CASE OF LE COMPTE, VAN LEUVEN AND DE MEYERE v. BELGIUM

Violation of Art. 6-1;No violation of Art. 11;Just satisfaction reserved

Dr. PERSON , a NORP national born in DATE and resident at ORG , is a medical practitioner .

On DATE , ORG of the Ordre des médecins ( ORG ) , which sits in GPE , ordered that Dr. PERSON right to practise medicine be suspended for DATE . The ground was that he had given to a NORP newspaper an interview considered by the ORG to amount to publicity incompatible with the dignity and reputation of the profession . The applicant lodged an objection ( opposition ) against this decision , which had been given in absentia , but it was confirmed by ORG on DATE , the applicant again having failed to appear .

Dr. PERSON thereupon referred the matter firstly to ORG , which , on DATE , held his appeal to be inadmissible , and secondly to ORG , on DATE , the latter declared his appeal on a point of law inadmissible , on the ground that it had been filed without the assistance of a lawyer entitled to practise before that ORG .

The order suspending Dr. PERSON right to practise became effective on DATE but he did not comply with it . For this reason , on DATE , the NORP criminal court ( tribunal correctionnel ) sentenced him , pursuant to LAW no . CARDINAL of DATE on ORG , to imprisonment and a fine .

This decision was confirmed on DATE by ORG ; a appeal by Dr. PERSON on a point of law was dismissed by ORG on DATE .

Concurrently with the foregoing proceedings , which are not in issue in the present case ( see paragraph CARDINAL below ) , further proceedings were in progress . In fact , on DATE ORG of the Ordre des médecins had , by a decision rendered in absentia , ordered another suspension , for DATE , of the applicant ’s right to practise : the ORG stated that he had publicised in the press the above - mentioned decisions of the disciplinary organs of the ORG and his criticisms of those organs , such conduct constituting contempt of the ORG .

Dr. PERSON had appealed to ORG which had confirmed this decision although without upholding the allegation of contempt . He had then referred the matter to ORG , where he relied on the same grounds .

He contended in the first place that compulsory membership of ORG , without which no one may practise medicine and subjection to the jurisdiction of its disciplinary organs were contrary to the principle of freedom of association , which is guaranteed by LAW ( LAW ) of the Convention .

The ORG rejected this plea in the following terms :

" ... compulsory entry on the register of an ordre which , like the Ordre des médecins , is a public - law institution having the function of ensuring the observance of the medical profession ’s rules of professional conduct and the maintenance of the reputation , standards of discretion , probity and dignity of its members can not be regarded as incompatible with freedom of association , as guaranteed by LAW ; ... the appellant does not allege that the rule which he is challenging goes beyond the bounds of the restrictions authorised by LAW . CARDINAL ( LAW ) of the LAW , for example for the protection of health . "

The applicant also alleged a violation of ORG CARDINAL of the LAW : the first provides that the courts of law shall have exclusive jurisdiction to determine disputes over civil rights and the second prohibits the establishment of extraordinary tribunals for the purpose of resolving such disputes . He pointed out that the decision complained of had nonetheless been taken by a disciplinary organ , set up by LAW no . DATE , and that it had given a ruling on a civil right , namely the right to practise medicine .

ORG replied that " disciplinary proceedings and the imposition of disciplinary sanctions are , in principle , unrelated to the disputes over which exclusive jurisdiction is reserved to the courts of law by LAW " . The ORG added that , since ORG did not have jurisdiction to determine such disputes , " they are not extraordinary tribunals whose establishment is prohibited by LAW " . Finally , the ORG observed that section CARDINAL par . CARDINAL ( a ) of the LAW of DATE ( see paragraph CARDINAL below ) empowered the Crown " to reform and adapt the legislation governing the practice of the various branches of medicine " and that " the legislature was referring , inter alia , to LAW DATE establishing the ORG , which Act conferred disciplinary powers on ORG " .

Lastly , Dr. PERSON alleged that there had been a violation of LAW . CARDINAL ( article CARDINAL ) of the Convention . He argued that the decision complained of had been given without any public inquiry and by a tribunal composed of medical practitioners , which could not be regarded as impartial since the kind of conduct of which he was accused might harm his colleagues .

ORG confined itself to pointing out that LAW . CARDINAL ( article DATE ) did not apply to disciplinary proceedings .

Accordingly , by judgment of CARDINAL DATE , the appeal was dismissed .

Dr. PERSON did not comply with the order suspending his right to practise medicine , which became final following ORG judgment . On that account he was sentenced by the PERSON criminal court on DATE and DATE to terms of imprisonment and fines . He lodged an appeal against the first decision and an objection against the second , which had been rendered in absentia .

Since that time , a number of further proceedings have been instituted , both disciplinary , for the publicity given by the applicant to his dispute with the ORG , and criminal , for his refusal to comply with the measures imposed by its ORG .

CARDINAL of the disciplinary proceedings resulted in Dr. PERSON being struck off the register of the ORG with effect from DATE . In this connection he lodged a further application ( no . CARDINAL/CARDINAL ) with the Commission on DATE ; that application , which the ORG declared admissible on DATE , is not relevant for the examination of the present case .

The criminal proceedings , at first instance , led to prison sentences and to fines .

Dr. PERSON and Dr. PERSON are medical practitioners , born in DATE and DATE , respectively . Both of them reside at ORG and are NORP nationals .

On DATE , CARDINAL medical practitioners practising in and around ORG filed a complaint to the effect that these CARDINAL applicants had committed breaches of the rules of professional conduct ; it was alleged , in particular , that they had systematically limited their fees to the amounts reimbursed by ORG , even when on emergency duty , and had distributed without charge to private houses a DATE magazine called ORG in which general practitioners were held up to ridicule . On DATE , the applicants were heard by ORG . They admitted that they had limited the fees charged to their own clients but not the fees charged when they were on emergency duty . In addition , they pointed out that they were not the publishers of ORG and they denied that they had lampooned their colleagues in its pages .

On DATE , another medical practitioner lodged a further complaint against the applicants ; he alleged that , DATE after their appearance before ORG , they had put up in the waiting rooms of the ORG medical centre a notice informing the public of the first complaint and the reasons therefore . On DATE , ORG heard the applicants in connection with the second complaint . They declared that they were entitled to provide the public with information about the situation , especially as it was already a matter of common knowledge .

ORG of the Ordre des médecins , which sits in GPE , summoned Dr. PERSON and Dr. PERSON to answer several allegations .

On DATE , it directed that their right to practise medicine be suspended for DATE for having charged fees limited to the amounts reimbursed by ORG , for having contributed to the magazine Gezond and for having made therein public utterances judged offensive to their colleagues . In addition , Dr. PERSON was reprimanded for his behaviour when appearing before ORG on DATE . These various decisions were based on Articles CARDINAL par . CARDINAL and CARDINAL of LAW no . CARDINAL .

ORG considered , on the other hand , that the posting in the waiting rooms of the medical centre of a notice judged contrary to the rules of professional conduct did not warrant a disciplinary sanction , bearing in mind that the notice had been removed following a request from the ORG .

The applicants appealed to ORG .

On DATE , the latter declared the appeal admissible and upheld ORG decision insofar as it had found established the allegations relating to the charging of fees limited to the amounts reimbursed by ORG and the contribution to the magazine Gezond . For the rest , ORG set aside the decision challenged and , after taking into account the complaint regarding the notice in the waiting rooms and joining it with the CARDINAL other complaints , directed that the right of Dr. PERSON and Dr. PERSON to practise medicine be suspended for DATE .

On DATE , ORG ruled against the applicants , who had appealed on a point of law .

The ORG rejected the ground of appeal based on breach of LAW ( LAW ) of the Convention ; it considered that the functions of the Ordre des médecins " are by no means unrelated to the protection of health and that compulsory entry ... on the register of an Ordre of this kind does not exceed the restrictions on freedom of association which are necessary for the protection of health " .

