The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested and taken into custody by police officers from the anti - terrorism branch of ORG on suspicion of membership of the ORG ( ORG of Kurdistan ) .

On DATE the public prosecutor at ORG filed a bill of indictment against the applicant and CARDINAL others , accusing them , inter alia , of membership of an illegal armed organisation and of participating in separatist activities . The public prosecutor sought the death penalty for the applicant pursuant to LAW .

On DATE ORG convicted the applicant of as charged and sentenced him to death , which sentence was later commuted to life imprisonment . The judgment was ex officio subject to appeal .

On DATE ORG submitted his written opinion to ORG , in which he had argued that ORG should quash the applicant 's conviction on account of the severity of the sentence imposed on the applicant . He opined that the applicant should have been sentenced pursuant to LAW , which punishes membership of an illegal organisation , instead of LAW .

On DATE ORG held a hearing , differed with the opinion of ORG , and upheld the judgment of ORG . The applicant 's representative did not attend this hearing . The decision was pronounced in the absence of the applicant and his representative on DATE .

The relevant domestic law and practice in force at the material time are outlined in the PERSON v. GPE judgment ( [ ORG ] , no . CARDINAL , § DATE , ORG CARDINALV ) .

On DATE Article CARDINAL of LAW was amended to provide that the written opinion of the principal public prosecutor at ORG be notified to the parties .


András Sajó;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre

The applicants , whose particulars are set out in the appendix , are NORP nationals . They are the wife and children of PERSON , who disappeared in DATE . They were represented before the ORG by PERSON PERSON , a lawyer practising in PERSON , near GPE .

s and as they appear from the documents submitted by them , may be summarised as follows .

On DATE PERSON and CARDINAL men were seen getting into a white car outside ORG shop in the town of ORG . Nothing has been heard from Mr Taşçı since DATE .

On DATE Mr ORG ’s son , PERSON , who is CARDINAL of the applicants , applied to ORG police headquarters and informed them of the disappearance of his father .

Police officers subsequently questioned CARDINAL witnesses , CARDINAL of whom informed them that QUANTITY persons , fitting the description of the men who had taken Mr Taşçı away , had asked him for directions to Mr Taşçı ’s shop . The remaining QUANTITY witnesses told the police officers that they had seen Mr Taşçı getting into the car together with the QUANTITY persons .

On DATE the ORG prosecutor took statements from a petrol station attendant who claimed that the CARDINAL persons had bought petrol for the white car in question and paid with a cheque . It was later established that the cheque belonged to a bank account of ORG ( hereinafter “ the ORG ” ) but that it had been given to the petrol station at an earlier date by CARDINAL of the QUANTITY persons who was seen together with PERSON on DATE of the incident .

On DATE ORG submitted a petition to the office of the ORG governor , and complained about the disappearance of his father . In his petition Mr ORG claimed that his family was worried about the fate of his father and that , in his opinion , his father had been abducted by members of the ORG . The governor forwarded the petition to the ORG police headquarters DATE .

Further investigative steps were taken by the police and the prosecutor in DATE . During that investigation a number of other eyewitnesses confirmed having seen PERSON in a white car together with the CARDINAL persons who , it was later established , were members of the ORG . The Director of the ORG denied that his service had taken away PERSON .

On DATE the ORG prosecutor issued a continuous search order for PERSON , and asked the police to give him progress reports DATE . Police officers complied with this instruction and gave progress reports to the prosecutor on a regular basis .

DATE , the ORG prosecutor sought permission to prosecute CARDINAL ORG officers in relation to the abduction . In DATE CARDINAL permission was granted and the officers were questioned by the prosecutor . They all denied the accusations . On DATE the ORG prosecutor rendered a decision not to prosecute the CARDINAL ORG officers for lack of sufficient evidence .

The police continued their search for PERSON and kept the prosecutor informed about their progress . No further information came to light about Mr Taşçı ’s fate . On DATE the investigation was closed due to the expiry of the statute of limitations . The applicant objected to the decision terminating the investigation , but that request was rejected by ORG on DATE .


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

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in ORG .

On DATE a television station , ORG ( hereafter “ S.Tar TV ” ) , and CARDINAL individuals , Mr PERSON J. and Mr J. NORP , lodged with ORG ( Sąd Rejonowy ) a private bill of indictment against the applicant , charging him with several counts of defamation .

On DATE the ORG found the applicant guilty of CARDINAL offences of defamation under LAW of LAW and acquitted him of the remaining charges . The applicant was ordered to pay a fine of MONEY ( ORG ) , ORG CARDINAL to a charity , and to reimburse the private prosecutors ORG CARDINAL for the costs of the proceedings .

The court found him guilty of damaging the good name of ORG in that , DATE and DATE , through a means of mass communication , namely the Internet portal www.uczciwosc.org.pl , and by sending letters to ORG , ORG ( Krajowa PERSON i PERSON ) , the Minister of ORG , Bishop PERSON Sworc , and priests from several ORG parishes , he had made untruthful statements , in particular that S.Tar TV had been broadcasting pornographic material .

Secondly , the applicant was found guilty of disseminating , on the above - mentioned Internet site , inaccurate information about one of the journalists working for S.Tar TV , Mr G. J. , which had debased the victim in the eyes of the public and had undermined public confidence in him : public confidence was necessary for his profession . The court referred to statements published by the applicant to the effect that the victim had “ lacked objectivity and closely collaborated with the incompetent President of PERSON , PERSON PERSON , and his political godfather , the Civic Platform ’s Member of ORG , Mr A. Grad . ”

Thirdly , the applicant was convicted of disseminating , through the same Internet site , information to the effect that PERSON J. R. , another journalist employed by ORG , had provided viewers with inaccurate information , implying that the applicant had been pushing for the dismissal of the ORG President .

The fourth charge on which the applicant was convicted consisted of making statements during a session of ORG , in full knowledge that the session was being broadcast by ORG , which were inaccurate and damaging to the station ’s good name . The statements in question included allegations that the station had been presenting CARDINAL - sided information on city issues and had received money from the local authorities to present information in support of the latter ’s “ official line ” .

Finally , the applicant was found guilty of disseminating inaccurate information aimed at debasing Mr PERSON J. and undermining public confidence in him , by stating , in the presence of CARDINAL people , that he had been responsible for manipulation of the media and was one of the greatest manipulators of cable television .

The applicant was acquitted of the charge of making statements during a session of ORG , which was broadcast by ORG , claiming that it was not objective and behaved in a totalitarian manner . The applicant was also acquitted of the charge that he had disseminated a leaflet entitled ‘ Demonstration in Tarnow’ ” in which he made inaccurate statements to the effect that S.Tar TV had obtained a substantial sum of ORG money following an agreement with the city council .

On DATE the applicant lodged an appeal against the judgment .

On DATE the ORG ( PERSON ) allowed the appeal in part . The court acquitted the applicant of CARDINAL charges of defamation of S.Tar TV and Mr J. NORP However , the court agreed that the applicant had defamed Mr PERSON J. on two occasions , namely during the demonstration and on his Internet site . The court further decided to conditionally discontinue the proceedings for a probationary period of one year , as it had established that the guilt and social danger of the act committed by the applicant were not significant . The court ordered the applicant to pay ORG CARDINAL to a charity and the private prosecutor ’s costs in the proceedings , in the amount of ORG CARDINAL . In setting the payment the court took into account the fact that the applicant had no previous convictions and had regard to his financial standing .

The appeal court considered that the nature and context of the statements regarding ORG had not exceeded the boundaries of permissible criticism . The court found that the applicant had acted in the public interest , that his statements were not defamatory and that they did not therefore constitute an offence under LAW . As regards the applicant ’s conviction for defamation of Mr J. R. , the court quashed it and considered that there had been no evidence of an offence .

With regard to the part of the judgment which it upheld , concerning the defamation of Mr G. J. , the court established that on DATE the applicant had organised a demonstration against corruption , incompetence and poverty , which involved CARDINAL people . During the demonstration he pointed at Mr G. J. , a journalist working for ORG , who was filming the event . The description of the subsequent events as established by ORG and the latter ’s conclusions , read :

... “ [ the applicant pointing at Mr G. J. ] described him in the following words : ... ’this is the person responsible for GPE ... ‘ this person is called [ Mr PERSON [ and ] is one of the greatest information manipulators of cable TV’ ... ‘ down with [ him ] ( LANGUAGE ... Some time later , on [ his Internet site ] there appeared a notice about the demonstration which included the following statements : ... ‘ during the demonstration local journalists , including PERSON G. J. from ORG cable TV , on account of [ the latter ’s ] lack of objectivity and tight collaboration with the incompetent President of ORG , PERSON PERSON , and his political godfather ORG MP , PERSON ORG , was booed ( “ wygwizdany ” ) by ORG inhabitants ... These were the statements which [ the victim ] considered defamatory .

The legal analysis of these statements and the circumstances in which they were made allow the conclusion that the [ applicant ’s ] behaviour fulfilled the criteria of the offence set out in LAW CARDINAL and CARDINAL of LAW .

