Preliminary objection dismissed;No violation of Art. 8;Violation of Art. 14+8;Non-pecuniary damage - financial award;Costs and expenses partial award

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant , born in DATE , was a NORP national at the time of the events complained of . He subsequently obtained NORP nationality .

NORP The applicant is the father of PERSON , born out of wedlock on DATE . In a document dated DATE , he acknowledged paternity of the unborn child , and in a further document , dated DATE , he acknowledged paternity and undertook to pay maintenance .

The applicant met the child 's mother , PERSON , in DATE and in DATE he moved into her flat , where they lived together until DATE or , as stated by the applicant , until DATE . In any event , the applicant continued to visit the child and her mother until DATE , and DATE and DATE he regularly fetched PERSON for visits . From DATE , PERSON prohibited any contact between the applicant and the child .

On DATE the applicant applied to ORG for a decision granting him a right of access to his daughter on DATE from TIME as well as on Boxing Day and GPE DATE .

On DATE ORG , having regard to the statements made by the parties and ORG and having considered evidence obtained from several witnesses , dismissed the applicant 's request .

The court , referring to LAW , observed that the mother , as the person having custody , determined the father 's right of access to the child and that the guardianship court could only grant the father a right of access if this was in the child 's best interests . The court found as follows :

“ The ORG is convinced that the petitioner 's wish for [ PERSON ] to visit him is motivated by attachment to his child and genuine affection for her . It nonetheless takes the view that personal contact with her father is not in the child 's best interests , since her mother dislikes her father so deeply and opposes all contact so fiercely that any visits ordered by the court would take place in a tense , emotionally charged atmosphere which would probably be extremely harmful to the child .

The ORG can discern no special circumstances which , given the strong differences between the parents , might make personal contact with her father appear beneficial for [ PERSON ] ... The relationship which developed between [ PERSON ] and her father in the period from her birth to her father 's moving out – that is , approximately one year and DATE is probably not of such fundamental importance that the risk of seriously upsetting the child by resuming contact opposed by her mother is worth taking . The staff who looked after [ PERSON ] at DATE nursery , and who were questioned as witnesses , stated that she displayed DATE or at least no serious and lasting DATE behavioural abnormalities when she was parted from her father and contact between them ceased , and that she is a balanced , cheerful and outgoing child . The evidence does not therefore confirm her father 's claim that she missed him and frequently asked about him after their contact at DATE nursery ceased .

It has not therefore been shown that the conditions laid down in LAW have been met , and the ORG is accordingly obliged to dismiss the father 's request . ”

On DATE the applicant appealed to ORG .

On DATE ORG ordered a psychological expert opinion on the question whether contact with the applicant was in PERSON 's interests . On DATE , following a first conversation with the expert , the applicant challenged her for bias . He also requested that another expert be appointed on the ground that the scientific approach adopted did not reflect the latest state of research . On DATE ORG refused the applicant 's request , finding that , taking into account the expert 's explanations of CARDINAL DATE , there were no reasons to doubt her impartiality or her capabilities .

On DATE the applicant requested ORG to progress with the proceedings . He also applied for a provisional order granting him a right of access to PERSON during TIME DATE and prohibiting her mother from obstructing such contact .

On DATE ORG dismissed the applicant 's request for a provisional order granting access . ORG found that there was no urgency and that the applicant could be expected to await the outcome of the main proceedings . Furthermore , such an order would anticipate the possible terms of a final decision . Should a provisional order be issued and the request be eventually dismissed in the main proceedings , the disadvantages for the child would be more serious than those for the applicant in continuing with the prevailing situation .

NORP In her opinion dated DATE , the expert noted that she had visited the applicant 's family in DATE and again heard the applicant , the child 's mother and the child on several occasions DATE and DATE . As regards her meetings with PERSON , the expert explained that in the course of various games she had explored her feelings concerning persons and situations and concerning the applicant . They had also looked at a family photo album and PERSON had avoided looking at the more recent photographs . This reaction showed that PERSON had repressed the memories of her father . The expert reached the conclusion that a right of access without prior conversations to overcome the conflicts between the parents was not in the child 's interests .