The ORG in addition declared inadmissible , for want of legal interest , the ground of appeal to the effect that the limitation of fees to the amounts reimbursed by ORG was in conformity with both the law and the rules of professional conduct for medical practitioners ; the ORG found that the suspension had in fact also been imposed as a sanction for other disciplinary offences .

The ordre des médecins , which was established by an Act of DATE , was re - organised by LAW no . CARDINAL of DATE . This Decree was made under LAW of DATE " investing the King with certain powers with a view to ensuring economic revival , acceleration of regional reconversion and a stable , balanced budget " . The LAW enabled the ORG , acting by ORG , to take " all appropriate steps ... to further the quality and ensure satisfactory provision of health care through reform and adaptation of the legislation governing the practice of the various branches of medicine " ( section CARDINAL par . CARDINAL ( a ) ) ; it specified that such Decrees could " repeal supplement , amend or replace existing legal provisions " ( section CARDINAL ) .

LAW no . CARDINAL provides that " the ORG shall include all physicians , surgeons and obstetricians who are permanently resident in GPE and entered on the register of ORG where they have their permanent residence " and that " in order to practise medicine in GPE , every medical practitioner " - whether NORP or foreign - " must be entered on the register of the Ordre " .

Military doctors , however , are only obliged to be entered on the register if they practise outside their military duties .

Alongside the Ordre des médecins , there exist in GPE private associations formed to protect the professional interests of medical practitioners . The most important of these associations are consulted and invited to take part in collective negotiations when the Government are considering the adoption of decisions affecting those interests , to propose candidates for nomination as members of certain organs and to appoint their representatives on others , and to take various measures themselves .

The Ordre des médecins " shall enjoy civil personality in public law " ( LAW paragraph , of LAW no . CARDINAL ) . It comprises CARDINAL kinds of organs , namely ORG and ORG .

ORG ( of which there are CARDINAL ) consist of a number , which is always even and is fixed by the ORG , of members and substitute members who are medical practitioners of NORP nationality elected for DATE by doctors entered on the register of the ORG . There are also an assessor and a substitute assessor who are judges of first instance courts appointed for DATE by the ORG ; the assessor has a consultative status ( Articles CARDINAL and CARDINAL par . CARDINAL of LAW no . CARDINAL ) .

The ORG ’s functions are defined by LAW no . CARDINAL in the following terms :

" CARDINAL to keep the register of the Ordre . They may refuse or defer entry on the register if the person applying has been guilty either of an act of such seriousness as would cause the name of a member of the Ordre to be struck off the register or of serious misconduct damaging the reputation or dignity of the profession .

If the medical commission ... has decided and notified the ORG that a medical practitioner no longer fulfils the conditions required for practising medicine or that it is necessary , for reasons of physical or mental disability , to place a restriction on the practise by him of medicine , the relevant ORG shall , in the first case , remove the practitioner ’s name from the register and , in the second case , make the maintenance of his name thereon subject to observance of the restriction ordered .

A practitioner ’s name may also be removed from the register at his own request .

Reasons must be given for any decision refusing or deferring entry on the register , removing a practitioner ’s name therefrom or making its maintenance thereon subject to restrictive conditions ;

CARDINAL to ensure observance of the rules of professional conduct for medical practitioners and the upholding of the reputation , standards of discretion , probity and dignity of the members of the Ordre . They shall to this end be responsible for disciplining misconduct committed by their registered members in or in connection with the practice of the profession and serious misconduct committed outside the realm of professional activity , whenever such misconduct is liable to damage the reputation or dignity of the profession ;

CARDINAL to give , of their own motion or on request , the members of the ORG advice on matters of professional conduct ... ; such advice shall be submitted to ORG for approval ... ;

CARDINAL to notify the relevant authorities of any acts involving illegal practice of medicine of which the ORG have knowledge ;

CARDINAL to act , at the joint request of those concerned , as final arbitrator in disputes regarding the fees claimed by a medical practitioner from his client ... ;

CARDINAL to reply to all requests for advice emanating from courts of law in connection with disputes as to fees ;

CARDINAL to settle the DATE subscription ... including the amount fixed by ORG for each registered member . "

The Provincial councils are distinct from the medical commissions which have been set up , outside the ORG , in each GPE and are composed in addition to medical and pharmaceutical practitioners of members of the paramedical professions and of officials of ORG ( Article CARDINAL of LAW no . CARDINAL ) . These commissions have CARDINAL functions . The first is general and consists of " proposing to the authorities any measures designed to make a contribution to public health " and of " ensuring that practitioners ... ( and ) members of the paramedical professions collaborate effectively in the implementation of the measures laid down by the authorities for the purpose of preventing or combating diseases subject to quarantine or communicable diseases " . The second , specific function comprises various responsibilities : " checking and ... approving practitioners’ diplomas " ; " withdrawing approval or making its continuance in force subject to the acceptance by the person concerned of ( certain ) restrictions " ; " ensuring that the practice of medicine ( is conducted ) in accordance with the laws and regulations " ; " detecting and ... reporting to the prosecuting authority cases of illegal practice " ; assessing the demand for emergency services and supervising their operation ; " informing interested parties , whether acting in public or private capacity , of decisions taken " as regards a practitioner ’s exercise of his profession ; " advising the organs of the ORG concerned of allegations of professional misconduct against practitioners " ; " supervising public sales where medicines are involved " ( LAW ) .

ORG - one of which uses the NORP and the other the NORP language - have their seat " in the LOC area " . They are each composed of CARDINAL medical practitioners of NORP nationality ( CARDINAL members and CARDINAL substitute members ) elected for DATE by ORG from among persons other than their own members , and CARDINAL ORG judges ( CARDINAL members and CARDINAL substitute members ) appointed by the ORG for the same length of time . From among these judges , the ORG designates the Chairman , who has a casting vote , and the member who is to act as rapporteur ( LAW . CARDINAL and CARDINAL of Royal Decree no . CARDINAL ) .

ORG hear appeals from decisions given by ORG on matters of registration or discipline . They deal , as the body of first and final instance , with claims concerning the regularity of elections to ORG , ORG and ORG . They also decide cases on which ORG have not given a ruling within the prescribed time - limit . Finally , they settle any dispute between ORG regarding a practitioner ’s place of permanent residence ( LAW ) .

ORG comprises CARDINAL persons ( QUANTITY members and CARDINAL substitute members ) of NORP nationality who are respectively elected by each of ORG from among medical practitioners entered on its register , and QUANTITY persons ( QUANTITY members and CARDINAL substitute members ) appointed by the ORG from among medical practitioners nominated in lists of CARDINAL candidates by the medical faculties in the country . ORG is presided over by a judge of ORG chosen by the ORG and consists of CARDINAL sections - CARDINAL LANGUAGE - speaking , the other NORP - speaking - each of which elects from among its number a Vice - President ( LAW ) .

ORG formulates " those general principles and those rules concerning the morality , reputation , standards of discretion , probity and devotion to duty essential for practice of the profession which constitute the code of professional conduct for medical practitioners " ; these principles and rules may be made compulsory by ORG ( a draft code failed to receive ORG approval ) . It keeps up to date a list of those disciplinary decisions given by ORG which are no longer open to appeal . It gives reasoned opinions " on general matters , on problems of principle and on the rules of professional conduct " . It settles the amount of the subscription medical practitioners are asked to pay to the ORG . More generally , it takes " all steps necessary for the achievement of the aims of ORG ( LAW ) .

In the procedure relating to disciplinary and registration matters , which is primarily governed by LAW of DATE " regulating the organisation and working of ORG , the contending parties are always heard . There may be CARDINAL stages : a ruling at first instance by ORG , a ruling at final instance by ORG and a review by ORG of the legality of the decisions and the observance of formal requirements .

The procedure begins before ORG which " acts either on its own initiative , or at the request of ORG , the Minister responsible for public health , the procureur du Roi or the medical commission , or on complaint by a medical practitioner or CARDINAL party " ( LAW . CARDINAL , first sub - paragraph , of LAW no . CARDINAL ) . The procedure continues before ORG if it has been seised either by the practitioner concerned , or by ORG assessor , or by the President of ORG acting jointly with CARDINAL of the Vice - Presidents ; an appeal has suspensive effect ( LAW ) .