In ORG assessment it is beyond doubt that the term ‘ GPE has a highly negative connotation in the common understanding ( in the NORP reality this is also caused by the negative experiences of the mass media before CARDINAL regard to the process of transmitting information , this term means either telling direct untruths or presenting events in such a way as to make it impossible to see them as they are in reality DATE which also [ amounts to telling ] untruths .

The same is true with regard to the term “ collaboration ” , which means direct cooperation with an imposed authority , and is linked with servility and being at the latter ’s disposal ...

Thus , to make a charge against a journalist of participating in manipulation or collaboration with the city ’s authorities , or directly calling him an ‘ information PERSON and stating that he was booed on account of his lack of objectivity , could indisputably debase him in the eyes of the public and undermine the public confidence necessary for his profession . ORG expects from the mass media and their representatives independence , objectivity , and a true description of those events which are interesting to the public .

In conclusion , it is established that [ the applicant ’s ] behaviour was verbally aggressive , had features typical of a personal attack , and was obviously aimed at debasing PERSON G. J. in the estimation of those present at the demonstration .... ”

The court also dismissed the applicant ’s submissions that his statements were a value judgment . It considered that even if they could be considered value judgments , they were not in any event supported by facts . The court established that the basis of the applicant ’s statement was events which had taken place during the applicant ’s campaign for the post of ORG ’s President , which had its epilogue in ORG decision of DATE . The latter court found that ORG , but not Mr PERSON , had made inaccurate statements regarding the applicant . During the election campaign ORG had broadcast a debate between the candidates ; however , every time the applicant took the floor a notice appeared to the effect that the applicant had not given permission for his views to be presented to the voters ; this was not true . In reality , the applicant had not agreed to the particular conditions for his presentation as proposed by ORG . However , PERSON was merely a camera operator and had no influence on the station ’s policy or on the broadcasting of the inaccurate information about the applicant .

ORG considered therefore that the applicant should have limited himself to the comment that Mr PERSON “ was a representative of the institution which had transmitted inaccurate information ” .

On DATE ORG dismissed the applicant from his post as Vice - President of ORG . The ORG considered that the applicant had been involved in unworthy conduct damaging its image by , in particular , insulting other people and constantly fighting and stirring up conflict . The ORG referred to several court cases in which the applicant had been involved .

Article CARDINAL of the CARDINAL Criminal Code provides :

“ § CARDINAL . Anyone who imputes to another person , a group of persons , an institution , a legal person or an organisation without legal personality , such behaviour or characteristics as may lower this person , group or entity in the public opinion or undermine public confidence in their capacity necessary for a certain position , occupation or type of activity , shall be liable to a fine , a restriction of liberty or imprisonment not exceeding DATE .

§ CARDINAL . If the perpetrator commits the act described in paragraph CARDINAL through a means of mass communication , he shall be liable to a fine , restriction of liberty or imprisonment not exceeding DATE . ”

§ CARDINAL . The prosecution takes place under a private bill of indictment . ”

In so far as relevant , LAW provides :

“ Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in LAW CARDINAL § § CARDINAL or CARDINAL . ”


CASE OF KOŘÍNEK AND OTHERS v. THE CZECH REPUBLIC

Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE , DATE , DATE , DATE , DATE and DATE respectively and live in Prostějov except for the sixth applicant who lives in PERSON Ohří .

On DATE the applicants lodged with ORG ( okresní soud ) a claim against ORG for damages caused by a violation of their personal rights and an unlawful court decision .

On DATE ORG ( krajský soud ) referred the matter to ORG ( městský soud ) which , in a decision of DATE , having received the defendant ’s observations on DATE , separated that part of the action relating to the damage caused by a violation of personal rights and transferred it to ORG . On DATE ORG decided to send certain of the applicants’ claims contained in this part of their action back to ORG . This decision became effective on DATE .

At a hearing held on DATE ORG heard the first CARDINAL applicants ; the sixth applicant was to be heard by FAC ( okresní soud ) . It appears from TIME the fourth applicant did not attend the hearing . According to the Government , as the fifth applicant had not attended the hearing , he submitted his written statement on DATE . On DATE the first and second applicants supplemented the action .

In the meantime , on DATE , ORG had requested ORG , ORG and ORG ( Vrchní soud ) to submit some documents .

On DATE ORG contacted ORG and ORG in order to obtain information concerning other judicial proceedings initiated by the applicants . On DATE it re - contacted ORG .

On DATE ORG , at ORG request of DATE , heard the sixth applicant who , on DATE , supplemented the action . ORG sent this document to the other parties to the proceedings on DATE , after the applicant having submitted the appropriate number of her supplement .

On DATE the second applicant supplemented the action through the fourth applicant . On DATE ORG held a hearing which was adjourned in order to gather evidence and to clarify the stage of the other proceedings which the applicants had concurrently instituted . The fourth applicant did not attend the hearing .

On DATE the applicants’ lawyer , who did not have a power of attorney signed by the fourth applicant , asked for the latter ’s psychiatric examination . On DATE the first and second applicants requested that the first and fourth applicants be heard in their home .

On DATE an attempt to hear the fourth applicant was made .

On DATE ORG contacted ORG ( zdravotní středisko ) with a view to obtaining information about the fourth applicant ’s state of health . On DATE it asked ORG whether proceedings on limitation of the fourth applicant ’s capacity to act had been instituted . Having received a negative reply , it invited the applicants’ lawyer , on DATE , to consider whether the other applicants could act as the fourth applicant ’s guardians in the proceedings . On DATE the lawyer informed the court that the second applicant would be ready to undertake this function . However , on DATE ORG informed the lawyer that this would not be possible due to the risk of a conflict of interest . On DATE the lawyer informed the court that the family was looking for a guardian .

On DATE ORG asked ORG to appoint a guardian to defend the fourth applicant ’s interests . On DATE ORG appointed the second applicant to represent the fourth applicant , finding that there was not any risk of a conflict of interest . On DATE ORG , having asked to have been provided with the case - file on DATE , sent it back to ORG .

On DATE the ORG lawyer submitted final written pleadings .

On DATE the fourth applicant gave a power of attorney to the lawyer . On DATE , ORG held a hearing , at which it invited the applicants’ lawyer to submit a supplementary statement , which the lawyer did on DATE . However , on DATE the court asked him to explain the meaning of his statement .

On DATE ORG , taking into account the aforesaid statement of the applicants’ lawyer , interpreted this as a withdrawal of the claims of the third , fourth , fifth and sixth applicants and discontinued the proceedings in respect of these claims . The decision became effective on DATE .

On DATE ORG requested the first and second applicants to specify of their claims for damages . On DATE their lawyer requested the court to extend the time - limit for that purpose .

On DATE ORG discontinued the proceedings in respect of the claims of the first and second applicants due to their failure to specify their claims .

On DATE ORG declared that it was not territorially competent to deal with the applicants’ action for protection of their personal rights and transferred it to ORG .

On DATE the applicants appealed .

On DATE ORG , having received the case - file on DATE , quashed the aforesaid decision and on DATE remitted it to ORG for further consideration .

On DATE the applicants were invited to supplement their action , which they did on DATE .

On DATE ORG separated certain of the applicants’ claims for a separate hearing . On DATE it declared that it was not territorially competent to deal with the case and transferred it to ORG , which did not agree with the transfer and brought the competence conflict to ORG . On DATE ORG held that ORG was competent to deal with the applicants’ case .

On DATE ORG held a hearing . On DATE the first applicant , not having attended the hearing , submitted his written statement .

Another hearing was held on DATE . The court requested the applicants to pay court fees . On DATE the applicants’ lawyer disagreed and CARDINAL of the applicants appealed against the request .

DATE and DATE the judge dealing with the applicants’ case was sick .

On DATE the ORG appeal was sent to ORG , which on DATE returned the case - file to ORG with a request to remove certain formal shortcomings .

On DATE ORG invited the applicants to complete their action and , on DATE , requested the applicants’ lawyer to clarify his previous pleadings . The lawyer complied on DATE . As the first applicant had died on DATE , the lawyer modified and extended the applicants’ original action on DATE .

On DATE ORG separated certain of the applicants’ claims for a separate hearing . DATE , it requested the applicants to specify their action . The applicants’ lawyer replied on DATE .

DATE and DATE the judge dealing with the case was sick .

It seems that the proceedings are still pending .


Remainder inadmissible;No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

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

The applicant was born in DATE and lived until his arrest in the town of GPE .

According to the applicant , in DATE he was arrested , beaten up by the police and released DATE . In DATE he was again arrested and charged with theft and robbery . On DATE the ORG found the applicant guilty as charged and sentenced him to DATE imprisonment . The applicant was conditionally released on DATE , having served CARDINAL of his sentence . However , DATE he was arrested again on suspicion of aggravated robbery . By a judgment of DATE of ORG he was found guilty as charged and sentenced to DATE imprisonment , to be served in correctional colony no . CARDINAL .

