No violation of Art. 5;No violation of Art. 10

Mr Otmar Chorherr is an NORP citizen and currently resides in GPE .

On DATE a military ceremony was held in the NORP in GPE to mark DATE of NORP neutrality and DATE . It started at TIME with the taking of the oath by CARDINAL conscripts and continued with a march past which ended at TIME It was attended by CARDINAL people , in addition to numerous dignitaries on the official platform .

During the ceremony the applicant and a friend distributed leaflets calling for a referendum on the purchase of fighter aircraft by the NORP armed forces ( " PERSON eine PERSON Abfangjäger " ) . They wore rucksacks to the backs of which were attached enlargements of the leaflet ; these measured QUANTITY by QUANTITY , projected QUANTITY above the heads of the persons carrying them and bore the slogan " GPE does not need any interceptor fighter planes " ( " PERSON " ) .

According to the judgment delivered by ORG ) on DATE on the basis of the police file and the statements of the parties ( see paragraph CARDINAL below ) , what happened subsequently can be summarised as follows .

The actions of the CARDINAL men had caused a commotion among the spectators , whose view had been blocked . CARDINAL policemen informed the applicant and his friend that they were disturbing public order and instructed them to cease what could only be regarded as a demonstration . However , they refused to comply , asserting their right to freedom of expression . When they persisted despite further warnings from police officers and increasingly loud protests from the crowd , they were arrested ( festgenommen ) at TIME and were taken to LOC police station ( FAC Innere GPE ) , where administrative criminal proceedings ( PERSON ) were instituted against them .

At the police station the applicant was placed in police custody ( in den Arrest abgegeben ) at CARDINAL . After ascertaining whether he had a criminal record , a police officer questioned him from TIME Mr Chorherr denied that he had been warned that he was committing administrative offences ( PERSON ) ; he would otherwise , so he said , have immediately ceased his action . He was released at TIME

On DATE he filed an appeal ( Beschwerde ) in ORG against his arrest and the prohibition on distributing leaflets . He relied inter alia on ORG CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of the LAW and asserted his right to personal freedom ( ORG PERSON ) and freedom of expression ( PERSON der Meinungsäußerung ) .

Mr ORG claimed that he had not disturbed the crowd in any way and had never been ordered by the police to cease demonstrating . ORG did not , however , give credence to his statements , as in its opinion the majority of the spectators had come to watch the parade and some of them had had their enjoyment of it marred by the applicant ’s conduct .

The appeal was dismissed on DATE . ORG found , in relation to the applicant ’s arrest , that PERSON conduct could properly have been considered an administrative offence and that the applicant , caught in the act of committing the offence , had continued despite the instructions of the police officers . It took the view that the requirements of LAW ( PERSON zum PERSON der persönlichen PERSON ) , section DATE , sub - paragraph CARDINAL , of ORG ( GPE ) of DATE and section IX(CARDINAL ) , sub - paragraph CARDINAL , of LAW ( Einführungsgesetz zu den PERSON - " the Introductory Law " ) had therefore all been complied with in this respect ( see paragraph CARDINAL below ) .

As to the custody ( LOC ) , ORG held that this had been in conformity with section CARDINAL ( CARDINAL ) , first sentence , of ORG , since there had been no particular circumstance to make the police think that the applicant , if released , would not recommence his culpable actions .

Finally , the court considered that the order to remove the placards and cease distributing leaflets had not in any way infringed the constitutional right to freedom of opinion , as its aim was not to prevent the applicant exercising such freedom , but rather to put an end to a breach of the peace .

At the conclusion of the administrative criminal proceedings ORG ) in GPE made a sentence order ( PERSON ) on DATE , fining Mr Chorherr QUANTITY for causing excessive noise and a breach of the peace ( section VIII , second limb , and section IX(CARDINAL ) , sub - paragraph CARDINAL , of the Introductory Law - see paragraph CARDINAL below ) . On appeal by the applicant , ORG ) on DATE , while amending the wording of the decision , upheld the conviction on the latter charge and reduced the fine to QUANTITY ; on DATE it withdrew the charge of causing excessive noise . The applicant did not appeal to ORG or ORG .

The administrative procedure legislation , reissued on CARDINAL DATE by a decision of ORG ( Kundmachung der Bundesregierung vom CARDINAL . Mai DATE über die FAC auf dem Gebiet des Verwaltungsstrafverfahrens ) , includes the following provisions .

Introductory Law of the Administrative Procedure Laws

" A person who ... offends public decency or causes excessive noise commits an administrative offence ... "

" A person who ... causes a breach of the peace by conduct likely to cause annoyance ... commits ... an administrative offence ... "

Law on Administrative Offences

Arrest ( Festnahme )

" The agents of the security forces may , except in the cases specially regulated by law , arrest persons caught in the act of committing an offence , for the purpose of bringing them before the authorities , if

( CARDINAL ) despite being warned , the person in question persists in the culpable conduct or attempts to repeat it . "

" Every arrested person must immediately be brought before the nearest competent authority , or released if the reason for the arrest has already ceased to exist ... "

The instrument of ratification of the Convention deposited by ORG on DATE contains , inter alia , the following reservation :

" The provisions of LAW shall be so applied that there shall be no interference with measures for the deprivation of liberty prescribed in the laws on administrative procedure , BGBl [ ORG ] No . CARDINAL , subject to review by ORG or ORG as provided for in LAW . "


Violation of Art. 6-1;Not necessary to examine under P1-1;Non-pecuniary damage - financial award

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

On an unspecified date in DATE a certain PERSON lodged a claim against the applicant with ORG ( FAC ) . She sought a division of property .

On DATE the court held a hearing .

On DATE the court ordered that expert evidence be obtained . The expert ’s report was submitted to the court on DATE .

On DATE the court gave judgment .

The applicant appealed on DATE .

On DATE ORG ( PERSON ) quashed the first - instance judgment and remitted the case to ORG .

On DATE the applicant sent a letter to the court , asking for a hearing date to be set .

On DATE the court decided that new expert evidence be obtained .

The court held hearings on CARDINAL DATE and DATE .

On DATE the ORG gave judgment .

The applicant appealed on DATE .

On DATE ORG upheld the first - instance judgment .

Articles CARDINAL et seq . of LAW ( ORG cywilny ) provide for the ORG ’s liability in tort .

In the version applicable until DATE , Article CARDINAL § CARDINAL , which lays down a general rule , read as follows :

“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the course of carrying out the duties entrusted to him . ”

Article CARDINAL of LAW , as applicable until DATE ( see “ C. Constitutional Court ’s judgment of DATE below ) provided for the following exception in cases where damage resulted from the issue of a decision or order :

“ CARDINAL . If , in consequence of the issue of a decision or order , a ORG official has caused damage , the ORG shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation , and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person .

The absence of the establishment of guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude ORG liability for damage if such proceedings can not be instituted in view of the [ statutory ] exception to prosecution or disciplinary actions . ”

On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw ) ( “ the DATE Amendment ” ) entered into force . While the relevant amendments have in essence been aimed at enlarging the scope of ORG liability for tort under LAW of LAW – which included adding a new LAW tortious liability for its omission to enact legislation ( the so - called “ legislative omission ” ; “ zaniedbanie legislacyjne ” ) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings ( see paragraphs CARDINAL - CARDINAL below ) .

Following LAW , Article DATE , in so far as relevant , reads as follows :

“ CARDINAL . If damage has been caused by failure to give a ruling ( orzeczenie ) or decision ( decyzja ) where there is a statutory duty to give them , reparation for [ the damage ] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law , unless otherwise provided for by other specific provisions . ”

NORP However , under the transitional provisions of section CARDINAL of the CARDINAL Amendment , Article CARDINAL as applicable before DATE ( see paragraph CARDINAL above ) shall apply to all events and legal situations that subsisted before that date .

On DATE ORG ( PERSON ) dealt with CARDINAL constitutional complaints in which the applicants challenged the constitutionality of Article CARDINAL and CARDINAL of LAW . They alleged , in particular , that those provisions were incompatible with LAW and CARDINAL § CARDINAL of the LAW .

On DATE the court gave judgment ( no . ORG CARDINAL/CARDINAL ) and held that LAW was compatible with LAW in so far as it provided that ORG was liable for damage caused by the unlawful action of a ORG official carried out in the course of performing his duties . It further held that even though LAW was compatible with LAW , it was contrary to LAW since it linked the award of compensation for such damage with the personal culpability of the state official concerned , established in criminal or disciplinary proceedings .

On DATE , the date on which ORG judgment took effect , Article CARDINAL was repealed . ORG opinion on the consequences of the repeal read , in so far as relevant :

“ The elimination of LAW from the legal system ... means that ORG liability for an action of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the ORG liability laid down in LAW . This , however , does not rule out the application in the present legal system of other , not necessarily only those listed in LAW , principles of the ORG liability laid down in specific statutes . ”

On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under LAW read in conjunction with section CARDINAL ) of LAW .

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

Section CARDINAL provides , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL refers to proceedings that have been terminated and that do not fall under the transitional provision of section CARDINAL ( see paragraph CARDINAL below ) in the following terms :

“ A party which has not lodged a complaint about the unreasonable length of the proceedings under LAW ( CARDINAL ) may claim DATE under LAW ... DATE compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended .

