment made available to the claimant in his capacity as provost of the monastery .

Protection of the private sphere encompasses all matters which , on the basis of their information content , are typically classified as private . This covers individuals in their home , family or other environment removed from the public gaze ( Neukamm , ORG in GPE , CARDINAL ) . The right to protection of CARDINAL ’s private sphere encompasses the spaces in which the individual can rest , relax or simply let go . This includes any LOC from which the individual can exclude outsiders and escape the public gaze ( Neukamm , loc . cit . , CARDINAL ) .

On that basis , there can be no doubt that the birthday party in the claimant ’s apartment fell within the private sphere , despite the fact that it was attended by seminarians and took place ( partly ) in a ‘ reception GPE in the claimant ’s apartment .

Neukamm , loc . cit . , CARDINAL ) . Hence , it is beyond dispute that the photograph in question falls ( exclusively ) within the claimant ’s private sphere .

Furthermore , ORG previously ruled in the preliminary injunction proceedings that the public interest in the text of the article did not automatically justify publication of pictures of the person concerned .

The publication of pictures depicting private conduct is not justified on the grounds of the public ’s interest in being informed ( Neukamm , op . cit . , CARDINAL , and ORG judgment of CARDINAL , application no . CARDINAL – News Verlag GmbH ) . This applies also to articles concerning private - life matters ( Neukamm , op . cit . , CARDINAL ) . If the publication of photographs serves the public ’s interest in being informed , that interest must be weighed against the personality rights of the person depicted . As a general rule , the latter should prevail ( Neukamm , op . cit . , CARDINAL ) . ”

ORG also upheld ORG decision in so far as the latter had dismissed PERSON claim for damages . It noted that damages under LAW were to be awarded only if the general requirements laid down in LAW were met . In particular , it was necessary for the publisher to have acted culpably , with at least minor negligence . In the present case , the applicants had based their decision to publish the photograph on an arguable legal opinion . It was a borderline case in which a detailed weighing of the interests at stake had eventually led to the assessment that the publication of the photograph at issue had violated the claimant ’s legitimate interests . In the preliminary injunction proceedings ORG and even ORG had come to the opposite conclusion , holding the view that the publication of the picture had an information value of its own , while ORG had overturned their decisions . In these circumstances , the applicants were entitled to believe that the publication of the picture was admissible , and they had therefore not acted culpably .

The claimant and the applicants lodged extraordinary appeals on points of law with ORG .

ORG rejected the extraordinary appeals in a judgment of DATE , holding that the prerequisite for it to deal with the case , namely a question of law which was of fundamental importance for the unity of the law , was not met . With regard to the ORG appeal it noted that it had already given detailed reasons in its decision of DATE explaining why , as far as the publication of the photograph was concerned , the claimant ’s interests in the protection of his private sphere under LAW outweighed the freedom to impart information protected by LAW in the circumstances of the present case . ORG had followed that reasoning in the main proceedings .

Finally , ORG dismissed the ORG argument that the NORP decisions in the proceedings under sections CARDINAL and CARDINAL of LAW were binding on the courts in the present case . It held that a decision taken under sections DATE CARDINAL of LAW did not resolve a preliminary question ( ORG ) in relation to the claim under section CARDINAL of LAW . There was no logical contradiction in prohibiting a newspaper publisher from publishing a picture under section CARDINAL of LAW , while on the same facts dismissing a compensation claim under sections CARDINAL and CARDINAL of LAW . The finding that the requirements for granting compensation were not met did not provide a basis for concluding that the publication of a picture did not violate legitimate interests within the meaning of section CARDINAL of LAW .

The judgment was served on the applicants on DATE .

Section CARDINAL of LAW provides for the strict liability of the publisher , inter alia in cases of defamation . The victim can thus claim damages from the publisher . Section CARDINAL reads as follows :

“ ( CARDINAL ) Where a medium publishes statements which constitute the actus reus of disparagement , insult , derision or defamation the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered ... ”

( CARDINAL ) The right referred to in paragraph CARDINAL above shall not apply ...

NORP in the case of defamation

( a ) [ where ] the statements published are true or

( CARDINAL ) Where the publication concern the strictly personal sphere , a claim under subsection CARDINAL shall be excluded only on the grounds set forth in ... subsection CARDINAL ) ... ; in the case of subsection CARDINAL ) , this shall not apply where the published facts are directly related to public life . ”

Section CARDINAL of LAW provides for a claim for damages in cases of interference with the strictly personal sphere of an individual ’s life . It reads as follows :

“ ( CARDINAL ) If the strictly personal sphere of an individual ’s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned , he or she shall have the right to claim compensation from the media proprietor ( publisher ) for the damage sustained . ...

( CARDINAL ) The right referred to in paragraph CARDINAL above shall not apply where :

( i ) ...

( ii ) the statements published are true and are directly related to public life ;

( iii ) ... ”

For the purpose of LAW of LAW , “ defamation ” is to be understood as defined in LAW ) , which reads as follows :

“ ( CARDINAL ) Anybody who , in such a way that it may be noticed by a third person , attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

( CARDINAL ) Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ...

( CARDINAL ) NORP The person making the statement shall not be punished if it is proved to be true . In the case of the offence defined in paragraph CARDINAL he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true . ”

Section CARDINAL of LAW , in so far as relevant , reads as follows :

“ ( CARDINAL ) Images of persons shall neither be exhibited publicly nor in any way made accessible to the public where injury would be caused to the legitimate interests of the persons concerned or , if they have died without having authorised or ordered publication , those of a close relative . ”

Article CARDINAL of LAW ( Allgemeines Bürgerliches Gesetzbuch ) provides as follows :

“ ( CARDINAL ) Anybody who , as a result of defamation , suffers real damage or loss of profit may claim compensation .

( CARDINAL ) The same shall apply if anyone disseminates allegations which jeopardise a person ’s reputation , income or livelihood , the untruth of which was known or should have been known to him or her . In this case there is also a right to request a retraction and publication thereof ... ”

The ORG refers to this resolution , adopted by ORG of ORG on DATE . Its relevant passages are reproduced in GPE v. GPE ( no . CARDINAL ) ( [ ORG ] , ORG . CARDINAL and GPE , § DATE , ECHR DATE ) .


The applicants , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and ORG , are NORP nationals . They are represented before the ORG by Mr PERSON and Mr Ö. Kaplan , lawyers practising in GPE .

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

Until DATE the applicant lived in GPE , a village of the GPE district , in GPE . He owns property in a neighbouring village , GPE .

In DATE security forces forcibly evacuated Çalbaşı on account of disturbances in the region . The applicant then moved to ORG , where he currently lives .

On DATE the District Governor ’s office in GPE sent the following reply to the applicant :

“ It is established , by the decision of ORG of DATE that your village was burned down by terrorists . Therefore , there is no basis to start an investigation against the state officers .