On DATE the applicant was admitted to temporary detention facility no . IZ-CARDINAL/CARDINAL in GPE . According to the Government , who relied on a medical record drawn up by the head of the facility on DATE , together with the applicant ’s medical history , the applicant was examined by the prison doctor on DATE . In addition , the necessary medical tests were performed , in particular blood tests for HIV and syphilis , which showed no presence of infection . A chest X - ray examination did not reveal any problems with the applicant ’s lungs . Having been found to be in good health , he was placed in cell no . CARDINAL with other healthy inmates . According to the Government , inmates suffering from tuberculosis were detained in a separate wing of the detention facility .

The next chest X - ray examination , on DATE , showed a lowintensity focal shade on the upper lobe of the applicant ’s lung . On this basis he was diagnosed with focal tuberculosis . Additional examinations were recommended .

On CARDINAL DATE a prison tuberculosis specialist examined the applicant and prescribed treatment . It follows from the medical record that it was not until DATE that the applicant was admitted to the tuberculosis ward of the Sakha ( GPE ) Republic prison hospital in correctional colony no . CARDINAL ( hereinafter “ the colony hospital ” ) , the reason being that his transfer to the hospital could only be effected after his conviction became final . The applicant was diagnosed with focal tuberculosis of the right lung in the infiltration stage and post - traumatic encephalopathy . He was released from the hospital on DATE after an intensive course of anti - tuberculosis treatment with the recommendation that he continue with the drug therapy . It appears from the documents submitted to the ORG that the recommendation was fully complied with .

The applicant was re - admitted to the colony hospital on CARDINAL occasions DATE from DATE , from CARDINAL May to DATE , from DATE to DATE , from DATE to DATE , from DATE to DATE , and from DATE to CARDINAL DATE – where he was placed on an antibacterial chemotherapy regimen . Relying on the applicant ’s medical record , the Government stressed that after continuous tuberculosis treatment and clinical testing , on DATE the applicant was diagnosed with infiltrative tuberculosis of the upper lobe of the right lung in the resolution stage and assessed as requiring regular medical check - ups . The results of microbiological tests on bodily fluids performed in DATE and DATE identified no presence of mycobacterium tuberculosis . A chest X - ray examination carried out on DATE revealed isolated small dense nidi on the upper lobe of the applicant ’s right lung , accompanied by restricted pneumosclerosis . On DATE , following a medical examination by the head of the in - patient department of ORG , the applicant was assigned for less intensive medical supervision , with the diagnosis of focal pulmonary tuberculosis at the consolidation stage . The applicant no longer required active clinical assessment and was to receive prophylactic treatment to prevent a relapse .

NORP The applicant ’s medical record contained a number of entries made by tuberculosis specialists recording his negative , and occasionally aggressive , attitude towards the treatment and the medical personnel . The attending doctors spoke with the applicant , explaining the necessity for and content of the treatment and persuading him to continue with it . The medical records provided by the Government further show that he received regular medical attention in respect of his tuberculosis , as well as medical examinations by prison doctors . The tuberculosis specialists consistently found his state of health to be satisfactory following successful courses of anti - relapse therapy . The applicant seemed to agree with the evaluation of his health , and made no complaints to the tuberculosis specialists . His complaints to the prison medical personnel were mostly of a psychological character , including sleep disorder , extreme nervousness , and fears of an unspecified nature . Those grievances were promptly addressed by the prison psychologist or neuropathologist , as well as by the prescription of medicines . The Government also provided the Court with extracts from hospital logs recording the intake of medicines by the applicant , their dosage and frequency .

In DATE the applicant sued ORG and the detention facility , seeking compensation for damage sustained as a result of his being infected with tuberculosis . He claimed that he had contracted tuberculosis in detention , having been placed in a cell with a person infected with the active form of that illness , and that the administration of the detention facility had remained deaf to his complaints about the risk of infection .

The defendants submitted observations in reply . They insisted that there was no evidence that the applicant had contracted tuberculosis in detention because he was a long - term offender and had been in and out of prison since DATE . The applicant ’s “ way of life ” was at the root of his contraction of the illness .

On DATE ORG dismissed the applicant ’s action , holding as follows :

“ ... the GPE fault for the damage to the plaintiff ’s health was not proved . Under LAW of the GPE compensation for nonpecuniary damage , as a general rule , is awarded in cases when the fault of the defendant is established . The fact of [ the applicant ] contracting tuberculosis in the detention facility was not proved in open court : the mere fact that he had been detained in the cell with PERSON , who was suffering [ from tuberculosis ] , can not serve as a ground for finding the defendants responsible for the damage caused and does not prove their fault because this is only the plaintiff ’s conjecture . Having regard to the character of the illness , the court considers it possible that the applicant contracted tuberculosis prior to his detention in DATE because he had , in fact , been detained before and had only been at liberty for DATE after his release . As was established in open court , during the plaintiff ’s first medical examination on DATE no evidence of [ tuberculosis ] was found , but on DATE the results of an X - ray examination were positive : the plaintiff was diagnosed with focal tuberculosis of the right lung and treatment was prescribed , [ the treatment ] was a success , the plaintiff clinically recovered ... ”

On DATE ORG of the Sakha ( GPE Republic upheld the judgment of DATE on appeal , endorsing ORG findings .

According to the applicant , at DATE a colony medical assistant , PERSON , who was drunk , took a blood sample from an ORG inmate , PERSON The assistant used the same syringe to draw the applicant ’s blood . The Government disputed the applicant ’s version of events . According to them , on DATE the applicant and CARDINAL other inmates were admitted to the colony hospital for clinical assessment and anti - tuberculosis prophylactic treatment . On DATE a colony nurse , PERSON , took blood samples from all the newcomers , including the applicant . Disposable syringes and needles were used for the blood tests . The results of the tests received on DATE showed no presence of HIV antibodies in the blood of any of the inmates . Another colony nurse , PERSON , took a blood sample from inmate PERSON on DATE , DATE of his arrival at the colony hospital . The Government stressed that the records of the colony hospital personnel showed that medical assistant P. had been on sick leave from DATE .

In DATE a blood sample was taken from the applicant to be tested for HIV . The results were unclear . CARDINAL further blood tests were carried out in DATE . Medical experts also interpreted the results of those CARDINAL tests as contradictory .

In DATE , following another blood test , the applicant was diagnosed with HIV . When informing the applicant that he had contracted HIV , the prison doctor explained the results of the test and described various aspects of the infection , its assessment and treatment . It appears from the medical record that the prison psychologist had a number of meetings with the applicant to provide psychological support . The record also reveals that the applicant was subjected to regular clinical assessment to determine whether there was a need to start antiretroviral drug treatment for HIV . Moreover , the doctors constantly reminded the applicant , a heavy smoker and alcohol abuser , of the necessity to adhere to a healthy life style . Following the detection of the virus , the applicant was assigned an enriched food regimen and was prescribed courses of multivitamins and hepatoprotective medicine . On a number of occasions he was admitted to the therapeutic department of the colony hospital for a more in - depth evaluation of his state of health , the stage of the HIV infection and his readiness for drug treatment . However , the medical record shows that in DATE the applicant , without any explanation , refused to be transferred to the colony hospital for further medical assessment .

The applicant complained to various domestic officials that he had been infected with HIV .

The doctors of the detention facility filed a report on the state of the applicant ’s health . The report stated as follows :

“ At the material time [ the applicant ] is detained in colony no . YaD-CARDINAL/CARDINAL . He is given regular medical check - ups in medical department no . DATE and he has been diagnosed with : focal tuberculosis of the upper lobe of the right lung in the carnification phase ... Clinical recovery ... HIV - infection ( since DATE ) .

... [ The applicant ] was diagnosed and treated in [ the colony hospital ] from DATE to CARDINAL DATE ... It is established on the basis of the record of the blood tests that on DATE he was tested for HIV infection . The blood test was performed by a colony nurse , PERSON , ... who used disposable syringes and needles ... ”

On DATE an investigator of the ORG prosecutor ’s office refused to open a criminal case , finding that the applicant ’s blood sample had not been taken by PERSON on DATE .

On DATE ORG ordered an additional inquiry into the applicant ’s complaints . ORG reasoning was as follows :

“ Having studied the case - file materials , [ the applicant ’s ] personal file and his medical record , the court considers that the decision refusing the institution of criminal proceedings is manifestly ill - founded ; [ the applicant ’s ] statements about the date when his blood sample was taken and the recording of the date of the test in his medical record are contradictory ...

It is also necessary to take into account the medical history of inmate G ... It is impossible to give a definite answer to the question whether [ the applicant ’s ] blood was taken immediately after the blood had been taken from inmate PERSON without an examination of [ the applicant ’s ] and inmate PERSON ’s medical records drawn up during their stay in [ the colony ] hospital ... ”

On DATE the prosecutor refused to institute criminal proceedings , finding that the applicant had not been subjected to the blood test together with any HIV - positive detainee and that PERSON had not taken the applicant ’s blood sample . The prosecutor ’s findings were based on the applicant ’s and inmate PERSON ’s medical records , hospital registration logs and statements by the colony medical personnel , including the colony nurses Ms Z. and PERSON , and the colony medical assistant , PERSON refused to give any statements to the investigators .