By a letter of CARDINAL DATE , ORG , noting that ORG had omitted to hear the child , enquired of the expert whether hearing the child in court on the issue of her relationship with her father would place a psychological strain on her .

In her reply of CARDINAL DATE , the expert indicated that she had not directly asked the child about her father . She had expected that PERSON would react spontaneously in the course of the meetings and express her feelings towards him . In the expert 's view , the fact that PERSON had not mentioned her father was certainly relevant . The expert further referred to the last meeting , when they had glanced through a family photo album and she had asked PERSON about whether she still knew her father . On both occasions , she had appeared to repress her memories concerning him . The risk inherent in questioning her about whether she wished to see her father was that , in this conflict between the parents , the child might have the impression that her statements were decisive . Such a situation could provoke serious feelings of guilt .

At a court hearing on DATE , the applicant and the child 's mother entered into an agreement . Under the terms of this agreement , the applicant declared that he would refrain from instituting any court proceedings , making any enquiries about the mother 's personal circumstances and exercising his right of custody obtained under NORP law on condition that they underwent parental therapy . The proceedings were suspended until the termination of this therapy .

On DATE the applicant requested that the proceedings be resumed as the child 's mother had not approved the CARDINAL institutions for family therapy proposed by the applicant and had failed to react to his suggestion that she should make a proposal .

On DATE ORG dismissed the applicant 's appeal , finding as follows :

“ Personal contact with a child born out of wedlock is intended to allow a father to satisfy himself as to the child 's welfare and development and preserve the natural ties existing between them . It is not therefore the purpose of granting access , but the legal conditions for doing so , which differ : while a parent who does not have custody of a child born in wedlock is entitled to access under LAW [ of LAW ] , LAW of the Code ] does not grant a right of access to the father of a child born out of wedlock . Rather , the law leaves it up to the person having custody , as a rule the mother , to determine whether , and to what extent , the father should be able to spend time with his child . However , the guardianship court may decide that the father is entitled to access if this is in the child 's best interests . The main reason for the weaker legal position of the father of a child born out of wedlock is his different social position . After ORG decisions of DATE and DATE , the constitutionality of Article DATE can no longer be seriously doubted . For considerations of legal policy , a reform of the law on children born out of wedlock is even more urgently necessary . In the meantime , the courts are bound by Article CARDINAL .

Under that provision , the guardianship court decides to grant a father access to a child born out of wedlock if this is beneficial for the child 's welfare . It is not enough for such contact to be consistent with , or not contrary to , the child 's interests , it must serve those interests and promote them . This interpretation justifies the assumption that fathers should generally be granted access to their children because this enables the latter to develop as normally as possible and helps them to form a clear image of themselves and their origin . It is in fact important for children not simply to have a fantasy picture of their fathers , but to be able to form a personal , realistic picture .

Whether contact with the father is conducive to the child 's well - being depends initially on the father 's motives for seeking it . ORG is convinced that the father in this case is motivated by attachment to [ PERSON ] and genuine affection for her . Even when a father acts from responsible motives , however , the court is not necessarily obliged to grant him access if there are serious tensions between the parents , these are communicated to the child , and there is reason to fear that every meeting with the father will interfere with the child 's further undisturbed development in the residual family provided by the mother ...

In view of the findings in the [ psychological expert ] report referred to above , it must be assumed that this would happen in the instant case . If the father were granted access to [ PERSON ] in present circumstances , she would have to shuttle between hostile camps , which should not be asked of her .

If DATE as in this case – there is a danger that differences between parents may affect a child , then special circumstances are needed to justify the assumption that contact with the father will nevertheless have permanently beneficial effects on the child 's development or well - being ... However , no such circumstances can be discerned here . It is true that , for DATE of her life , [ PERSON ] grew up with both father and mother , but this period was not conflict - free . The disagreements and sometimes open aggression between her parents – in other words , the family violence she witnessed – have certainly left their mark on her , even if she can no longer recall them spontaneously . As the psychological report indicates , she has also repressed her old ties with her father – a fact reflected in the care she takes to avoid talking about him . In view of all this , the report finds that she does not suffer as a result of the present situation .

The ORG can rely fully on the report , which has no apparent defects and is not invalidated by the fact that the father sees the situation differently .

