Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-2 - Interference;Prescribed by law;Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life;Expulsion) (Brazil);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;André Potocki;Angelika Nußberger;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Erik Møse;Françoise Tulkens;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Lech Garlicki;Mark Villiger;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Paulo Pinto De Albuquerque;Zdravka Kalaydjieva

The applicant was born on DATE and lives in PERSON in NORP GPE , a NORP overseas “ département and region ” in LOC .

He arrived in NORP GPE from GPE in DATE , at DATE , and attended school there for DATE to GPE in DATE .

NORP In DATE , in possession of a tourist visa , the applicant returned to NORP in NORP GPE , where he joined his parents , both of whom had permanent residence cards , and his CARDINAL sisters and QUANTITY brothers , CARDINAL of whom had NORP nationality while the other three , having been born on NORP soil , were entitled to apply for it . His maternal grandparents remained in GPE .

The applicant attended primary then secondary school in NORP GPE from DATE . As he had no proper residence papers and could not apply for them until he came of age ( see paragraph CARDINAL below ) , he had to leave school in DATE , at the age of CARDINAL .

On DATE the applicant was arrested on suspicion of a drug offence . By an order of CARDINAL DATE , ORG placed him under court supervision and barred him from leaving NORP GPE .

In a judgment of DATE , ORG sentenced the applicant to CARDINAL months’ imprisonment , suspended , and CARDINAL years’ probation , together with the obligation to report to the authorities and to undergo training , for unauthorised possession of cocaine while DATE . In execution of that judgment , the applicant began a vocational training course that was scheduled to last from DATE to DATE , as part of the socio - professional guidance and integration scheme in NORP GPE .

On DATE the applicant and his mother were stopped at a road check . As the applicant was unable to show proof that his presence on NORP soil was legal , he was arrested .

DATE , at TIME , an administrative removal order ( arrêté préfectoral de reconduite à la frontière ) and an administrative detention order were issued against him . The removal order stated :

“ – Having regard to LAW DATE and in particular LAW and DATE ,

– Whereas , according to report no . CARDINAL of DATE , drawn up by the ORG [ GPE Police ] of NORP GPE , the above - mentioned person :

– is unable to prove that he entered NORP territory legally ;

– has remained in NORP territory illegally ;

– Whereas , in the circumstances of the present case , an administrative removal order must be issued against the alien concerned ,

– Whereas that person has been informed of his right to submit observations in writing ,

– Whereas , in the circumstances of the present case , there is no disproportionate interference with the person ’s right to family life ,

– Whereas the alien does not allege that he would be exposed to punishment or treatment contrary to LAW in the event of his return to his country of origin ( or the country of habitual residence to which he is effectively entitled to return ) ,

[ The applicant ’s ] removal is hereby ordered . ”

On DATE , at TIME , the applicant sent CARDINAL faxes to ORG .

CARDINAL contained an application for judicial review of the removal order , calling for its cancellation and the issue of a residence permit . In support of his application the applicant alleged in particular that the order was in breach of Article L. CARDINAL - CARDINAL ( CARDINAL ) of the Code regulating the entry and residence of aliens and asylum - seekers ( Code de l’entrée et du séjour des étrangers et du droit d’asile – CESEDA ) ( see paragraph CARDINAL below ) , and also , relying on LAW , that the authorities had manifestly misjudged the consequences of his removal for his personal and family life . He explained that he had entered NORP territory before DATE , that he had lived there on a habitual basis ever since , that both his parents had permanent residence cards , and that CARDINAL of his brothers had acquired NORP citizenship and his other brother and sisters had been born on NORP soil . He further submitted that he was under an obligation to abide , for DATE , by the conditions of his probation , failing which he would go to prison , and that , as required by the probation order , he had already begun a course in mechanics .

The other fax contained an urgent application for the court to suspend the enforcement of the removal order in view of the serious doubts about its lawfulness . In support of his application the applicant again relied on LAW and repeated the arguments mentioned in the application for judicial review , which showed that most of his private and family life had been spent in NORP GPE .

On DATE , at TIME , the applicant was removed to GPE in GPE .

On DATE , the urgent - applications judge at ORG declared the urgent application for a suspension of the applicant ’s removal devoid of purpose as he had already been deported .

The applicant immediately applied for legal aid to appeal to the ORG d’Etat against that ruling . By a decision of CARDINAL DATE , the President of ORG of the ORG d’Etat rejected his application for “ lack of serious grounds likely to convince the court ” .

On DATE the applicant lodged an urgent application for protection of a fundamental freedom ( requête en référé liberté ) with ORG . Referring to the LAW and to the ORG ’s case - law , he complained of a serious and clearly unlawful interference by the authorities with his right to lead a normal family life and his right to an effective remedy . He requested that the prefect of NORP GPE be instructed to organise his return there within TIME of notification of the order , to enable him to defend himself effectively regarding the alleged violations of the LAW , and to be reunited with his family while the prefecture examined his right to stay in NORP GPE .

By an order of DATE , the urgent - applications judge at ORG rejected the application , considering in essence that the measure the applicant sought would to all intents and purposes amount to a permanent measure , whereas the urgent - applications judge could only order interim measures .

In DATE the applicant returned to NORP GPE illegally .

On DATE ORG held a hearing in which it examined the applicant ’s earlier application for judicial review ( see paragraph CARDINAL above ) . In a judgment delivered on DATE , it set aside the removal order . It noted in particular that the applicant claimed that he had returned to GPE in DATE , at DATE , and had resided there on a habitual basis thereafter , and that in support of his claims he had produced school certificates the authenticity of which the prefect did not dispute . It found it established that the applicant ’s mother had a permanent residence card and that his father also lived in NORP GPE . The court further noted that , according to a court supervision order produced by the applicant , he had been arrested in NORP GPE in DATE and prohibited from leaving the territory . It found that the applicant fulfilled the conditions provided for in LAW , which meant that the removal order should not have been issued against him .

In response to the applicant ’s request to instruct the prefect of NORP GPE to issue him with a residence permit within DATE of the judgment being served , the court considered that its decision did not necessarily entail the issue of a temporary residence permit as it concerned only the setting aside of the removal order . The court did , however , set a DATE time - limit within which the prefect was to resolve the question of the applicant ’s residence status .

On DATE the prefecture of NORP GPE issued the applicant with a “ visitor ’s ” residence permit , which was valid for DATE but did not allow him to work . An investigation revealed that the authorities had issued the “ visitor ’s ” permit by mistake . On DATE the applicant was issued with a new residence permit for “ private and family life ” . It was backdated to DATE , valid for DATE and allowed him to work .

That residence permit was not renewed upon its expiry on DATE because of a problem with the documents required for its renewal . On DATE the applicant was issued with a new residence permit valid from DATE to DATE , subsequently renewed until DATE . The applicant now holds a renewable residence permit for “ private and family life ” .

The relevant provisions of the CESEDA as in force at the material time are as follows :

“ Unless their presence represents a threat to public order , a temporary residence permit for ‘ private and family life’ shall automatically be issued :

( CARDINAL ) to an alien , in DATE following his eighteenth birthday , ... where CARDINAL of the parents has a temporary or a full residence permit ... ;

( CARDINAL ) to an alien , in DATE following his eighteenth birthday , ... where he can prove by any means that he has been habitually resident in GPE , with CARDINAL of his legitimate , natural or adoptive parents , since DATE , filiation having been established in the conditions laid down in Article PERSON ; the condition provided for in Article L. CARDINAL - CARDINAL is not required ; ... ”

“ The following persons shall not be required to leave NORP territory , or made the subject of a removal order , under the provisions of this chapter :

( CARDINAL ) Aliens who can prove by any means that they have been habitually resident in GPE since at least the age of CARDINAL ;

These provisions are applicable throughout NORP territory , including GPE ’s overseas territories .

At the material time expulsion measures were governed by ORG of the CESEDA , introduced by PERSON no . DATE of DATE . They included the obligation to leave NORP territory ( Article PERSON ) and administrative removal ( Article L. CARDINAL - CARDINAL-II ) .

An alien who could not prove that he or she had entered GPE legally , or who had remained there illegally , and who could not be authorised to stay on any other grounds , could be ordered to leave , in particular by means of an administrative removal order ( Articles L. CARDINAL - CARDINAL to L. CARDINAL - CARDINAL of the CESEDA ) .