Your petition will be considered under the ‘ Return to the Village and Rehabilitation Project . ”

On DATE and CARDINAL DATE the applicant filed further petitions with the District Governor ’s office in GPE and the Governor ’s office in GPE respectively . He requested permission to return to his village and compensation for the damages he suffered .

On DATE the Governor ’s office in GPE sent the following reply to the applicant :

“ Your petition containing a request of permission to return to your village has been received by ORG and will be considered under the ‘ Return to the village and Rehabilitation Project’ . ”

On DATE the applicant lodged a petition with ORG office in GPE and complained that the GPE , GPE and GPE authorities had acted negligently in the exercise of their public duties .

On DATE ORG issued a decision of non - jurisdiction and in accordance with LAW and CARDINAL of Law no . CARDINAL sent the case file to ORG at ORG , who decided on DATE not to initiate criminal proceedings against the NORP Governor . ORG did not take any decision as to the complaint against the GPE and GPE ORG .

Until DATE the applicant lived in the PERSON village in the district of GPE , in GPE , where he owns property .

In DATE , security forces forcibly evacuated PERSON on account of disturbances in the region . The applicant then moved to ORG , where he currently lives .

On DATE the applicant filed a petition with the District Governor ’s office in GPE requesting permission to return to his village . He received no response to his petition .

On DATE he filed a further petition with the Governor ’s office in GPE . He requested permission to return to his village and compensation for the damages he suffered .

On DATE ORG in GPE sent the following reply to the applicant :

On DATE the applicant lodged a petition with ORG office in GPE and complained that LOC , the GPE LOC Governor and the NORP Governor had acted negligently in the exercise of their public duties .

On DATE ORG issued a decision of non - jurisdiction and sent the case file to ORG office at ORG in accordance with Articles CARDINAL and CARDINAL of Law no . DATE .

On DATE ORG at ORG decided not to initiate criminal proceedings against the NORP Governor . ORG did not make any decision as to the complaint against the GPE and GPE District Governors

On DATE the applicant informed the ORG that the NORP Governor had authorised re - settlement in the villages of GPE . The applicant further stated that returning and settling in the PERSON village was anyhow impossible since the infrastructure and the houses of the village were completely ruined .

Until DATE the applicant lived in the Ağırbaşak village in the district of GPE , in GPE . He owns property in PERSON and in a neighbouring village Çölkerek . It is to be noted that , some of the documents attesting ownership of property , which the applicant submitted to the ORG , bear his father ’s name .

In DATE , security forces forcibly evacuated PERSON on account of disturbances in the region . The applicant then moved to GPE , where he currently lives .

On DATE ORG office at ORG decided not to initiate criminal proceedings against the NORP Governor . ORG did not make any decision as to the complaint against the GPE and GPE ORG .

Until DATE the applicants lived in GPE , a hamlet of the PERSON village in the district of GPE , in GPE . In DATE security forces forcibly evacuated ORG on account of disturbances in the region .

PERSON no . CARDINAL/CARDINAL )

The applicant owns property in neighbouring villages , Ormanyolu and GPE . The applicant then moved to GPE , where he currently lives .

PERSON no . CARDINAL/CARDINAL )

The applicant owns property in neighbouring village , GPE and GPE . The applicant then moved Hozat , where he currently lives .

PERSON no . PERSON )

The applicant owns property in neighbouring village , Ormanyolu . The applicants then moved Hozat , where he currently lives .

ORG )

The applicant owns property in neighbouring villages , Ormanyolu and PERSON . The applicant then moved to a neighbouring village , GPE , where he currently lives .

On DATE another inhabitant of GPE , Mr PERSON Yeşil , filed a petition with the GPE office in GPE requesting permission to return to his village he not received no response to his petition .

On DATE Mr PERSON filed a further petition with the Governor ’s office in GPE . He requested permission to return to his village and compensation for the damages he suffered .

On DATE the Governor ’s office in GPE sent the following reply to Mr PERSON :

On DATE ORG at ORG decided not to initiate criminal proceedings against the NORP Governor . ORG did not make any decision as to the complaint against the GPE and GPE ORG .

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not forced the applicants to leave their village .

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI ) .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The following incidents occurred on DATE . The detailed accounts of events by the parties and those involved are at variance at times . In this section , therefore , the incidents are described only briefly . Differing details , if any , are pointed out in the subsequent sections .

In TIME of DATE , at TIME , an argument started in a bar in the village of Gánovce - Filice , when a non - Romani waitress , PERSON , refused to serve a drink to a person of GPE ethnic origin , GPE

The argument developed with the tipping of a drink over GPE , in response to which he slapped or attempted to slap PERSON in the face , accidentally knocking glasses over , which fell and broke .

Subsequently GPE telephoned CARDINAL of her CARDINAL sons , PERSON , who came to the bar soon afterwards . After he had left , another of her sons , PERSON , who was the owner of the bar , came to the bar and remained there , assisting PERSON in serving customers , until closing time . Around that time , the girlfriend of GPE , ORG , also came to the bar and then accompanied PERSON home .

TIME , at TIME , a group of CARDINAL people went into the GPE settlement in the village where the applicants lived . Some of them were wearing balaclavas and they were armed with baseball bats and iron bars .

Allegedly shouting racist language , they forcibly entered houses nos . CARDINAL , CARDINAL and DATE , damaging the interior and breaking the windows .

On entering house no . CARDINAL , the attackers physically assaulted applicant Mr PERSON . Some of the other applicants and another person , who were also present at the house during the attack , witnessed the attack but managed to avoid it by hiding ( see paragraph CARDINAL below ) .

Once the attackers understood that the police had been called , they made their escape . When they had gone QUANTITY from the settlement , they met applicants Mr PERSON and Mr PERSON and physically assaulted them , causing them the injuries described below . Racist language is alleged to have been used during this part of the attack too .

NORP House CARDINAL was inhabited by applicant PERSON and her partner , GPE They were both at home during the attack .

House CARDINAL was inhabited by applicants Mr PERSON , PERSON , Mr PERSON , PERSON , PERSON and Mr PERSON and by a certain PERSON

Apart from applicant PERSON , they were all present at the house during the incident , and so were applicants Mr PERSON and a certain PERSON

When the attack took place in his house , applicant Mr PERSON sustained no physical injuries .

House CARDINAL was owned and inhabited by applicant PERSON .

The overall damage to the applicants’ property was estimated at the equivalent of QUANTITY ORG ) .

The parties are not united over the extent of the physical injuries sustained by Mr PERSON and Mr PERSON ( see paragraph CARDINAL above ) .

The applicants claim that Mr PERSON suffered a skull fracture , a cut to the left side of the back of the head , a crushed left arm , a pressure injury to the left side of the back and bruises to the left knee , which required him to stay in hospital for DATE .

As regards Mr PERSON , the applicants claim that he had sustained a scraped elbow and a crushed arm , which required a recovery time of DATE . In that respect the applicants relied on the decisions of CARDINAL DATE and CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL below ) .

In contrast , the ORG submit that Mr PERSON injuries necessitated no stay in hospital , while those of Mr PERSON only required him to stay in hospital for DATE .