Investigation of the matter necessarily involves the participation of a member of the judiciary : before ORG , for the purposes of the initial investigation , this will be the assessor ; before ORG , for the purposes , if need be , of a supplementary investigation , it will be the ORG member acting as rapporteur ( see paragraphs CARDINAL and CARDINAL above ) . Furthermore , the ORG member who acted as rapporteur may always be heard by ORG CARDINAL par . CARDINAL , CARDINAL par . CARDINAL and CARDINAL of Royal Decree no . CARDINAL ) .

Before ORG , the proceedings are conducted in private ( LAW . CARDINAL , sub - paragraph CARDINAL , of LAW no . CARDINAL and LAW of DATE ) . The medical practitioner concerned has the right to be informed as soon as possible of the opening of an inquiry against him ( LAW of DATE ) ; the procedure further provides for time - limits and formalities allowing him to have adequate time and facilities for the preparation of his defence ( Articles CARDINAL and DATE ) ; in addition , it contains guarantees concerning the use of languages ( Articles DATE to CARDINAL ) .

The practitioner is also entitled to challenge the members of the organ hearing his case ; he appears in person and may be assisted by CARDINAL or more counsel who , like himself , may inspect the case - file ( Articles CARDINAL , DATE and CARDINAL ) .

ORG are bound to deliver their ruling within a reasonable time , to preserve the secrecy of their deliberations and to give reasons for their decision . The person concerned must be promptly informed of the decision and of any appeal which may have been entered . Decisions are taken by simple majority . However , CARDINAL majority is required for striking a practitioner off the register of the ORG or for his suspension for DATE . The same rule applies to ORG decisions ordering a sanction where ORG has imposed none or increasing the severity of the sanction imposed by ORG ( Article CARDINAL in fine of LAW no . CARDINAL , ORG CARDINAL , CARDINAL , DATE , DATE and CARDINAL of LAW of DATE ) . The sanctions which may be imposed by ORG - and also , if appropriate , ORG - are " warning , censure , reprimand , suspension of the right to practise medicine for a period not exceeding DATE and striking off the register of ORG ( LAW no . CARDINAL ) .

Under LAW no . DATE , " final decisions of ORG or ORG may be referred to ORG either by the Minister responsible for public health , or by the President of ORG acting jointly with CARDINAL of the Vice - Presidents , or by the practitioner concerned , on the ground of contravention of the law " - the latter term being understood in a wide sense - " or of non - observance of a formal requirement which is either a matter of substance or laid down on pain of nullity " . ORG will have before it the complete case - file ( decisions at first instance and on appeal , memorials and final submissions of the parties , including a detailed statement of the facts ) ; however , it can not verify the findings of fact made by ORG , unless it is alleged that there has been a breach of the rules of evidence . ORG does not have jurisdiction to rectify factual errors on the part of ORG or to examine whether the sanction is proportionate to the fault .

An appeal to ORG on a point of law has suspensive effect .

Decisions in a disciplinary matter which have become final are notified to the Minister of ORG ; the most important ones ( striking off the register of the ORG or suspension of the right to practise ) are also notified to the medical commission and to the procureur général attached to ORG ( LAW no . CARDINAL and LAW of DATE ) .


Violation of Art. 14+P1-1;No violation of Art. 13;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

DATE , the applicant lived in a stable relationship with Miss NORP They never married .

On DATE , Miss D. had a daughter . The applicant was registered as father on the birth certificate .

In DATE , the applicant and Miss NORP separated . On DATE , they entered into a Deed of Separation by which the applicant undertook to pay DATE maintenance of QUANTITY ( GBP ) for his daughter . In the DATE tax year , he paid ORG CARDINAL under the ORG . The sum increased over time in accordance with the applicant ’s increase in earnings . Since DATE , the applicant has made DATE maintenance payments of ORG CARDINAL .

For DATE , the applicant was granted relief on his self - assessment tax return for the maintenance payments made under the ORG . The Government state that this was an error by ORG . In DATE , the applicant put in a further claim to deduct these maintenance payments . This would have reduced his income tax liability by GBP CARDINAL .

NORP By letter dated DATE , the Inland Revenue refused the claim for tax relief in respect of the maintenance payments : “ because you were never married to your daughter ’s mother . ”

The applicant appealed against the refusal to a tax tribunal , namely ORG for ORG , invoking the provisions of the Convention .

A hearing took place on DATE . The applicant was unrepresented . On TIME of the hearing , counsel for ORG presented him with a large file of the authorities on which ORG sought to rely .

On DATE , ORG rejected his appeal , primarily on the ground that LAW DATE did not apply to the case as it had only come into force on DATE after DATE in question .

Miss NORP married during the DATE tax year , on DATE .

Section CARDINALB of the Income and Corporation Taxes Act DATE , as it applied in DATE of assessment DATE , provided for the deduction of “ qualifying maintenance payments ” . According to section CARDINALB(CARDINAL ) :

( CARDINAL ) In this section ‘ qualifying maintenance payment’ means a periodical payment which -

( a ) is made under an order made by a court in a member ORG or under a written agreement the law applicable to which is the law of a member ORG ...

( b ) is made by CARDINAL of the parties to a marriage ( including a marriage which has been dissolved or annulled ) either -

( i ) to or for the benefit of the other party and for the maintenance of the other party , or

( ii ) to the other party for the maintenance by the other party of any child of the family ,

( c ) is due at a time when -

( i ) the CARDINAL parties are not a married couple living together and

( ii ) the party to whom or for whose benefit the payment is made has not remarried , and

( d ) is not a payment in respect of which relief from tax is available to the person making the payment under any provision of the Income Tax Acts other than this section . ”

Prior to amendment of the legislation in DATE , married couples who divorced or separated and unmarried couples who separated from one another were in the same position as regarded the deductibility of payments made under LAW . The explanation for allowing the deduction to continue in respect of previously married couples as stated in a ORG by Her Majesty ’s ORG was :

“ A man maintaining his ex - wife ( or vice versa ) will get tax relief on the payments he makes , up to a limit equal to the difference between the married allowance and the single allowance ... This recognises the cost of helping to support an ex - wife and maintain a second household . On present experience , this limit will more than cover the majority of payments to ex - wives and ex - husbands . ”

In DATE the availability of this deduction has been withdrawn from all but those aged DATE or more .

Since LAW DATE ( “ the CSA ” ) , it has been Government policy that parents ( predominantly fathers ) separated from their children should be responsible for their children ’s maintenance , irrespective of their marital status . The ORG gives ORG mandatory powers to compel an absent father to give information about his finances , to assess the amount of contribution and to compel enforcement of the contributions .


Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in ORG .

On DATE the applicant and DATE his wife , PERSON , were taken into police custody in ORG on suspicion of aiding and abetting an illegal terrorist organisation , namely the ORG ( ORG of Kurdistan ) .

PERSON was held in police custody for DATE , during which period she was allegedly kept blindfolded . The police officers allegedly hit her with truncheons , insulted her verbally and threatened her with rape .

On DATE , following her detention in police custody , PERSON was examined by a doctor , who reported that there were no signs of ill - treatment on her body . On DATE she was taken to a gynaecologist for a further examination . The police requested that the report should indicate whether she had had vaginal or anal intercourse while in custody . Despite her refusal , PERSON was forced by the police officers to undergo a gynaecological examination . The police officers remained on the LOC while PERSON was examined behind a curtain . The doctor reported that she had not had any sexual intercourse in DATE preceding the examination .

On DATE PERSON was taken to the ORG public prosecutor 's office , where she complained about her forced gynaecological examination . The public prosecutor did not record her complaints and ordered her release .

On DATE the public prosecutor at ORG charged the applicant and his wife with aiding and abetting members of the ORG .

On DATE ORG acquitted the applicant and his wife for lack of evidence .

On DATE , the applicant and his wife complained to the ORG public prosecutor about their ill - treatment while in police custody . They further complained that PERSON had been forced to undergo a gynaecological examination without her consent .