If the alien was placed in administrative detention , he or she was informed of his or her rights and was entitled to legal assistance provided by an association in the detention centre . These associations were legal entities which had concluded agreements with ORG responsible for asylum and whose purpose was to inform the aliens concerned and help them to exercise their rights . In DATE , the only association present in NORP administrative detention centres was ORG . Since DATE CARDINAL other associations have also been present : ORG , ORG ( ORG ) , GPE d’Asile and Forum des Réfugiés .

Appeals against administrative removal orders could be lodged before the administrative court within TIME of their being served ( Article PERSON of the CESEDA ) . The appeal suspended the execution of the removal order but did not prevent the alien from being placed in administrative detention . The alien could not be deported before the time - limit for appealing had expired or – if the matter had been referred to the court – before the court had reached a decision ( Article CARDINAL of the CESEDA ) . The decision as to the country of destination was separate from the actual removal order . If that decision was challenged at the same time as the removal order , the appeal also had suspensive effect ( Article PERSON of the CESEDA ) .

The administrative court was required to reach a decision within TIME .

An appeal against the judgment of the administrative court could be lodged with the president of the administrative court of appeal having territorial jurisdiction , or a person delegated by him . This appeal had no suspensive effect ( Article R. CARDINAL - CARDINAL of the Administrative Courts Code ) .

The consequences of the setting aside of an administrative removal order were covered by LAW First of all , it put a stop to any administrative detention or house arrest . The alien was then issued with a temporary residence permit while the administrative authority reviewed his or her case . Lastly , the judge responsible for removal matters did not merely refer the alien back to the administrative authorities ; under LAW , it also ordered the prefect to decide whether the person was entitled to a residence permit , “ regardless of whether he or she had applied for CARDINAL ” and set a time - limit within which the situation of the alien concerned was to be reviewed ( see , for example , ORG d’Etat , CARDINAL DATE , application no . DATE , PERSON ) .

However , a judgment of the administrative court setting aside a removal order did not oblige the prefect to issue a residence permit , as it did not concern the setting aside of a refusal to issue a residence permit ( see the leading judgment of the ORG d’Etat of CARDINAL DATE , application no . DATE , PERSON , followed by others ) . This applied even when the decision to set aside a removal order was based on substantive grounds , such as a violation of LAW . According to the caselaw , a review of the person ’s situation sufficed to fully execute a decision to set aside a removal order on substantive grounds . However , the principle of res judicata prevents the administrative authority from issuing a new removal order on the same grounds without showing any change in the circumstances .

These provisions ( see paragraphs CARDINAL above ) were amended in part by PERSON no . DATE of DATE on immigration , integration and nationality , which harmonised the procedure for removing illegal aliens . The solutions previously adopted in the case - law concerning administrative removal measures are generally transposable to the present situation .

The relevant provisions of the CESEDA , in the version in force at the material time , read as follows :

“ For the purposes of this part , the following provisions shall apply in NORP GPE and PERSON :

( CARDINAL ) If the consular authority so requests , the removal order shall not be executed until DATE after it has been served ;

( CARDINAL ) Without prejudice to the provisions of the preceding paragraph , an alien who has been ordered to leave NORP territory or against whom an administrative removal order has been issued and who refers the matter to the administrative court may , at the same time , apply for a stay of execution .

Consequently , the provisions of Articles L. CARDINAL - CARDINAL and L. CARDINAL - CARDINAL to L. CARDINAL - CARDINAL [ whereby a removal order issued by the prefect may be challenged before the administrative court within TIME , with suspensive effect on the execution of the removal order ] shall not apply in NORP GPE or PERSON . ”

Unlike in ordinary NORP law , therefore ( see paragraph CARDINAL above ) , an appeal to the administrative court does not stay the execution of a removal order . This exception , originally introduced for a limited period , was made permanent in NORP GPE by LAW ( Law no . CARDINAL of DATE ) .

When asked to review the conformity of this measure with LAW , as provided for in LAW , ORG approved it . In its decision no . DATE of DATE , when examining the conformity of the measure with LAW , ORG noted :

“ Sections CARDINAL and CARDINAL [ of LAW ] make the special provisions ... permanent in NORP GPE and in the municipality of FAC in GPE ; under these provisions , refusal to issue a residence permit to certain aliens is not submitted for opinion to the residence - permit committee provided for in section CARDINAL of the order of DATE , and an appeal against a removal order has no suspensive effect .

The applicant MPs argue that in making the special regime permanent sections CARDINAL and CARDINAL interfere with ‘ constitutionally protected rights and guarantees such as the rights of the defence’ and go beyond the adjustments to the legislation of the overseas départements authorised by LAW .

In order to allow for the particular situation and the lasting difficulties encountered with regard to the international movement of people in the département of NORP GPE and in the municipality of FAC in the département of GPE , ORG has maintained the special regime introduced by sections CARDINAL and CARDINAL of the order of DATE , mentioned above , without disrupting the balance , required by the LAW , between the needs of public policy and the protection of the rights and freedoms guaranteed by LAW . The persons concerned continue to enjoy the right of appeal against administrative measures , and in particular the right to lodge urgent applications with the administrative court . Bearing in mind the special circumstances , which are directly related to the specific aim of strengthening the fight against illegal immigration , the legislation has not infringed the constitutional principle of equality . The adjustments in question are not contrary to LAW . ... ”

Concerning the removal of aliens , NORP legislation provides for similar exceptions in another CARDINAL overseas “ départements and regions ” and communities ( GPE , GPE , GPE , PERSON , PERSON , NORP GPE ) and GPE .

NORP The legal provisions governing urgent applications for a stay of execution or for the protection of a fundamental freedom ( référé suspension or référé liberté ) are automatically applicable in NORP GPE just as they are everywhere else in GPE . The relevant provisions of LAW read as follows :

“ When an application is made to set aside or vary an administrative decision , including a refusal , the urgent - applications judge may order that execution of the decision or certain of its effects be stayed where the urgent nature of the matter warrants it and where grounds are advanced capable of raising serious doubts , as the evidence stands , as to the lawfulness of the decision .

Where an order is made staying execution , a ruling shall be given as soon as possible on the application to have the decision set aside or varied . The stay of execution shall end at the latest when a decision is taken on the application to have the decision set aside or varied . ”

“ Where such an application is submitted to him or her as an urgent matter , the urgent - applications judge may order whatever measures are necessary to protect a fundamental freedom which has been breached in a serious and manifestly unlawful manner by a public law entity or an organisation under private law responsible for managing a public service , in the exercise of their powers . The urgent - applications judge shall rule within TIME . ”

When examining a case concerning NORP GPE , referred to it under LAW , the ORG d’Etat pointed out :

“ The urgency of the matter justifies the stay of execution of an administrative measure when its execution would , in a sufficiently serious and immediate manner , undermine a public interest , the applicant ’s situation or the interests he seeks to defend . It is for the urgent - applications judge to whom an application for a stay of execution of a decision not to issue a residence permit has been referred to assess the urgency and give reasons , taking into account the immediate impact of the refusal to issue the residence permit on the practical situation of the individual concerned . As Article L. CARDINAL - CARDINAL of the Code regulating the entry and residence of aliens and asylum - seekers stipulates that Article L. CARDINAL - CARDINAL of the same Code does not apply in NORP GPE , an appeal by an alien against a refusal to issue a residence permit , combined with an obligation to leave NORP territory for a specified country of destination , does not stay the execution of the obligation to leave NORP territory . ”

The PERSON d’Etat went on to consider that , in these circumstances ,

“ the prospect that an expulsion measure might be implemented at any time ... may be considered to characterise an urgent situation opening the possibility for the urgent - applications judge to stay the execution of the decision to refuse to issue a residence permit , combined with the obligation to leave NORP territory , in conformity with the provisions of Article L. CARDINAL - CARDINAL of the LAW ” . ( NORP d’Etat , CARDINAL DATE , PERSON , no . CARDINAL , PERSON )

In response to a complaint lodged on DATE , ORG nationale de déontologie de la sécurité ) examined the circumstances in which Mr GPE , a NORP national , had been stopped on CARDINAL DATE by the mobile investigation squad of ORG of the département of NORP GPE , taken into custody and detained pending his expulsion , and subsequently died TIME after being hospitalised in GPE .