After GPE had come home from her shift , an unknown person broke the window of her house by throwing a stone at it and also broke the windows of a car parked in her yard .

It is not entirely clear what relation this attack bore to the argument at the bar and the attack at the settlement , both in terms of time and of cause .

It appears that those present during the attack at ORG house included GPE , GPE , ORG , her brother : ORG , and a certain PERSON

The police arrived at the GPE settlement TIME after the incident . TIME and in TIME of the following day , that is to say DATE , the police carried out inspections and interviews , as summarised below on the basis of official records .

TIME house no . CARDINAL was inspected in connection with a suspected offence , which was referred to as “ damage to family house ” . Applicant Mr PERSON , who lived in the house , was present .

Broken windows were found in various parts of the house , and CARDINAL biological traces were identified ( bloodstains on a door and on a baseball bat ) and sent for further analysis .

CARDINAL no . DATE was inspected in connection with a suspected offence , which was referred to as “ damage to windows and door of a house ” . GPE , whose house it was , was present .

Damage to the latch and casing of the front door were identified , as well as broken panes in CARDINAL of the windows . Inside the house , on the floor in the kitchen and a room where the windows had been broken , CARDINAL stones of CARDINAL and QUANTITY diameter were found .

TIME the following day house no CARDINAL was inspected in connection with a suspected offence , which was referred to as “ damage to a window pane of a house ” . Applicant Ms Justína Lacková , whose house it was , was present .

Broken panes in CARDINAL windows were identified , and CARDINAL biological trace was sampled for further analysis .

Applicant Mr Ján Koky , GPE and applicant PERSON were interviewed : the interviews started at TIME , TIME and TIME respectively .

Mr PERSON submitted , inter alia , that earlier that TIME a group of CARDINAL attackers had entered his house , no . CARDINAL . They had been armed with batons and had tried to hit him . He managed to fend them off and other occupants of his house had managed to hide , so the attackers had mainly been hitting the kitchen furnishings . CARDINAL of the attackers were wearing balaclavas to conceal their faces . The remaining one , whom he did not know , had no balaclava . They had not uttered a word .

Z.K. described how the attackers had broken windows in his house , no . CARDINAL , had forcibly entered and had made their escape after learning that the police were on their way . According to the transcript , the interview ended at TIME then added that when they entered his house the attackers were shouting : “ NORP , we ’re going to strike you down today ” .

Ms Justína Lacková submitted that she had been at home with her CARDINAL minor children during the attack and that her husband had not been there . She had witnessed the turmoil outside her house through a window . CARDINAL of her house windows had subsequently been broken , probably with sticks , because no stones or other foreign objects had been found inside . In her submission , the attackers had pounded at her entrance door but had not succeeded in getting in . PERSON assessed the damage to her house and submitted a claim for compensation to the proceedings . The interview was concluded at TIME and then reopened to pose a direct question to the applicant , in response to which she retorted that , on the part of the attackers , she had only heard indistinct shouting . The interview was finally concluded at TIME

On DATE the ORG ( “ the DPI ” ) initiated a criminal investigation into the offences of causing bodily harm , violating the privacy of a home and criminal damage within the meaning of Articles CARDINAL § CARDINAL , CARDINAL § § CARDINAL and CARDINAL § CARDINAL of LAW ( Law no . QUANTITY . , as applicable at that time ) respectively .

It was suspected that a group of CARDINAL individuals had unlawfully entered houses CARDINAL , CARDINAL and DATE , and that they had damaged these houses , as well as house no . CARDINAL . It was also suspected that while at his house the attackers had tried to hit applicant Mr PERSON with baseball bats and that while making their escape from the scene of crime , they had assaulted applicants Mr PERSON and Mr PERSON by hitting them with baseball bats and kicking them , thus causing them bodily injuries on account of which , according to a preliminary estimate , they would need recovery time and would be unfit for work for DATE and DATE respectively .

The injuries to the applicants Mr PERSON and Mr PERSON were also assessed in an expert medical report procured by the DPI , in which their recovery time was assessed at DATE and DATE respectively .

On DATE respectively , an official note was made in the investigation file summarising the applicants’ submissions and a document was included in it outlining the investigation strategy .

On DATE at CARDINAL and TIME respectively , the DPI interviewed PERSON and GPE They described their involvement in the incident at the pub and the subsequent attack which took place at ORG house and on his car . PERSON submitted , inter alia , that she had closed the bar and had gone home at TIME P.S. submitted that the closing time of the bar was TIME and that his mother had arrived home after that time .

On DATE the DPI reported to ORG on the status of the investigation . It was mentioned , inter alia , that the applicants’ legal representative had been obstructing the investigation , in that he had instructed the applicants not to accept summonses to interviews if handed to them in person , and not to take part in any interviews unless he was present . The qualification of the representative to appear on the applicants’ behalf in criminal proceedings in GPE was also called into question .

In TIME , the DPI interviewed applicant Mr PERSON , GPE and GPE and applicants Mr PERSON and PERSON PERSON . These interviews started at CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL respectively .

Mr PERSON described the pub incident between GPE and GPE According to him , following the altercation PERSON had called P.S. , who had arrived within TIME , and who had warned PERSON that another son of PERSON would come round and there would be trouble . He also submitted that , TIME , CARDINAL men had caught and beaten him , that he had subsequently had to be taken to hospital by ambulance , that he had been hospitalised for DATE and that due to his injuries he was still unfit for work . In response to a direct question , Mr PERSON submitted that “ during the attack , none of the attackers uttered a word ” .

T.K. and GPE submitted that on TIME of the incident they had seen PERSON with a group of CARDINAL men approaching the GPE settlement .

Mr PERSON described the pub incident , including the remark that P.S. had told him and others to go away because his brother would come and there would be trouble . Mr PERSON also submitted that , after he had seen his brother , applicant Mr PERSON , and his injuries , he had been convinced that DATE was responsible . He had therefore gone to ORG house , where he had had a verbal exchange with ORG and ORG However , he had gone away after the latter had produced a handgun and threatened to shoot him .

Mr PERSON described the pub incident , the arrival of P.S. in the pub , the departure of CARDINAL men and the assault on him by CARDINAL individuals wearing balaclavas to conceal their faces and CARDINAL without , accompanied with a cry “ Negroes , gypsies , we ’re going to kill you ” . After receiving medical care in hospital , he had gone home and had not been hospitalised .

During TIME the DPI interviewed applicants Mr PERSON , PERSON , PERSON and Mr PERSON . They also interviewed PERSON , the respective interviews having commenced at CARDINAL , CARDINAL , At CARDINAL , CARDINAL and at CARDINAL .

Mr PERSON submitted his account of the assault at house no . CARDINAL , where he had been present at the relevant time , visiting his girlfriend . In his submission , the assault had been accompanied by a shout of “ NORP get out , we ’re going to kill you ! ”

PERSON , who lived in house no . CARDINAL , gave an account of the assault at their house and settlement , submitting that it had been accompanied by shouts of “ Get out ! ” , “ [ religious expletive ] , gypsy whores , gypsy gang , get out , or else we are going to kill you all ! ” and “ Gypsy whores , DATE you are dead , you are going to get a kicking DATE ! ” .