Article CARDINAL of the Civil Code sets out limitation periods in respect of various claims based on tort . That provision applies to situations covered by Article CARDINAL of LAW . Article CARDINAL , in so far as relevant , reads :

“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse DATE following the date on which the claimant learned of the damage and the persons liable for it . However , the claim shall in any case lapse DATE following the date on which the event causing the damage had occurred . ”

Section CARDINAL of LAW lays down the following transitional rules in relation to the applications already pending before the Court :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

A complaint lodged under subsection CARDINAL shall indicate the date on which the application was lodged with the ORG .

The relevant court shall immediately inform the Minister of ORG of any complaints lodged under subsection CARDINAL . ”


CASE OF CAMINSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Julia Laffranque;Mirjana Lazarova Trajkovska;Zdravka Kalaydjieva

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

NORP In DATE criminal charges were brought against CARDINAL people ( “ the defendants ” ) on suspicion of having caused grievous bodily harm to the applicant . On DATE an investigating judge of ORG ( “ the trial court ” ) opened an investigation against the defendants . According to statements taken on DATE as part of the pre - trial proceedings , the applicant sought damages for loss of income and injuries sustained . He stated that he would subsequently specify his claim .

During the proceedings , the trial court fixed TIME hearings . Most of them were postponed because it could not secure the attendance of the defendants , their representative or witnesses . No adjournment of any of the hearings was ordered on the applicant ’s request . The trial court also obtained several expert opinions during the proceedings .

On DATE the trial court found CARDINAL of the defendants guilty of grievous bodily harm and sentenced them to a suspended prison term . It further advised the applicant to pursue a compensation claim by means of a separate civil action . In this connection it observed that the applicant had hitherto sought compensation only for non - pecuniary damage .

On DATE the public prosecutor appealed against the above - mentioned decision . At a public hearing held on DATE , ORG overturned the decision in respect of the sentence and confirmed the remainder . The CARDINAL defendants were sentenced to CARDINAL months’ imprisonment . According to the Government , on DATE ORG confirmed this decision by dismissing the GPE appeal on points of law ( барање за вонредно преиспитување на правосилна пресуда ) .

On DATE the applicant brought a civil action against the defendants and their employer , claiming compensation for the pecuniary and non - pecuniary loss he had sustained as a result of his injuries .

On DATE the trial court ruled partly in favour of the applicant and ordered the defendants and their employer jointly to pay him MONEY ( equivalent to CARDINAL ) in respect of non - pecuniary damage . On DATE the defendants appealed . The case is pending before ORG .

The statutory provisions relevant for the present case were described in the PERSON case ( see PERSON v. the former GPE , no . CARDINAL , § § DATE , CARDINAL DATE ) .


Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in ORG . At the material time the applicant was a journalist and editor - in - chief of the ORG newspaper , published by the FAC PERSON limited company .

On DATE the applicant ’s newspaper published his article “ Tied in the system , or , Why are the generals waiting for TIME ? ” ( “ В путах системы , или Почему генералы ждут часа ORG Ч GPE ? ” ) . The article was signed by his pen name PERSON . The article told the readers about a criminal investigation opened by the regional prosecutor ’s office into the activities of CARDINAL ( out of CARDINAL ) officers from the regional anti - narcotics unit ( ORG УВД PERSON области ) . It was alleged that on several occasions the officers of the unit had unlawfully discontinued the criminal prosecution of drug - dealers who had agreed to “ co - operate ” with them and to share the profits from drug sales .

The article featured an interview with a former drug dealer , PERSON , who sold drugs under the unidentified ORG “ cover ” for DATE , until they “ betrayed ” her and she was arrested :

“ They apprehended me at a market when I was purchasing opium , [ they ] wrote down my contact details ... Like many others , I had been paying them , and , ‘ as a gesture of thanks’ , they at first overlooked my buying and consuming drugs , [ and ] later my selling them ... They said : here is a new drug , try it and describe the effect to us . It was heroin ... I assure you that the police know every single [ sale - purchase ] point and every single dealer – in this sense they work very well [ because ] it brings them profit ... I had to remember all of their birthdays – theirs , their wives’ and children ’s . All of them expected presents . Also , they needed money all the time : once [ they asked for money ] to buy petrol for the police car ... They set me up ... Now I am in prison . There are only my kind here , because we can not pay them off – our income from drug - dealing is barely sufficient for a ‘ pay - off’ and our own dose . As to the dealers ... I bear witness that all of them left the pre - trial detention facility ... ”

The article described the alleged wrongdoings of the anti - narcotics unit in general terms , without identifying any officers by name or rank :

“ The persons who are charged DATE do not admit their guilt . They claim that they have been slandered by drug addicts and are being avenged by the regional prosecutor ’s office for the drug - related arrest of the prosecutor ’s son in the past ... Nevertheless , it is for the court to determine the matter – this is why I do not name any of the police officers . But CARDINAL fact is indisputable : the extent to which drugs have spread in LOC is such that there is probably no way out . Taking into account that the duties of various state authorities are clearly demarcated , no matter what subterfuges you use , it is the police in particular who are responsible for the prosperity of drug - dealers in ORG and , more specifically , the anti - narcotics unit . The anti - narcotics unit is also to be blamed for the deaths of CARDINAL persons who died DATE by overdose and for the easy access to drugs of each school student in ORG . And also for the fact that drug - dealers are still at liberty . ”

The article further stated that the officers charged had used drugs to pay for “ information and services ” :

“ The investigation found that , as a matter of course , some officers in the unit used drugs to pay for services and information . Question : where does a police officer get drugs from ? Answer : part [ of the drugs ] seized from drug addicts and drug dealers was retained , in contravention of all laws and regulations , for the needs of the police . And when such a dreadful weapon ends up in the hands of people who are not entirely morally upright , one can expect anything : drugs become a means of payment , a means of blackmail , and a threat to life ... A police officer becomes a criminal . ”

The concluding paragraphs of the article explained its headline . A high - ranking general in the NORP security service once allegedly stated that the police knew all criminals and only waited for TIME when the order would come to exterminate them . The article doubted the general ’s illusion of omnipotence and expressed concern for the future of LOC .

On an unspecified date all CARDINAL officers of the LOC anti - narcotics unit , including the CARDINAL charged with drug - related offences , filed a civil defamation action . Without mentioning specific parts of the article , the officers asserted that the publication had damaged their honour , dignity and professional reputation and claimed compensation for non - pecuniary damage . The statements designated the editor ’s office of the ORG newspaper and “ the author of the article PERSON ” as co - defendants . CARDINAL of the plaintiffs subsequently died .

On DATE ORG of ORG invited the plaintiffs to specify which extracts of the publication they believed to be damaging to their honour and reputation . DATE the plaintiffs filed identically worded addenda to their original statements of claim , according to which the following expressions had damaged their reputation :

“ ... I had been paying them ... They said : here is a new drug , try it and describe the effect to us . It was heroin ... I had to remember all of DATE theirs , their wives’ and children ’s . All of them expected presents ...

... it is the police in particular who are responsible for the prosperity of drug - dealers in ORG and , more specifically , the anti - narcotics unit . The anti - narcotics unit is also to be blamed for the deaths of CARDINAL persons who died DATE by overdose and for the easy access to drugs of each school student in ORG . And also for the fact that drug - dealers are still at liberty ...

... part [ of the drugs ] seized from drug addicts and drug dealers was retained , in contravention of all laws and regulations , for the needs of the police . And when such a dreadful weapon ends up in the hands of people who are not entirely morally upright , one can expect anything : drugs become a means of payment , a means of blackmail , and a threat to life ... A police officer becomes a criminal ... ”

On an unspecified date the staff lawyer of the applicant ’s newspaper commissioned a linguistic examination of the publication , which was carried out by a professor from ORG who had a degree in language studies . His report pointed out that the publication had not referred to any police officer by name or otherwise and the blame had been placed on the state authorities as a whole and the ORG anti - narcotics unit in particular . The expert concluded that none of the quoted extracts could be considered as damaging the honour or dignity of any specific person as an individual .

On DATE ORG of ORG delivered the judgment in the defamation action against the editor ’s office of the ORG newspaper and the FAC Novostey company . The assessment of the damaging nature of the extracts was solely based on the statements by the plaintiffs and their relatives who claimed that the publication had been a cause of psychological anxiety . The court did not address the issue of whether the publication had targeted the plaintiffs . Nor did it distinguish between the author ’s speech and the statements quoted as having been made by PERSON in an interview . In the court ’s opinion , the defendant failed to prove that the published information had been true on the date of its dissemination . Its findings were worded as follows :

“ The information designated by the plaintiffs was published in the ORG newspaper and contains statements to the effect that the ORG anti - narcotics unit is to be blamed for the prosperity of drug - dealers in ORG , for the deaths of CARDINAL individuals by overdose and for the fact that most dealers are still at liberty ; that the officers of the anti - narcotics unit made use of drugs seized from drug addicts and drug - dealers and unlawfully retained them to meet the needs of the police in paying for information ; that the officers of the anti - narcotics unit were paid off , that drug addicts knew their birthdays and those of their family members because they had to give them presents on DATE , that they suggested to her that she test a new drug ...

The court considers that this information is damaging to the honour , dignity and professional reputation of [ the CARDINAL plaintiffs ] as officers of the anti - narcotics unit , whose main duty is the fight against crime and , more specifically , against the unlawful trade in drugs ...

The plaintiffs have not been found guilty of any crime or offence in accordance with the legal procedure , and thus the information which is damaging to their honour , dignity and professional reputation is untrue and is subject to a rectification in the same media ... ”

ORG ordered the newspaper to publish a rectification , the editor ’s office to apologise to the plaintiffs and the Mir Novostey company to pay MONEY ( approximately EUR CARDINAL ) to each of the plaintiffs .