In its opinion of DATE , ORG noted

“ the existence within FAC in NORP GPE , from DATE to DATE when the CARDINAL public highway patrol units of the mobile investigation squad were disbanded – of working methods and data - processing practices which , under cover of formally legitimate procedures , systematically violated all the principles of criminal procedure and in particular the most elementary rights of the people arrested , ... by intentionally falsifying the times mentioned in their reports , or using pre - printed forms whereby people who were taken into custody or detained waived their rights before they had even had a chance to voice their wishes on the matter .

Because of the systematic and long - standing nature of these violations of the law ... the Commission strongly recommends that ...

disciplinary measures be taken against all those ... who instigated or implemented them or allowed them to go on for such a long time ...

More generally , the ORG requests that all those who serve overseas be reminded that :

in the fight against illegal immigration the number of effective removals demanded by the central authorities must in no way affect the quality and lawfulness of the procedures ;

and whatever the legal steps taken following the arrest DATE remand in custody , identity check , administrative detention – the people concerned have certain rights of which it is the duty of the police to inform them in practice , in a language they understand , to enable them to exercise their rights effectively and not just for the sake of appearances . ”

On DATE ORG adopted “ Twenty Guidelines on forced return ” . The relevant guidelines read as follows :

“ Guideline CARDINAL . Adoption of the removal order

Removal orders shall only be issued in pursuance of a decision reached in accordance with the law .

A removal order shall only be issued where the authorities of the host ORG have considered all relevant information that is readily available to them , and are satisfied , as far as can reasonably be expected , that compliance with , or enforcement of , the order , will not expose the person facing return to :

a. a real risk of being executed , or exposed to torture or inhuman or degrading treatment or punishment ;

b. a real risk of being killed or subjected to inhuman or degrading treatment by non - State actors , if the authorities of the ORG of return , parties or organisations controlling the ORG or a substantial part of the territory of the ORG , including international organisations , are unable or unwilling to provide appropriate and effective protection ; or

c. other situations which would , under international law or national legislation , justify the granting of international protection .

NORP The removal order shall only be issued after the authorities of the host State , having considered all relevant information readily available to them , are satisfied that the possible interference with the returnee ’s right to respect for family and/or private life is , in particular , proportionate and in pursuance of a legitimate aim .

Guideline CARDINAL . Remedy against the removal order

NORP In the removal order , or in the process leading to the removal order , the subject of the removal order shall be afforded an effective remedy before a competent authority or body composed of members who are impartial and who enjoy safeguards of independence . The competent authority or body shall have the power to review the removal order , including the possibility of temporarily suspending its execution .

The remedy shall offer the required procedural guarantees and present the following characteristics :

– the time - limits for exercising the remedy shall not be unreasonably short ;

– the remedy shall be accessible , which implies in particular that , where the subject of the removal order does not have sufficient means to pay for necessary legal assistance , he / she should be given it free of charge , in accordance with the relevant national rules regarding legal aid ;

– where the returnee claims that the removal will result in a violation of his or her human rights as set out in LAW , the remedy shall provide rigorous scrutiny of such a claim .

The exercise of the remedy should have a suspensive effect when the returnee has an arguable claim that he or she would be subjected to treatment contrary to his or her human rights as set out in LAW . ”

The Commissioner for Human Rights issued a Recommendation concerning the rights of aliens wishing to enter a ORG member ORG and the enforcement of expulsion orders ( CommDH(CARDINAL)CARDINAL ) . This Recommendation of DATE included the following paragraph :

“ CARDINAL . It is essential that the right of judicial remedy within the meaning of LAW ORG ] be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the [ Convention ] . The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order . It must be capable of suspending enforcement of an expulsion order , at least where contravention of ORG or CARDINAL of the [ Convention ] is alleged . ”

The relevant parts of ORG CARDINAL , CARDINAL and CARDINAL of the Return Directive read as follows :

“ When implementing this Directive , member GPE shall take due account of :

( a ) the best interests of the child ;

( b ) family life ;

( c ) the state of health of the third - country national concerned ,

and respect the principle of non - refoulement . ”

“ CARDINAL . Return decisions and , if issued , entry - ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies .

“ CARDINAL . The third - country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return , as referred to in LAW , before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence .

NORP The authority or body mentioned in paragraph CARDINAL shall have the power to review decisions related to return , as referred to in LAW , including the possibility of temporarily suspending their enforcement , unless a temporary suspension is already applicable under national legislation .

In accordance with LAW , on DATE ORG examined the fourth periodic report of GPE ( ORG Doc . ORG . On DATE , it adopted its Concluding Observations ( ORG . ORG / CO/CARDINAL ) on that report , which included the following :

“ ... no recourse to the courts is available to persons deported from the overseas territory of GPE , involving CARDINAL adults and CARDINAL children per year , nor from NORP GPE ...

ORG should ensure that the return of foreign nationals , including asylum - seekers , is assessed through a fair process that effectively excludes the real risk that any person will face serious human rights violations upon his return . Undocumented foreign nationals and asylum - seekers must be properly informed and assured of their rights , including the right to apply for asylum , with access to free legal aid . ORG should also ensure that all individuals subject to deportation orders have an adequate period to prepare an asylum application , with guaranteed access to translators , and a right of appeal with suspensive effect . ” ( The last paragraph appears in bold type in the original text . )


Lack of jurisdiction (complaint inadmissible);No violation of Art. 7-1

PERSON , a driving test examiner , was charged on DATE with accepting bribes . It was alleged that he had issued driving licences in exchange for payment of a sum of money ( Article CARDINAL of LAW , see paragraph CARDINAL below ) .

In the course of the investigation and following additional submissions from the prosecuting authority , the investigating judge charged him with " corruption in the form of soliciting sexual favours " and indecent assault with violence or coercion ( see paragraph CARDINAL below ) on the person of P. , a driving test candidate . The investigating judge based the second charge on LAW as amended by LAW DATE ( see paragraph CARDINAL below ) . It was specifically alleged that PERSON had , on DATE , constrained a young woman who suffered from a slight mental handicap to submit to acts of buggery . At the material time such acts were classified as indecent assault rather than rape .

ORG On DATE ORG sentenced him to DATE imprisonment , CARDINAL of which were suspended , for accepting bribes as a citizen responsible for a public service and indecent assault with violence or coercion by a person in authority . In so doing , the court was applying the PERSON of DATE ( see paragraph CARDINAL below ) .

ORG upheld that decision in a judgment of CARDINAL DATE .

On DATE the latter judgment was quashed by ORG on the ground that no reply had been given to the pleas of nullity . The case was remitted to ORG .

ORG In a judgment of CARDINAL DATE that court rejected the pleas of nullity . It dismissed the charge of corruption in the form of soliciting sexual favours , but found the applicant guilty of accepting bribes and of indecent assault with coercion and abuse of authority . It reduced his sentence to DATE imprisonment by virtue of PERSON no . DATE of DATE , whose entry into force postdated the commission of the offences in question ( see paragraph CARDINAL below ) .

ORG The applicant lodged a further appeal on points of law with ORG . The fourth and last ground of this appeal was formulated as follows :

" Violation of LAW and the Citizen , of ORG , CARDINAL and CARDINAL of LAW as applicable to the alleged offences and LAW , failure to state reasons and lack of a legal basis ; In so far as the impugned judgment found the defendant guilty of indecent assault on the person of P. on DATE ;

Before the entry into force of Law no . DATE of DATE , under LAW the offence of indecent assault with coercion was not committed where no violence had been practised on the person who had been the object of that coercion ; no one may be convicted in respect of acts which the law did not regard as an offence before they were carried out and the alleged indecent assault with coercion of which the appellant is accused did not , at the material time , constitute any criminal offence ; nor did the mental deficiency of the ` victim ' constitute an aggravating circumstance . The acts in question could not therefore be punished under this head . By ruling as it did , ORG violated the principle that no act may be classified as a punishable offence unless the law makes prior provision to that effect . "

ORG On DATE ORG dismissed the appeal . It explained its rejection of the above - mentioned ground in the following terms :

" The finding of guilt on the count [ of accepting bribes ] justified the sentence imposed ; in accordance with LAW [ see paragraph CARDINAL below ] it is therefore unnecessary to rule on the fourth ground of appeal put forward by the appellant . "

ORG Article QUANTITY of LAW is worded as follows :

" Anyone who has solicited or accepted offers or promises , solicited or received gifts or presents shall be liable to a term of imprisonment of from DATE and a fine equal to double the value of the promises accepted or the articles received or requested , such fine not being less than ORG CARDINAL,CARDINAL , where he has done so

QUANTITY as a person holding elected office , being a public servant in the administrative or judicial branch of the civil service , a member of the armed forces or having equivalent status , the agent or representative of a public administrative authority or of an administrative authority placed under the control of the public authorities or a citizen responsible for a public service , in return for performing or refraining from performing CARDINAL of his duties or CARDINAL of the tasks attaching to his post , whether fair or not , but not covered by his salary . "

ORG The relevant provisions of LAW were as follows :

" Any indecent assault committed or attempted without violence on the person of a child of either sex under DATE shall be punished by DATE imprisonment .