PERSON gave an account of the attack at her house , no . CARDINAL , submitting that it had been accompanied by a male voice shouting “ Gypsies , black muzzles , today you are going to get killed , get out ! ” .

Mr PERSON gave an account of the attack at house no . CARDINAL , where he lived , submitting that it had been accompanied by shouts of “ GPE , today you are going to be burned ” .

PERSON , who was in house no . CARDINAL during the attack , gave an account of it and submitted that it had been accompanied by shouts of “ GPE , black muzzles , get out ! ”

On DATE the DPI initiated a criminal investigation into a further offence , namely that of violence against an individual or a group of individuals within the meaning of LAW and CARDINAL of LAW .

The decision was based on the suspicion that , in the incident described above , several unidentified individuals had entered the GPE settlement shouting “ NORP , come out or we will kill you ” , while some of them had gone into houses CARDINAL and CARDINAL shouting “ NORP , come out or we will kill you ” .

The decision refers to the charges of DATE and to subsequent statements from PERSON , GPE , GPE and applicants Mr PERSON , Mr PERSON , PERSON , Mr PERSON , Mr PERSON , PERSON and Mr PERSON

NORP The decision also refers to the assault on applicant Mr PERSON being accompanied by shouts of “ Negroes , gypsies , we will kill you ! ” .

The series of interviews started at TIME with PERSON , continued at TIME with PERSON , and at TIME with the last son of PERSON : PERSON

PERSON said that he could see that PERSON was distressed when he arrived at the bar . PERSON described her arrival at the bar and what happened while she was there , that she went with PERSON to her house , and the subsequent incident there . The deposition of PERSON was fully in line with those of his family members .

In TIME DATE the DPI interviewed applicant PERSON , PERSON and applicant PERSON , whose interviews began at CARDINAL.CARDINAL , CARDINAL.CARDINAL and TIME respectively .

Ms Renáta PERSON gave an account of the attack at the house of applicant PERSON , which she had observed through the window of her own house . In her submission , the attack at the house of the applicant PERSON was accompanied by a shout of “ Black whores , DATE we ’re going to kill you ! ” . As to PERSON own house , CARDINAL windows had been broken by thrown stones which were found inside . The attackers had only got as far as a corridor in the house before they made their escape .

PERSON gave an account of the attack at house no . CARDINAL , in which she lived . In her submission , the attack was accompanied by a shout of “ Gypsy whores , DATE you will kick the bucket ” .

Ms PERSON gave an account of the attack at house CARDINAL , where she lived . In her submission , the attack was accompanied by a shout of “ Gypsy whores , DATE we ’re going to kill you ” .

The morning of DATE saw a long series of short interviews , starting at CARDINAL with applicant Mr PERSON , at CARDINAL with applicant PERSON , at CARDINAL with PERSON , at TIME with J , K , , at CARDINAL with applicant Mr PERSON , at CARDINAL with applicant PERSON , at CARDINAL.CARDINAL with applicant PERSON , at CARDINAL with applicant PERSON , at CARDINAL with GPE , at CARDINAL with applicant PERSON , at CARDINAL with applicant PERSON , and at CARDINAL with applicant Mr PERSON .

Mr PERSON , GPE and PERSON completed their respective depositions of CARDINAL and DATE in so far as the extent of the material damage they had sustained was concerned , and added a claim for compensation to the proceedings .

Ms Justína Lacková specified the damage she stated she had sustained and for which she was seeking compensation .

PERSON , HB , PERSON , Mr PERSON , PERSON and PERSON completed their respective depositions of QUANTITY and DATE and declared that they had no compensation claim to join to the proceedings , as they themselves had not sustained any material damage . PERSON added that compensation for any damage sustained by their family would be claimed by her husband .

Mr PERSON and Mr PERSON completed their respective depositions of DATE in that they specified that , as a result of the injuries sustained in the attack , Mr PERSON had been incapable of work for DATE , from DATE to DATE , and Mr PERSON was still unable to work .

At TIME on DATE the DPI started interviewing applicant Mr PERSON , who completed his depositions of DATE in so far as the extent of the material damage he had sustained was concerned , and added a claim for compensation to the proceedings .

DATE . Without providing any details the Government submitted that “ [ the authorities ] had requested records of incoming and outgoing communication to and from mobile phones of [ ORG ] , [ GPE ] , [ P.S. ] and [ E.N. ] ” .

On DATE the DPI held an identity exercise , in the course of which the participants were to identify presumed perpetrators from photographs in albums . It produced the following results :

- applicant Mr PERSON identified CARDINAL person , with a subjectively perceived probability of PERCENT , as CARDINAL of the people who had been attacking him in his house ;

- applicant Mr PERSON recognised CARDINAL individual , who had been present at the pub during the argument , but had not been among those who had beaten him . He also identified CARDINAL individual who had been among those who had beaten him , of which he was PERCENT sure .

- applicant PERSON identified CARDINAL individual , with a subjectively perceived probability of PERCENT , as an intruder in their house and an attacker of her father ;

- applicant Mr PERSON recognised CARDINAL individuals who had been present at the pub during the argument but had not been among those who had beaten him . He also identified CARDINAL individual who had been present at the settlement during the attack but was not sure whether that individual had beaten him ; and

- applicants PERSON , PERSON and Mr PERSON did not identify anyone .

NORP In what may appear to be a follow - up to the identity exercise , on DATE , the DPI requested ORG to examine buccal mucus samples of CARDINAL individuals , GPE , GPE and GPE and to compare biological material thus obtained with other biological evidence taken from the scene of crime .

On DATE the DPI suspended the above - mentioned criminal investigations . The decision stated that the police had taken several investigative measures and had carried out a search with a view to establishing the identity of the perpetrators of the assault of CARDINAL DATE . Until then , however , no evidence could be established which would have made it possible to bring charges against a specific person .

The decision of DATE also stated that it was established that the incident at the GPE settlement “ had been preceded by an assault on a waitress , PERSON , by a GPE , GPE , and subsequent damage to the property of the family of GPE by a hitherto unidentified GPE and so the actions of the unidentified perpetrators [ could ] not be considered or qualified as a criminal offence with a racial motive , because it [ had come ] down only to an act of retribution ” .

As to the injuries sustained by applicants Mr PERSON and Mr PERSON , the decision refers to the decision of DATE and its contents ( see paragraph CARDINAL above ) .

On DATE applicants Mr PERSON and Mr PERSON lodged an interlocutory appeal ( sťažnosť ) against the decision to suspend the investigation . Referring to the facts of the case , they submitted that the assault had been racially motivated and that it had been organised by people who were close to the family of the waitress concerned . Citing , inter alia , ORG and CARDINAL of the Convention , they sought resumption of the investigation .