The police officers denied the allegations in statements made before the ORG public prosecutor . They submitted that it had been necessary for a gynaecological examination to be performed in order to determine whether PERSON had been sexually assaulted while in police custody . They further submitted that the examination had been performed with her consent .

On DATE the ORG public prosecutor decided not to prosecute the police officers for lack of evidence . The applicant and his wife appealed .

On DATE the ORG quashed the public prosecutor 's decision on the ground that there had been insufficient examination of the evidence in the investigation file .

On DATE the ORG public prosecutor charged CARDINAL police officers with , inter alia , violating PERSON private life by forcing her to undergo a gynaecological examination .

On DATE the ORG acquitted the defendant police officers on the ground that the complainants had not provided sufficient convincing evidence in support of their allegations . The court held that the police officers had had no intention of subjecting the applicant 's wife to degrading and humiliating treatment when they made her undergo a gynaecological examination , but were trying to protect themselves against a possible accusation of rape . The applicant and his wife appealed .

On DATE ORG upheld ORG judgment .

The right to physical integrity is protected by LAW . LAW provides :

“ Save in the case of medical necessity and in circumstances defined by law , violation of physical integrity shall be prohibited ; human beings shall not be subjected to scientific or medical experiments . ”

Article CARDINAL of the Code of Criminal Procedure provides an exception to this rule . It lays down :

During the preliminary investigation , medical examinations may be performed at the request of the public prosecutor . ”

DATE , which amended LAW concerning the arrest , detention and questioning of suspects , provides that persons under arrest shall be bodysearched before being taken into custody . Body searches of female detainees must be performed by a female officer or a woman designated for that purpose .

According to ORG no . CARDINAL issued by ORG on DATE , which repealed Circulars nos . DATE and DATE , medical personnel shall respect fundamental human rights and freedoms and rules on privacy when conducting medical examinations and tests . The doctor must see and examine the patient personally and must not rely on another person 's statement in his or her report .

Medical examinations must be performed under appropriate conditions and out of the hearing and sight of members of the security forces . Persons required to undergo a medical examination must be seen on premises to which only medical personnel are admitted and undress in readiness for the examination after being given the necessary information .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

The applicant , known variously as “ Blondje ” , “ NN cel CARDINAL ” and “ Nn . PICARDINAL.m.CARDINAL.CARDINAL ” , claims that he is a NORP national who was born on an unspecified date in the GPE . He was represented before the ORG by Mr J. Hemelaar , a lawyer practising in GPE .

On DATE the applicant was arrested on suspicion of having committed criminal offences . Because he refused to identify himself he was detained pursuant to LAW ) in order for his identity to be established . On DATE he was released and handed over to ORG ( vreemdelingenpolitie ) , who held him ( ophouding ) for the same purpose , pursuant to LAW ( Vreemdelingenwet CARDINAL ) . After this measure had been extended for TIME , the applicant was placed in GPE detention with a view to his expulsion ( vreemdelingenbewaring ) . In the course of an interview with ORG on DATE the applicant stated that he had NORP nationality but that he was not prepared to show his passport or another identity document – both of which he possessed – in order to prove his nationality . On DATE the applicant was released .

The applicant lodged appeals against his detention , which were dismissed by ORG ( rechtbank ) of GPE , sitting in GPE , by a decision of DATE .

On DATE ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) declared a further appeal ( QUANTITY beroep ) by the applicant inadmissible , holding that he had failed to fulfil the requirements of LAW ( PERSON ) by not including his name in the notice of appeal .

Since neither the application form , the authority to act ( which was signed “ X ” ) nor the supporting documents contained any mention of the applicant ’s name , the applicant ’s representative was requested on DATE to provide the ORG with a copy of a valid identity document for his client , as required by domestic law .

In his reply of DATE , the applicant ’s representative informed the ORG that no valid identity document was available , pointing out that the case concerned GPE detention and that NORP law did not require the submission of an identity document in such cases . Moreover , in view of the applicant ’s youth , there had likewise been no need or obligation for him to possess a document allowing him to cross international borders .


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

On DATE , upon request of the public prosecutor , the investigating judge ( rechter - commissaris ) of ORG ( Arrondissementsrechtbank ) of GPE opened a preliminary judicial investigation ( gerechtelijk vooronderzoek ) against Mr X. , a NORP national residing in the GPE and who was suspected of being involved in importation of cocaine . At some later point in time , a preliminary judicial investigation was also opened against PERSON , the spouse of Mr X. After Mr X. and PERSON had become aware of these investigations , they left the GPE for GPE ( GPE ) . Although , following their departure from the GPE , the criminal investigations against them were not actively pursued , they were not formally closed .

In DATE , ORG ( ORG ) opened an investigation under the code name “ Tropical Wizzard ” against a number of persons suspected of cocaine trafficking and money laundering activities . CARDINAL of these suspects was Mr X. As it appeared from tapped telephone conversations of Mr X. , that he was involved in the transport of drugs to the GPE , the responsible Assistant Attorney for LOC of GPE , Ms NORP , requested GPE for LOC of GPE on DATE for an order allowing the disclosure of intercepted wire conversations to the GPE criminal investigation authorities . After having obtained this judicial disclosure order on DATE , the GPE criminal investigation authorities were provided with the intercepted communications .

On DATE , on the basis of the DATE LAW between the GPE and the GPE with regard to mutual assistance in criminal matters , the public prosecutor PERSON addressed a letter rogatory to the GPE authorities to the effect of making available the results of the criminal investigation in the GPE , including the tapped telephone conversations , in order to explore the possibilities of a joint investigation of the activities of Mr X. in particular .

From the information made available by the GPE authorities , it appeared that around DATE , a ship carrying a large quantity of cocaine destined for the GPE had left a NORP harbour and that Mr X. had contacts by telephone with persons in the GPE . CARDINAL of the telephone numbers concerned was CARDINAL - CARDINAL*****. This number was registered in the GPE under the name of a person called PERSON and used by a person referred to as “ LOC ” .

On DATE , the preliminary judicial investigation against Mr X. in the GPE was reactivated and permission was obtained from the investigating judge to tap a number of telephone lines including the number CARDINAL - CARDINAL*****. In addition , a preliminary judicial investigation was opened against Mr PERSON , who would represent Mr X. in the GPE .

It appeared from telephone conversations tapped and a large number of observations that the ship from GPE would arrive in the harbour of LOC ( GPE ) , where the drugs would be collected by a number of NORP with the aid of divers and subsequently be brought by car to the GPE . Observations allowed the police to identify CARDINAL cars in which the drugs would be transported . CARDINAL of the cars , a ORG Clio , guided the other CARDINAL cars to the final place of delivery . Mr X. was found to be in contact with the driver of the ORG Clio via the mobile telephone line CARDINAL - CARDINAL*****. In TIME CARDINAL DATE , a large number of persons involved were arrested and taken into detention . A total of QUANTITY . of cocaine was seized . Mr X. and the applicant were amongst the arrested persons . The applicant was arrested sitting in the ORG Clio , shortly after this car had arrived at the place where the cocaine was planned to be delivered .

Following the closure of the preliminary judicial investigation , the applicant was charged with narcotics offences and summoned to appear before ORG of GPE in order to stand trial .

In its judgment of DATE , following adversarial proceedings , ORG convicted the applicant of being involved in narcotics offences and of membership of a criminal organisation . He was sentenced to DATE imprisonment . The applicant filed an appeal with ORG ( Gerechtshof ) of GPE .

In the course of the hearing held on DATE before ORG , the defence requested the court , inter alia , to hear a number of witnesses , including PERSON , the GPE Assistant Attorney having dealt with the investigation conducted in the GPE , in relation to her request of DATE and the role played by a certain PERSON in the investigation in the GPE . The defence did not find it necessary to take direct evidence from Mr S.

On DATE , after having deliberated , ORG rejected the request to take evidence from PERSON and a number of other witnesses . It considered on these points :

< Translation >

“ As a general framework for the decisions to be taken , the court considers the following at the outset .