In the statement of appeal , counsel for the FAC Novostey company submitted that ORG had not given proper assessment to the fact that the publication had concerned a structural police unit rather than named individuals , that a criminal case was pending against several police officers , that other officers had been disciplined after the publication and that the director of the regional police had negatively appraised the performance of the anti - narcotics unit .

On DATE ORG examined the appeal and heard oral submissions by the applicant as the editor - in - chief , and counsel for the FAC Novostey company . It found as follows :

“ The [ article in question ] was published in DATE , that is , before the criminal case , including the indictment bill , was submitted for trial . As of DATE , there has still been no conviction in the criminal case against [ CARDINAL plaintiffs ] . The first - instance court has therefore correctly concluded that there was no proof of the truthfulness of the information contained in the publication and contested by the plaintiffs ...

The court considers that the negative appraisal of the performance of the anti - narcotics unit by the ORG Regional police department , which followed publication of the article , can not be a proof of the truthfulness of the information contested by the plaintiffs because in the present case the only such proof would be a court judgment .

With regard to the foregoing , the court considers that ... the appellant ’s argument that the contested publication did not contain information on specific individuals , but only referred to a structural unit of the police , is not a valid ground to quash the judgment . Under LAW of LAW , a judgment that is correct in substance need not be quashed merely because of formal defects . ”

ORG upheld the judgment of DATE in substance . It also ordered that the newspaper should print the operative part of the judgment as the rectification , but it struck out the requirement to apologise to the plaintiffs on the ground that such a requirement had no basis in domestic law .

Article CARDINAL guarantees freedom of thought and expression , together with freedom of the mass media .

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

The ORG ( in force at the material time ) provided that , in order to be considered damaging , statements had to be untrue and contain allegations of a breach of laws or moral principles ( commission of a dishonest act , improper behaviour at the workplace or in everyday life , etc . ) . Dissemination of statements was understood as the publication of statements or their broadcasting ( section CARDINAL ) . The burden of proof was on the defendant to show that the disseminated statements had been true and accurate ( section CARDINAL ) .

If the defamation claim concerned information printed in a newspaper , the defendants were the author and the editor ’s office of the newspaper . If the author ’s name was not mentioned ( for example , in an editorial ) , the editor ’s office was the defendant . If the editor ’s office had no legal personality , the newspaper ’s founder was to be brought into the proceedings as the defendant ( section CARDINAL ) .

On DATE a deputy President of ORG of GPE lodged an application for supervisory review in a defamation action which had been originally granted by the ORG courts . The deputy President noted , in particular :

“ However , the courts did not take into account that CARDINAL of the requirements of LAW is that statements must refer to a particular person or a clearly identifiable group of persons ... ”

On DATE the ORG of ORG granted the application and quashed the judgments in the defamation claim . The case eventually ended in a friendly settlement .

Section CARDINAL defines the “ editor ’s office ” as an organisation , institution , individual or group of individuals that produces and publishes a newspaper . The “ editor - in - chief ” means the person who is in charge of the editor ’s office and who takes final decisions regarding production and publication of the newspaper .

The editor ’s office is professionally independent . It may be registered as a legal entity , but this is not an obligation . The editor - in - chief acts for the editor ’s office before the newspaper founder , publisher , distributor , individuals , groups of individuals , companies , institutions , organisations , ORG authorities and the courts . The editor - in - chief bears responsibility for compliance with the requirements of ORG and other laws of GPE ( section CARDINAL ) .

A journalist has a duty to verify the truthfulness of the information he or she communicates ( section CARDINAL § CARDINAL ( CARDINAL ) ) , as well as a duty to inform the editor - in - chief of all potential actions or claims arising out of his or her publications ( section CARDINAL § CARDINAL ( CARDINAL ) ) .

Founders , editor ’s officers , publishers , distributors , journalists and authors bear responsibility for violations of ORG ( section CARDINAL ) .

Recommendation Rec(CARDINAL)CARDINAL of ORG on the provision of information through the media in relation to criminal proceedings reads , in the relevant parts , as follows :

“ ... Recalling that the media have the right to inform the public due to the right of the public to receive information , including information on matters of public concern , LAW , and that they have a professional duty to do so ;

Stressing the importance of media reporting in informing the public on criminal proceedings , making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system ;

Considering the possibly conflicting interests protected by Articles CARDINAL , CARDINAL and DATE of the LAW and the necessity to balance these rights in view of the facts of every individual case , with due regard to the supervisory role of ORG in ensuring the observance of the commitments under the Convention ...

Recommends , while acknowledging the diversity of national legal systems concerning criminal procedure , that the governments of member states :

NORP take or reinforce , as the case may be , all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation , within the limits of their respective constitutional provisions ,

NORP disseminate widely this recommendation and its appended principles , where appropriate accompanied by a translation ...

ORG of the public via the media

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

Principle CARDINAL - Presumption of innocence

Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial . Accordingly , opinions and information relating to on - going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused .

Principle CARDINAL - Protection of privacy in the context of on - going criminal proceedings

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


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

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

On DATE the applicant , who was then residing in GPE , was questioned as a suspect in the embezzlement of CARDINAL NORP levs ( ORG ) from a cooperative farm in liquidation whose legal counsel he had been .

On DATE criminal proceedings were opened against the applicant .

On DATE he was questioned .

On DATE a graphological expert report was drawn up .

On DATE the applicant was charged with embezzlement , falsification of official documents and false accusation of another . He was ordered to post bail in the amount of BGL CARDINAL . Under the then applicable provisions of LAW ( “ the ORG ” ) , an accused on bail could leave the country only with the prosecutor ’s or the court ’s permission .

On DATE the applicant ’s apartment was attached by order of the investigator in charge of the case , apparently as a security for an impending civil claim by the victim of the offences alleged against the applicant . On DATE the applicant was allowed to consult the case file and was questioned .

On DATE the applicant was detained . He was released on CARDINAL DATE .

On DATE a technical expert report was drawn up .

On DATE the applicant was questioned .

On DATE another expert report was drawn up .

On DATE the applicant was questioned .

On DATE the investigator completed his work on the case and recommended that the applicant be indicted .

On CARDINAL DATE the applicant was questioned .

On DATE a prosecutor of ORG presented the applicant with amended charges and questioned him .

By a decree of CARDINAL DATE ORG , finding that the applicant had not obstructed the criminal proceedings and that there was no danger of him absconding , allowed him to leave GPE for DATE to visit his parents in GPE , GPE .

The prohibition against the applicant leaving the country without prior permission by the prosecutor or the court was in force at least until DATE , when the ORG was amended .

On DATE a prosecutor of ORG presented all materials in the case file to the applicant .

On DATE ORG , noting that the relevant limitation period had expired , decided to drop the charges of falsification of official documents . On the same date it indicted the applicant for having embezzled BGL CARDINAL and having falsely accused another of a serious offence .

On DATE the applicant left GPE and went to GPE , where he has resided ever since .

The first hearing in the applicant ’s case , listed by ORG for DATE , was adjourned because the applicant and several witnesses , despite being duly summoned , were absent .

A hearing fixed for DATE was also adjourned because the applicant was not present .

A hearing listed for DATE was likewise adjourned because of the applicant ’s absence .

At the time of the latest relevant information from the parties ( DATE ) the proceedings were still pending before ORG .


Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant , Mr PERSON , is a NORP national , who was born on DATE and currently resides in GPE . He is represented before the ORG by PERSON , a lawyer practicing in GPE .

On DATE the applicant was apprehended by police officers of ORG .

On DATE the applicant 's house was searched , during which ammunition was found .

On DATE the applicant was charged with storing ammunition ( Article CARDINAL of LAW ) and a criminal investigation was initiated against him .

On DATE the investigation was terminated due to lack of proof .

On DATE the applicant lodged complaints with the Kievsky ORG of Odessa , claiming unlawful detention , and the unlawful search and seizure of some of his property . The applicant alleged that the search was conducted without a warrant and that no ammunition had been found . He also sought compensation for moral damage caused by the unlawful police action .

On DATE the Kievsky ORG of Odessa allowed the applicant 's claims and ordered ORG to pay the applicant ORG CARDINAL,CARDINAL in compensation .

On DATE the ORG partly quashed this decision as regards compensation for material damage , which it remitted for fresh consideration to the GPE ORG of Odessa , which at DATE awarded the applicant ORG CARDINAL,CARDINAL in compensation for pecuniary damage . It also ordered ORG to pay the applicant ORG CARDINAL,CARDINAL in compensation for moral damage .

On DATE the applicant complained to ORG about the non - execution of the judgment of DATE given in his favour .

On DATE ORG informed the applicant that no funds were available for such payments in the DATE State budgets .

On DATE the applicant requested ORG to execute the judgment of DATE .

On DATE ORG informed the applicant there was no statutory procedure for the payment of compensation and therefore no payment was possible .

On DATE ORG CARDINAL to the applicant in compensation for pecuniary damage .

On DATE ORG to the applicant in compensation for non - pecuniary damage .

The relevant domestic law is set out in the judgment of DATE in the case of ORG v. GPE ( no . CARDINAL/CARDINAL ) .


The applicant was born in DATE and lives in GPE .

The applicant is a sports journalist . On DATE a local DATE newspaper published an article containing negative remarks about the applicant 's professionalism , ethics and education .