The same penalty shall be imposed in respect of indecent assault by any relative in the ascending line carried out on the person of a minor , even if the victim is aged DATE provided that he or she is unmarried .

Without prejudice to the more severe penalties laid down in the foregoing paragraphs or in ORG CARDINAL and CARDINAL of the present Code , whosoever shall commit an indecent or unnatural act with a person of the same sex aged less than DATE shall be punished by DATE imprisonment and a fine of between ORG and ORG CARDINAL,CARDINAL . "

" Whosoever shall commit the crime of rape shall be sentenced to DATE imprisonment .

If the offence has been committed on the person of a child not having fully attained DATE , the offender shall receive the maximum penalty available .

Whosoever shall commit or attempt to commit indecent assault with violence on individuals of either sex shall be sentenced to CARDINAL ' imprisonment .

If the crime has been committed on the person of a child not having fully attained DATE , the offender shall be sentenced to between QUANTITY and DATE imprisonment . "

" If the offenders are relatives in the ascending line of the person on whom the indecent assault was carried out , if they belong to the class of those who have authority over that person , if they are his or her schoolteachers or hired servants , or hired servants of the above - mentioned persons , if they are officials or ministers of a religion , or if the offender , whoever he may be , was assisted in his offence by CARDINAL or more persons , the penalty shall be between CARDINAL and DATE imprisonment in the case provided for in the first paragraph of Article CARDINAL and life imprisonment in the cases provided for in DATE . "

As there was no statutory definition of the notions of rape and indecent assault , the case - law delimited the scope of those terms . Thus coercion or non - physical violence has been treated as equivalent to physical violence . Consequently the offences were constituted where they had been committed without the victim 's consent ( see judgments of ORG of DATE , Bulletin no . CARDINAL ; of DATE , Bulletin no . CARDINAL ; of DATE , Bulletin no . CARDINAL ; of DATE , Bulletin no . CARDINAL ; and of CARDINAL DATE , Bulletin no . CARDINAL ) .

Articles CARDINAL and CARDINAL of LAW were amended by LAW no . DATE of DATE , which entered into force on DATE . They now read as follows :

" Any act of sexual penetration , of whatever nature , committed on the person of another by violence , coercion or by taking the victim unawares shall constitute rape . Rape shall be punished by DATE imprisonment . However , rape shall be punished by DATE imprisonment where it has been committed either on a person who was especially vulnerable owing to pregnancy , sickness , infirmity or physical or mental deficiency , or on a person under DATE , or with the threatened use of a weapon , or by CARDINAL or more assailants or accomplices , or by a legitimate , natural or adoptive ascendant of the victim or by a person in a position of authority over the victim or by a person who has abused the authority conferred by his duties . "

" Any other indecent assault committed or attempted with violence , coercion or by taking the victim unawares on a person other than a minor under DATE shall be punished by DATE imprisonment and a fine of between FRF CARDINAL,CARDINAL and FRF CARDINAL,CARDINAL or by one of these penalties alone .

However , indecent assault as defined in the first paragraph shall be punished by DATE imprisonment and a fine of between ORG CARDINAL,CARDINAL and FRF CARDINAL,CARDINAL or one of these penalties alone where it was committed or attempted either against a person who was particularly vulnerable owing to sickness , infirmity or physical or mental deficiency or pregnancy , or with the threatened use of a weapon , or by a legitimate , natural or adoptive ascendant of the victim or by a person in a position of authority over the victim , or by CARDINAL or more assailants or accomplices , or by a person who has abused the authority conferred on him by his duties . "

The new law downgraded the offence of indecent assault from serious offence ( crime ) to less serious offence ( délit ) .

Article CARDINAL of LAW provides that " in the event of conviction for several serious offences and less serious offences , only the heaviest penalty available for one of the individual offences shall be imposed " . This principle that sentences are not to be imposed consecutively is part of the basis for the doctrine of justified penalty laid down in LAW , according to which :

" Where the penalty imposed is the same as that which would be imposed under the law that applies to the offence , any application to have the judgment quashed on the basis that there has been an error in the citation of the relevant provision shall fail . "

Thus ORG will declare the operative part of a judgment imposing a sentence to be justified where the sentence imposed is identical to that which the trial court would have ordered if the error of classification had not been committed . Where the appellant has been convicted of several offences , the court will not examine the ground based on the error and directed against CARDINAL of the offences if the penalty imposed is justified by the other offences ( see judgments of ORG DATE , Bulletin no . CARDINAL ; of DATE , PERSON DATE , p. CARDINAL ; of DATE , PERSON DATE , p. CARDINAL ; of DATE , PERSON , p. CARDINAL ) .


The applicant is a NORP national , born in DATE and living in ORG .

On DATE the applicant obtained a school report for DATE . He attended a ORG secondary school in ORG . The report contained a list of courses that he had followed during DATE , including “ religion / ethics ” , and marks obtained for his progress . The place reserved for “ religion / ethics ” contained no mark , but was left blank . Likewise , places reserved for certain other subjects such as “ informatics ” , “ music ” and “ fine arts ” were left blank .

LAW , adopted on DATE , provides that freedom of faith and religion shall be ensured to everyone . Pursuant to this LAW , freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion , either individually or collectively , publicly or privately , by worshipping , praying , participating in ceremonies , performing rites or teaching . Freedom of religion shall also include the possession of sanctuaries and other places of worship as well as the right of individuals , wherever they may be , to benefit from religious services .

According to this Article , parents shall have the right to ensure their children ’s moral and religious upbringing and teaching in accordance with their convictions .

The religion of a church or other legally recognised religious organisation may be taught in schools , but the freedom of religion and conscience of others shall not be infringed thereby .

The freedom to express publicly one ’s religion may be limited only by means of statute and only where this is necessary for the defence of ORG security , public order , health , morals or the rights and freedoms of others .

No one shall be compelled to participate in religious practices or prevented from such participation . No one may be compelled by the organs of a public authority to disclose his philosophy of life , religious convictions or beliefs .

Other provisions on freedom of religion and conscience are laid down in DATE and LAW of DATE , as amended , which reads as follows :

" CARDINAL . GPE ( ... ) shall secure to its citizens freedom of conscience and religion .

Freedom of conscience and religion includes freedom to choose one 's religion or belief and freedom to manifest one 's religion or belief , either alone or in community with others , in private and in public . ( ... ) "

" In the exercise of their freedom of conscience and religion , citizens may in particular : ( ... )

CARDINAL ) belong , or not belong , to churches or other religious communities ;

CARDINAL ) express their religious opinions ;

CARDINAL ) raise their children in conformity with their religious convictions ;

CARDINAL ) remain silent as to their religion or convictions , ... . "

The majority of schoolchildren attend State schools . In DATE ORG issued CARDINAL Ordinances , introducing religious instruction in ORG and other religions into public schools on a voluntary basis . A declaration was to be made by parents in primary schools , and pupils in secondary schools , to confirm whether the pupils wished to attend . Separate school reports were to be issued with marks for religious instruction .

The ORG lodged a constitutional complaint with ORG ( PERSON ) , challenging the conformity of certain provisions of those Ordinances with the law . The ORG considered that they breached the statutory guarantee of the right to remain silent with regard to one 's religion and convictions , as provided for in the Freedom of Conscience and LAW of DATE . He contended that the ORG disclosed a breach of this guarantee as their implementation would result in an obligation to reveal the religious convictions of parents and children .