The case has its origins in a broad investigation of international cocaine trafficking conducted in the GPE under the name Tropical Wizzard . The criminal investigation in the GPE has been set into motion after having obtained on CARDINAL DATE disclosure of NORP tapping data , in accordance with the provisions of LAW between the Kingdom of the GPE and GPE on mutual assistance in criminal matters … . The tapping data have thus formed the basis of the start of the investigation in the GPE . With the aid of further taps and observations in the GPE , the investigation has been pursued , which led on DATE to the finding of QUANTITY . cocaine and the apprehension of a large number of suspects , amongst whom the accused .

The accused now request the court , in brief , to assess inter alia the course of events in relation to the lawfulness of the use in the GPE of NORP investigation results . The question is whether it is incumbent on the GPE judge to do so . The court considers that in principle this is not the case . The existence of a treaty on mutual assistance in criminal matters is based on the principle that it may be relied upon that the Government , to whom a request is addressed and in application of that treaty , will exercise its powers in conformity with the treaty norms , which may be considered as being in conformity with the essential norms of public order valid in the GPE . Only where there is a concrete reason to assume that in the application of such powers those norms would have been disrespected , a reason would arise to examine the lawfulness indicated . The court considers that those norms include those of the international human rights treaties .

For the question when acts are contrary to the NORP public order it is possible , in connection with the instant case and noting the contents of the defence argument , to consider the case - law relating to the ( in)admissibility of the public prosecution department in its prosecution . This appears , inter alia , from the so - called PERSON judgment … , namely that the far reaching sanction of inadmissibility of the prosecution can only follow in case of serious breaches of the principles of proper proceedings ( behoorlijke procesorde ) by which , deliberately or with gross negligence , the suspect ’s interests in his right to a fair hearing have been disrespected .

In relation to the defence ’s requests seeking an investigation into the lawfulness of the GPE criminal investigation , the court considers at the outset that a possible flaw of the lawfulness , insofar as it does not impel the inadmissibility of the prosecution , only then leads to the exclusion of the evidence if the suspect concerned is harmed in an interest that the violated norm seeks to protect . This implies that in such a case an investigation of a violation of such a norm is not necessary , if the suspect himself has not been directly harmed by this < violation>.

As to the compilation of the case - file , the court considers at the outset that the responsibility thereto rests primarily with the public prosecutor , who provides the case - file to the judge . In that file are to be included the data that in all reasonability may be of relevance to any decision to be taken by the judge , including possible exculpating evidence .

It applies to all objections and requests by the defence , that these are to be substantiated by sufficiently concrete facts and/or circumstances and which are of relevance to the point made . Suppositions and suggestions are insufficient to this end .

The court will now consider the requests of the accused .

It is contended that no full disclosure has been made as to the investigation in the GPE . It is not excluded that more methods of investigation than taps has been used and that the GPE Prisma < criminal investigation > team was already itself actively involved in the investigation . The defence deduces this from the written remark on DATE by PERSON that the “ the United States’ Attorney ’s ORG of GPE and ORG currently are co - ordinating their law enforcement activities with the law enforcement agencies of the GPE ” and furthermore from the fact that PERSON police commissioner in charge of the ORG investigation team > states that on DATE more documents had been shown than < those > subsequently requested and disclosed .

Mr E. has been extensively questioned twice about these matters by the investigating judge and the defence . It follows from his statements that the GPE police kept regular contacts with the NORP authorities about joint investigation targets - drug trafficking from LOC - and that in this framework it received a tip from the GPE about possibly punishable acts by Mr X. , which could have a follow - up in the GPE . Further consultations have occurred on a number of times . Subsequently , on DATE and in the presence of the public prosecutor , a conversation with , amongst others , PERSON has taken place in the GPE and , on DATE > by letter rogatory , the public prosecutor has requested the disclosure of the investigation results including the taps . Only the taps have been disclosed .

From the statements of PERSON can not be deduced more than that there has been a consultation prior to CARDINAL DATE , but not that the GPE police has been actively involved in the GPE in investigation acts or that the GPE public prosecution department was conducting an investigation there . This can furthermore not be deduced from Ms D.’ remark on DATE . On DATE , the NORP authorities have informed the GPE colleagues of the investigation results obtained at that point in time .

It is a fact that Mr E. declares that more documents have been shown and have been kept outside the case - file … and that he can not make public < statements about > some matters . When questioned , he indicates … that those other documents and matters are , inter alia , connected to another cocaine line . Since the order of the judge in GPE dated DATE on disclosure of documents only related to taps , the court considers at the outset that on DATE , in relation to the Tropical Wizzard case , for that reason only the taps have been disclosed and that < the > other documents shown concerned other cases , as indicated by Mr E.

Given the previously formulated general framework , the court sees no terms in the defence ’s submissions to have a further investigation of the lawfulness and of the possible presence of other methods of investigation in the GPE . The submissions to this effect are insufficiently concretised and is for the greater part based on suppositions , whereas it has neither been substantiated that the methods used might be so unacceptable that the GPE public order comes into play .

A lack of clarity nevertheless remains . On DATE > documents have been selected in the presence of the public prosecutor . The following day , he has requested the disclosure of more documents than solely the taps . It is possible that with this he means the selected material . Insofar as known to the court , only the taps have been disclosed and the public prosecutor has acquiesced in this < situation>. The question therefore arises as to what documents the public prosecutor has possibly had in mind - possibly those of CARDINAL DATE > - and whether these documents could be of relevance for any decision of the court . The defence points at this lack of clarity . The court finds reason in this to request the public prosecutor to submit a clarification in writing on this < point > and/or to remain available as a witness , albeit with the explicit limitation that in this < evidence > only concerns these questions . It must , however , be pointed out at this stage that this matter is likely , for the time being at least , to be of limited importance . The further case - file , which has led to the suspect ’s arrest , has in fact only been constituted following receipt of the taps .

The court therefore rejects the requests by the defence in relation to the investigation in the GPE , i.e. the taking of evidence from PERSON , with the exception of the request in relation to the public prosecutor concerning the question as limited above .

The defence suspects that Mr S. might have been involved in the investigation as an infiltrator . An investigation is requested . He would currently live in GPE .

That Mr S. was an infiltrator is no more than a supposition . When questioned , PERSON stated that no infiltrator was involved in the GPE investigation and has submitted good grounds why Mr S. was not arrested then as a suspect ( he did not yet know Mr S. then and a suspicion of punishable acts had not yet arisen then ) .

Remains the possibility that Mr S. was working for the investigation authorities in the GPE and infiltrated here < in the GPE Without further data , the court considers this possibility unlikely . The question is indeed to what purpose PERSON would have infiltrated here , let alone in the case of this suspect . Nothing appears from the documents that could indicate provocation by PERSON even denies that actually - or any other influence of PERSON on the actual importation of the cocaine .

Mr S. was possibly here in the GPE as an observer , leaving aside the desirability of such activities on the territory of another ORG . As the GPE police themselves have observed , the court considers that such a role , assuming that he has played it , is of insufficient weight to investigate this , given the frameworks indicated above . All requests in relation to this matter are therefore rejected .

It has been requested on behalf of the suspect to submit the full formal records of the observations . In the running formal records ( “ loop - p.v . ” ) summaries of the observations have been included . Whether in addition further formal records have been made is not known to the court . If so , then there is in principle reason to add those formal records to the case - file . The court will therefore request the Procurator General to do so or to indicate in writing why this can not take place ( in full ) .

The suspect has further requested to hear the witness Mr M. about the suspect ’s role . The defence has not yet been able to question this witness . Nevertheless , the court rejects this request as insufficiently substantiated . It appears from the documents that Mr M. has hardly any knowledge of that role and it has not been indicated that he would know more .

CARDINAL The suspect has also requested to hear as a witness PERSON , living in GPE . She would be able to testify about a possible role of the suspect in the past . The court rejects this request . In the extensive NORP investigation numerous persons have been heard , amongst whom also a number in relation to the possible role of the suspect in DATE . It is unclear why a further statement needs to be added , whereas furthermore it has not been indicated that the witness requested has own knowledge about that part . That is only supposed . “

By letter of DATE , the public prosecutor PERSON submitted further explanations to ORG in relation to his letter rogatory addressed to the GPE authorities .