On DATE , namely DATE , ORG ( Okresná prokuratúra ) ( “ the District Prosecutor ” ) issued a written instruction to the DPI specifying the measures to be taken and lines of inquiry to be pursued in order to establish the identity of the perpetrators and highlight the alleged racial motive .

DATE . Still on DATE , the DPI took a decision to resume the investigation . That decision contains a summary of the previous procedural developments , followed by a plain statement , without further elucidation , that “ during further investigation it [ had been ] established that a racially motivated criminal offence [ was ] implicated and therefore it [ was ] necessary to take further investigative steps and resume the investigation ... ” .

On DATE ORG filed a report with the DPI concluding that , having examined the biological material of GPE , GPE and GPE ( see paragraph DATE above ) and having compared it with the material taken from the crime scene , no link could be established .

In TIME DATE , at TIME , CARDINAL , CARDINAL and CARDINAL respectively , the DPI commenced interviewing GPE , GPE and GPE , as well as ORG They completed their respective submissions of DATE , DATE , DATE and CARDINAL DATE and agreed to provide buccal mucus samples for the purposes of DNA testing and comparison with the biological material taken from the crime scene .

On DATE at TIME the DPI commenced interviewing PERSON , who gave an account of his arrival in the village and at the bar and also of his perception of the incident at the house of PERSON He stated that he had not been at the GPE settlement .

The following day the DPI again requested ORG to analyse and compare biological material obtained from the CARDINAL sons of GPE , GPE and GPE with the material taken from the scene of crime .

On DATE ORG declared the interlocutory appeal of applicants Mr PERSON and Mr PERSON of CARDINAL DATE ( see paragraph CARDINAL above ) inadmissible , replying on Articles CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL ( b ) and CARDINAL § CARDINAL of the ORG , and holding that as victims of the alleged offences the appellants had no standing to challenge the decision in question .

In its concluding part , which under the applicable procedural rules ( see paragraph CARDINAL below ) contains information concerning available remedies , the decision provided that : “ An interlocutory appeal against this decision is not permissible . ”

However , in a letter of DATE , namely CARDINAL DATE , ORG informed the applicants that she had reviewed the matter on her own authority , that on DATE ( see paragraph CARDINAL above ) she had quashed the decision , and that she had instructed the DPI to carry on the investigation so as to clarify the events without leaving any doubt as to the identity and motive of the alleged perpetrators .

At TIME on CARDINAL DATE the DPI commenced interviewing GPE During TIME DATE they interviewed PERSON ( at TIME ) , PERSON ( TIME ) , GPE ( CARDINAL ) and PERSON ( CARDINAL ) . On CARDINAL , DATE and DATE respectively the DPI interviewed PERSON ( at TIME ) , P.P. ( at TIME ) and ORG ( before TIME ) .

They all had either already provided or agreed to provide buccal mucus samples for the purposes of DNA testing and comparison with the biological material taken from the scene of crime .

In addition , ORG submitted that he had not been at the GPE settlement and that he had no explanation of how he could have been identified as someone involved in the attack .

R.S. acknowledged having been at the bar with ORG and PERSON ( see paragraphs CARDINAL below ) during the incident , which however he had not seen , and he had no information concerning the event investigated .

PERSON stated that he had no knowledge of the incident , of which he had learned from the media , and that he had not been at the GPE settlement .

J.H. had been away on a skiing trip from DATE until DATE .

M.K. had been away on business in DATE in question and had only returned on DATE .

PERSON had been at the bar during the incident , but had not witnessed it directly . He had not been at the GPE settlement and had no knowledge of who had been there .

P.P. acknowledged knowing PERSON However , he had not been at the GPE settlement , remembered nothing useful and had no explanation of why one of the victims had identified him as someone involved in the attack which took place in their house .

B.P. acknowledged having been at the bar with GPE and PERSON ( see paragraphs PERSON above and CARDINAL above ) , but he had not directly witnessed the incident . He had not been at the GPE settlement , nor did he have any knowledge of anyone who had been there .

On DATE ORG reported to the DPI that , having examined the biological samples taken from GPE , GPE , GPE , ORG and GPE ( see paragraph CARDINAL above ) and having compared it with the material taken from the scene of crime , no link could be established .

On DATE the DPI again suspended the investigation , relying on LAW ORG , and referring to similar considerations to those in the decision of DATE . It summarised previous procedural developments and observed that , despite additional information taken from PERSON , GPE , GPE and applicants Mr PERSON , Mr PERSON , ORG , Mr PERSON , Mr PERSON , PERSON and Mr PERSON , it had not been possible to establish any evidence allowing charges to be brought against any specific person . However , it was considered established that the attack at the GPE settlement had been preceded by the incident at the bar and had been followed by the attack at the house of the family of Ms I.S.

On DATE applicants Mr PERSON and Mr PERSON lodged an interlocutory appeal against the decision of DATE , requesting that the criminal proceedings be resumed with a view to establishing the relevant facts of the case .

The appellants relied on Articles CARDINAL , CARDINAL , DATE , CARDINAL and CARDINAL of the Convention , CARDINAL of Protocol No . CARDINAL and DATE and DATE of the LAW and referred to the results of the identity exercise on DATE . In particular , they emphasised that , on that occasion , applicant Mr PERSON had recognised CARDINAL person ; applicant Mr PERSON had recognised ORG and submitted that the organisation of the attack had had a connection with the family of GPE ; and applicants Mr PERSON and PERSON had recognised CARDINAL person each .

On DATE the ORG representative wrote to ORG to inform him that they had lodged an interlocutory appeal against the decision of DATE with ORG and that they suspected that the investigation had been tampered with in order to downplay the racial motive for the assault . He requested that the applicants be informed of ORG office ’s actions in the matter .

The applicants have not received any answer to their letter of CARDINAL DATE , and it appears that it has not given rise to any specific action or decision . According to an official statement of ORG the letter is not a part of their case file .

On DATE ORG declared the interlocutory appeal inadmissible on similar grounds to those in the decision of CARDINAL DATE , relying on Articles CARDINAL , CARDINAL § CARDINAL a CARDINAL of the ORG .

NORP The decision contains information as to the available remedies , to the effect that : “ An interlocutory appeal against this decision is not permissible . ”

Nevertheless , ORG reviewed the decision on her own initiative and , by a letter of DATE , namely DATE , informed the appellants that the DPI had taken all the actions necessary to carry out a successful prosecution .

According to the letter , it was true that applicant Mr PERSON had recognised GPE , ORG and ORG , but he had submitted either that they had not beaten him or that he was not sure whether they had beaten him . Applicant Mr PERSON had recognised ORG and had submitted that it was the latter who had beaten him in his house . This submission however contradicted a previous submission by applicant Mr PERSON ( see paragraph CARDINAL above ) to the effect that , of the CARDINAL attackers in his house , CARDINAL were wearing balaclavas and CARDINAL , whom he did not know , was not . It was also observed that PERSON had not recognised any of the attackers .