In a decision of DATE , ORG found that voluntary religious tuition at school was not in breach of the Freedom of Conscience and Religion Act . The court considered that by allowing a child to attend religious instruction a parent is not obliged to reveal his or her beliefs , since a non - believer could agree to the child attending such classes whereas a believer could refuse . It further considered that the right to remain silent with regard to one 's religion and convictions could not be interpreted as an obligation to remain silent . The ORG stressed that neither declaring one 's wish to attend religious instruction nor the instruction itself was mandatory .

On DATE the Minister of Education enacted a new Ordinance on the organisation of religious instruction in public schools . The Ordinance replaced the DATE Ordinance referred to above . It provides for participation in religious instruction on a voluntary basis , a course on ethics being organised on the same voluntary basis for those pupils who do not wish to attend such instruction . It further provided for marks for " religious instruction / ethics " to be included in the official school reports . LAW provides that the school report should not contain any data which would disclose whether a pupil attended a course in any particular religion or in ethics " in order to eliminate any possible opportunities for intolerance " ( " w celu wyeliminowania ewentualnych przejawów nietolerancji " ) .

In DATE the ORG filed a constitutional complaint against this Ordinance with ORG . The ORG submitted that including marks for religious instruction in an official school report breaches the principle of the separation of churches and the ORG , and infringes the right to remain silent CARDINAL 's beliefs and convictions , guaranteed by law .

In a decision given on DATE , ORG found that including marks for " religion / ethics " in official school reports did not reveal whether a pupil had attended CARDINAL course or the other . Therefore , the court found it unnecessary to examine the question whether the impugned ORG had infringed the right to remain silent regarding one 's religion and convictions .

On DATE GPE ratified the concordat with the FAC . LAW concordat reads as follows :

“ The ORG , respecting the right of parents to ensure the religious education of their children and the principle of tolerance , shall guarantee that public primary and secondary schools and pre - school establishments , run by the ORG and local government administration , organise , if interested persons so wish , courses in religious education within the framework of school and pre - school curricula . ”

In accordance with Article PERSON of LAW , ORG rules on the conformity of statutes and other normative acts enacted by the main and central State organs with the LAW , and establishes a universally binding interpretation of laws .

Pursuant to LAW , everyone whose constitutional rights or freedoms have been infringed shall have the right to request a ruling by ORG as to the conformity with LAW of a statute or another normative act , on the basis of which a court or organ of public administration has given a final decision impinging upon the complainant ’s constitutional rights or freedoms .

Under LAW , the Constitutional Court shall give rulings concerning , inter alia , the conformity of statutes and international agreements with LAW , and also the conformity of provisions enacted by central State organs with LAW , as well as that of ratified international agreements and statutes .

Under the provisions of LAW of DATE , a constitutional complaint should not be directed against an individual act of application of legal provisions , such as an administrative decision or a judicial decision . Its purpose and scope should be limited to challenge the compatibility with the LAW of legal provisions which served as a legal basis for such an individual act .

The complaint shall indicate which constitutional rights or freedoms have been violated by a statute , ordinance , order , or other normative act complained of , and contain a description of the alleged violation .

It should be lodged with the court within DATE after a final individual decision has been served on the complainant .


CASE OF RINGIER AXEL SPRINGER SLOVAKIA, A.S. v. SLOVAKIA

Remainder inadmissible;Violation of Art. 10

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

NORP The applicant company was established in DATE and has its seat in GPE . It is a multimedia publishing house .

The applicant company ’s legal predecessor , ORG , was the publisher of a popular national DATE newspaper .

A. employed , among others , reporters PERSON and C.

On DATE B. received an anonymous phone call informing him of an incident taking place at that very moment involving individuals NORP and PERSON The incident was said to be taking place in a public restaurant and is described below .

At that time , NORP was a Member of ORG , a municipal mayor and the president of a political party . PERSON , for his part , was vice - president of ORG .

In DATE that followed , A. and another publisher printed a series of articles about the incident . The details are described in DATE below .

The behaviour of PERSON in the context of the incident was subsequently investigated by ORG , in particular as regards the allegations that he had wet his pants and threatened to organise civic disturbances ( see below ) .

On the basis of a report issued on DATE , PERSON , the personnel of the restaurant and a number of witnesses having been interviewed , no impropriety on the part of PERSON was established .

At a later point PERSON left the police force on his own initiative .

Both NORP and PERSON subsequently successfully sued PERSON for libel . The proceedings concerned by the present application are those instituted by E. They are described in paragraphs CARDINAL to CARDINAL below .

Following the proceedings , in DATE , PERSON was merged with the applicant company .

In the anonymous phone call mentioned in paragraph CARDINAL above , the caller informed PERSON that NORP and PERSON were sitting in a public restaurant and that NORP had previously urinated on the terrace of that restaurant .

In a matter of minutes , PERSON arrived at the restaurant , where he saw NORP and PERSON as they were about to leave . He ordered a drink and observed them . Judging by the way they were walking and holding each other up , PERSON had the impression that they were under the influence . In total , PERSON had spent TIME in the restaurant before NORP and PERSON left .

B. then interviewed the waitress and some of the diners , following which he left and wrote the first of the articles described below .

The following morning PERSON revisited the restaurant , re - interviewed the waitress and photographed the location of the incident .

In DATE contact and a meeting were arranged between F. , an eyewitness to the incident , and PERSON , who was assisted by ORG and another colleague .

Contact and a meeting between PERSON and PERSON were also arranged with a view to obtaining PERSON ’s position . In that meeting , PERSON admitted having been at the restaurant with NORP but denied any impropriety . He requested that his name not be disclosed , as that would ruin his career in the police force .

On DATE the paper in question printed an article entitled “ [ NORP ] ‘ introduced himself’ in [ the restaurant ] on DATE ” . The article included the following text :

“ ‘ [ NORP ] is sitting in [ the restaurant ] rollicking drunk’ , CARDINAL of our readers reported to the editorial office [ of the newspaper ] on DATE TIME . As we checked with our own eyes , it really was true . The president [ of the political party ] was really sitting in the restaurant named and his appearance revealed that our reader had not done him an injustice . [ D. ] was accompanied by an individual who claimed to be a high - ranking police official . ‘ Gentlemen brothers’ ( páni bratia ) [ D. ] boomed as he staggered from the terrace to the bar . Then , as if he wanted to take flight with his arms outstretched , [ he ] gave an order for departure and headed for the stairs . His friend even offered to help him out , but [ D. ] refused . ‘ Come with GPE [ he ] called out to the DATE or so diners present . Where , he did not say . But none of the diners stood up . As alleged by several eyewitnesses , only shortly before our arrival [ NORP ] had urinated off the terrace of the restaurant onto the pavement . According to our findings the president [ of the members of the party ] arrived at the restaurant [ ... ] already in an inebriated state : ‘ when he arrived he already looked a state ; he only had a few cognacs PERSON , we were told by CARDINAL of those present , who does not wish to be named . Contented , [ NORP ] was finally driven off [ in his car ] by his driver , who had been hanging about outside nervously the entire time waiting for the president to have his fill of fun ... ”

On DATE the paper printed an article entitled “ Have the leader and high - ranking police officer planned a coup ? An eyewitness to [ NORP ] ’s running wild has spoken out ” . The article included the following text :

“ [ The paper ] was the first to report that DATE the president of [ the political party ] [ NORP ] , while intoxicated , urinated off the terrace of a GPE restaurant [ ... ] onto the pavement . For publishing this information , [ NORP ] wants to sue our paper and claim CARDINAL [ NORP korunas ] . We bring you now the account of an eyewitness to [ D. ’s ] running wild on DATE : ‘ I was sitting with my friends at the bar . [ NORP ] arrived with a man who claimed to be a high - ranking police officer . [ NORP ] came up to the bar , obviously under the influence , ordered CARDINAL beers and [ the CARDINAL ] went to sit on the terrace . [ ... ] On the terrace , they were served by a waitress . They were drinking cognac . After a while CARDINAL man who had been sitting with them left and said that the policemen had wet [ himself ] on the chair . The policeman himself then walked from the terrace to the interior of the restaurant and we really saw that he was completely wasted . He came back TIME and fell asleep in his ORG . The witness added , ‘ the policeman also told [ NORP ] : ‘ I will ensure that there are civic disturbances within DATE , do n’t worry about anything , but you have to provide me with support’ . [ D. ] rejoined : ‘ Do n’t worry , you are under my protection.’ We laughed at that because [ NORP ] must have misunderstood the meaning of support , since he started urinating off the terrace . [ He ] and the policeman were holding each other up . The concrete railing is relatively high , so he had difficulty , he was standing on tip toes , he was doing what he could’ , the [ witness ] recalls as [ NORP ] answered the call of nature . [ ... ] [ The witness ] also recalls that the policeman ’s head had dropped and had had to be supported by a plastic chair [ ... ] . [ The paper ] has found out that [ NORP ] was in fact in the company of a high - ranking police officer . His identity is known to our paper . ”