On DATE the applicant brought a libel action in the Košice ORG ( Okresný súd ) against the chief editor of the daily and “ his office ” . He sought a judicial order that the defendants publish a correction of the libellous information . In the course of the action there have been several corporate and personal changes on the side of the defendants causing ambiguity as to their standing to be sued in the case .

On DATE and CARDINAL DATE , respectively , ORG invited the applicant to submit further information and to pay the court fee . The applicant complied on DATE and CARDINAL DATE , respectively .

On DATE the applicant amended the action and submitted a further specification of who the defendants were .

On DATE ORG ruled that the modification of the scope of the action was impermissible . On DATE ORG ( PERSON súd ) overturned this decision on the applicant 's appeal and approved the modification .

DATE and DATE ORG held CARDINAL hearings that were adjourned due to the absence of the defendant . Another QUANTITY hearings were scheduled but did not take place because the judge was absent for health reasons .

On DATE the applicant lodged a complaint under LAW of the LAW with ORG ( Ústavný súd ) . He contended that the length of the proceedings in his action was excessive and claimed CARDINAL NORP korunas ( SKK ) in damages .

On DATE ORG found that there had been a violation of the applicant 's right to a hearing “ without undue delay ” ( LAW ) and within a “ reasonable time ” ( LAW ) in his action . ORG ordered that ORG proceed with the matter promptly ; pay the applicant LAW by way of compensation in respect of nonpecuniary damage ; and reimburse the applicant 's legal costs . The subjectmatter of the proceedings was neither legally nor factually complex . The applicant had caused no delays and what was at stake for him called for special diligence . However , for DATE , ORG had proceeded with the case inefficiently .

DATE and DATE ORG took several decisions ascertaining who the defendants in the action were and correcting clerical errors in those decisions . The applicant challenged these decisions by way of appeals ( odvolanie ) and appeals on points of law ( dovolanie ) . The latter were declared inadmissible on DATE and CARDINAL DATE as , in the circumstances , no such remedy was available .

In this period , ORG sought information from ORG concerning the address of CARDINAL of the defendants and requested that court mail be served on him by the police .

According to the applicant , in the meantime the newspaper in question ceased to exist .

On DATE ORG requested the applicant to identify the defendants of his action in accordance with the applicable procedural requirements and the current state of affairs . He responded on DATE . ORG then made further inquiries into who was to be sued in the case .

On DATE ORG held a hearing . It was adjourned and the applicant was again requested to specify who the defendants were . The proceedings are still pending .


The first applicant is a NORP citizen , born in DATE and resident in GPE . The second applicant is also a NORP citizen , born in DATE and resident in GPE . They are brother and sister . Before the ORG they are represented by PERSON , legal officer for ORG , in GPE .

The respondent Government are represented by PERSON , ORG , as Agent for ORG .

A.

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

Events of DATE

The applicants’ brother , PERSON , was shot dead outside the family home , GPE , PERSON , by officers of the Devon and ORG ( ORG ) on DATE . PERSON is located in an isolated and rural location .

On DATE , PERSON went to his local police station and voluntarily handed in a number of legally held weapons to Inspector PERSON . The Inspector was concerned about the state of PERSON mental health and , on DATE , he attended PERSON and seized more weapons . On DATE , PERSON asked for the return of some of the weapons . However , Inspector PERSON refused until such time as Mr Hay could produce a certificate as to the state of his mental health .

On DATE , ORG doctor , PERSON , had received a message from PERSON neighbour saying that PERSON was displaying irrational behaviour whilst in possession of a weapon . The neighbour was concerned as to the state of PERSON mental health .

On DATE , there were CARDINAL incidents involving firearms . Firstly , at QUANTITY , Mr Hay fired a gun CARDINAL times into a sheep trailer at a nearby farm in the presence of the farmer ’s wife . The woman was very frightened and stated that PERSON was in an emotional state and had said to her after loading the gun , “ This is what I will do to the police if they come near me ” . Later , at TIME , Mr Hay went into the local public house armed with a gun with a bayonet attached and a hand gun . He again displayed irrational behaviour , and fired one of the guns several times into the open fireplace in front of the barmaid . He then reloaded the gun in her presence . The barmaid telephoned the police . A neighbour had already telephoned . A further shot was fired in the street outside . Mr Hay then returned to GPE where he had lunch with his mother .

At TIME the ORG at ORG had received the call from the neighbour of the public house . Police vehicles were ordered to the scene , a police surveillance helicopter took off QUANTITY and the instructions to the helicopter crew were to keep PERSON in view until there could be actual physical containment by a firearms team . A firearms unit was notified . By chance , CARDINAL firearms officers happened to be on a training exercise and so they were used , rather than following the standard procedure .

The ORG had a pre - arranged command and control structure for incidents of this kind , dividing the command into Gold , Silver and Bronze . Gold was in overall command , determined strategy and had overall responsibility for the provision of intelligence , resources and logistics . The Gold Commander was of senior rank and ORG was based in the operations room at police headquarters . Silver Commander was the officer responsible for the tactical control of an incident at the scene . He was supported by ORG which was based at the nearest police station to the incident for communications purposes . ORG was the specialist task or sector commander who had the role of implementing the tactics determined by the Silver Commander .

Following the report of shots being fired , this structure was put into place . At CARDINAL p.m. , PERSON temporarily assumed the position of Silver Commander , although it was intended that he would later assume the role of negotiator , and that Superintendent PERSON would replace him as Silver Commander . FAC took the role of ORG . ORG was set up in the operations room at police headquarters under the command of Assistant Chief PERSON . Chief Inspector ORG , as officer in charge of ORG , would assume the role of ORG . At TIME authorised the deployment of armed police officers . This command structure was communicated to everyone at TIME

The delay in setting up this structure was due to the fact that it was not possible to establish which senior officers were on duty or to contact them . In particular , Superintendent PERSON chose to drive to the incident in his private car , which did not have a radio installed , despite the fact that fully equipped police vehicles were available . This meant that he was out of communication for a period of TIME , and was therefore not fully aware of the changes in the situation .

The Forward Control Point was not established , as it should have been , by either Superintendents PERSON or GPE , although the firearms team had met at the GPE public house and appeared to be treating the pub as the Forward ORG .

In a conversation at TIME between FAC , ORG , and another officer , it was stated that negotiators should be contacted . There were difficulties in contacting them , as they did not have any means of emergency communication , and they did not arrive or play any useful role before the death of ORG . PERSON was not able to act as negotiator whilst he was still waiting for Superintendent PERSON to replace him as Silver Commander .

At TIME the helicopter crew reported that PERSON was waving and pointing a rifle in their direction , and they withdrew to a safe distance . They observed that he had CARDINAL rifles in a stand position near his car . They could not keep him under constant surveillance . At TIME the operations room became aware of the earlier firearms incident at ORG .

At TIME , Mr Hay was seen loading items into his car outside the manor house . He was now wearing a bullet - proof vest . At TIME the helicopter observed that it was his mother driving the car away from GPE . The helicopter also observed PERSON as he set up a PERSON gun in the driveway of the house , although , it was noted , that the gun did not have a magazine attached to it . There appeared to be ammunition boxes positioned near the PERSON gun and also black bin liners which it was considered could possibly contain explosives . Attempts were made to get information about Mr Hay from his mother for negotiation purposes . She was interviewed by a policeman , but no use was made of her knowledge of either her son ’s mental state or the layout of the house , as by the time all the information was gathered the incident was over .

At TIME Superintendent PERSON radioed that he was “ at X - ray ” ( i.e. the Forward Control point at FAC ) ; he was in fact at FAC , QUANTITY from GPE . PERSON and the firearms team were at FAC . Chief Inspector PERSON briefed the firearms team and in particular reminded them of their personal liability under section CARDINAL of LAW DATE . He also reminded the team about the possible benefits of trying to engage an armed suspect in conversation as part of the containment process . Presuming that Superintendent PERSON would arrive imminently , PERSON left for GPE in order to fulfil his negotiating role , but did not actually proceed to the manor itself , remaining at the nearby crossroads to await the completion of the armed containment . Superintendent PERSON was still not in proper communication at TIME when he made several calls from a private house , and thus was never in control of the situation . In fact Superintendent Mechan did not take any effective action as Silver Commander because his arrival to take command was overtaken by events .

At TIME the pilot of the helicopter observed PERSON lying on the lawn in front of the house , and was actually of the opinion that he had shot himself , confusing a shadow around him for blood . No attempt was made to detain him at this time , although the officer operating a video camera in the helicopter subsequently observed at the inquest that , as at this point the man was seated on the ground , it would have been a very good opportunity to move in and physically detain him . PERSON then got up , and was seen to point a weapon at the helicopter , at which point it moved away . PERSON was also seen by the helicopter to run up and down the lawn and imitate an aeroplane .

The armed officers made their way to the house and placed themselves around the house . Individual officers decided where to position themselves . Once in position , officers realised that there were particular escape routes for ORG which they sought to close off . CARDINAL of the officers were placed in positions with poor cover . The aim was to disarm Mr Hay and to contain him in order to prevent him from escaping into the countryside and thereby becoming a danger to the public .