ORG . The letter further states that additional action had been taken with a view to identifying those responsible , such as a comparison of the traces found at the scene of the incident with buccal mucus samples from the suspects , but the available evidence did not permit the bringing of charges against any particular person .

Meanwhile , on DATE and again on DATE and DATE , the FAC interviewed CARDINAL other individuals . These interviews however produced no useful new information .

On an unspecified date , in response to a request of CARDINAL DATE , ORG reported to the DPI that , having examined buccal mucus samples from GPE , GPE and PERSON and compared it with the biological material taken from the scene of crime , no link could be established .

On DATE , in response to a request , the DPI reported to ORG that hitherto “ no perpetrator had been identified and that tasks were continuously being carried out under an integrated investigation plan ” .

No information has been made available in respect of any further investigative actions and their outcome .

On DATE all CARDINAL applicants lodged a complaint with ORG under LAW . Represented by a lawyer , they contended that the events of DATE had not been sufficiently thoroughly and efficiently investigated to ensure that those responsible were identified and punished . In particular , they submitted that the authorities had failed to draw adequate conclusions from the oral evidence and from the information concerning the identity of the alleged perpetrators , as obtained from the identity exercise of DATE . In addition , the authorities should have taken and assessed further evidence , such as records of mobile telephone communications between those involved , but had not done so . The applicants also contended that the assault had not been motivated by revenge but was racially motivated , to which the authorities had failed to pay adequate attention .

In the text of their complaint the applicants made reference to LAW no . CARDINAL/CARDINAL Coll . , as amended ) , in conjunction with a principle of “ general acceptance and observance of human rights and basic freedoms for everybody ” , Articles CARDINAL § CARDINAL and CARDINAL of the Convention and the ORG ’s judgment in the case of PERSON v. GPE ( DATE , Reports of Judgments and Decisions CARDINALVI ) .

In the standardised prescribed form containing a summary of their claim , the applicants applied for a ruling declaring a violation of their right to an effective remedy under LAW and to judicial and other legal protection under LAW by actions of the DPI in the investigation referred to above .

On DATE ORG declared the complaint inadmissible on the ground that the applicants had failed to exhaust all remedies as required by section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) .

NORP In particular , ORG held that it had been open to the applicants to ask ORG ( “ the PPS ” ) , under Articles CARDINAL and CARDINAL § CARDINAL ( a ) and ( c ) of the ORG , to instruct the DPI to proceed with the case . Had such a request been dismissed , the applicants could have used further remedies available to them under sections CARDINAL et seq . of LAW .

No appeal against the decision of ORG was available .

Article CARDINAL § CARDINAL provides that :

“ GPE acknowledges and adheres to general rules of international law , international treaties by which it is bound , and its other international obligations . ”

In so far as relevant , LAW stipulates that :

“ CARDINAL . Everyone has the right to life . [ ... ]

No one shall be deprived of life .

No infringement of rights according to this Article shall occur if a person has been deprived of life in connection with an action not defined as unlawful under the law . ”

“ The home shall be inviolable . Entry without the consent of the person living there is not permitted . ”

Article CARDINAL § CARDINAL of the LAW reads as follows :

“ Everyone may claim his or her right by procedures laid down by an act of parliament before an independent and impartial court of law or , in cases provided for by an act of parliament , before another organ of GPE . ”

Pursuant to Article CARDINAL :

“ CARDINAL . The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act , and shall quash such a decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order that authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

NORP In its decision on a complaint ORG may grant appropriate financial compensation to a person whose rights under paragraph CARDINAL have been violated . ”

Article CARDINAL reads as follows :

“ Unless this LAW provides otherwise or it is excluded by the nature of the matter , the proceedings before the Constitutional Court shall be subject to application mutatis mutandis of the provisions of LAW and LAW . ”

Under the relevant part of section CARDINAL(CARDINAL ) and ( CARDINAL ) :

“ CARDINAL . A[n ] [ individual ] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means , which a statute effectively provides to [ the complainant ] with a view to protecting [ the complainant ’s ] fundamental rights or freedoms , and which the complainant is entitled to use under special statute [ such as LAW and LAW ] .

The Constitutional Court shall not declare ORG ] [ individual ] complaint inadmissible even if the condition under paragraph CARDINAL has not been fulfilled , if the complainant establishes that [ the complainant ] has not fulfilled this condition due to reasons worthy of particular consideration . ”

The purpose of the ORG is defined in its LAW as follows :

“ The purpose of the [ ORG ] is to regulate actions of the agencies involved in criminal proceedings with a view to establishing properly whether criminal offences have been committed and to punishing perpetrators lawfully and justly . The proceedings must work for reinforcement of compliance with the law , for prevention and obstruction of crime , [ and ] for the education of citizens in the spirit of consistent compliance with the law and rules of civic coexistence , as well as honest fulfilment of duties towards the ORG and the society . ”

NORP The fundamental principles of criminal proceedings are laid down in LAW , the relevant parts of CARDINAL of which provide :

“ CARDINAL . The prosecutor is duty bound to prosecute all criminal offences of which [ he or she ] has been apprised ; any exception is permissible only under statue or a promulgated international treaty .

NORP The agencies involved in criminal proceedings shall proceed so that the facts of the matter are duly established , to the extent which is absolutely necessary for their decision . With equal care , they shall elucidate circumstances both against and in favour of the charged person and , in both respects , they shall take and examine evidence without awaiting the parties’ proposals .... ”

The role of victims of crimes in criminal proceedings is defined in section ( Oddiel ) CARDINAL of chapter ( PERSON ) CARDINAL in part ( Časť ) one . The relevant part of its LAW provides as follows :

“ CARDINAL . A victim is a person upon whom a criminal offence has inflicted health damage , property damage , non - pecuniary damage or other damage or it has violated or jeopardised [ his or her ] rights or freedoms protected by law . A victim has ... the right to lodge [ in the proceedings ] [ his or her ] claim for damages ; to propose that evidence be taken , examined and completed ; to take part in the hearing , ... ; to comment on the evidence taken and examined ... ; and to make use of legal remedies to the extent defined by the ORG ...

A victim who has a lawful claim against a person facing charges for compensation in respect of damage inflicted [ on the victim ] by a criminal offence , shall be entitled to propose that , in a judgment leading to conviction , the court should impose a duty on the accused to compensate for that damage . The proposal shall be made at the latest during the main court hearing before the presentation of evidence . The proposal has to be clear as to the ground and the amount of damages claimed . ”

Section CARDINAL of LAW in Part CARDINAL contains rules concerning the making of and dealing with applications , the relevant part of its LAW § CARDINAL providing that :

“ An application shall be assessed according to its content , irrespective of whether it is incorrectly named . ”

Section CARDINAL of Chapter CARDINAL in Part CARDINAL lays down rules concerning decisions ( uznesenie ) , paragraph CARDINAL , the relevant part of which is cited below , defining the attributes , structure and content of a decision :

“ CARDINAL . A decision must contain ...

e ) information about available remedies . ”

Chapter CARDINAL in Part CARDINAL regulates interlocutory appeals against decisions , their admissibility being defined in LAW , the relevant part of which provides :

“ CARDINAL . A remedy in respect of decisions consists of an interlocutory appeal .