In finding that therapy had not enabled the parents to put their former conflicts behind them , thus making it possible for [ PERSON ] to have access to both of them , the ORG did not have to decide who was to blame for this ... The decisive factor is always the child 's point of view . As already pointed out , however , the situation in this case is such that the parents must first initiate dialogue with each other . ”

ORG finally considered that exceptionally it had not been required to hear the child , since questioning her about her relationship with her father would have placed a psychological strain on her . In this connection , the court referred to the expert 's supplementary report of DATE ( see paragraph CARDINAL above ) .

On DATE the applicant filed a constitutional complaint with ORG , complaining that the refusal of access to his daughter infringed his parental rights and amounted to discrimination , and alleging that the taking of expert evidence had been unfair . ORG acknowledged receipt on DATE .

By a letter of DATE , the applicant asked ORG about the state of the proceedings and urged a speedy decision . On DATE the Constitutional Court informed him that in a similar case which had been registered at an earlier date a decision was envisaged for DATE .

On DATE the applicant sent a letter to the President of ORG complaining that the examination of his constitutional complaint had been postponed until DATE . In her reply of CARDINAL DATE the judge dealing with the applicant 's case informed him that , owing to the heavy workload of ORG in DATE , it had not been possible to take a decision . A decision was envisaged in DATE . Having regard to the importance of the subject matter , such a decision required careful preparation .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to entertain the applicant 's constitutional complaint .

The statutory provisions on custody and access are to be found in the NORP Civil Code . They have been amended on several occasions and many were repealed following the adoption of new family legislation ( Reform zum Kindschaftsrecht ) on DATE ( ORG , p. CARDINAL ) , which came into force on DATE .

Article CARDINAL § CARDINAL reads as follows :

“ The father and the mother have the right and the duty to exercise parental authority [ elterliche PERSON ] over a minor child . The parental authority includes the custody [ Personensorge ] and the care of property [ Vermögenssorge ] of the child . ”

Pursuant to LAW , as amended , the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect ( declaration on joint custody ) or if they marry . According to LAW , as amended , a child is entitled to have access to both parents ; each parent is obliged to have contact with , and entitled to have access to , the child . Moreover , the parents must not do anything that would harm the child 's relationship with the other parent or seriously interfere with the child 's upbringing . The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise , also with regard to third parties ; they may also order the parties to fulfil their obligations towards the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child 's welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child 's well - being would otherwise be endangered . The family courts may order that the right of access be exercised in the presence of a third party , such as a ORG authority or an association .

Before the entry into force of the new family legislation , the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows :

“ CARDINAL . A parent not having custody has the right to personal contact with the child . The parent not having custody and the person having custody must not do anything that would harm the child 's relationship with others or seriously interfere with the child 's upbringing .

NORP The family court can determine the scope of that right and can prescribe more specific rules for its exercise , also with regard to third parties ; as long as no decision is made , the right , under LAW , of the parent not having custody may be exercised throughout the period of contact . The family court can restrict or suspend that right if such a measure is necessary for the child 's welfare .

A parent not having custody who has a legitimate interest in obtaining information about the child 's personal circumstances may request such information from the person having custody in so far as this is in keeping with the child 's interests . The guardianship court shall rule on any dispute over the right to information .

NORP Where both parents have custody and are separated not merely temporarily , the foregoing provisions shall apply mutatis mutandis . ”

LAW concerned the right to determine third persons ' rights of access to the child .

The relevant provisions of LAW concerning custody of and access to a child born out of wedlock were worded as follows :

“ Custody over a minor child born out of wedlock is exercised by the child 's mother ... ”

“ CARDINAL . NORP The person having custody of the child shall determine the father 's right of access to the child . LAW , second sentence , applies by analogy .

NORP If it is in the child 's interests to have personal contact with the father , the guardianship court can decide that the father has a right to personal contact . Article CARDINAL § CARDINAL applies by analogy . The guardianship court can change its decision at any time .

The right to request information about the child 's personal circumstances is set out in LAW .