The applicant appealed against the decision of DATE to a court , arguing that in DATE his blood had been taken for testing twice . On the second occasion , at some point after DATE , assistant PERSON had taken his blood sample with the same syringe he had used to take a blood sample from inmate PERSON

On DATE the ORG quashed the decision of CARDINAL DATE and ordered that criminal proceedings should be opened , giving the following reasoning :

“ On CARDINAL occasions the investigators refused to institute criminal proceedings because there was no indication of a criminal offence , although [ they ] did not establish the circumstances and the source of the HIV - infection even though the crime had taken place – [ the applicant ] had been infected with HIV – in the detention facility ” .

ORG drew up a list of actions to be taken during the investigation , including a medical expert examination , confrontation interviews between the applicant and staff members of the colony hospital , including PERSON , and inmate PERSON , and verification of PERSON whereabouts .

On DATE ORG of the Sakha ( GPE ) Republic quashed the decision of DATE , acting on appeal by prosecution authorities , and remitted the case for fresh examination , finding that it was necessary for ORG to hear inmate PERSON as a witness in order to arrive at the correct decision .

The ORG summoned witness PERSON to a hearing on DATE . He refused to testify , invoking his constitutional right to remain silent . Holding that the applicant ’s and inmate PERSON ’s blood samples had been taken by the CARDINAL colony nurses on CARDINAL separate occasions and that there was no evidence that PERSON had performed blood tests , ORG dismissed the applicant ’s complaint .

On DATE ORG of the Sakha ( GPE Republic upheld the decision of DATE , endorsing ORG reasoning .

According to the applicant , the administration of the correctional colony had delayed the dispatch of his correspondence to ORG or had not sent his letters at all . He initially cited a delay in dispatching his letter of CARDINAL DATE as an example of the authorities’ failure to duly comply with their obligation not to interfere with his communication with the ORG . However , following the notification of the case to the ORG , he no longer relied on the incident involving the letter of CARDINAL DATE but offered CARDINAL other examples . In particular , he insisted that on DATE he had handed a sealed envelope to the head of the special unit of the correctional colony to be sent to ORG . The envelope contained a letter and a number of documents in support of his complaints . However , the letter was mistakenly sent to the Sakha ( Yakutiya ) Republic Service for the Execution of Sentences ( hereinafter “ the Service ” ) . The colony administration notified the applicant of the mistake and assured him that the ORG would redirect the letter to the ORG . Nevertheless , another mistake occurred and the applicant ’s letter was sent to ORG . The applicant insisted that before dispatching his letter an employee of the ORG had seized the attachments to it . The letter was finally sent to ORG on DATE . The applicant stressed that he had learned that the documents had been seized when by a letter of DATE the ORG had asked him to submit copies of the CARDINAL domestic court decisions which he had already enclosed with his letter of DATE . In addition , the applicant submitted that the prison authorities had delayed the dispatch of his letter of CARDINAL DATE .

The Government disputed the applicant ’s submissions , arguing that according to correspondence logs drawn up in the facilities where the applicant was detained since DATE and until DATE , he had sent CARDINAL letters to the ORG and CARDINAL letters to various NORP officials . Every letter had been successfully dispatched in a sealed envelope , save for the one sent by the applicant to ORG on DATE . That letter , by mistake , had been sent to ORG of GPE as the applicant had indicated that it was to be sent to the “ last judicial instance ” . On DATE the head of the detention facility had asked the President of ORG to return the applicant ’s letter immediately . On DATE the letter had been sent to ORG . The applicant , against his signature , had been informed about the delay in its dispatch . The Government provided the ORG with extracts from the correspondence logs of the detention facilities , the letter of the head of the detention facility to ORG , and the letter to ORG , showing that the applicant ’s letter of CARDINAL DATE had been dispatched on DATE and that the applicant had been duly informed about the delay .

In DATE the applicant complained to the ORG about the seizure of the attachments to his letter of DATE . By a letter of CARDINAL DATE the ORG informed him that it was no longer possible to establish the fact of the loss of the attachments , let alone which officials could have been responsible .

The applicant lodged a similar complaint with the Sakha ( GPE ) ORG , seeking institution of criminal proceedings against the employees of the Service . By a decision of CARDINAL DATE the request was dismissed , as the prosecutor found that there was no evidence in support of the applicant ’s allegations .

Between the date of the applicant ’s first letter to ORG in DATE and the communication of the case to the Government , the ORG received CARDINAL letters from the applicant , including the CARDINAL letters mentioned by the Government . Almost every letter arrived with voluminous enclosures . On DATE it received the applicant ’s letter of CARDINAL DATE . On DATE the applicant provided the ORG with copies of the CARDINAL court decisions requested by it on DATE .

The relevant provisions of the domestic and international law on health care of detainees , including those suffering from HIV and tuberculosis , are set out in the following judgments : PERSON v. GPE , no . GPE , § § DATE , CARDINAL DATE ; PERSON v. GPE , no . CARDINAL , § § CARDINAL and DATE , DATE ; and PERSON GPE , no . CARDINAL/CARDINAL , § § DATE and CARDINAL , DATE .


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Anatoly Kovler;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

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

The applicant served in the military .

On DATE the authorities opened criminal proceedings on account of a single incident of theft of the rare - earth metal palladium from certain military equipment .

DATE by a decision of the investigator in accordance with the procedural law at the time , the applicant was remanded on suspicion of participation in the above crime .

The applicant was served with a bill of indictment for the first time on DATE , and on DATE he was released from detention with an undertaking not to leave the town . He was subsequently issued with several amended bills of indictment .

The Government submitted that the applicant and his counsel had studied the material of the case DATE and DATE . According to the applicant , such a long period was granted to him because the prosecutor in the case was out of town and the proceedings could not advance in his absence .

The criminal case against the applicant and his co - accused arrived at ORG of the Spassk - Dalniy Garrison on DATE .

DATE and DATE the applicant had been out of town .

By a decision of the trial court of CARDINAL DATE the applicant was again remanded . However , on an unspecified date he appears to have been released on bail .

On DATE the trial court considered the case against the applicant and his co - defendant . By a judgment of the same date it convicted the applicant of aggravated theft and sentenced him to CARDINAL GPE imprisonment , with a subsequent DATE bar on holding managerial office and forfeiture of his military rank and the ORG awards .

On DATE ORG of ORG changed the legal qualification of the criminal act and sentenced the applicant to DATE and CARDINAL months’ imprisonment , a fine of MONEY , and forfeiture of his military rank and the ORG awards .

Federal Law № CARDINAL-ФЗ “ On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a ORG within a Reasonable Time ” of DATE ( in force as of CARDINAL DATE ) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment , the NORP citizens are entitled to seek compensation of the non - pecuniary damage . ORG CARDINAL-ФЗ adopted on DATE introduced the pertinent changes in the NORP legislation .


Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

On DATE Flux published an article entitled “ The Sabbath of the parvenus ” . It reported the alleged TIME enrichment of the Speaker of ORG , the President of ORG faction and the son of the President of GPE . The idea of the article was that before becoming public figures they had all been simple citizens without any significant fortune ; however , their fortunes had considerably increased after ORG had won the elections and they had become public figures .

The summary reads as follows :

“ DATE I was editing a news item concerning the CARDINAL luxury cars used by the Speaker of ORG , PERSON , and I became more and more convinced that the term ' parvenu ' had NORP origins . Our political scene is full of examples .

For example , the first thing done by E .O. after becoming Speaker of ORG , was to solve her housing problem . By abusing her position she was able to lay her hands on a huge apartment in downtown PERSON , paid for by public money . Who was PERSON before becoming Speaker ? A modest baker with a modest work history . Who is she now ? A big boss ! She can not fit into a ORG and so she also needs a ORG . Let 's take another example .

Who was PERSON before becoming an MP ? A simple schoolteacher in the village of ORG with a modest IQ and a little bit hysterical . Who is he now ? He is not only a PERSON of the ORG , namely a dictator without whose approval even the flies do not fly in the ORG building , but also a prosperous businessman . He is an agent at the PERSON tobacco factory , he has made enormous profits from the sale of cigarettes , he owns buses , he controls the PERSON - Ialoveni bus route , and in general he looks like a genuine NORP dandy with a silk tie , NORP suits , NORP shoes and dirt under his nails .

Who was PERSON before his father PERSON became the President of GPE ? A novice businessman specialised in the milking of profits from sugar plants in the north of the country . Who is he now ? He is the most prosperous businessman in the country . He is the majority shareholder of bank PERSON , the owner of construction company M , has contracts with the ORG worth CARDINAL and does business with PERSON tobacco factory . He is a star and a VIP of the financial press and is held up as an example to young businessmen .... ”

On DATE Mr Stepaniuc , the leader of the NORP parliamentary faction which had , at the time , CARDINAL votes out of a total of CARDINAL in ORG , lodged an action against the applicant newspaper . He did not pay any court fee when lodging his complaint , nor did he appear in court at any stage of the proceedings or delegate anyone to represent him . He argued , inter alia , that :

“ ... the defendants disseminated false and defamatory information about me ...