In the course of the hearing held on DATE before ORG , oral evidence was taken from the applicant , the public prosecutor PERSON and a further witness . The hearing of the public prosecutor PERSON was , however , restricted to the specific subject matter as explicitly defined by ORG . On DATE , ORG heard the parties’ final pleadings and fixed the date on which it would hand down its judgment .

In its judgment of DATE , ORG quashed the judgment of DATE , convicted the applicant of being involved in narcotics offences and of membership of a criminal organisation and sentenced him to CARDINAL years’ imprisonment .

It rejected the requests by the defence to adjourn the proceedings on appeal pending the inclusion of the records in relation to the observation of the garage at the final place of delivery of the cocaine or , alternatively , to take oral evidence from the police officers having observed that location ; to take , in the light of the testimony given by the public prosecutor PERSON , oral evidence from PERSON in relation to a possible informal co - operation between the NORP and NORP criminal investigation authorities already in DATE ; and to take further unrestricted oral evidence from the public prosecutor Mr V.

ORG held on the first point that , in conformity with the court ’s request , the public prosecutor had added CARDINAL formal records on the observation to the case - file . It considered itself sufficiently informed by these formal records and did not find a further investigation of this point necessary . Referring to its considerations stated on DATE and finding that the hearing held on DATE had not disclosed any further elements which should lead to a different finding , ORG also further rejected the second and third requests by the defence .

It based the applicant ’s conviction on the applicant ’s statement before ORG , statements taken from Mr X. before the police and the investigating judge , statements taken from other persons before the police and/or the investigating judge , formal records and the results of a forensic examination of substances seized by the police on DATE .

The applicant ’s subsequent appeal in cassation with ORG ( PERSON ) was rejected on DATE . Insofar as the applicant complained that ORG had unjustly rejected his requests to take further evidence , ORG accepted as correct the reasons stated by ORG for not acceding to those requests . As regards the decision to restrict the scope of further evidence sought from the public prosecutor PERSON , ORG held that ORG was at liberty to restrict the questioning of this witness to those points in respect of which the necessity to obtain further evidence had appeared . It further noted that it had not been argued and that it had not appeared that the defence had been restricted in the exercise of its rights in relation to the questioning of this witness about the subjects defined by ORG .


Remainder inadmissible;Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award

Alvina Gyulumyan;Anatoly Kovler;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in the town of GPE in LOC . He is a journalist .

On DATE the applicant published an article in issue no . CARDINAL\CARDINAL of the PERSON newspaper . The article appeared under the headline ‘ Tortured suspects confessed to the theft they had not ORG ( “ PERSON пыткой подозреваемые сознались в краже , которой не совершали ” ) . It concerned an investigation into the theft of property of a private company . The company director had identified CARDINAL of his former employees as prime suspects . PERSON , CARDINAL of those CARDINAL , had gone to the LOC police station of his own will to clear himself of suspicion . The story then switched to a first - person narrative by PERSON , which was preceded by the author ’s statement , in bold and in italics : “ I switched on the dictaphone recording of S[. ] ’s story ” .

Mr S. said that he had been detained TIME at LOC police station . TIME he had been brought to an office where CARDINAL police officers had been present ; PERSON had been among them . PERSON continued as follows :

“ It was a DATE . They [ the police officers ] planned to go to a wedding party after lunch ; they reeked of fresh alcohol , it looked like they had already been drinking . They discussed how to torture me - using a crow - bar or otherwise ? They tied me to a chair , my legs fastened to the chair legs and my arms cuffed behind the chair back . At first they punched me in the chest with their fists , it hurt . I was in a state of shock . Then , a sudden , stunning blow to the neck ... I could not see who delivered the blow and with what object . Someone said : ‘ What now ? The crow - bar?’ G[. ] says : ‘ Well , but do not stain my NORP . And he took all the magazines off the table . CARDINAL of them , who squinted a bit , took out a tool that looked like a tyre lever . I do not know how they wanted to torture me . G[. ] says : ‘ No , let ’s try a gas mask first’ . They put a gas mask on me ... I could not breathe in or out , I felt faint and my head shook ... ” ( emphasis added , see below ) .

The article further continued to relate PERSON story as told by him . After a while Mr S. had signalled his readiness to confess . He had been taken to the office next door , where a young man in civilian clothes had written down his statements . Thereafter , PERSON had been locked in the basement cell of the police station .

Switching back to author ’s speech , the applicant introduced PERSON , a friend of PERSON , who had gone to the police station to confirm Mr S. ’s alibi . With the words “ Let us give [ M. ] the floor ” , the story continued as narrated by PERSON :

“ At LOC police station they took me into office no . CARDINAL on the second floor . The interview was conducted by the investigator G[. ] , a tall athletic man with red hair .

– Where is the snatch ?

– What snatch ?

– ... Your friends have already confessed . You are the ‘ weak link’ . You are an ‘ MDP’ – a morally degraded person ...

He began beating me . Every word was followed by a blow ...

– Where is the loot ? You will tell me ! I am a paratrooper . I used to crush people like you and I will do the same to you ! Ever heard about disappearances ? You will be CARDINAL of them if you do not give back the loot !

... I heard that if the police accidentally break the leg or arm [ of a detainee ] , operational officers have to finish the victim off and secretly bury him so as to hide the traces of torture ...

G[. ] says : ‘ Stop talking like a parrot . Counsel , counsel ... Counsel will be at trial , but now you are under pre - trial investigation . Take him to the cell where the faggots are ! They are hungry , let them explain to him what he is.’ But he did not hit me . Just banged his fist on the table . As if they started to realise that they had made a mistake and were at a loss what to do next . ” ( emphasis added , see below ) .

In the conclusion the applicant quoted from a medical report which noted multiple bruises and abrasions on Mr S. ’s body . He criticised the passive attitude of supervising prosecutors who had refused to initiate a criminal case against PERSON and the other police officers , and noted that the ORG refusals were being appealed against to a court . The real perpetrator had later been identified and convicted of the theft .

The senior operational officer of LOC police station , PERSON sued the applicant and the newspaper ’s founder for defamation before ORG of GPE . Considering that the extracts in bold above were untrue and damaging to his honour , dignity and professional reputation , he sought compensation for non - pecuniary damage and legal costs . He denied that he had ever used violence against Mr S. or Mr M.

The applicant maintained that the contested extracts had been a verbatim reproduction of the personal stories of PERSON and PERSON and represented their value judgments on these events . He had acted in good faith and verified that neither Mr S. nor Mr PERSON had a reason to slander or denigrate PERSON The extracts either did not refer to PERSON personally ( such as “ they reeked of fresh alcohol ... ” ) or did not contain any information damaging to his reputation ( such as the statement about him being a paratrooper ) . The applicant produced in evidence a dictaphone recording of his conversation with PERSON , when PERSON had been also present . He also relied on the medical report noting PERSON injuries , on the records of the confessions made by PERSON and Mr M. at the LOC police station , and on their complaints about ill - treatment lodged with the prosecutor ’s office .

ORG took oral evidence from Mr S. and Mr PERSON confirmed the accuracy of the story as reproduced in the article . Responding to questions from both parties , he testified that police officers but not PERSON had reeked of alcohol , that he had been tied to a chair , that PERSON had indeed warned them against staining his table , that PERSON had not used violence against him but had been “ merely present ” . PERSON also confirmed his story as narrated in the article .

On DATE ORG of GPE granted PERSON action in part . It noted firstly that the applicant and the newspaper could not claim an exemption from liability for defamation on the ground that they had merely reproduced statements made by others , because no such exemption was provided for in the Mass Media Act . Accordingly , they were required to prove the accuracy of the contested statements . However , in the ORG view , neither the medical reports noting injuries on Mr M. ’s and Mr S. ’s bodies , nor their interview records , nor their oral testimony could be considered relevant evidence or proof of the truthfulness of the allegations that PERSON had tortured them or made intimidating remarks .