An interlocutory appeal shall be available against any decision of an investigator or a police authority except for a decision on the opening of a criminal prosecution ( Article CARDINAL ) . A decision by a court or by a prosecutor may be challenged by an interlocutory appeal only in those instances where the statute expressly so provides and if [ a matter ] is being decided on at first instance . ”

Article CARDINAL contains locus standi for such appeals , as follows :

“ CARDINAL . Unless provided for otherwise by a statute , an interlocutory appeal may be lodged by a person who is directly affected by the [ impugned ] decision or who has prompted the decision by a request which [ the appellant ] was entitled to make by law .... ”

Section CARDINAL of LAW in Part CARDINAL regulates investigations , Article CARDINAL providing for the possibility of having an investigator ’s actions reviewed , in the following terms :

“ The person facing charges and the victim shall have the right at any time in the course of the investigation to demand that a prosecutor [ ensure ] that delays in the investigation or shortcomings on the part of the investigator be eliminated . The right to make such a demand shall not be restricted by any time - limit . This demand , which must be submitted to the prosecutor at once , must be dealt with by the prosecutor without delay . The outcome of the review must be notified to the person making the demand . ”

Section CARDINAL of LAW in Part CARDINAL deals with decisions at the preliminary stage of the proceedings , the relevant part of LAW providing that :

“ CARDINAL . An investigator shall suspend criminal proceedings ...

( e ) if it has been impossible to identify evidence allowing for the prosecution of a particular person ...

Prior to suspending criminal proceedings everything needs to be done which is necessary for securing a successful completion of a criminal prosecution . Should there no longer be any reason for the suspension , the criminal proceedings shall be resumed . ”

Section CARDINAL of LAW in Part CARDINAL regulates the prosecutor ’s supervision of adherence to lawfulness in pre - trial proceedings , the relevant part of Article CARDINAL providing that :

“ CARDINAL . Supervision of lawfulness in pre - trial proceedings shall be carried out by the prosecutor .

While carrying out this supervision , the prosecutor shall have the power :

( a ) to give binding instructions for the investigation of criminal offences ...

( c ) to take part in activities carried out by an investigator or a police authority or directly to take a particular action , to carry out the entire investigation and to take a decision on any matter whereby the provisions of [ the ORG ] normally applicable to an investigator shall apply to the prosecutor mutatis mutandis and , as a decision of an investigator , the decision by the prosecutor shall be challengeable by an interlocutory appeal . ”

The Act entered into force on DATE , replacing previous legislation ( Law no . PERSON . , as amended ) . The object of the LAW is defined in its section CARDINAL , which reads as follows :

“ CARDINAL . This Act determines the status and jurisdiction of ORG , the status and jurisdiction of ORG , the status of other prosecutors , organisation and administration of ORG .

NORP The status of prosecutors ; their rights and obligations ; the establishment , modification and termination of [ their ] service relationship and the claims ensuing from it ; the relationships of responsibility ; disciplinary proceedings and selfgovernance of prosecutors shall be subject to a special statute . ”

Petitions to the PPS are regulated by Part ( Časť ) CARDINAL of the LAW . Pursuant to the relevant part of its LAW :

“ CARDINAL . A prosecutor may examine the lawfulness of actions and decisions of bodies of public administration , prosecutors , investigators , police authorities and courts in so far as a statute so provides , including upon a petition , and is entitled to take measures to rectify established violations , provided [ such measures ] do not fall under a special statute within the exclusive jurisdiction of other bodies .

A petition is understood as a written or oral demand , proposal or other submission by an individual or a legal entity , which is aimed at a prosecutor taking a measure within [ the prosecutor ’s ] jurisdiction , in particular lodging an application for proceedings to commence before a court , or submitting a remedy , joining existing proceedings , or taking other measures for rectification of a violation of the law , which fall within [ the prosecutor ’s ] jurisdiction . ”

The relevant part of section CARDINAL provides that :

“ CARDINAL . A prosecutor is duty bound to process a petition within DATE of its introduction ...

A prosecutor shall notify a petitioner within the period specified in subsection CARDINAL of the manner in which the petition has been resolved . [ ... ] ”

Section CARDINAL deals with repeated petitions and further repeated petitions . Its relevant part reads as follows :

“ CARDINAL . A petitioner may demand a review of the lawfulness of how the petition has been resolved by means of a repeated petition , which shall be dealt with by a prosecutor at a higher level .

A further repeated petition shall be dealt with by a prosecutor at a higher level only if it contains new information . A further repeated petition is understood to be a third and any further consecutive petition , in which the petitioner expresses discontent with the manner in which [ his or her ] petitions in the same matter have been resolved . ”

Under the relevant part of section CARDINAL :

“ CARDINAL . In dealing with a petition , a prosecutor is duty bound to examine all circumstances decisive for the assessment of whether there has been a violation of the law ; whether the conditions are fulfilled for lodging an application for proceedings before a court to commence or for submitting a remedy ; or whether [ the prosecutor ] may join existing proceedings before a court or take other measures which [ the prosecutor ] is entitled to take under [ LAW ] . ”

NORP The prosecutor assesses the petition according to its content ...

NORP If the prosecutor establishes that a petition is well founded , [ he or she ] shall take measures for rectification of the violation of law pursuant to [ LAW ] or a special statute . ”

NORP In a decision of DATE ( in case no . III . ÚS CARDINAL/CARDINAL ) ORG declared inadmissible a submission , in which an individual had complained that criminal proceedings against him had been too lengthy and that they , as well as a warrant for his arrest , had been unjustified .

In rejecting the claim , ORG held that , in respect of the criminal proceedings as such , it was for the applicant first to seek redress from the investigator or the supervising prosecutor by the means available under the ORG and , as the case might be , also from a higher level of the ORG by means available under LAW . As to the arrest warrant , it was for the applicant to assert his rights before the ordinary courts .

In a decision of DATE ( in case no . I. ÚS CARDINAL/CARDINAL ) ORG declared inadmissible a complaint under LAW , in which an individual had contested the way the ORG had handled his complaint concerning interference with his correspondence by prison authorities .

In rejecting the complaint , ORG held that , by virtue of the rule of exhaustion of remedies , it was for the complainant , prior to claiming protection from ORG , first to seek it from a higher level of the PPS by means of a repeated petition under section CARDINAL(CARDINAL ) of ORG .

In a decision of DATE ( in case no . III . ÚS PERSON ) ORG declared inadmissible a complaint under LAW in which an individual had contested a decision of the ORG quashing a previous decision of an investigator to restore to the applicant cash and objects retained in the context of criminal proceedings against him .

In rejecting the complaint , ORG held that , by virtue of the rule of exhaustion of remedies , it was for the complainant , prior to claiming protection from ORG , first to seek it from a higher level of the PPS by means of a petition under LAW of LAW , irrespective of the fact that the decision was not subject to appeal under the ORG .