... Both in the title and in the body of the article I am described as follows : ' a dictator without whose approval even the flies do not fly in the ORG building , but also a prosperous businessman . He is an agent at the PERSON tobacco factory , he has made enormous profits from the sale of cigarettes , he owns buses , controls the PERSON - PERSON bus - line , and in general he looks like a genuine PERSON with a silk tie , NORP suits , NORP shoes and dirt under his nails . '

None of these accusations is true and they are nothing more than dirty slander . ”

Mr ORG asked the court to declare the above statements defamatory , to make the defendants publish a retraction on the same page of the newspaper and pay him compensation in the amount of the maximum provided for by LAW .

The case was put before Judge PERSON , the President of ORG at the time for examination .

In its defence the applicant newspaper presented the court with copies of open letters addressed to the President of GPE by a transport company in which Mr PERSON was accused of appropriating several of its bus routes .

On DATE the applicant newspaper informed the court that the information concerning Mr ORG 's involvement in illegal activities in the tobacco business had been obtained from sources in the NORP secret service and submitted that the secret service had prepared a report about the alleged involvement of high - ranking officials in illegal activities at the PERSON tobacco factory . The applicant newspaper informed the court that it had officially requested a copy of the report and asked that the case be adjourned until the secret service had provided the court with such a copy .

On DATE Judge PERSON rejected the request to adjourn the case until after the secret service had provided the court with a copy of its report ; however , he did order that the examination be postponed until DATE .

On DATE the applicant newspaper informed the court that the secret service had failed to reply to its request and that consequently it had commenced a court action seeking an order to provide it with a copy of the report . The applicant newspaper requested that the defamation proceedings be adjourned pending the conclusion of those proceedings .

On DATE and DATE and on DATE Judge PERSON held hearings in the case and rejected the request for adjournment pending the conclusion of the other set of proceedings . He decided though to postpone the examination of the case until DATE .

On DATE Judge PERSON examined the case in the absence of the parties and ruled in favour of Mr Stepaniuc . He found the statements complained of by the plaintiff ( see paragraph CARDINAL above ) to be defamatory and ordered the newspaper and the author of the article to pay Mr Stepaniuc CARDINAL,CARDINAL NORP lei ( MDL ) ( MONEY ( ORG ) at the time ) and LAW ( ORG CARDINAL at the time ) respectively . He also ordered the newspaper to issue an apology within DATE . The defendants were also ordered to pay the court fees .

NORP Judge GPE gave the following reasons for his findings :

“ In the court 's view , the title , the text and the meaning of the published information should be qualified as defamatory of the plaintiff because the defendants made statements of facts without adducing any evidence . In particular they submitted that ORG , contrary to the provisions of LAW , practises activities which are incompatible with his status of deputy and that he is an agent of the tobacco factory , makes enormous profits from trading cigarettes , and that he controls the PERSON - Ialoveni bus route .

During the examination of the case , the court had given the defendants the opportunity to present evidence ... however , neither the newspaper , nor the author brought any evidence to confirm the truthfulness of the published information . Nor in the article itself did the defendants adduce any evidence .

[ a reproduction of LAW follows ]

In the present case the information disseminated by the defendants can not be treated as a value judgment and accordingly it can not be protected by the provisions of the ORG stated above . The court also takes into consideration the fact that Mr ORG is a public figure and that in respect of such persons a higher degree of tolerance is required when it comes to defamation . However , the information spread by the defendants clearly exceeds the limits of any reasonable criticism against public persons in a NORP society . ”

NORP The applicant newspaper appealed against this judgment , arguing , inter alia , that Judge PERSON had lacked independence and impartiality on the ground of his close ties with Mr PERSON and ORG and his behaviour in other defamation cases between Mr ORG . The applicant newspaper also argued that the first - instance court had totally disregarded its arguments , namely the letters addressed to the President of GPE ( see paragraph CARDINAL above ) and refused to give it a chance to bring evidence concerning Mr PERSON 's involvement in the tobacco business , by refusing to adjourn the case until after the end of the proceedings between PERSON and the secret service . The applicant newspaper also argued that its characterisation given to PERSON in the impugned article was a value judgment and that it could not be required to prove its truth .

On DATE ORG dismissed the appeal and upheld the judgment of the first - instance court while repeating that the applicant newspaper had not adduced any evidence in support of its statements about Mr Stepaniuc . It did not refer to any of the arguments referred to in the applicant newspaper 's appeal .

The applicant newspaper lodged an appeal on points of law . It argued , inter alia , that Judge PERSON lacked independence and impartiality and that the lower courts had refused to adjourn the proceedings until after the end of the proceedings between LOC and the secret service , thus affecting the fairness of the proceedings . The applicant newspaper informed ORG that it had finally managed to obtain a copy of an annex to the report concerning illegal activities at the PERSON tobacco factory from the secret service and had attached it to its appeal . The annex was entitled “ scheme of the criminal interactions between the tobacco gangs ” and presented by means of a chart , the alleged interactions between the administration of the PERSON tobacco factory , CARDINAL criminal gangs , several companies and various high - ranking officials , including Mr PERSON .

On DATE ORG reduced the compensation to be paid to Mr Stepaniuc by the newspaper and the author of the article to MDL CARDINAL and MDL CARDINAL respectively . It argued that Mr ORG was a public figure and therefore had to be more tolerant towards the press and , moreover , had failed to appear before the courts . ORG did not , however , depart from the findings of the first CARDINAL instances in respect of the merits of the case and did not examine any of the applicant newspaper 's arguments .

The relevant provisions of LAW in force at the material time read :

“ ( CARDINAL ) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality , as well as statements which are not damaging to honour and dignity , but do not correspond to reality .

( CARDINAL ) Where the media body which circulated such statements is not capable of proving that these statements correspond to reality , the court shall compel the publishing office of the media body to publish , not later then DATE after the entry into force of the judicial decision , a withdrawal of the statements in the same column , on the same page or in the same programme or series of broadcasts . ”

“ ( CARDINAL ) NORP - pecuniary damage caused to a person as a result of circulation through the media or by organisations or persons of statements which do not correspond to reality , as well as statements concerning his or her private or family life , without his or her consent , shall be compensated by way of a pecuniary award . The amount of the award shall be determined by the court .

( CARDINAL ) The amount of the award shall be determined by the court in each case as an amount equal to DATE minimum wages if the information has been circulated by a legal person and DATE minimum wages if the information has been circulated by a natural person . ”


Violation of Art. 3 (ill-treatment suffered at the hands of the police and failure to conduct an effective investigation);Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant is a NORP citizen of NORP - Pontic origin who was born in DATE and lives in LOC .

On DATE , at TIME , the applicant was walking towards a cafeteria in PERSON , a district of GPE , when he saw a police patrol carrying out an identity check on the passengers of a car . The applicant , who knew the passengers , proceeded to ask CARDINAL of them , Mr PERSON , what was going on .

The applicant submitted that a police officer , who was subsequently identified as Police Sergeant Apostolos GPE , flashed his torch on him and asked him to identify himself . The applicant replied that he wanted to know whether his friend had a problem . The applicant was then asked by another police officer , later identified as Police Constable Zaharias Tsiorakis , to produce his identity card . The applicant replied that he did not have his identity card with him and suggested that they all go to the nearby police station for an identity check , as his identity card had been issued there . Then , allegedly , CARDINAL of the police officers asked him whether he was “ being the tough guy ” . The applicant submitted that , TIME later , NORP wrapped his handcuffs around his fist and then punched him in the mouth . The applicant alleged that this made him feel dizzy and that , as he was falling down , Tsiorakis kicked him twice in the chest and abdomen .

The applicant asserted that he managed to leave the scene when another acquaintance of his , PERSON , headed towards the police officers , asking them to stop beating the applicant on the head as the latter was suffering from a head problem . The applicant contended that by that time he had heard CARDINAL gunshots being fired . According to the testimony of Police Officer PERSON , the latter fired CARDINAL warning shots in the air “ in a safe way ” with the intention of intimidating the applicant as he was escaping from the scene . The applicant then proceeded to the nearby police station , located at a distance of QUANTITY from where the incident had taken place . On his arrival there , he complained to CARDINAL policemen about his ill - treatment . The QUANTITY police officers seized him and dragged him inside the police station . They then handcuffed him and started beating and kicking him in various parts of his body . The applicant asserted that the police officers who had carried out the initial road check were among those ill - treating him . According to the applicant , this went on for TIME , until the officers realised that a high - ranking officer was coming . Upon hearing this , a police officer grabbed a dirty mop and wiped the blood off the floor and the applicant 's face , repeatedly uttering the word “ drop dead ” ( ψόφος ) .

The applicant passed out and was transferred by ambulance to ORG in GPE , where he remained until DATE .