At TIME ORG was in place around the house . It appears that the team were unaware of the personal circumstances of PERSON and unaware who owned the property . They were readily identifiable as police with caps with ‘ Police’ written on them . PERSON was not at the manor itself and , due to the fact that events developed rapidly , did not arrive to commence any negotiations . When the firearms team arrived PERSON was still seen to be lying on the ground . Police officers were positioned fairly close to PERSON to prevent access to the building and to be closer to the PERSON gun with a view to preventing access to it . Mr Hay jumped up and started shouting , swearing and waving the gun in his hand . A police dog was sent towards him to attempt to restrain him and disarm him . Mr Hay ’s own dog distracted the attention of the police dog . CARDINAL of the firearms team shouted “ Armed Police . Stand still ” . CARDINAL of the team tried to talk to PERSON asking him to comply with their directions and repeatedly to put the gun down . PERSON did not respond to any of the communications . A number of verbal challenges were made by the police from the time Mr Hay got up to the time he was shot . PERSON repeatedly pointed at his forehead and shouted “ Do it , go on , what are you waiting for ? ”

At TIME , Chief Inspector PERSON perceived that his officers were in danger and ordered a second police dog to be sent towards PERSON . PERSON ran screaming and shouting towards the dog and fired CARDINAL times at the dog with a hand gun and fatally injured the dog . Mr Hay then raised his weapon towards QUANTITY police officers , and at that point CARDINAL officers opened fire . Due to the fact that he was wearing body armour , CARDINAL shot was aimed at the top of his chest near the throat . PERSON was killed instantaneously by that bullet which hit his forehead . The officer who fired the fatal shot was QUANTITY away and used a self - loading rifle . There were other wounds which would not have been fatal by themselves . Armed containment , if it was completely achieved , was only achieved TIME before Mr Hay was shot . Medical evidence at the subsequent inquest concluded that no drugs were detected in Mr Hay ’s body which might have influenced his behaviour , and the alcohol levels were unlikely to have had a noticeable effect on his behaviour . A firearms expert indicated that the fatal bullet hit the forehead because Mr Hay had started to fall forward due to the impact of CARDINAL of the bullets which had struck his back and that all CARDINAL shots were fired in a short period of time .

The police investigation into the killing of Mr Hay

On DATE of the shooting ORG ( ORG ) was asked by the Chief Constable of GPE and GPE “ to investigate the incidents culminating in the death of PERSON and all attendant circumstances ” . The ORG appointed an investigating officer , Mr PERSON , Assistant Chief Constable of GPE and GPE , to undertake this task .

The report of the ORG written by Mr PERSON dated DATE contained a number of criticisms of the procedure on DATE . In particular , the report noted :

a. The failure to establish a “ Forward Control Point ” .

The failure to collect information about the individual concerned although “ there was both the time and the means by which considerable pertinent information could have been collected ” , and a failure to secure the prompt attendance of trained negotiators .

A failure to get a plan of the layout of the area , and the fact that there was no organised positioning of officers , who were allowed to position themselves , leaving CARDINAL of them exposed . “ I find it unacceptable that a senior officer in charge of a firearms operation should only be aware that his officers were exposed TIME at a team debrief . ”

“ A level of confusion which should not exist in this type of police operation . … Regardless of the contribution to this confusion by occasional poor radio reception and the individual errors of operations room staff , the main reason rests with ORG ’s failure to take the initial basic step of ascertaining whether or not a Forward ORG existed and its location . The situation was exacerbated by his failure to avail himself of radio communications with the consequence that he travelled to an incident which he knew he was to command completely unaware of developments and without any means of providing any command input ” .

“ I am satisfied that [ ORG ] did not engage in adequate planning prior to the deployment of authorised firearms officers at FAC , neither did he direct any other officer to do so and that this failure amounts to a neglect of duty and that there is sufficient evidence that he committed this offence ( § CARDINAL ) . … Indeed it could well be suggested that ORG ’s failure displayed a disregard for the safety of his men and even indirectly the suspect ( § CARDINAL ) . ”

“ The failure to call out divisional officers is an important issue as it has been suggested that a larger number of armed officers than was available at ORG may have allowed for a more distant armed containment of Hay . ”

The applicants submitted that the positioning of armed officers in such close proximity to Mr Hay was unnecessary and directly caused the confrontation which ultimately led to his death ( § CARDINAL ) . However the report concluded at paragraph CARDINAL :

“ I am of the opinion that given the events at FAC on DATE , the course of action taken by ORG was the only available option . It was essential that < Mr Hay > be contained at the LOC and the geography of the immediate vicinity meant that the officers conducting the containment must inevitably assume positions closer to < Mr Hay > than might otherwise be desirable . I also acknowledge that the position in respect of the limited availability of the helicopter lent an urgency which had to be acknowledged .

I have already expressed the view that ORG ’s failures amount to an offence against discipline and that there is sufficient available evidence to prove them . These are serious failures and whilst < Mr Hay ’s > death can not be attributed to them that does not lessen their degree of importance . ”

Disciplinary proceedings

On DATE Chief Inspector PERSON was served with papers under LAW making allegations that as the tactical firearms officer he failed to ensure that adequate planning was carried out prior to the deployment of authorised firearms officers involved in the incident .

On DATE , the full ORG report was presented to the Chief Constable of Devon and ORG , which recommended that disciplinary proceedings were brought against both Chief Inspector GPE and Superintendent PERSON for neglect of duty , although he did not recommend any criminal proceedings . Specifically , it was alleged that ORG had :

“ Failed to plan properly the armed containment of GPE and in particular:-

a. Failed to take into account the local geography of the area ;

Failed to consider the available knowledge in respect of PERSON with respect to its relevance to an armed containment ;

Failed to liase properly with ORG . ”

Following the inquest verdict on DATE , there was some correspondence between the Chief Constable and the ORG . In the view of the Chief Constable , there should not have been any disciplinary charges against either of the CARDINAL officers concerned . On DATE he stated the following :

“ [ G]iven the failures of Superintendent PERSON in this operation it is difficult to criticise Chief Inspector PERSON . This point becomes even more poignant when it is unlikely , in my view , that Superintendent PERSON will return from sick leave and face discipline for this neglect . ”

On DATE the ORG wrote back invoking its statutory powers to recommend that the charge of neglect be brought against Chief Inspector PERSON . The letter identified CARDINAL areas of concern , all of which were explained in detail in the ORG report :

a want of initial planning and intelligence ;

a failure to acquire the information necessary for containment of the deceased ;

an unauthorised change of role during the operation ; and

a failure to consult the deceased ’s mother before deploying the firearms team .

On DATE , the first applicant wrote to the ORG asking that the family be represented at the disciplinary hearing . This application was refused by PERSON , the Deputy Chief Constable of GPE and GPE , on the basis that they had not lodged a formal complaint . The first applicant therefore attempted to lodge a complaint to remedy this situation .

On DATE , DATE before the scheduled hearing , the Chief Constable accepted the advice of police doctors that there was a likelihood that Superintendent Mechan ’s appearance before the disciplinary hearing would hasten his complete mental breakdown and permitted the Superintendent , who had been on sick leave since the shooting , to retire due to ill - health . According to the medical evidence , the Superintendent was suffering from a mental illness , and had been at the time of the incident . The disciplinary charges against him were therefore withdrawn .

On DATE , Mr Portlock , formally requested the ORG not to pursue the charges against his officers . That request was refused . On DATE , the Deputy Chief Constable refused to allow the first applicant to lodge a further complaint of police negligence .

In the light of the withdrawal of the charges against Superintendent Mechan , the Chief Constable amended the charges against Chief Inspector PERSON . At the disciplinary hearing on CARDINAL DATE , the presiding Chief Constable of GPE , PERSON , granted the Chief Inspector ’s application to dismiss the proceedings as an abuse of process , on the grounds that the late notice of the amended charges , combined with the delay in the disciplinary hearing ( DATE after the incident ) , had prejudiced his defence . A press release from the ORG DATE described the proceedings as “ unnecessary and wholly inappropriate given the lack of evidence to support the charge ” .

The ORG and the applicants separately applied for judicial review of the decision of Mr Girven to dismiss the charges against Mr ORG and the applicant sought review of CARDINAL other matters , including the decision of the Chief Constable to allow Superintendent PERSON to retire . On DATE , Mr Justice PERSON held that the decision to allow the Superintendent to retire had not been properly taken , but that he would not interfere with it . He further held that Mr GPE had been wrong in law to dismiss the charges against Chief Inspector PERSON , as there had not been any prejudice arising out of the delays . He made an order of mandamus directing the Chief Constable to hear the charges against the Chief Inspector on their substantive merits .

The disciplinary proceedings against Chief Inspector PERSON were eventually heard in DATE , after a delay caused by the challenges to the inquest proceedings , and in DATE ORG was cleared of neglect of duty .


The applicant , PERSON , is a citizen of GPE , born in DATE and living in GPE . He is represented before the Court by PERSON PERSON , a lawyer practising in GPE , GPE .

The respondent Government are represented by their agent , Mr PERSON PERSON of ORG .

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

On DATE the applicant came to GPE . On DATE he approached the police and requested asylum . He presented himself as PERSON , a NORP national . He alleged that he had just arrived and that he was not in possession of any identification papers . Pending the examination of his request for asylum the applicant was detained until DATE under section CARDINAL of LAW ( GPE ) .

During this period of time the applicant was interviewed by the police on DATE and DATE . He explained , among other things , that on CARDINAL DATE unknown armed men invaded the house of his family in GPE , the capital of GPE , and shot his parents and his brothers . He managed to escape . He could not give specific details regarding his journey to GPE , save that he went to GPE first and , from there , he went as a stowaway on a ship to a port in some country where CARDINAL girls helped him to a railway station and paid for his ticket .