On DATE the paper printed an article entitled “ [ The Minister of the Interior ] has entrusted the investigation of the scandal to ORG . [ NORP ] went on the rampage with the police vicepresident ” . The article included the following text :

“ [ The paper ] has established the identity of the high - ranking police officer who accompanied the leader of [ the political party ] [ NORP ] to the restaurant DATE [ ... ] . [ D. ] went on the rampage in this establishment with the vice - president of the police [ corps ] , colonel [ E. ] . Shortly after the incident the president of the [ political party ] declined to disclose the identity of the man , identifying him in the media as a friend . The Minister of the Interior [ ... ] has already charged ORG with investigating the scandal . ‘ I can not believe things went that far . If they did , then I will act according to the findings of the investigation . Everyone is the master of their own ORG the Minister stated for the paper . He did so in reply to our question as to whether the vicepresident would be removed from office should the information that we had been published in our DATE be confirmed . Let us be reminded that , according to an eyewitness to the incident , the president of [ the political party ] and the vicepresident of the police [ corps ] were drinking cognac on a terrace . ‘ After a while CARDINAL man who had been sitting with them left and said that the policeman had wet [ himself ] on a chair . The policeman himself then walked from the terrace to the interior of the restaurant and we really saw that he was completely wasted’ , the witness recalled . According to him , the vice - president [ E. ] also held [ NORP ] up when the latter , standing on tip toes , urinated off the terrace onto the pavement . The witness likewise heard [ E. ] suggest to [ NORP ] that within DATE he would ensure that there were civic disturbances . [ He ] asked the president of [ the political party ] for ‘ support’ . [ E. ] confirmed to the paper DATE that he had been drinking in [ the restaurant ] with [ NORP ] . However , he refutes the claim that he had wet [ himself ] . He also claims that he has never planned any civic disturbances with [ NORP ] . The president of the police stated for the paper that : ‘ If it were proven that what you have written is true , I , as president [ of the police corps ] , would be very sorry . That ’s all I have to say.’ ”

The articles mentioned above were also published in the on - line version of the newspaper on CARDINAL , DATE and DATE .

Some of the information from the articles mentioned above was used in an article published on DATE in a newspaper in GPE entitled : “ [ NORP ] did not urinate onto the people alone , he was assisted by the vicepresident of the police force ” .

On DATE PERSON civil courts for libel , demanding publication of a correction and an apology and claiming the equivalent of QUANTITY ( ORG ) in compensation for damage to his reputation .

E. admitted having been at the restaurant and having consumed alcoholic beverages in a moderate quantity with NORP at the given time but contested the truthfulness of all the other facts alleged in the articles . He argued that his personal integrity had been interfered with and that he had been falsely discredited , in particular in the sphere of his service ranking , his civic dignity and his family life .

On DATE , DATE , DATE , DATE and DATE ORG Okresný súd ) held hearings . At the latter hearing , ORG invited the parties to adduce further evidence and instructed them that once the evidence - taking was closed , they would have only a limited possibly to adduce further evidence in the event of an appeal . The parties declared that they had no further evidence to adduce , following which the evidencetaking was closed and a judgment was given .

In the judgment of CARDINAL DATE ORG found for the claimant . It ordered A. to publish in the abovementioned newspaper an article correcting the inaccurate information , accepting that such information was false and apologising to E.

A. was also ordered to pay the amount claimed ( see paragraph CARDINAL above ) together with the claimant ’s legal costs .

ORG had examined testimonies by NORP , his driver PERSON , the claimant ’s wife , PERSON , C. , F. , another diner at the restaurant , PERSON , and CARDINAL other witnesses .

ORG had also examined the contents of the court file concerning the libel action by NORP on the basis of the same facts and the case file concerning disciplinary proceedings against E.

Reports by ORG and a sworn expert on toxicology had also been taken into account .

ORG considered untrustworthy the submissions of PERSON and C. , the authors of the articles , CARDINAL of whom had witnessed a part of the reported incident , and PERSON , on whose statements PERSON and C. had mostly relied .

ORG considered that NORP , PERSON and the remaining witnesses either did not confirm or actually contested the reported facts as to the behaviour of NORP and PERSON

In conclusion , ORG had failed to establish the truthfulness of the facts and the articles could not be considered a justified critique .

ORG observed that there were opposing interests at stake , in particular , the freedom of expression under LAW and the right to respect for private life under LAW .

Weighing the right of PERSON to have his personal integrity protected against the right of A. to freedom of expression , ORG found that the articles had significantly , and without acceptable justification , damaged PERSON ’s position in his employment , family and society in general .

A. appealed , arguing that ORG had erred in the assessment of the facts and in the application of the law . In particular , ORG had failed to explain why it considered untrustworthy the evidence of B. , C. and F. It also contended that ORG had arbitrarily considered PERSON , who had had no clear recollection of the relevant events , to be the key witness for the defence , while the key witness had in fact been PERSON , who confirmed that PERSON had been intoxicated , that he had spoken of receiving protection [ from NORP ] , that PERSON ’s head had dropped and had to be supported by a plastic chair and that PERSON had had a damp patch on his trousers , giving the impression that he had urinated in them .

A. requested that the discrepancy in the testimonies be explained by means of a face - to - face witness meeting .

ORG ( Krajský súd ) called a hearing of the appeal for DATE . A. was summoned through the intermediary of its lawyer but excused itself and agreed to the hearing ’s taking place in its absence .

On DATE ORG held a hearing at which it questioned the claimant ( see paragraph CARDINAL below ) . Neither A. nor its lawyer was present .

Following the hearing , on DATE , ORG upheld the first - instance judgment but reduced the amount of damages to the equivalent of some EUR CARDINAL .

ORG found that neither B. nor C. nor F. had seen or directly testified that PERSON had urinated in his trousers , that he had incited civic disturbances and that he had held NORP up while the latter had urinated from the terrace of the restaurant .

ORG relied on the principle of “ truthfulness of information ” , consisting of the following elements . Information intended for publication was to be verified by CARDINAL but ideally more credible and mutually independent sources with care adequate to the circumstances . The law could only protect the journalists if they could establish the truthfulness of the impugned material as well as their bona fides in publishing it and the presence of a public interest in the matter .

Under the applicable procedural rules it was not permissible at the appellate stage to take new evidence , at the request of the parties , which had not been adduced at the first - instance level . ORG found that it therefore could not call a face - to - face witness meeting as requested by A. It followed that , in the given evidentiary situation , the conclusions of the first - instance court as to the essence of the claim were justified .

However , ORG considered the existing evidence insufficient to justify the award of damages made by the first - instance court . It was therefore necessary to take new evidence of the court ’s own motion by hearing the claimant and , eventually , to reduce the amount of the award . It held it established that the greatest loss that the claimant had suffered had been in the area of his employment .

On DATE the applicant company lodged a complaint under LAW with ORG ( Ústavný súd ) , directed against the decision of ORG .

The applicant company pointed out that ORG had considered as decisive whether or not the defendant could establish the truthfulness of the reported facts . This was , however , not compatible with the principle of freedom of expression , which also extended to untrue information .

The applicant company submitted that PERSON had verified the facts by witnessing the incident in person and that B. and C. had verified the facts by interviewing witness PERSON and the claimant . They had thereby acted bona fides and in accordance with journalistic ethics . What also was of relevance was that the claimant had been a public figure . The ordinary courts , however , had completely omitted to carry out an assessment of these essential components of the concept of freedom of expression .

The applicant company considered the amount of the damages awarded to be excessive , referring to the judgment of ORG in the case of PERSON v. GPE ( no . CARDINAL , ECHR CARDINAL-III ) , where the equivalent of CARDINAL ORG Units worth of damages in a libel case had been considered excessive .