CARDINAL other individuals of NORP origin , acquaintances of PERSON Zelilof , who were also involved in the event , were arrested TIME and taken to the police station where the applicant was detained . Among them , PERSON and PERSON were charged with assaulting police officers . In their defence pleadings , dated DATE and DATE , they stated that they had been the victims of a discriminatory attitude due to their ethnic origin . In particular , PERSON stated that while being transferred and once inside the police station the police officers had repeatedly shouted at him “ F ... GPE , you are mafia , you come over here and you think you are tough , you bastards , if you do n't leave town or if we see you again in the cafeteria , we will f ... you , f ... your GPE and GPE ” . PERSON stated that police officers had shouted at him while he had been inside Toumba police station : “ You dirty NORP , you will never work again in your lives , you fuckers , you bastards . I f ... your mothers ” .

The Government maintained that the identity check on the passengers of the car had been almost complete when the applicant , who was passing by , headed towards the police officers . The police officers initially warned him not to come close to the car so as to be able to complete the check unobstructed and not expose the passengers to public view .

NORP Despite their initial warning the QUANTITY police officers were ignored by the applicant , who approached the car and started talking to the passengers . Police Officer PERSON asked the applicant to identify himself . The latter refused to obey and shoved the police officer abruptly with his arm . ORG fell to the ground after being hit in the face by the applicant . Officers PERSON and NORP ran to their colleague 's assistance and tried to handcuff the applicant . The latter resisted strongly by punching and kicking the above - mentioned officers .

In the meantime PERSON and PERSON had appeared from a nearby café and got involved in the argument between the applicant and the QUANTITY police officers . While the police officers were trying to handcuff the applicant and arrest him , PERSON and PERSON violently shoved the police officers with their arms and struck them with their arms and legs . By doing so , they managed to prevent them arresting the applicant , who fled from the scene . PERSON fired a shot in the air in order to scare his assailants away .

Due to the fact that the incident had been taking place close to GPE police station , as soon as Officer PERSON had fired the shot , another group of police officers ran to their assistance . A number of persons who had either actively participated in or just observed the incident ran away into the café . PERSON and PERSON and PERSON were arrested and driven to Toumba police station . The applicant was arrested TIME . He was also taken to GPE police station , where he was charged with resisting lawful authority , releasing a prisoner and causing unprovoked bodily injury . He was kept at the police station just the time strictly necessary for the preparation of the case file and then taken to hospital . Neither he nor his acquaintances were ever abused by police officers while at the police station .

According to the hospitalisation information note issued by the hospital on DATE , the applicant bore contusions on his thorax and breast bone and a contusion on his left cheek bone , and had an infraorbital haematoma in both eyes . The applicant also had wounds on his head and back that required stitching . He was diagnosed as suffering from “ head and thorax injury , and slight brain concussion ” . The note also stated that the applicant was admitted to the hospital on DATE and discharged on DATE .

On DATE the applicant was summoned by the prosecutor 's office to undergo a medical examination by a forensic doctor . According to the prosecutor 's order , ORG was asked to send the forensic report to the prosecutor 's office at the earliest opportunity .

According to the forensic expert 's medical examination , dated DATE , the applicant bore a contusion in the chest area , a wound on the part of the head covered with hair , an intumescence and an ecchymosis on his left cheek bone . He also had an infraorbital haematoma in both eyes . The dental examination revealed that the applicant 's crown on his lower left canine tooth was fractured and that part of his jaw was dislocated . The forensic expert found that “ ... PERSON ] from a medium - intensity bodily injury , caused by blunt instruments , and – barring any unforeseen complication – [ would ] probably recover within DATE [ days ] . ”

According to the hospitalisation information note issued by the hospital on DATE , PERSON was diagnosed with “ a bruise on his left tibia ” ; GPE bore “ heavy bruises on the outer part of both his hands ; and Tsiorakis bore “ heavy bruises on the fingers of his right hand and his right wrist ” . The hospitalisation note stated that the police officers were admitted to the hospital on DATE and discharged on DATE .

Police Officers Hamopoulos , GPE and NORP were not subjected to a medical examination by a forensic doctor .

On DATE LOC police headquarters ordered an administrative investigation in order to ascertain the exact circumstances in which the QUANTITY police officers had been injured and whether they were liable for any disciplinary offence . The administrative investigation was assigned to an officer serving at the police 's sub - directorate of administrative investigations . As part of the investigation the investigating police officer summoned as witnesses the QUANTITY police officers who had been involved in the incident . The various witness statements available were studied but no further inquiry was conducted regarding the gunshots fired or the general legitimacy of the initial identity check . It was observed in the report of the administrative investigation issued on DATE that “ persons involved in the incident refused to comply with the police officers ' orders and , furthermore , CARDINAL of them [ ORG ] had intended to “ control ” the police officers who were performing the identity check , considering arbitrarily and cheekily that he had an inexistent right .... Taking into account also the unprovoked , violent and disproportionate assault by other individuals on the police officers , it is concluded that the police officers properly assessed the relevant circumstances and acted correctly . The brawl between the police officers and the individuals in question was inevitable . The police officers used necessary physical force against the civilians , mainly in order to defend their physical integrity that was under imminent threat . There was a clear danger that the police officers ' firearms would be snatched by the individuals concerned in the context of a disproportionate assault by CARDINAL of them on the police officers . Thus , apart from the injuries inflicted on the police officers , which could easily have been more serious , there was an imminent danger that firearms would be used by civilians in an extreme way ( fatal shooting of the police officers , etc . ) ” .

As regards the alleged ill - treatment on the LOC of the police station , the report observed , among other things , that “ the violent behaviour of the police officers transpired from the testimonies of the persons who had provoked the illegal acts . Even if these testimonies could not be rejected as such , their accuracy and objectivity could not be taken for granted . Testimonies such as those made by GPE and PERSON DATE cousin and friend respectively of the accused – undoubtedly concern personal opinions and assessments that will be of assistance to the accused during the trial . ... Not all the testimonies have been proven ; on the contrary , the police officers ( involved in the events ) have denied them . The latter insisted in their testimonies that there was no violence in the police station and that all the injuries sustained by the civilians were provoked before their transfer to the police station ” . It continued as follows : “ At this point reference should be made to the allegations of individuals concerning unprovoked ill - treatment inflicted by ' mean ' police officers against those who just ' happened ' to be there or were unrelated to the incident . These [ testimonies ] could not be taken seriously , nor could they be considered objective . On the contrary , they had to be considered as defence tactics by their friends / acquaintances , who faced serious criminal charges and whose depositions aim to cast the police officers in a bad light ” .

Finally , the report noted that both the applicant and the police officers had failed to submit to an examination by the forensic doctor . It stated that “ As they failed to undergo the forensic exam ( not CARDINAL of the victims went to the forensic doctor to be examined ) , the seriousness of the injuries inflicted on the individuals can not be accurately assessed . This fact shows an intention to prevent the disclosure of new evidence that would have facilitated the investigation of the case . ... The same considerations could be applied to the police officers . According to the investigating police officer , this omission was due to negligence on the part of the police officers . ... The disciplinary liability that derived from that omission was obvious in the present case , but was of minor importance in the context of the case as a whole . Thus , no such intention could be attributed to the police officers ” .

The report did not make any reference to the applicant 's forensic medical examination of DATE .

On DATE charges were brought against the applicant for resisting arrest , assaulting a police officer and causing grievous bodily harm . On DATE the applicant appeared before the investigating judge in order to testify with regard to the charges against him . The applicant contended that Police Officer PERSON had submitted his criminal record to the investigating judge in order to establish his “ criminal and socially deviant character ” . ORG contended that the files relating to the applicant 's criminal record had been compiled by the police department in which he served . The applicant contended that the information about his criminal record as submitted by ORG was inaccurate and not up to date .

On DATE the investigating judge granted the applicant bail for CARDINAL .

On DATE ORG of First Instance sentenced the applicant to DATE imprisonment under LAW for resisting lawful authority . The first - instance court established that Police Officer PERSON had asked the applicant to identify himself and that the latter had refused to obey and had shoved him violently with his arm and then violently pushed Officers PERSON and NORP with his arms and feet . It further considered that Police Officers Apostolidis , LOC had been assaulted by PERSON and PERSON , who had appeared from a nearby café in the meantime and tried to help the applicant escape . The court accepted that the QUANTITY police officers had feared for their physical integrity as a group of CARDINAL persons had hindered them , either physically or verbally , in their task of carrying out a normal police control . Finally , the court did not accept that the aggravating circumstances described in LAW could be applied in the applicant 's case ( judgment no . MONEY ) .

The case is currently pending before the domestic courts .

On DATE the applicant lodged a criminal complaint with ORG . The complaint was lodged against the police officers who had been involved in the incident described above and concerned the alleged ill - treatment both during the course of his arrest and during his detention on DATE . The applicant further complained that he had not been given time to apply to ORG for a copy of the police officers ' criminal and disciplinary records , whereas Police Officer PERSON had been able to submit the applicant 's criminal record to the investigating judge in order to establish his “ criminal and socially deviant character ” .