On DATE the aliens authorities ( NORP for GPE ) decided not to grant the applicant refugee status , the reason being that there were insufficient evidence to prove that the applicant was in fact a NORP national , especially as he did not speak kinyawanda , the main language in GPE ; his general knowledge of GPE seemed very limited compared with the information given by the applicant that he had attended school there for DATE ; the applicant had not been involved with the NORP authorities in any way either in the political or the penal system ; and finally the only reason given by the applicant for the asylum request was his fear concerning the general situation in GPE .

This decision was upheld on appeal by ORG ( PERSON ) on DATE with the same reasoning and a deportation order was given with the deadline for departure being DATE . It was stressed that if the applicant proved unwilling to leave the country the deportation order would be enforced .

This led the applicant to apply on DATE to ORG for exceptional leave to remain in GPE . ORG refused this request on DATE but postponed the deadline for departure until DATE . Furthermore , the Ministry referred part of the application to the aliens authorities for further consideration . On DATE the aliens authorities rejected the application . It does not appear that the applicant appealed against this decision .

As the applicant had no travel documents it turned out to be difficult for the police authorities to enforce the deportation order . Thus , the applicant was requested to attend further interviews with the police authorities in order to gather sufficient information to determine the applicant ’s home country and , subsequently , to obtain the necessary travel documents .

The applicant was requested to attend interviews on DATE , CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL May and DATE as well as on DATE , DATE and CARDINAL DATE .

The applicant did not attend the interviews scheduled for DATE , CARDINAL DATE and CARDINAL DATE . The ORG allege that at the interview held on DATE a language test had to be interrupted as the applicant did not co - operate . The applicant disputes this allegation , claiming that he did complete the test . At the interview held on DATE , in order to try to confirm the information given by the applicant on his nationality , the police arranged a telephone conversation between the applicant and representatives at ORG in GPE .

On DATE the police took action under section CARDINAL , subsection CARDINAL of LAW imposing on the applicant a duty to report in person DATE at TIME to a police unit connected to an asylum centre in GPE . It was explained to the applicant that failure to report might result in his detention . At the time the applicant was living some distance from GPE in another asylum centre in GPE . The applicant complained in vain about this action to ORG .

The applicant did not report on DATE . Thus , on CARDINAL DATE , the police drew the applicant ’s attention to the possible consequences of noncompliance with the duty to report . The applicant failed to report from CARDINAL DATE until DATE . On DATE the police turned up at the centre where the applicant was living , and with the assistance of an interpreter yet another interview was held , which included telephone conversations between the applicant and representatives at ORG in GPE and in GPE in order to try to determine the applicant ’s nationality . These telephone calls did not , however , resolve the question of his nationality . The police pointed out once again the possible consequences of noncompliance with the duty to report . Nevertheless , the applicant did not report from CARDINAL to DATE .

On DATE the police decided to take the applicant into custody pursuant to LAW , section CARDINAL , subsection CARDINAL cf . section CARDINAL , subsection , CARDINAL .

On DATE ORG ( kriminalretten ) found the detention to be in accordance with the provisions of LAW . On appeal , this decision was upheld on DATE by ORG of Eastern Denmark ( PERSON ) , finding that there was no basis for assuming that the reference in section DATE to the measures referred to in section CARDINAL did not include all measures mentioned in section CARDINAL , including the measures pursuant to the latter ’s subsection CARDINAL . In this respect ORG had regard to the wording of LAW , section DATE , subsection CARDINAL , the preparatory rules regarding section CARDINAL , subsection CARDINAL , and the fact that Act no . CARDINAL of DATE did not amend section DATE . Furthermore , the High Court emphasised that the applicant had not complied at all with the duty to report though the consequences thereof on CARDINAL occasions had been stressed .

Application for leave to appeal to ORG ( Højesteret ) was refused on DATE .

During the applicant ’s detention , on DATE the police arranged a telephone conversation between the applicant and representatives at ORG in GPE in order to confirm the information given by the applicant on his NORP nationality .

Also during the applicant ’s detention , on DATE , the police arranged another language test for the applicant . An analysis of the test showed that in all probability the applicant was not from GPE as his NORP accent was believed to be of NORP origin .

The applicant was released DATE , on DATE .

Subsequently , on DATE the applicant was confronted with the result of the language test , on DATE he was interviewed by the police and on DATE having obtained his consent the applicant ’s fingerprints were sent to ORG with a view to identification by inquiry in certain NORP countries ( GPE , GPE , GPE , GPE , GPE and GPE ) . Other means of inquiry included a visit to ORG Ivory Cost on DATE during which the applicant refused to speak LANGUAGE . On DATE , however , a representative at the embassy could listen to the tape recording of the applicant ’s NORP .

On DATE a member of ORG informed the National Commissioner of Police that the applicant wanted to marry a NORP citizen for which reason he had now decided to disclose his true identity .

On DATE the applicant revealed that his name was in fact PERSON Agnissan and he was a citizen of GPE . He flew to GPE from GPE on DATE on his GPE passport . Upon his arrival in GPE airport on DATE he posted his passport back to his family in GPE .

The applicant still remains in GPE .

Section CARDINAL , subsection CARDINAL of LAW , which was amended by Act no . CARDINAL of DATE , reads in so far as relevant :

“ If the measures referred to in DATE are insufficient to ensure enforcement of ... deportation of an alien , who otherwise ... is not entitled to stay in GPE , the police may decide that the alien is to be detained in custody . ”

Section CARDINAL , subsection CARDINAL reads in so far as relevant :

“ Until a decision has been made as to whether an alien shall be expelled ... or deported ... and until such an order can be enforced , the police may decide , where it is considered necessary to ensure the alien ’s presence , that the alien must :

CARDINAL ) deposit his / her passport , other travel documents and tickets with the police ;

CARDINAL ) NORP present security fixed by the police ;

CARDINAL ) NORP take up residence in accordance with the further instructions of the police ;

CARDINAL ) NORP report to the police at specific intervals . ”

The above Act no . CARDINAL of DATE also amended section CARDINAL by adding a subsection CARDINAL . In so far as relevant section CARDINAL , subsection CARDINAL reads :

“ If it is considered appropriate for the purpose of ensuring the presence of an alien , the police may decide that an alien shall report to the police at regular intervals if :

CARDINAL ) NORP the alien requests asylum on arrival , or thereafter and then does not assist in clarifying the case ;

CARDINAL ) NORP the alien fails to appear for an interview with ORG or the police to which he / she was called ;

CARDINAL ) NORP the police are in charge of the alien ’s departure and the alien does not assist therein , cf . LAW , final sentence ” .

Section CARDINAL , subsection CARDINAL contains a duty to provide the authorities with information and to participate actively in obtaining the necessary travel documents , visa etc . and finally to co - operate physically in the deportation .

It appears from the general notes to Act No . CARDINAL of DATE which introduced inter alia subsection CARDINAL to section CARDINAL ) :

“ To prevent abuse of the permit system of LAW , it is furthermore important to make it as unattractive as possible to aliens whose applications for a residence permit are being examined to obstruct the procuring of information in a case . It is moreover important to prevent aliens whose applications for a residence permit have been finally refused from obstructing deportation from the country ...

The amendments proposed are intended to motivate such persons to assist in deportation from GPE . ”

It appears from the detailed notes regarding section DATE , subsection CARDINAL :

“ The intention of the amendment is to allow for systematic application of a duty to report ( DATE , if necessary ) .

If the measures referred to in LAW are insufficient to ensure enforcement of refusal of entry , expulsion or deportation , the court will be able to detain an alien , cf . in detail section CARDINAL , subsection CARDINAL , first sentence . Part of this assessment might be whether , as a less coercive measure , a duty to report may be imposed pursuant to the proposed provision in DATE , subsection CARDINAL , and whether the alien has violated a decision to that effect ”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr Todor Stanislavov Deyanov , is a NORP national who was born in DATE and lives in GPE .

On DATE the applicant requested that ORG of GPE initiate proceedings before ORG and seek a ruling as to the constitutionality of section CARDINAL ) of ORG ( see “ Relevant domestic law ” below ) , in so far as it concerned non - profit organisations . He argued that that provision encroached upon the right to freedom of association guaranteed by the LAW and international law .

On DATE the applicant forwarded identical requests to ORG and ORG . On DATE he forwarded an identical request to the Ombudsman .

By letter dated DATE the President of ORG informed the applicant that the action requested was not within his powers . The ORG replied on DATE , informing the applicant that he did not consider section CARDINAL(CARDINAL)(CARDINAL ) of ORG to be unconstitutional . ORG replied on DATE , also considering that the disputed provision did not contravene the LAW .

On DATE the applicant lodged new requests with the ORG and ORG to initiate proceedings before ORG . He reiterated his position that section CARDINAL ) of ORG impinged upon the right to freedom of association . In addition , he challenged section CARDINAL of the same LAW , in so far as it provided that the police “ represented society as a whole ” . He received no reply .

On DATE the applicant wrote directly to ORG , requesting that it initiate proceedings and examine the constitutionality of the CARDINAL above - mentioned provisions of ORG . This request was refused , as LAW paragraph CARDINAL of LAW does not entitle citizens to lodge constitutional complaints . The applicant was informed of the refusal on DATE .

ORG came into force on DATE .