Furthermore ,

“ ... it follows from S[. ] ’s oral testimony that G[. ] had not been in an inebriated state during the interview , that he had not suggested using a gas mask , that he had not resorted to physical violence and that S[. ] had not told [ the applicant ] about that . A comparison of the dictaphone recording of S[. ] ’s story with the narrative in the article leads to the conclusion that the events were retold in the article in a different chronological order and that the author creatively rewrote PERSON ’s statements , increasing the emotional intensity and emphasising G[. ] ’s leading part in the use of violence towards the detainees . ”

ORG , however , accepted that the statement about Mr PERSON ’s being a paratrooper was not damaging to his reputation and that Mr M. ’s statement about the victims being “ finished off ” by the police did not concern PERSON personally . The remaining extracts were found damaging to his reputation and liable to rectification .

ORG awarded Mr MONEY ( MONEY ) and legal costs against the applicant .

On DATE ORG , on an appeal by the applicant and the newspaper , upheld the judgment .

Article CARDINAL of the Civil Code provides that an individual may apply to a court with a request for the rectification of “ statements ” ( “ сведения ” ) that are damaging to his or her honour , dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness . The aggrieved person may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such statements .

Article CARDINAL provides that compensation for non - pecuniary damage is payable irrespective of the tortfeasor ’s fault if damages were sustained through dissemination of information damaging dignity , honour or reputation .


Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Costs and expenses (domestic proceedings) - claim dismissed

NORP The applicant club was founded on DATE in GPE . Subsequent to the last changes in its corporate structure , on DATE , the ORG in GPE incorporated the applicant as a branch of a NORP limited liability company , “ BAUML GmbH ” .

Under contracts of CARDINAL May and DATE , the applicant engaged Mr PERSON ( “ the footballer ” ) as a professional player until DATE .

On DATE the applicant and the football club ORG , both members of ORG ( “ the GFF ” ) , entered into an agreement on the footballer 's transfer to ORG . It was arranged that the footballer would play for the new club after the latter had paid the applicant MONEY ( the equivalent of MONEY ( ORG ) , according to the applicant ) . In addition , if the footballer was later transferred abroad , the applicant was to receive PERCENT of the international transfer fee owed to ORG . If ORG failed to fulfil that obligation , the agreement between it and the footballer would become null and void .

On DATE ORG paid the applicant the sum agreed in roubles and the domestic transfer took effect .

Under a contract of CARDINAL DATE , ORG transferred the footballer to ORG for a lump sum of ORG CARDINAL ( EUR CARDINAL ) . In the event of the footballer 's further transfer by the NORP club for a fee in excess of USD CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) , ORG was entitled to receive PERCENT of the excess amount . Subsequently , ORG indeed transferred the footballer to ORG ORG , and ORG thus received around GBP CARDINAL ( EUR CARDINAL ) from the NORP club .

Having received the lump - sum transfer fee from GPE City ORG , ORG never remitted to the applicant the percentage agreed under the contract of CARDINAL DATE . Seeking to obtain the amount owed to it , the applicant complained to the ORG .

On DATE ORG of the GFF decided that ORG owed the applicant USD CARDINAL,CARDINAL ( ORG CARDINAL ) , corresponding to CARDINAL of the transfer fee paid by ORG . ORG was ordered to pay this sum in CARDINAL instalments .

On DATE the applicant referred the matter to ORG ( the “ ORG ” ) requesting its intervention to secure enforcement by the GFF of its decision of DATE .

The ORG reminded the GFF on DATE , DATE , DATE and DATE of its obligation to enforce decisions and thus to settle the dispute between the NORP clubs , warning that non - compliance with ORG directives might result in disciplinary proceedings against the ORG .

On DATE ORG decided that ORG was liable to pay the total amount of ORG CARDINAL ( EUR CARDINAL ) to the applicant immediately and that , in case of failure to comply with this decision , ORG would be relegated to ORG . That sanction would not , however , release the debtor from its obligation to fulfil its financial commitments visà - vis the applicant . In addition , the ORG warned both clubs that they were barred , under the PERSON and ORG , from referring the dispute to a court of law .

Following the applicant 's complaints , on DATE and DATE , that the dispute had still not been settled , the ORG again notified the ORG , requesting the enforcement of the latter 's decisions at the latest by CARDINAL DATE , on pain of international sanctions .

In the meantime ORG had taken the matter to a civil court . In a judgment of CARDINAL DATE , the GPE - Saburtalo ORG in GPE declared the transfer agreement signed by both parties on DATE to be null and void . Subsequently , the decision of ORG of the GFF of DATE was also annulled . During the hearing , the applicant pointed out that ORG had no right to examine the issue , since the clubs , as ORG members , enjoyed immunity from the jurisdiction of the ordinary courts . That argument was left unanswered . The judgment , not having been appealed , became binding .

On DATE , in view of that judgment , the GFF decided to annul its decision of DATE and thus to terminate the dispute .

On DATE the applicant appealed to ORG ( “ the Bureau ” ) , a disputes resolution organ . In a decision of DATE , the ORG considered that the ORG should intervene since it was clear that CARDINAL of the parties “ was not behaving properly and that the PERSON was not able to settle the matter by itself ” .

Without challenging the findings of the Vake - Saburtalo ORG in GPE on DATE about the nullity of the contract of CARDINAL DATE , the ORG stated on DATE that the footballer 's transfer from the applicant to ORG had nevertheless taken place and that no compensation had been paid in return . It therefore concluded that :

“ There had been a transfer of possession of the federative rights to the player between CARDINAL clubs , without any contract binding them ( since the transfer contract had been declared null and void by the court ) and , since CARDINAL of the parties had indeed performed its obligation , it was logical for that party to be properly indemnified for having done so in good faith . ”

In the light of its findings , the ORG decided that compensation for the training and development of the footballer had to be paid to the applicant ; both clubs were instructed to negotiate the amount . In the event of further disagreement , ORG would resolve the issue for them . Furthermore , noting that ORG had severely breached LAW of LAW by submitting the dispute to a court of law , the ORG fined that club CHF CARDINAL ( ORG MONEY ) .

NORP The applicant lodged an appeal against this decision with ORG ( “ the Executive Committee ” ) , which delivered its final decision on DATE . The appeal having been lodged out of time , ORG rejected it . However , in view of the fact that the clubs had failed to negotiate an amount of compensation , it determined that ORG had to pay the applicant USD CARDINAL,CARDINAL ( EUR CARDINAL ) .

Dinamo ORG complied with this decision and fully paid the debt in DATE .

Considering that the amount fixed by the ORG was insufficient to compensate for the loss sustained , the applicant brought an action for damages in the amounts of ORG and GBP CARDINAL ( totalling EUR CARDINAL ) against the GFF before a court of law . It argued that the respondent , contrary to its LAW , had failed to abide by its positive obligation to protect the rights of its member clubs . As a result of this negligence , the unjust enrichment of ORG had occurred at the expense of the applicant 's property rights .

NORP The applicant also requested leave to defer payment of the court fees ( known as ORG fees ) until after examination of the case . On DATE the ORG refused to defer payment on the ground that the applicant 's request was not substantiated by evidence of insolvency . The value of its claim being high , the applicant eventually paid the court fees , in the maximum amount of GEL CARDINAL ( EUR CARDINAL ) under LAW CARDINAL of the Code of Civil Procedure ( “ the ORG ” ) , on CARDINAL DATE .

The Tbilisi Regional Court , as the court of first instance , examined the action on DATE and dismissed it as manifestly ill - founded .

On DATE the applicant lodged a cassation appeal with ORG of GPE . Referring to the fact that it had suspended its activities because of financial problems ( near bankruptcy ) caused by the respondent 's wrongful acts , the applicant requested exemption from the court fees for cassation proceedings . In case this motion for total exemption was rejected , the applicant also requested leave to pay the court fees either in a reduced amount or with deferment . It referred to the right of access to a court guaranteed by LAW .