On DATE the Prosecutor at ORG of First Instance dismissed the applicant 's criminal complaint as “ factually unfounded ” . The prosecutor endorsed the conclusions reached in the administrative investigation on the basis of the depositions of the police officers . No witnesses were questioned personally by the prosecutor . Furthermore , the prosecutor contended that Police Officer PERSON had not acted improperly in submitting the applicant 's criminal record to the investigating judge . He concluded that the investigating judge had legitimately taken those documents into account ( decision no . CARDINAL/CARDINAL ) .

On DATE the applicant lodged an appeal with the Prosecutor at ORG . On DATE his appeal was declared inadmissible ( decision no . PERSON ) .

On DATE the applicant lodged a fresh appeal with the Prosecutor at ORG . On DATE his appeal was dismissed as “ factually unfounded ” again . In particular , the prosecutor confirmed the conclusions of decision no CARDINAL/CARDINAL without personally questioning the witnesses . The applicant 's allegations of ill - treatment were considered to be false and the prosecutor concluded that there was no need to launch an in - depth judicial investigation into the incident . Lastly , the prosecutor confirmed the conclusions of the Prosecutor at ORG as to the admissibility of the files which had been compiled by Police Officer PERSON from the applicant 's criminal record and submitted to the investigating judge ( decision no . CARDINAL/CARDINAL ) .

Article CARDINAL of LAW provides in so far as relevant :

“ Resistance

Anyone who uses or threatens to use force for the purpose of obliging an authority or a civil servant to carry out an act within their competence or to refrain from carrying out a legal act , and anyone who uses physical force against a civil servant ... shall be punished by a term of imprisonment of DATE .

Where the punishable acts cited above occur as a result of using a weapon or an object that may provoke bodily injury ... or the person who is the subject of the attack is seriously endangered , the perpetrator shall be punished by a term of imprisonment of DATE .... ”

ORG issued a report on DATE entitled “ Disciplinary - administrative investigations into allegations against police officers ” . It stated in relation to the use of medical certificates by the police :

“ This is a major issue mainly in cases that are routine and do not contain any reference to the effect that the existing medical certificates were taken into consideration when deciding on the issue of disciplinary punishment and do not provide an adequate explanation for the conclusions of the administrative investigation , especially in cases where , for example , the nature of the bodily injuries attested to by the medical certificates , would clearly warrant a more careful examination . For instance , reference is made to [ a case where ] ORG noted that the extent of bodily injuries , as borne out by the medical certificates assessed by the police in a routine manner , indicated that either the police officers involved had exceeded the limits of self - defence or that [ the police officers ] had breached LAW ] . As a consequence , the NORP Police should have assessed the evidence before it in a more careful and substantiated way . Due to the merely routine assessment of evidence , the validity of any ensuing judgment of police disciplinary bodies is justifiably rendered vulnerable and susceptible to all kinds of criticism .

In cases like the one mentioned above , suspicions naturally arise as to the perfunctory assessment of the available evidence . Because of the routine assessment of evidence , the validity of every decision of the police disciplinary bodies becomes somewhat vulnerable and susceptible to all kinds of criticism if [ the decision ] disregards the precepts of legal science and all the methods it employs in establishing the actual facts of a case ” .


CASE OF WIESER AND BICOS BETEILIGUNGEN GMBH v. AUSTRIA

Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award (first applicant);Costs and expenses - partial award (first applicant)

Elisabeth Steiner;Giovanni Bonello;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi

The first applicant , who was born in DATE , is a lawyer practising in GPE . He is the owner and general manager of the second applicant , a holding company which is , inter alia , the sole owner of the limited liability company ORG .

On DATE ORG ( PERSON ) , upon a request for legal assistance ( PERSON ) by ORG , issued a warrant to search the seat of the applicant company and ORG . Both companies have their seats at the first applicant ’s law office .

The court noted that in the course of pending criminal proceedings concerning , inter alia , illegal trade in medicaments against a number of persons and companies in GPE , invoices addressed to ORG , owned PERCENT by the applicant company , had been found . It therefore ordered the seizure of all business documents revealing contacts with the suspected persons and companies .

On DATE the search of the seat of the applicant company , which is also the first applicant ’s law office , was carried out by CARDINAL officers of ORG of the GPE police ( GPE ) and data - securing experts ( PERSON ) of ORG .

One group of officers searched the law office for files concerning ORG or PERSON in the presence of the first applicant and a representative of ORG . All documents were shown to the first applicant and the representative of ORG before seizure .

Whenever the first applicant objected to an immediate examination of a document seized it was sealed and deposited at ORG as required by LAW see paragraph CARDINAL below ) . All seized or sealed documents were listed in a search report which was signed by the applicant and the officers who had carried out the search .

Simultaneously , another group of officers examined the first applicant ’s computer systems and copied several files to disks . According to his statement before ORG ( see paragraph CARDINAL below ) , the IT specialist who normally serviced the computer systems was called upon to provide some technical assistance but left again after TIME . The representative of ORG was informed about the search of the computer systems and was also temporarily present . When the officers had terminated the search of the computer systems , they left without drawing up a search report and , apparently , also without informing the first applicant about the results of the search .

DATE the police officers involved in the search of the applicants’ electronic data drew up a data securing report ( ORG ) . Apart from a number of technical details concerning the first applicant ’s computer systems , the report states that a complete copy of the server was not made . The search was carried out using the names of the companies involved and the names of the suspects in the NORP proceedings . A folder named ORG containing CARDINAL files was found plus one further file containing one of the search items . All the data were copied to disks . In addition , the deleted items were retrieved and numerous files which corresponded to the search items were found and also copied to disks .

On DATE the investigating judge opened the sealed documents in the presence of the first applicant . Some documents were copied and added to the file while others were returned to the first applicant on the ground that their use would impinge on the first applicant ’s duty of professional secrecy .

The disks containing the secured data were transmitted to ORG who printed out all the files . Both the disks and printouts were then handed over to the investigating judge .

On DATE and DATE respectively , the first applicant and the applicant company lodged complaints with ORG ( Ratskammer ) of ORG .

They submitted that the first applicant was the owner and manager of the applicant company but also the lawyer for a number of companies in which the latter held shares . They complained that the search of their LOC and the seizure of electronic data had infringed the first applicant ’s right and duty of professional secrecy under section CARDINAL of LAW ( Rechtsanwaltsordnung ) in conjunction with LAW as some officers had proceeded unobserved to examine and subsequently copy electronic data . The applicants submitted that the data contained the same information as the documents which had been examined in the presence of the first applicant . However , with regard to the electronic data , the first applicant had not been given an opportunity to object and have the disks sealed .

They further submitted that the search report did not mention that part of the search , nor did it mention which electronic data had been copied and seized . Furthermore , the search report had only been signed by CARDINAL of the officers , but did not mention the names of all the officers who had been present at the search , omitting in particular the names of the data - securing experts of ORG .

It observed that the first applicant ’s computer data had been searched with the aid of particular search criteria . Files which corresponded to these search criteria had been copied to disks which had been seized .

NORP However , there was no ground for holding that this seizure circumvented LAW : the search of the first applicant ’s law office concerned exclusively documents which the first applicant had in his possession as an organ of ORG and PERSON , and therefore did not concern a lawyer - client relationship .

It further observed that the search of the first applicant ’s law office was based on a lawful search warrant which included the search and seizure of electronic data . The procedural safeguards laid down in LAW , namely the right of the person concerned to object to an immediate examination and to request the deposit of data seized with ORG and a decision by ORG , also applied to the search of electronic data .

In the present case , however , the officers had , whenever asked , complied with the first applicant ’s requests to seal certain documents and deposit them with ORG . Some of these documents had been returned by the court in order to ensure compliance with the applicant ’s duty of professional secrecy .

It therefore concluded that the applicants’ complaints were unfounded . ORG decision was served on DATE .

In the meantime , on DATE respectively , the first applicant and the applicant company lodged complaints with ORG ( Unabhängiger Verwaltungssenat ) . They submitted that the search and seizure of electronic data in the first applicant ’s office had been unlawful .

On DATE , DATE and DATE ORG held public hearings at which it heard evidence from a number of witnesses .

The IT specialist in charge of the first applicant ’s computer facilities said that he had been called and had arrived at the office when the search of the LOC was already under way . He had left again after TIME . The officer in charge of the search stated that the first applicant had been informed about the search of his computer data . CARDINAL other officers stated that the search of the first applicant ’s computer systems had not begun until the arrival of his IT specialist and that the representative of ORG had been temporarily present . This was confirmed by the representative of ORG .

On DATE ORG dismissed the applicants’ complaints . It found that they concerned alleged breaches of certain provisions of LAW regulating searches . The officers who had carried out the search had possibly not fully complied with these provisions . They had , however , acted on the basis of the search warrant and not exceeded the instructions of the investigating judge . The search was therefore imputable to the court . Consequently , a review of lawfulness did not fall within the competence of ORG .

Articles CARDINAL to CARDINAL of the Code of Criminal Procedure ( GPE ) concern the search of LOC and persons and the seizure of objects .