Where appropriate , the ORG shall mediate between the father and the person who exercises the right of custody . ”

Like proceedings in other family matters , proceedings under former Article DATE § CARDINAL of LAW were governed by LAW ( Gesetz über die Angelegenheiten der freiwilligen PERSON ) .

According to section CARDINAL of that Act , the court shall , of its own motion , take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate .

In proceedings regarding access , the competent ORG has to be heard prior to the decision ( section CARDINAL(CARDINAL)(k ) ) .

As regards the hearing of parents in custody proceedings , section CARDINAL ) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child 's assets . In matters relating to custody , the court shall , as a rule , hear the parents personally . In cases concerning placement into public care , the parents shall always be heard . According to section ORG ) , a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter .

The human rights of children and the standards to which all GPE must aspire in realising these rights for all children are set out in LAW on the Rights of the Child . The convention entered into force on DATE and has been ratified by CARDINAL countries , including GPE .

The convention spells out the basic human rights that children DATE without discrimination – have : the right to survival ; to develop to the fullest ; to protection from harmful influences , abuse and exploitation ; and to participate fully in family , cultural and social life . It further protects children 's rights by setting standards in health care , education and legal , civil and social services .

States parties to the convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child ( LAW . Moreover , GPE parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child , and respect the right of a child who is separated from CARDINAL or both parents to maintain personal relations and direct contact with both parents on a regular basis , except if it is contrary to the child 's best interests ( Article CARDINAL ) .


The applicant , PERSON , is a NORP national who was born in DATE and lives in the town of GPE , GPE region , GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

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

On an unidentified date the applicant instituted proceedings in the ORG of Gorlovka against her employer , the “ GPE ” private joint stock company ( ORG « PERSON ) , claiming salary arrears .

On DATE the court found for the applicant and awarded her CARDINAL NORP hryvnas .

In DATE LOC instituted enforcement proceedings .

On DATE by the decision of ORG the debtor was declared bankrupt . The writs of enforcement have been transferred to the liquidation commission . The judgement of DATE , however , has never been enforced .


Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection joined to merits and rejected (non-exhaustion of domestic remedies);No violation of Art. 2 (killing of applicant's husband);Violation of Art. 2 (absence of effective investigation);Not necessary to examine Art. 2 (right to life);Violation of Art. 13;No violation of Art. 14+2;Violation of former Art. 25-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant , PERSON , is a NORP citizen who was born in DATE and is at present living in GPE in south - east GPE . Her application to the Commission was brought on her own behalf , on behalf of her CARDINAL minor children and on behalf of her deceased husband Dr GPE GPE who , she alleges , was killed by State security forces or with their connivance .

The facts surrounding the killing of the applicant ’s husband are disputed .

The facts as presented by the applicant are set out in DATE to CARDINAL below . The applicant did not reiterate her version of the circumstances surrounding the killing in her memorial to the ORG , relying on the facts as established by the ORG in its report of CARDINAL DATE and her previous submissions to the Commission .

The facts as presented by the Government are set out in paragraphs CARDINAL below .

A description of the material submitted to the ORG will be found in DATE below . A description of the proceedings before the domestic authorities regarding the killing of the applicant ’s husband , as established by the ORG is set out in DATE below .

The Commission , in order to establish the facts in view of the dispute over the circumstances surrounding the killing of the applicant ’s husband , conducted its own investigation pursuant to former LAW § CARDINAL ( a ) of the Convention . To that end , the ORG examined a series of documents submitted by both the applicant and the Government in support of their assertions and appointed CARDINAL delegates to take the evidence of witnesses at a hearing in GPE on DATE and DATE . The ORG ’s evaluation of the evidence and its findings are summarised in DATE below .

At TIME on DATE the applicant ’s husband , Dr PERSON , was shot dead in the town of PERSON on a steep road , known as ORG ) , which runs between the public hospital and the security directorate . The applicant was on the low balcony of her hospital residence , close to the hospital gates , when she heard the sounds of automatic firing . She jumped off the balcony and ran towards PERSON . While she was running she heard another type of firing start .