On DATE ORG refused to grant the applicant 's request for partial or full exemption from the court fees . Without referring to any specific circumstances , it bluntly stated that no ground for exemption , under Articles DATE of the ORG , existed in the case at hand . The court invited the applicant to pay the GEL CARDINAL,CARDINAL fee within DATE . When it failed to do so , ORG , in a final decision of DATE , declared the cassation claim inadmissible . This decision , adopted under the written procedure , was communicated to the applicant on CARDINAL DATE .

According to the applicant , its inability to receive from ORG proper indemnification in return for the footballer 's transfer , as well as the high costs which it had incurred in the domestic and international proceedings against ORG and the ORG , constituted the main reasons for its financial collapse . The auditor 's report of DATE confirmed the applicant 's insolvency and the resulting cessation of its activities in the sphere of football . The report stated that , due to the inability to pay the participation fee , the applicant had been excluded from the national football championship since DATE . Among other outstanding debts , the report noted arrears of interest on a loan which the applicant had obtained in order to pay the court fee of GEL CARDINAL for the proceedings before ORG ( paragraph CARDINAL above ) .

“ ... ORG shall hear a case at first instance if the value of the claim exceeds GEL MONEY [ EUR CARDINAL ] ... ”

“ Court fees ( sasamarTlo xarjebi ) shall be composed of the ORG fee ( saxelmwifo PERSON ) and the costs incurred for purposes of the proceedings . ”

“ The ORG fee shall be payable in accordance with LAW when :

a ) Lodging a claim ... ; ...

f ) Lodging an appeal ;

g ) Lodging a cassation appeal ... ”

“ The amount of the ORG fee shall depend on the value of the claim and is calculated as follows :

a ) [ For lodging a claim , the ORG fee ] ... shall represent PERCENT of the value of the claim ;

b ) DATE For lodging an appeal PERCENT of the value of the claim ;

c ) For lodging a cassation appeal PERCENT of the value of the claim ... ;

The amount of the ORG fee shall not however exceed CARDINAL NORP laris . ”

“ The value of the claim shall be indicated by the claimant . If the amount specified by the claimant is manifestly incompatible with the actual value of the disputed property , it shall be re - assessed by the judge . ”

“ The value of a pecuniary claim shall be calculated as follows :

a ) For claims of monetary arrears , it shall be represented by the amount claimed ... ”

“ With due regard to the financial situation of the party concerned , the court can exempt that party in whole or in part from the court fees to be paid in favour of the ORG budget . ”

“ With due regard to the financial situation of the parties , the court may grant both or CARDINAL of the parties the right to pay court fees either by instalment , or to defer payment , or to pay a reduced amount . ”

“ Court fees shall be reduced by CARDINAL : ...

c ) if the judgment is delivered by default . ”

Pursuant to LAW , the claimant and respondent are each expected to prove the circumstances on which they base their arguments in the adversarial proceedings .

Pursuant to Articles CARDINAL and CARDINAL § CARDINAL , if the ORG fee is not paid when the cassation appeal is lodged , the court would order the party concerned to pay it within a fixed time limit . If the party does not comply with the deadline , the claim would not be examined and the proceedings would be discontinued .


No violation of Art. 2;No separate issue under Art. 3 (specific incident);No violation of Art. 3 (treatment in general);Not necessary to examine Art. 6-1;No separate issue under Art. 13

The applicant was born in DATE and lives in GPE .

On DATE at TIME the applicant was arrested in GPE by policemen from the Anti - Terrorism Branch of ORG on suspicion of aiding and abetting the ORG . Subsequently , the police officers carried out a search of the applicant ’s office and of his flat with his permission . DATE at TIME the applicant was examined by a doctor , who reported that there were no signs of injury on his body . The applicant was then taken to ORG to be interrogated .

On DATE the public prosecutor verbally ordered the applicant ’s release as there was no evidence against him . Consequently , at TIME the applicant was handed over to the police officers from the Anti - Terrorism Branch of ORG to be released . He was initially taken to ORG where he was examined by a doctor , who stated that there were no signs of ill - treatment on his body . The applicant was then taken to the ORG building . While he was waiting in a room with window guards , the police officers started preparing the report for his release . The applicant alleged that while he was waiting , the police officers made him drink drugged tea as a result of which he lost consciousness . According to the applicant , when he regained his consciousness , he was in the hospital . He had fallen out the window of the office which was on the fifth floor of FAC . The Government maintained that when the applicant was taken to an office to sign the release report , he had run and jumped out the window . According to the Government , this office , which was solely used by police officers , had no window guards . After the incident , the applicant was immediately taken to the hospital . The medical report of CARDINAL DATE indicates that the applicant had several fractures . He had to stay in the hospital for DATE before he recovered from his injuries .

DATE , the police officers prepared an incident report , drew a sketch map and took statements from eye - witnesses to the event . Police officers PERSON , PERSON , PERSON , and PERSON confirmed that the applicant had jumped out the window of the office which was on the fifth floor of the ORG building . The police further took statements from Mr PERSON and Mr PERSON , CARDINAL civilians , who happened to be in the same office at the time of the incident . They stated that as soon as the applicant entered the office , he had run towards the window and jumped out .

NORP The applicant ’s statement was taken on DATE at TIME He confessed that he had run and jumped out the window at his own will . He stated that he had no complaints against anyone .

On DATE the applicant ’s representative filed a criminal complaint with the PERSON public prosecutor . In his petition , the applicant ’s representative maintained that on CARDINAL DATE the applicant had been subjected to ill - treatment by QUANTITY police officers at ORG during his interrogation , before being taken to the NORP police station to spend TIME . The lawyer stated that CARDINAL of the police officers was called PERSON . The applicant ’s lawyer further maintained the applicant had been deliberately thrown out the window of the office situated on the fifth floor of FAC .

On DATE the prosecutor took statements from ORG and PERSON , the police officers who had arrested the applicant on DATE . They denied the ill - treatment allegations .

On DATE the public prosecutor further took statements from police officers PERSON , ORG and PERSON , who had been on duty on DATE of the applicant ’s fall from the fifth floor . These officers stated that as soon as the applicant was taken to the office on the fifth floor to sign his release report , he had run towards the window and jumped out . They maintained that the applicant was very nervous and sweating .

On DATE the public prosecutor took statements from the applicant and his wife . The applicant stated that he had been insulted and threatened while he was in custody at the police station . However he indicated that he had not been subjected to any physical ill - treatment . In particular , he stated that the police officer , PERSON , who was named by the applicant ’s lawyer as one of the officers that had ill - treated the applicant , had in fact been very kind to him during his custody . The applicant explained that on DATE of the incident , while he was waiting to be released , he drank a cup of tea and lost his consciousness . He subsequently woke up in the hospital . The applicant stated that he did not remember whether he had jumped or had been thrown out the window .

In her statement , the applicant ’s wife explained that on DATE at TIME she had gone to ORG to visit the applicant . At first , the police officers refused to show the applicant to her . She overheard a police officer say to his superior that a liquid had been given to the applicant . She insisted , and the officers allowed her to see the applicant . According to the applicant ’s wife , the applicant was lying on the floor , unconscious .

On DATE the NORP public prosecutor decided that no prosecution should be brought against the accused police officers on the ground that there was no sufficient evidence in support of the allegations . The public prosecutor concluded that the applicant had tried to commit suicide .

On DATE the applicant ’s representative challenged this decision before ORG . In his petition , the lawyer stated that the applicant had been ill - treated during his custody at the police station . It was alleged that the applicant had been hosed with water , hung from his arms and subjected to electric shocks . The applicant ’s representative further complained that the applicant had been deliberately thrown out the window . The applicant ’s representative finally maintained that the applicant had lost his consciousness after drinking a cup of tea , which in his opinion had been drugged .

On DATE ORG , upholding the reasoning of the public prosecutor , dismissed the case .

On DATE a forensic doctor attached to ORG delivered a report about the applicant . Referring to the absence of a psychiatric report and a toxic examination , he concluded that the applicant had not been thoroughly examined at the hospital after DATE . He indicated that the applicant had been inscribed in a special recovery programme by ORG .