In a decision of DATE ( in case no . III . ÚS CARDINAL/CARDINAL ) ORG declared inadmissible a complaint under LAW , in which an individual had contested a decision by the ORG to reject an interlocutory appeal by the complainant against a decision of a lower level of the ORG to discontinue proceedings in the complainant ’s criminal complaint concerning an alleged violation of the privacy of a home . In that case , the interlocutory appeal had been rejected because , being in the procedural position of a victim , the complainant had no standing to appeal .

In rejecting the complaint , ORG held that , by virtue of the rule of exhaustion of remedies , it was for the complainant , prior to claiming protection from ORG , first to seek a review of the decision at the highest level of the PPS , that is to say ORG , under sections CARDINAL to CARDINAL of LAW .

At the same time , ORG observed that no grounds had been established for exempting the complainant from the obligation to use that remedy .

The principles stemming from ORG decisions mentioned above were applied mutatis mutandis in ORG subsequent decisions of CARDINAL DATE ( in case no . IV . ÚS CARDINAL ) and CARDINAL DATE ( in case no . IV . ÚS CARDINAL/CARDINAL ) .

Meanwhile , on DATE ( in case no . II . ÚS CARDINAL/CARDINAL ) , ORG declared inadmissible a complaint under LAW of DATE , in which a group of individuals had contested the outcome of the proceedings concerning their criminal complaint of an alleged abuse of official authority in connection with the termination of their service in the police .

ORG observed that the ORG criminal complaint had been rejected on DATE and that their interlocutory appeal to the ORG had been dismissed on CARDINAL DATE .

ORG found that , as the constitutional complaint had been lodged on DATE , it had clearly been lodged outside the statutory DATE time - limit for lodging such a complaint .

ORG held that the position had not been altered by the subsequent decisions at a higher level of the ORG to dismiss the ORG petition and repeated petition for reexamination of the lawfulness of the decision of DATE .

In reaching that conclusion , ORG observed that the ORG petition and repeated petition had been aimed at having a complaint in the interest of law ( sťažnosť pre porušenie zákona ) lodged by ORG on their behalf , which was however an extraordinary remedy , and a negative decision : accordingly it did not restart the running of the DATE time - limit .

The offence of violence against a group of citizens and against an individual is defined in LAW , the relevant part of which reads as follows :

“ CARDINAL . He who threatens a group of citizens with killing , causing bodily harm or causing damage on a large scale ( škoda veľkého rozsahu ) shall be punished by imprisonment for DATE .

He who perpetrates violence against a group of citizens or an individual or threatens them with death , causing bodily harm or causing damage on a large scale on account of political belief , nationality , race , affiliation to an ethnic group , religion or because they are without religion , shall be punished by imprisonment for DATE . ”

The offence of causing bodily harm is defined in Article CARDINAL , the relevant part of which provides that :

“ CARDINAL . He who intentionally causes bodily harm to another ’s health shall be punished by imprisonment for DATE or by a financial penalty . ”

Article CARDINAL defines the offence of violating the privacy of a home , its relevant part reading as follows :

“ CARDINAL . He who enters a house or a flat of another without authority to do so or remains there unauthorised shall be punished by imprisonment for DATE or by a financial penalty ...

NORP The perpetrator who , in committing the act referred to in LAW , applies violence or a threat of immediate violence and commits such an act with a weapon or with CARDINAL others shall be punished by imprisonment for DATE and DATE .

The offence of criminal damage is defined in Article CARDINAL , the relevant part of which provides that :

“ CARDINAL . He who destroys , damages or makes unusable something belonging to someone else and thereby causes a non - negligible damage ( škoda nie nepatrná ) to someone else ’s property shall be punished by imprisonment for DATE or interdiction of an activity or a financial penalty or forfeiture of an item of property . ”

The communication was considered by ORG in an Opinion adopted at its meeting on DATE .

NORP The case concerned difficulties that the petitioner and several other families , being of GPE ethnic origin , had been experiencing with settling down and establishing a home and , in particular , CARDINAL municipal resolutions forbidding the families in question from settling in the villages concerned and threatening them with expulsion .

The petitioner unsuccessfully complained about the municipal resolutions before ORG and a criminal investigation into the matter was suspended , by a decision of the PPS .

In defending the case , the ORG party concerned argued , inter alia , that the petitioner had the opportunity to contest the decision to suspend the investigation under LAW of DATE ( see paragraph CARDINAL above ) and to assert her rights by way of an action for protection of her personal integrity under LAW seq . of LAW ( see paragraphs CARDINAL and CARDINAL of the ORG ) .

The ORG , however , “ did not share the ORG party ’s view that domestic remedies had not been exhausted and considered that neither a new petition to ORG nor a civil action would be

The case concerned a NORP national , who had been refused service in a restaurant and was told to leave on account of his GPE ethnic origin , and an alleged failure by ORG to sanction or remedy this treatment . Following investigation upon the petitioner ’s criminal complaint in that respect , the police found that there was no evidence that any criminal offence had been committed . Upon the petitioner ’s appeal to the GPE , the decision was upheld .

NORP In defending the case , the State party concerned argued , inter alia , that the petitioner had the opportunity to seek a review of the lawfulness of the position taken by the public prosecution service at a higher level in that body under LAW of DATE ( see paragraph CARDINAL above ) and of asserting his rights by way of an action for protection of his personal integrity under LAW seq . of LAW ( see CARDINAL of the ORG ) .

NORP In response , the ORG observed that LAW ( a ) of LAW on the Elimination of All Forms of Racial Discrimination provides that ORG is not to consider any communication unless it has ascertained that all available domestic remedies have been exhausted and that it has held in its previous jurisprudence that a petitioner is only required to exhaust remedies that are effective in the circumstances of the particular case ( see paragraph CARDINAL of the Opinion ) .

Furthermore , the ORG noted that “ the decision of the [ PPS ] was a final decision as far as the criminal procedure was concerned . ORG [ had ] failed to demonstrate that a petition for review , which would be a remedy against the legality of the decision , could in the present case [ have ] [ led ] to a new examination of the complaint ” . Furthermore , the ORG found that “ the facts of the claim were of such a nature that only criminal remedies could constitute an adequate avenue of redress . The objectives pursued through a criminal investigation could not be achieved by means of civil or administrative remedies of the kind proposed by the ORG party ” . Therefore , the ORG found that “ no other effective remedies were available to the petitioner ” ( see paragraph CARDINAL of the Opinion ) .

The communication was considered by ORG at its meeting on DATE . Among the views it adopted , in the relevant part of their paragraph CARDINAL , dealing with the requirement of exhaustion of domestic remedies , the ORG :

“ considered that , even if these attempts to engage available domestic remedies may not have complied with procedural formalities prescribed by law , they left no doubt as to [ the alleged victim ’s ] wish to have the allegations investigated . ORG concluded that , in the circumstances , it was not barred from considering the communication . ”