The applicant saw her husband lying near the top of the steepest part of the hill , close to the security directorate , the moment she ran out of the hospital gates . She did not see anyone as she ran towards him . However , as she knelt by him , she looked up and saw CARDINAL members of the security forces standing in a line across the street near the security directorate and brandishing machine - guns , CARDINAL to QUANTITY away from her . They were dressed in plain clothes but were wearing special jackets that enabled them to carry spare ammunition . Although there were usually CARDINAL members of the security forces near the security directorate , it was not usual for them to stand together in a line . The applicant appealed to the police present at the scene to do something to catch the perpetrators but they did nothing . She ran back down to the junction with FAC ( PERSON ) , screaming for help . At the junction , she saw CARDINAL young men running along FAC and she saw them turn up the next street on the left . She warned the security force members that they were allowing the perpetrators to escape . The street on the left of FAC that the men had run into joined FAC ( Gazi Caddesi ) near the security directorate .

The applicant then turned and ran back to her husband , having recalled that there was a gun in his briefcase . At that point , people ran out of the hospital to help . They took Dr GPE to the hospital where they tried unsuccessfully to resuscitate him . Meanwhile , CARDINAL policemen on patrol in a vehicle had been summoned by radio and they arrived within TIME . CARDINAL of the police officers examined the scene and the third , ORG , went to the hospital , where he obtained from the applicant a description of the CARDINAL young men and of the direction in which they had fled . He informed his CARDINAL colleagues , who went in pursuit of the alleged killers but not in the direction which had been indicated by the applicant .

The applicant made several efforts to make a statement to the authorities . She contacted the police but they said that the Chief of Security was not there and hung up . She also tried to speak to the Governor but without success .

NORP In DATE Dr GPE had been taken in for questioning by the police . They had received a tip - off to the effect that he was sheltering a terrorist suspect belonging to the ORG ( Workers’ ORG ) . He had been released without charge DATE .

Dr GPE took his duties as a doctor seriously and would treat anyone in need . As the only doctor in ORG for DATE , he would have been the person who produced medical reports on persons released from custody . While he generally sought to protect the applicant from anything that might worry her , he did say , on CARDINAL occasion , “ If we let them , they would write the reports ” , and he also spoke about torture . Following the killing of another doctor in PERSON on DATE , which led a third doctor to seek and obtain a transfer from the area , Dr GPE was reported in the press as having refused to talk about that incident out of fear . At the time a large number of killings were being committed in PERSON by unknown persons . There were newspaper reports alleging that many of the killings were the work of counter - guerrilla forces and it was reported that a military officer by the name of ORG had a list of names and that the people on it were killed CARDINAL by CARDINAL . Dr GPE ’s name was rumoured to be on this list .

Although Dr GPE had sought to reassure the applicant that he was not at risk , he had acquired a gun , with the necessary licence , DATE before his death . DATE before he was killed , Dr GPE had requested permission from the Governor to take his DATE leave . Permission had been refused , even though his leave was long overdue and other doctors had arrived in PERSON who could have replaced him .

Following the killing of Dr GPE , other doctors working at the hospital told the Governor that if the killers could not be found it was not safe for them to remain in PERSON . The Governor allegedly told them that they were safe and that Dr PERSON had been killed because he was a GPE from PERSON . The applicant requested CARDINAL of these doctors , Dr İlhan , to make a statement about his conversation with the Governor but he refused , as he was frightened of the consequences .

On DATE the applicant received a summons to appear at the prosecutor ’s office at ORG DATE . She was scared before the interview and found the experience frightening . ORG , Mr PERSON , questioned the applicant about her application to the Commission and , in particular , about the power of attorney she had given to her lawyers in an accompanying document . The report that was drawn up of the interview states that the applicant was shown a power of attorney in the name of PERSON and that she denied that the signature on that document belonged to her . The power of attorney which the applicant had submitted to the Commission , however , was in her full name of PERSON . The implied threat was made by Mr PERSON that something might happen to the applicant on account of her application . PERSON also suggested that an application to the Commission was futile .

The report of the interview was not a reliable record of what had been said . Contrary to what was written in the report , the applicant did not tell Mr PERSON during the interview that about ten days after her husband ’s death she had been telephoned by a person called PERSON , who was from a centre in GPE and was ringing from GPE .