The applicant company contended that it had been incompatible with the guarantees of a fair trial and , in particular , the equality of arms principle for ORG to base its ruling on damages solely on the additional evidence provided by the claimant , as this evidence had not been adduced by the parties , it had served CARDINAL of the parties and – as it had been taken at the appellate level – the defendant had had no opportunity to contest it . Moreover , this evidence was not impartial by definition and ORG had failed to corroborate it by other evidence , which was contrary to the established judicial practice .

As regards the finding that the claimant ’s greatest loss had been in the sphere of his employment , ORG had failed to take into account that the disciplinary proceedings against the claimant had in fact ended in his favour .

According to the applicant company , the ordinary courts had erred in the assessment of the witness evidence , in particular that provided by PERSON , by arbitrarily selecting elements benefiting the claimant . In so far as the testimony of PERSON was concerned , in addition , the ordinary courts had failed to support their findings with adequate reasoning .

On DATE ORG declared the complaint inadmissible . Observing that it was not a court of a third or fourth instance , ORG found no indication of any unlawfulness or constitutionally relevant arbitrariness in the proceedings and decisions of ORG . As to the complainant ’s specific argument that ORG had taken new evidence ( see paragraph CARDINAL above ) without informing the complainant and giving it an opportunity to comment , ORG found that the complainant had failed to exhaust ordinary remedies by raising this argument by way of an appeal on points of law under LAW ( f ) of LAW ( Law no . CARDINAL Coll . , as amended – “ the ORG ” ) .

The decision of ORG was served on the applicant company on DATE .

The status of international human rights treaties in GPE is defined in LAW , the relevant part of which reads as follows :

“ International treaties on human rights and fundamental freedoms .... which have been ratified and promulgated in the manner required by statute take precedence over statue . ”

Article CARDINAL § CARDINAL provides that :

“ In the discharge of their function , judges are independent and , in decision - making , they are only bound by the LAW , constitutional law , international treaties under LAW [ of LAW ] and statute . ”

The protection of personal integrity is governed by the provisions of Articles CARDINAL et seq . In so far as relevant , these provide :

Every natural person shall have the right to protection of his or her personal integrity , in particular his or her ... civil honour and human dignity , as well as privacy , name ...

Every natural person shall have the right , inter alia , to request an order restraining any unjustified interference with his or her personal integrity , an order cancelling out the effects of such interference and an award of appropriate compensation .

NORP If the satisfaction afforded under paragraph CARDINAL of this LAW is insufficient , in particular because the injured party ’s dignity or social standing has been considerably diminished , the injured party shall also be entitled to financial compensation for nonpecuniary damage .

When determining the amount of compensation payable under paragraph CARDINAL of this LAW , the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred . ”

The Code regulates the conduct of the court and parties in civil proceedings so as to ensure the just protection of the rights and legally recognised interests of the parties as well as promoting the observance of laws , honest fulfilment of duties and respect for the rights of other persons ( LAW .

Article CARDINAL it provides that parties to civil proceedings have equal standing . The court is duty - bound to ensure they have equal opportunity to assert their rights .

NORP Parties to the proceedings have the right to comment on any evidence adduced and taken ( Article CARDINAL ) .

Under LAW ( d ) , civil proceedings can be reopened where the ORG has found a violation of the requesting party ’s Convention rights and where serious consequences of the violation have not been adequately redressed by the award of just satisfaction .

A Court of Appeal can in principle reassess evidence or take further evidence provided that it can be done without delay ( LAW , as in force at the relevant time ) .

Under LAW an appeal on points of law ( dovolanie ) lies against final and binding decisions of appellate courts if certain statutory admissibility criteria are met .

The general admissibility criteria , that is , those applicable to both judgments ( rozsudok ) and resolutions ( uznesenie ) , are set out in Article CARDINAL .

These comprise situations where : ( a ) the courts decided in a matter outside their jurisdiction ; ( b ) a person who acted as a party to the proceedings lacked the legal capacity to be a party to court proceedings ; ( c ) a party to the proceedings lacked the capacity to act in court proceedings and was not duly represented ; ( d ) the courts decided on a matter which had been res iudicata or which had already been pending in other proceedings ( lis pendens ) ; ( e ) the proceedings could only commence by way of an action and no such action was actually filed ; ( f ) the courts prevented a party to the proceedings from acting before them ; and ( g ) where the case was decided upon by an excluded judge or where the composition of the court was incorrect .

In addition to the above - mentioned general admissibility criteria , special admissibility criteria apply if ORG decided in the form of a judgment . These are defined in LAW .

Under paragraph CARDINAL of Article CARDINAL an appeal on points of law is admissible where the appellate court overturned the judgment of a firstinstance court .

In accordance with paragraph CARDINAL of Article CARDINAL , an appeal on points of law also lies against a judgment of the appellate court in which the latter did not follow the binding legal view previously expressed in the same matter by the court of cassation .

Under LAW ( a ) , an appeal on points of law is also admissible against a judgment of an appellate court in which it upholds a judgment of a first - instance court and , at the same time , rules that such an appeal is admissible as the case concerns a matter of particular legal importance .

Finally , under LAW ( b ) , an appeal on points of law is also admissible against a second judgment of an appellate court in which it upholds a second judgment of a first - instance court if , in the second round , the first - instance court decided differently than in its first judgment ( which had been quashed by the first decision of ORG ) because it was bound by the legal view expressed by ORG in its first judgment . This rule also applies to the third and , as the case may be , subsequent judgments of ORG .

DATE . As to the merits , an appeal on points of law can only be based on the grounds defined in LAW , that is to say that the proceedings have been vitiated by an error envisaged in LAW ( letter ( a ) ) , that the proceedings have been vitiated by another error that resulted in an incorrect decision on the merits ( letter ( b ) ) and that the decision rests on an error of law ( letter ( c ) ) .

In a decision of DATE in an unrelated case no . PERSON . ÚS CARDINAL/CARDINAL , ORG observed that , in relation to evidence - taking , the right to a fair hearing LAW CARDINAL § CARDINAL of the Convention was to be understood so that a party to the proceedings must be provided with the opportunity to take part in the evidence - taking in a manner defined by statute , which means to adduce evidence , to be present when the evidence is being taken , including the right to interview witnesses and parties , and to take a position in respect of evidence adduced and taken . For that reason a party to the proceedings must always have the opportunity to be present at the evidence - taking . Should that not have been the case , the error can be qualified as “ judicial conduct that has prevented the party from acting before a court ” , thereby constituting a ground for admissibility of an appeal on points of law under LAW ( f ) of the ORG .


Violation of Art. 6;Violation of Art. 13

The applicant was born in DATE and lived in PERSON .

On DATE criminal proceedings were instituted against the applicant for fraud and forcible assertion of a private right ( самоправство ) . He was suspected of having circumvented the divorce proceedings by way of forging his ex - wife 's signature on the petition for divorce and substituting her in the court proceedings with another woman . This had allegedly been done with a view to obtaining the sole ownership of the matrimonial estate .

On DATE the applicant was arrested ( затриманий ) and placed in police custody .

On DATE ORG ( Прокурор міста Алушта ) ordered the applicant 's detention on remand ( взяття під варту ) .

On DATE the applicant 's ex - wife was admitted to the proceedings as a victim ( потерпіла ) .

On DATE , ruling on a request for release , that had been filed by the applicant 's lawyer , ORG ( ORG міський суд ) decided to release the applicant on an undertaking not to abscond ( підписка про невиїзд ) .

On DATE an investigator of ORG ( слідчий ORG Алуштинського МВ УМВС в АР Крим , hereafter “ the investigator ” ) , assigned to deal with the case , adjourned the proceedings until DATE due to the illness of the applicant .

For some time in DATE the applicant was put on the list of wanted persons due to his failure to respond to the investigator 's summonses . DATE and DATE the proceedings were suspended due to the applicant 's failure to appear for questioning .

NORP On DATE the pre - trial investigation was completed and the applicant was given access to the case file . In the course of the investigation the police investigator interviewed CARDINAL witnesses and obtained an expert 's opinion on the question whether the applicant had forged the victim 's signature on the petition for divorce .

The applicant commenced studying the case file on DATE . For a certain period in DATE he was on a wanted list due to his failure to appear for scheduled access to the case file .

On DATE the judge of ORG ( Ялтинський міський суд ) committed the applicant for trial on charges of fraud and forcible assertion of a private right .

The hearing scheduled for DATE was adjourned due to the illness of the applicant 's lawyer .