Its section CARDINAL , as enacted , provided that in the performance of their duties the officials of ORG were to “ represent society as a whole ” . In DATE the text of section CARDINAL was amended and this phrase was repealed .

Section CARDINAL(CARDINAL ) of the LAW provides that police operations can be carried out through :

[ S]etting up and using non - profit organisations or companies , subject to the conditions set out in law , to cover up the investigation by an undercover agent or to conduct undercover operations ... ” .

The formation , registration and activities of non - profit organisations are governed by ORG . Its section CARDINAL provides that those organisations are free to define the goals they wish to pursue , which are to be stated in their articles of association .

Article CARDINAL paragraphs CARDINAL and QUANTITY certain ORG bodies , including ORG , ORG , ORG and the ORG to initiate proceedings before ORG in order to obtain a ruling as to the constitutionality of statutes adopted by ORG . ORG do not have the right to lodge a constitutional complaint .


CASE OF HYDE PARK AND OTHERS v. MOLDOVA (Nos. 5 and 6)

Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 11;Pecuniary and non-pecuniary damage - awards

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

At the time of the events in question , PERSON was registered with ORG as a non - governmental organisation lobbying , inter alia , for freedom of expression and the right to free assembly . In DATE its members decided to discontinue registration on grounds of alleged pressure and intimidation from the ORG . In particular , they complained of the refusal of ORG to register amendments to the organisation 's articles of association , the repeated freezing of its bank account , arbitrary arrest of its members , attempts to shut down its newspaper and other such interferences . Several of the organisation 's leaders requested political asylum in western countries and it was decided to continue the activity under the same name but without being registered with the ORG authorities . It was also decided that the new unincorporated association would become the former organisation 's successor . After the striking of the organisation out of the ORG 's list of non - governmental organisations , on DATE , PERSON activity continued on the basis of new articles of association and all the activities were carried on . The association continued editing its newspaper and its internet page and continued staging protests and demonstrations .

On DATE PERSON applied to ORG of PERSON for authorisation to stage a protest on DATE in front of ORG and ORG against alleged acts of harassment of LOC by those bodies .

On DATE ORG authorised the protest , to be staged on DATE in front of the building of ORG TIME and in front of ORG TIME at a distance of QUANTITY from the buildings .

On DATE , at TIME , the applicants started their protest in front of ORG but were immediately approached by a police officer who ordered them to stop the protest because the GPE 's authorisation had been challenged by ORG in court on DATE . The police officer argued that according to the PERSON on ORG , the prosecutor 's appeal against an administrative act suspended the latter 's action until after a court examined it . The applicants refused to comply and argued that the authorisation was valid and that their protest was peaceful . They relied on the provisions of LAW and on the Convention . Shortly thereafter a police van arrived and Mr PERSON , Mr PERSON , Mr GPE - Stan and Mr GPE were arrested and taken to a police station where they were questioned . At TIME they were released without explanation . They could not continue their protest because the time indicated in the authorisation had lapsed .

The DATE a criminal complaint was lodged against the police officers who carried out the arrests ; however , the complaint was dismissed by the head of the police station of LOC on DATE on the ground that the authorisation contained numerous flaws such as a failure to indicate the exact place of the protest and the number of participants .

It appears that ORG appeal against the GPE 's authorisation of CARDINAL DATE has never been examined by the courts .

On DATE Mr Juraveli , the vice - president of PERSON , applied to the GPE for an authorisation to stage a protest in front of ORG and ORG DATE against the allegedly abusive suppression of its peaceful protest of DATE . In the application he indicated that QUANTITY persons were to participate in the demonstration and gave his name and those of Mr PERSON and Mr GPE - Stan as those responsible for the conduct of the demonstration .

The Municipality did not adopt a decision in respect of the application before the first date of the planned demonstration , on DATE . Therefore , at TIME DATE the applicants started their protest in front of ORG . At TIME , PERSON and a LOC member who is not an applicant were arrested on the ground that the demonstration had not been authorised . They were taken to a police station where they were body searched and kept for TIME . According to the applicants the police examined and made copies of their documents including personal letters . CARDINAL of them were placed in cages and later in cells . Later they were taken to ORG and , since the hearing was adjourned , they were released at TIME

On DATE ORG examined the charges against the applicants . The applicants argued that since the Municipality had failed to examine their application for authorisation before the date of the demonstration , they had the right to hold the demonstration in accordance with section CARDINAL(CARDINAL ) of LAW . Moreover , they submitted that they had been told by a representative of the local authorities that the GPE did not have time to deal with their request and that they could hold their protest as planned . The court dismissed the applicants ' submissions and found that they had breached the provision of section CARDINAL(CARDINAL ) of LAW by failing to submit the application within DATE in advance of the planned assembly . According to the court , the protest should have been held on DATE at the earliest . PERSON and PERSON were found guilty of organising an unauthorised demonstration and fined CARDINAL NORP lei ( ORG ) each ( MONEY ( ORG ) ) . Another LOC member who is not applicant in the present case was fined MDL CARDINAL . The applicants ' appeal was dismissed by ORG on the same grounds on DATE .

In the meantime , on DATE , the GPE examined the application of DATE ( see paragraph CARDINAL above ) and issued an authorisation to organise and stage a protest in front of the buildings of ORG and ORG DATE to PERSON .

In TIME DATE several members of PERSON started to protest in front of the buildings of ORG and ORG ; however , TIME the police arrived and arrested QUANTITY persons ( Mr Juraveli , Mr PERSON and Mr GPE - Stan ) on the ground that the authorisation did not contain the names of all the persons involved in the protest . The ORG maintained that they had been detained for breach of the peace and for having shouted insults about the Minister for ORG . At the police station those arrested were questioned and searched . They were released after TIME . The applicants maintained that , while detained , they were not allowed to make any telephone calls or to contact a lawyer .

The police filed administrative proceedings against the arrested persons ; however , on DATE ORG decided to discontinue the proceedings .

On DATE , Mr PERSON wrote to the Prosecutor General making a criminal complaint in respect of the actions of the police at the demonstrations of CARDINAL DATE and DATE . A further letter to that effect was sent on DATE . The applicants maintain that they did not receive an official response to either letter .

Article CARDINAL of the LAW of GPE ( on freedom of opinion and of expression ) reads as follows :

“ ( CARDINAL ) Each citizen is guaranteed freedom of thought , of opinion , as well as freedom of expression in public through words , images or through other available means .

( CARDINAL ) Freedom of expression shall not harm the honour or dignity of others or the right of others to have their own opinion .

( CARDINAL ) The law prohibits and punishes the contestation and defamation of the ORG and the nation , calls to war and aggression , national , racial or religious hatred , and incitement to discrimination , territorial separatism , or public violence , as well as other expression which endangers the constitutional order . ”

Article CARDINAL ( on freedom of assembly ) provides :

“ All meetings , demonstrations , rallies , processions or any other assemblies are free , and they may be organised and take place only peacefully and without the use of weapons . ”

The relevant provisions of LAW of DATE read as follows :

( CARDINAL ) ORG shall be conducted peacefully , without any sort of weapons , and shall ensure the protection of participants and the environment , without impeding the normal use of public highways , road traffic and the operation of economic undertakings and without degenerating into acts of violence capable of endangering the public order and the physical integrity and life of persons or their property .

Assemblies shall be suspended in the following circumstances :

( a ) denial and defamation of the ORG and of the people ;

( b ) incitement to war or aggression and incitement to hatred on ethnic , racial or religious grounds ;

c ) incitement to discrimination , territorial separatism or public violence ;

d ) acts that undermine the constitutional order .

( CARDINAL ) ORG may be conducted in squares , streets , parks and other public places in cities , towns and villages , and also in public buildings .

( CARDINAL ) It shall be forbidden to conduct an assembly in the buildings of the public authorities , the local authorities , prosecutors ' offices , the courts or companies with armed security .

( CARDINAL ) It shall be forbidden to conduct assemblies :

( a ) within QUANTITY of the parliament building , the residence of the President of GPE , the seat of the government , ORG and ORG ;

( b ) within QUANTITY of the buildings of the central administrative authority , the local public authorities , courts , prosecutors ' offices , police stations , prisons and social rehabilitation institutions , military installations , railway stations , airports , hospitals , companies which use dangerous equipment and machines , and diplomatic institutions .

( CARDINAL ) PERSON access to the premises of the institutions listed in subsection ( CARDINAL ) shall be guaranteed .

( CARDINAL ) The local public authorities may , if the organisers agree , establish places or buildings for permanent assemblies .

( CARDINAL ) Not DATE prior to the date of the assembly , the organiser shall submit a notification to ORG , a specimen of which is set out in the annex which forms an integral part of this LAW .

( CARDINAL ) The prior notification shall indicate :

( a ) the name of the organiser of the assembly and the aim of the assembly ;

( b ) the date , starting time and finishing time of the assembly ;

( c ) the location of the assembly and the access and return routes ;

( d ) the manner in which the assembly is to take place ;

( e ) the approximate number of participants ;

( f ) the persons who are to ensure and answer for the sound conduct of the assembly ;

( g ) the services the organiser of the assembly asks ORG to provide .

( CARDINAL ) If the situation so requires , ORG may alter certain aspects of the prior notification with the agreement of the organiser of the assembly .

( CARDINAL ) The prior notification shall be examined by the local government of the town or village at DATE before the date of the assembly .

( CARDINAL ) When the prior notification is considered at an ordinary or extraordinary meeting of ORG , the discussion shall deal with the form , timetable , location and other conditions for the conduct of the assembly and the decision taken shall take account of the specific situation .