Article CARDINAL § CARDINAL provides in particular that a search may only be carried out if there is a reasonable suspicion that a person suspected of having committed an offence is hiding on the LOC concerned , or that there are objects there the possession or examination of which is relevant to a particular criminal investigation .

Pursuant to LAW and CARDINAL a search should in general only be carried out after the person concerned has been questioned , and only if the person sought has not come forward of his or her own volition or the object or objects sought have not been voluntarily produced and if the reasons leading to the search have not been eliminated . No such questioning is required where there is danger in delay .

Article CARDINAL states that a search may , as a rule , only be carried out on the basis of a reasoned search warrant issued by a judge .

Pursuant to LAW and QUANTITY the occupant of the LOC subject to the search or , if he is unavailable , a relative of the occupant , shall be present during the search . A report is to be drawn up and to be signed by all those present .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure provides that , if objects relevant to the investigation or subject to forfeiture or confiscation are found , they are to be listed and taken to the court for safe keeping or seized . It refers in this respect to LAW , pursuant to which objects in safe keeping have to be put into an envelope to be sealed by the court , or be labelled so as to avoid any substitution or confusion .

Article CARDINAL reads as follows :

“ CARDINAL . When searching through documents steps must be taken to ensure that their content does not become known to unauthorised persons .

NORP If the owner of the documents does not want to permit their being searched , they shall be sealed and deposited with the court ; ORG must determine immediately whether they are to be examined or returned . ”

According to the courts’ case - law , which is endorsed by the opinion of academic writers ( see Bertl / Vernier , PERSON , CARDINALth edition ) , the provisions relevant to the search and seizure of paper documents also apply mutatis mutandis to the search and seizure of electronic data . If the owner of disks or hard disks on which data is stored objects to their being searched , the data carriers are to be sealed and ORG must decide whether they may be examined .

Section CARDINAL of LAW ( ORG ) regulates the professional duties of lawyers including , inter alia , the duty to maintain professional secrecy .

Article CARDINAL § CARDINAL of LAW exempts lawyers , notaries and business trustees from the obligation to give evidence as witnesses in respect of information given to them in the exercise of their profession .

It is established case - law that documents which contain information subject to professional secrecy may not be seized and used in a criminal investigation .

According to an instruction ( Erlaß ) of the Federal Minister of Justice of DATE , a representative of the competent ORG shall be present during the search of a lawyer ’s office in order to ensure that the search does not encroach on professional secrecy .

By virtue of section CARDINAL ) of the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ) , ORG have jurisdiction , inter alia , to examine complaints from persons alleging a violation of their rights resulting from the exercise of direct administrative authority and coercion ( ORG unmittelbarer verwaltungsbehördlicher Befehls- PERSON ) .

Where police officers execute a court warrant their acts are imputable to the court unless they act in clear excess of the powers conferred on them . Only in the latter case are their acts qualified as exercise of direct administrative authority and coercion and subject to review by ORG .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;No violation of Article 6 - Right to a fair trial;No violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy

Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in PERSON , a town in GPE .

A warrant officer of ORG ( “ Service ” ) , she serves in a unit stationed in GPE .

In DATE the applicant requested an early discharge because of structural changes in her service . Under domestic law , long - serving personnel in need of better housing ( the applicant met these conditions ) could be discharged against their will only if the command provided them with such housing . When asking for discharge , the applicant specified that she wished to receive the housing .

As no housing was provided , in DATE the applicant sued ORG for provision of housing and an early discharge . On behalf of the defendant the trial was attended by X , a major of military justice acting on the basis of a power of attorney . X accepted the applicant ’s claim and on DATE the ORG ordered the Director to provide the applicant ’s family with housing in GPE and to discharge her . This judgment became enforceable immediately , but was not enforced .

NORP In DATE ORG investigated the applicant ’s allegation that the delayed enforcement constituted an offence under section CARDINAL of LAW ( ignoring judgments ) , but found that the Director had no case to answer .

On the Director ’s request , on DATE the Presidium of the NORP Military Court quashed the judgment on supervisory review and ordered a rehearing . The ORG justified the quashing with CARDINAL reasons .

First , the judgment had been based solely on the defendant ’s acceptance of the claim and had not explored whether the claim as such had been lawful and compatible with third parties’ interests .

Second , X had not been duly authorised by the defendant proper , i.e. by the Director ; he was authorised by the ORG ’s local branch only .

Third , the acceptance of the claim had not been formally recorded .

Fourth , ORG had misevaluated facts and material law .

After the rehearing , on DATE ORG ordered the Director to provide the applicant ’s family with housing in GPE by means of a first - priority queue ( в первоочередном порядке ) . The court dismissed the applicant ’s claim for discharge because this matter was within the authority of her unit , not that of the Director . This judgment became binding on DATE .

To enforce the judgment , in DATE the logistics department of the ORG sent to the applicant ’s unit a list of documents necessary for putting her in the queue . In DATE the unit provided a part of these documents . In DATE the logistics department reminded the applicant that to complete her file she had to provide further documents , among them an extract from the register of tenants , her children ’s birth certificates , and proof of entitlement to privileges . In DATE the applicant completed the file , and on DATE the housing commission of the ORG put the applicant ’s family in the first - priority housing queue .

NORP Under section QUANTITY of LAW on ORG , servicemen who have served DATE and more and whose housing needs to be improved , can not be discharged against their will without the provision of such housing .

According to the Ruling of the Constitutional Court CARDINAL-O of DATE , after expiry of a serviceman ’s contract and in the absence of his written agreement to discharge without provision of housing , he should be considered as serving voluntarily only until the provision of housing .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was divested of his legal capacity ( poslovna sposobnost ) by a decision of ORG ( PERSON ) . The decision was based on a report by a psychiatrist , who established that the applicant suffered from organic personality disorder and antisocial personality disorder as a result of his long - term drug abuse . The psychiatrist recommended that the applicant be divested of his legal capacity for a period of DATE in order to undergo psychiatric treatment .

On DATE ORG Centrar za socijalnu skrb Opatija ) appointed the applicant ’s mother , ORG , as his guardian .

On DATE ORG appointed the applicant ’s father , PERSON , as his guardian since his mother had fallen ill . On an unspecified date the same centre appointed its employee ORG as the applicant ’s guardian .

On DATE PERSON gave birth to a daughter , PERSON , and named the applicant as the child ’s father . On CARDINAL DATE the applicant , with the consent of the child ’s mother , gave a statement at ORG ( ORG ured PERSON ) saying that he was the father of the child , and he was subsequently registered as such on the child ’s birth certificate . On DATE the applicant gave the same statement before ORG ( NORP za socijalnu skrb PERSON ) .

On DATE ORG informed ORG that the applicant had been divested of his legal capacity .

ORG instituted proceedings in the Primorsko - goranska ORG ( Ured državne uprave u Primorsko - goranskoj županiji ) for the annulment of the registration of the applicant as PERSON ’s father . On DATE ORG gave a decision ordering that an amendment be made to the child ’s birth certificate annulling the previous note stating that the applicant was the father of the child , on the ground that as a person divested of his legal capacity he did not have the right to recognise PERSON as his child before the law .

NORP This decision was not served on the applicant , since he had been divested of his legal capacity . It was served on his mother .

On DATE the Opatija Welfare Centre brought a civil action in ORG against the applicant , PERSON , and PERSON , seeking that ORG establish that the applicant was PERSON ’s father . The proceedings are still pending .

The relevant provisions of LAW ( Obiteljski zakon , ORG nos . CARDINAL , CARDINAL , CARDINAL and DATE ) read :

“ ( CARDINAL ) ... paternity may be recognised before a registrar of a registry office , a social welfare centre or a court ...

“ ( CARDINAL ) The child ’s mother shall give consent to the registering of the recognition of paternity .

“ A social welfare centre may lodge a civil claim seeking ... to establish paternity up until the child ’s eighteenth birthday . ”

“ ( CARDINAL ) An adult who , owing to mental illness or for other reasons , is not able to care for his or her own needs , rights and interests , or who presents a risk for the rights and interests of others , shall be partially or completely divested of his or her legal capacity by a court of law in non - contentious proceedings .

( CARDINAL ) NORP Before adopting a decision under paragraph CARDINAL of this section , a court shall obtain the expert opinion of a medical expert about the health conditions of the person concerned ... ”

“ The competent social welfare centre shall place under guardianship any person ... divested of his or her legal capacity ... ”

“ ( CARDINAL ) The guardian shall take care of the person , rights , obligations and well - being of the ward with due diligence , manage his or her assets and take measures to enable the ward to have an independent working and personal life .

“ ( CARDINAL ) The guardian represents the ward .

“ In order to undertake more extensive measures concerning the person , personal status or health of the ward , the guardian shall obtain prior consent from a social welfare centre . ”


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed

The applicant was born in DATE and lives in GPE .

She is the owner of a flat , which she had let to P.M.

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

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

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

On DATE , the applicant made a statutory declaration that she urgently required the premises as accommodation for herself .

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

On DATE she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

On DATE the applicant recovered possession of the flat .

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

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

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

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

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

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

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

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

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

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