ORG cancelled the hearings fixed for DATE and DATE on account of the victim 's and witnesses ' failure to appear .

On DATE ORG of GPE ( Прокуратура Автономної Республіки Крим , hereafter “ the POARC ” ) informed the applicant that , in response to his complaint , the police investigator who had dealt with his case at the pre - trial stage had been reprimanded for delaying the investigation .

The hearing scheduled for DATE was adjourned on the applicant 's request .

ORG could not hold a hearing fixed for DATE because the judge was on mission elsewhere .

On DATE the ORG decided that further pre - trial investigations were necessary and remitted the case to ORG .

DATE the proceedings were suspended due to the applicant 's failure to appear and the victim 's temporary stay in GPE .

On an unknown date in DATE the police investigator issued a certificate , stating that the applicant had refused to participate in further proceedings and to provide his new address in PERSON .

On DATE the investigator ordered the police to establish the whereabouts of the victim and the witnesses .

From DATE until an unknown date in DATE the case file was examined by ORG ( ORG міста Алушта ) .

In the meantime , on DATE the investigator ordered the police to establish the whereabouts of the applicant .

On DATE the investigator questioned the victim . On DATE he decided to suspend the proceedings on the ground that the victim had taken up permanent residence in GPE .

On an unknown date in DATE ORG brought disciplinary proceedings against the investigator for unjustified delay of the proceedings .

On DATE a new investigator was assigned to the applicant 's case . On DATE he discontinued the proceedings in respect of the fraud charge , but continued in respect of the charge of a forcible assertion of private right charge .

On DATE ORG of GPE ( Прокуратура Автономної Республіки Крим ) set aside the investigator 's decision of DATE .

On DATE the case was handed over to a new investigator . On DATE yet another investigator was assigned to deal with the case .

The investigation resumed on DATE .

In a decision of DATE the investigator discontinued the criminal proceedings as they became time barred .

On DATE ORG set aside this decision . The proceedings resumed on DATE .

DATE and CARDINAL DATE the investigator suspended the proceedings due to the fact that the case was liable for termination on the ground of the parties ' friendly reconciliation . On DATE the investigator decided to discontinue proceedings on the above ground .

On an unknown date before DATE ORG set aside the investigator 's decision of DATE .

On DATE the investigator ordered the police to establish the whereabouts of the victim .

On DATE the investigator was informed that the victim had taken up permanent residence in GPE .

From DATE to DATE the proceedings were suspended due to the parties ' friendly reconciliation . On the latter date the investigator questioned a witness .

From DATE to DATE the investigator re - interviewed CARDINAL out of the CARDINAL witnesses , on whose evidence the bill of indictment of CARDINAL DATE had been based . On DATE he issued a request to the NORP police to establish the victim 's whereabouts and to serve a summons obliging her to appear and give evidence .

DATE and DATE the proceedings were again suspended on the basis of the reconciliation of the parties .

On DATE , DATE and DATE the investigator questioned further CARDINAL out of the CARDINAL original witnesses .

On DATE the police investigator referred the case to the court with a request for termination of the criminal proceedings as the charge had became time barred .

On DATE ORG retrieved the case file from the court and ordered further investigations .

On DATE and DATE and on DATE the investigator questioned the victim .

On DATE the investigator discontinued the proceedings on the ground of lack of evidence of the applicant 's involvement in the imputed offences .

On DATE ORG ( Генеральна прокуратура України ) set aside the investigator 's decision of CARDINAL DATE and transmitted the case to ORG of GPE for further investigations .

In a decision of DATE the investigator discontinued the criminal proceedings against the applicant for lack of evidence and lack of corpus delicti .

On DATE ORG of GPE quashed that decision on the ground that the investigator had not followed the instructions of ORG .

DATE . On DATE a new investigator was assigned to deal with the case . On CARDINAL and DATE respectively he re - interviewed a witness and the victim .

On DATE the case was transferred to another investigator .

On DATE the fresh pre - trial investigation was completed and the applicant was given access to the case file . On DATE the case file together with the indictment was sent to ORG for examination on the merits .

On DATE the ORG held a preparatory hearing . Having found the pre - trial investigation insufficient , it decided to remit the case back to the ORG for further investigations .

On DATE a new investigator took over the case .

On DATE the proceedings were suspended due to the victim 's failure to appear . On DATE ORG set aside this decision .

On DATE ORG of GPE instituted disciplinary proceedings against the investigator for delay of the proceedings .

On DATE and DATE the investigator summoned the victim to give evidence . As she had failed to appear , on DATE the investigator ordered the police to establish her whereabouts .

Between DATE and DATE the proceedings in the case were suspended for an unknown reason . On the latter date the case was transferred to another investigator , who re - interviewed a witness . He further questioned the victim and the applicant on CARDINAL and DATE respectively .

On DATE the applicant 's criminal case was again brought before ORG .

The preparatory hearing scheduled for DATE was cancelled due to the applicant 's and victim 's failure to appear .

Hearings were held on DATE , CARDINAL and DATE , DATE , DATE and DATE and DATE .

In a decision of CARDINAL DATE , at the request of the prosecutor , the court sent the case back to ORG for further investigations .

The investigations resumed on DATE . CARDINAL the case file was examined by ORG .

On DATE a new investigator was assigned . From CARDINAL to CARDINAL DATE the case file was with ORG .

On DATE the investigator terminated the proceedings on the ground of LAW of DATE .

On DATE the Deputy Prosecutor of GPE quashed that decision and discontinued the criminal proceedings against the applicant for lack of corpus delicti .

On DATE the latter decision was revoked by ORG .

On DATE the police investigator discontinued the criminal proceedings against the applicant due to the lack of any corpus delicti .

DATE . On DATE the applicant , following his arrest , was placed in the holding facility at ORG . Protesting against his allegedly unlawful detention the applicant went on hunger strike , which continued for DATE . The applicant stated that the material conditions of detention in that facility were gravely inadequate .

On DATE the applicant was transferred to PERSON pretrial detention centre No . CARDINAL ( NORP слідчий ізолятор , hereafter “ the GPE ” ) .

The applicant alleged before the ORG that he had been subjected to torture and degrading treatment while in detention in this latter facility . He submitted that the conditions of his detention had been wholly unsatisfactory and had in themselves constituted torture , since during that period he had contracted a serious illness and lost QUANTITY in weight .

As noted above ( see paragraph CARDINAL ) , the applicant was released from the GPE on DATE .

On DATE a traumatologist from ORG examined the applicant and found signs of recent bruising on his jaw .

On DATE the applicant was taken into ORG and diagnosed with acute diffuse chronic bronchitis .

On DATE , and after DATE , the applicant was examined and treated at ORG . He was diagnosed with scabies .

According to a certificate dated DATE issued by ORG in GPE , the applicant was suffering from , among other things , ischemic heart disease , stenocardia , obstructive chronic bronchitis and pulmonary sclerosis .

DATE . On DATE the applicant was examined at ORG and found to be suffering from ischemic heart disease and chronic bronchitis .

From DATE the applicant was placed on the control list of ORG in GPE . According to certificates issued by that ORG dated DATE , DATE and CARDINAL DATE , the applicant received outpatient antitubercular treatment . He was found to have an active form of infiltrative pulmonary tuberculosis .

According to certificates dated DATE and CARDINAL DATE , issued by ORG and ORG . CARDINAL respectively , the applicant was still being treated for his heart diseases , such as ischemic heart disease and stenocardia .

On DATE the applicant died . According to the death certificate , the cause of death was dilated cardiomyopathy .

DATE the applicant lodged numerous complaints with the prosecution authorities of various levels , alleging that the criminal proceedings against him and his detention on remand had been unlawful and that he had suffered form inadequate medical care when in detention . All his complaints were dismissed .

After the criminal proceedings against him had been finally discontinued ( see paragraph CARDINAL above ) , in DATE the applicant sued ORG in ORG of PERSON under the PERSON “ on the compensation of damage caused to the citizen by unlawful actions of bodies of inquiry , pre - trial investigation , prosecutors and courts ” .

On DATE , following the applicant 's death , Ms Cherkassova sought information from the court about the applicant 's civil case . In a letter of CARDINAL DATE a judge from ORG of PERSON informed her that , in a decision of DATE , the proceedings had been discontinued on account of the claimant 's death and the fact that the application was a personal one that could not be taken over in the proceedings .