( CARDINAL ) The local authorities can reject an application to hold an assembly only if after having consulted the police , it has obtained convincing evidence that the provisions of sections CARDINAL and CARDINAL will be breached with serious consequences for society .

( CARDINAL ) A decision rejecting the application for holding an assembly shall be reasoned and presented in writing . It shall contain reasons for refusing to issue the authorisation ...

( CARDINAL ) The organiser of the assembly can challenge the refusal in the administrative courts .

Section CARDINAL

Participants at the assembly are required :

( a ) to respect the present LAW and other laws referred to herein ;

( b ) to respect the instructions of the organiser of the assembly , and decisions of the municipality or police ;

( e ) to leave the assembly if asked by the organiser , the municipality or the police . ”

NORP The relevant provisions of LAW read as follows :

( CARDINAL ) Illegal deprivation of liberty , if it is not a kidnapping , shall be punishable with community work of TIME or imprisonment of DATE .

( CARDINAL ) The same offence committed

b ) DATE against CARDINAL or more persons ;

d ) by CARDINAL or more persons ;

shall be punishable with imprisonment of DATE .

( CARDINAL ) Violation of the right to freedom of assembly by way of illegal hindering of a demonstration , rally or action of protest or hindering of persons from taking part in them ... :

a ) committed by an official ;

b ) committed by CARDINAL or more persons ;

c ) accompanied by acts of violence which are not dangerous to life or health ,

shall be punishable with a fine of CARDINAL NORP lei or with community work of TIME , or with imprisonment of DATE . ”

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

NORP The organisation and holding of an assembly without prior notification to ORG or without authorisation from the ORG , or in breach of the conditions ( manner , place , time ) concerning the conduct of meetings indicated in the authorisation shall be punishable by a fine to be imposed on the organisers ( leaders ) of the assembly in an amount equal to between MDL CARDINAL and CARDINAL . ...

Active participation in an assembly referred to in paragraph CARDINAL of the present article shall be punishable by a fine in an amount between MDL CARDINAL and CARDINAL .

Resisting a police officer [ ... ] in the exercise of his or her duties of ensuring public order and the fight against crime shall be punishable by a fine up to MDL CARDINAL or detention of DATE .

Insulting police officers ... in the exercise of their duties ... shall be punishable by a fine of up to MDL CARDINAL or imprisonment of DATE . ”

Article CARDINAL of LAW ( on compensation for damage ) provides that any person whose rights have been infringed may request full compensation in respect of the damage thus caused .

NORP The relevant provisions of Law no . CARDINAL ( DATE ) on compensation for damage caused by the illegal acts of the criminal investigation organs , prosecution and courts have been set out in this ORG 's judgment in ORG v. GPE , no . CARDINAL , § DATE , DATE . In the case of PERSON v. ORG ( no . CARDINAL , DATE ) ORG found that a person could claim damages on the basis of PERSON no . MONEY ( DATE ) only if he or she had been fully acquitted of all the charges against him or her . Since Mr PERSON had been found guilty in respect of CARDINAL of the charges brought against him , he could not claim any damages .


Violation of Article 5 - Right to liberty and security

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in GPE . He is currently detained in ORG .

The applicant was arrested on DATE on suspicion of having committed homicide together with CARDINAL accomplices , and of illegal possession of arms .

On DATE the ORG ( Sąd Rejonowy ) remanded the applicant in custody until DATE in view of the reasonable suspicion that he had committed homicide and the risk that he would obstruct the investigation .

The applicant ’s detention was extended by several decisions of ORG and ORG . The applicant ’s appeals and applications for release and applications to vary the preventive measure were unsuccessful . In their decisions the courts relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged , on the serious nature of the offences and the risk that the applicant would obstruct the proceedings . They basically relied on the same grounds as originally invoked each time they dismissed his applications for release or his requests to vary the preventive measures applied . In its decision of DATE extending the applicant ’s detention , ORG added that there was a reasonable risk that the applicant would abscond .

On DATE the ORG convicted the applicant as charged and sentenced him to life imprisonment . It appears that during the proceedings the applicant served another prison sentence , because the first - instance court counted the periods of his pre - trial detention , that is to say from DATE until DATE and from DATE until DATE ( DATE ) , towards the prison sentence .

The applicant and other co - accused lodged appeals against the firstinstance judgment .

The applicant remained in detention pending his appeal .

On DATE the ORG quashed the firstinstance judgment and remitted the case for re - examination . It found that the trial court had incorrectly assessed evidence and had made numerous procedural mistakes . ORG also pointed to the fact that the reasoning of the first - instance judgment had been “ grossly brief and superficial ” .

On DATE the ORG extended the applicant ’s detention until DATE . The detention was further extended on several occasions ( on DATE , DATE and DATE and on CARDINAL May and DATE ) . CARDINAL of the CARDINAL above - mentioned decisions extending the detention were upheld following appeals by the applicant .

On DATE the case file was sent back to the first - instance court .

On DATE the ORG made a severance order and considered that the applicant ’s case should be dealt with separately .

The proceedings are still pending and the applicant remains in detention .

The relevant domestic law and practice concerning the imposition of pre - trial detention ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .


Remainder inadmissible;Violation of Art. 3 (substantive aspect)

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

The applicant was born in DATE and at the time of the events was serving a prison sentence in FAC in GPE .

She had been convicted of being a member of a terrorist organisation and sentenced to DATE imprisonment .

On DATE , following the prison doctor ’s referral , the applicant was taken to GPE - GPE Atatürk Training and ORG , escorted by CARDINAL male security officers ( CARDINAL gendarmes and a male prison guard ) and one female prison guard , in order to undergo an ultrasound scan by a gynaecologist .

In the hospital the applicant was taken to a consultation room located on the ground floor . The bottom of the consulting room windows was QUANTITY above floor level and the windows were unprotected . The applicant ’s handcuffs were not removed and the male security officers refused to leave the consultation room for security reasons . They stated that they would wait behind a folding screen . The applicant refused to be examined in such conditions . Accordingly , the gynaecologist issued a medical report stating that she had not been able to perform the requested ultrasound scan as the patient had not given her consent .

On DATE the applicant ’s representative applied to ORG , accusing the gendarmes and the male prison guard of misconduct , arbitrary treatment and insulting the applicant .

On DATE ORG separated the investigation file in respect of the accused gendarme officers , noting that , pursuant to LAW no . DATE on ORG , permission to prosecute had to be sought from LOC .

On DATE the Buca District Governor decided not to authorise the prosecution of the gendarme officers , stating that the applicant ’s allegations were unsubstantiated .

The applicant did not file an appeal and the decision became final on DATE .

NORP On DATE and DATE respectively , the GPE public prosecutor took statements from the male prison guard and the applicant as the complainant .

On DATE the public prosecutor decided not to prosecute the prison guard . Referring to the doctor ’s note dated DATE , in which it was stated that no examination had been performed as the applicant had not given her consent , the prosecutor decided that the applicant ’s allegations were unsubstantiated .

On DATE the Karşıyaka ORG dismissed the applicant ’s appeal against that decision .

In the meantime , on DATE , the applicant ’s lawyer filed a complaint with ORG ( İzmir Tabip Odası ) against the doctor who had not asked the male security officers to leave the room or remove the applicant ’s handcuffs .

On DATE the ORG found it unnecessary to initiate criminal proceedings against the doctor , holding that she had not treated the applicant disrespectfully .

The applicant objected and on DATE ORG ( Türk Tabipleri Birliği ) quashed that decision .

On DATE ORG examined the file once again and decided to issue the doctor with a warning for professional misconduct , namely for not taking the initiative to request the male security officers to leave the consultation room or remove the applicant ’s handcuffs , as required by ethical rules .

The Protocol for Prisons signed by ORG and the ORG ( DATE ) provides :

“ ... during the medical examination at the hospital of those who are remanded or convicted in connection with terror - related crimes , the gendarmerie will wait in the consultation room to secure the area , at a distance so as not to hear the conversation between the doctor and the patient . Where women prisoners are remanded or convicted in connection with terror - related crimes , if the consultation room has protection the gendarme officers will wait outside the consultation room . If the room does not have protection the gendarme officers will wait in the room at a distance so as not to hear the conversation between the doctor and the patient . ”

“ ORG and convicted prisoners who are transferred to health institutions from ORG and who are to be examined or hospitalised in these health institutions will be accompanied by an adequate number of guards , appointed by the prison administration , and the remanded and convicted ORG administrative formalities in the hospital will be carried out by these guards . ”

The Regulation on ORG provides insofar as relevant as follows :

“ ... handcuffs are not removed unless they hinder the treatment / examination and as long as their removal is not requested by the doctor . ”

The CPT Standards ( ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ) concerning health care services in prisons ( see the ORG standards , document no . ORG CARDINAL- Rev. CARDINAL , pages CARDINAL and DATE ) provide as follows :

“ ... All medical examinations of prisoners ( whether on arrival or at a later stage ) should be conducted out of the hearing and - unless the doctor concerned requests otherwise - out of the sight of prison officers ...

If recourse is had to a civil hospital , the question of security arrangements will arise . In this respect , the ORG wishes to stress that prisoners sent to hospital to receive treatment should not be physically attached to their hospital beds or other items of furniture for custodial reasons . Other means of meeting security needs satisfactorily can and should be found ; the creation of a custodial unit in such hospitals is CARDINAL possible solution . ”