At DATE when PERSON was shot , there were CARDINAL officers standing guard outside the entrance to the security directorate . These police officers would not have been standing QUANTITY away from the incident and watching it , since the entrance to the security directorate was round the corner from where the shooting took place . The officers standing guard were under strict orders not to leave their posts even if they heard shooting or an explosion as that would render the security directorate vulnerable to attack .

The street into which the applicant said that she saw the CARDINAL perpetrators of her husband ’s killing turn from Old Bitlis Road did not come out at the security directorate building on FAC but CARDINAL blocks away from there .

Dr GPE had been happy and proud to be working for the ORG . Government officials were on good terms with him and police officers had felt free to request his help at TIME . However , investigations had shown that many killings of ORG officials or persons working for the ORG , especially in the area where the state of emergency was in force , had been committed by militants of the ORG .

There was no connection between Dr GPE ’s death and his having been summoned to the police station in DATE to make a statement concerning the allegation that he was hiding a terrorist . As soon as it had been established that the allegation was false , Dr GPE had been released .

Dr GPE had been refused leave because he was the deputy head consultant of the hospital and his leave would have interrupted the medical service .

The purpose of ORG at ORG in questioning the applicant on DATE had been twofold : firstly , doing so was part of his duty in relation to the preliminary criminal investigation into the death of her husband and , secondly , it was done to verify the validity of her application to the Commission . It was vital that the applicant should be asked about the authenticity of her application in view of the fact that forged statements had been submitted to the Commission in various other cases . It clearly appeared from the record of the interview , however , that the applicant had stated that she wished to pursue her application .

In the proceedings before the ORG the applicant and the ORG submitted a number of statements which the applicant had made to ORG in ORG and to ORG at ORG . The parties further submitted a number of plans of the area where the shooting had taken place . At the Commission ’s request , the Government also submitted photographs and a video film of the area .

The Government further provided copies of the incident report drawn up by QUANTITY police officers on DATE of the shooting ( DATE ) , the reports of the post - mortem examination and ballistic tests , statements taken by police officers from witnesses at the scene ( Mr PERSON , Mr PERSON and Mr PERSON ) and a decision issued by PERSON public prosecutor PERSON on DATE to the effect that he had no jurisdiction .

The Commission repeatedly requested the Government to provide it with a copy of the complete investigation file , as it had appeared during the hearing of witnesses in GPE that the Government held more documents than had previously been submitted to ORG . The Government did not submit any other documents .

Following the shooting of Dr GPE , police inspected the scene of the incident and retrieved CARDINAL empty cartridges and CARDINAL deformed bullet . They also drew up a plan of the immediate surroundings , searched the area and noted down names of people who had been present in the area at the time of the shooting . The notes containing those names have not been kept . The incident report drawn up by CARDINAL police officers ( Mr PERSON , Mr PERSON and Mr PERSON ) at TIME on DATE mentions that during the examination of the scene of the incident CARDINAL - long empty cartridges and CARDINAL deformed bullet were retrieved . According to the incident report , residents of the area had stated that those who carried out the shooting had been CARDINAL tall , thin people wearing jeans and trainers . CARDINAL of these had been wearing a yellow T - shirt and the other a white striped T - shirt . In the general examination made of the area , no individuals fitting either of the descriptions were discovered .

On DATE Mr PERSON made a statement to the police in which he said that he had been walking behind Dr GPE on PERSON when he had heard a series of shots coming from behind them . He had thrown himself into the garden of houses on the right - hand side and had not seen the person or persons who had shot Dr GPE .

CARDINAL other men , Mr PERSON and Mr PERSON , made a statement to the police on DATE in which they related that when they were , respectively , walking towards the hospital and working in the grocer ’s shop on the corner of PERSON , they had heard shots and had found Dr GPE lying in a pool of blood . Following the gunshots Mr PERSON GPE had seen CARDINAL people running in the direction of FAC . Mr PERSON had not seen the person or persons who had shot Dr GPE .

A post - mortem examination of Dr GPE ’s body was carried out on DATE by PERSON and PERSON , both general practitioners who worked at ORG , and the public prosecutor , Mr PERSON . According to the report of this examination , CARDINAL bullet entry wounds and CARDINAL bullet exit wounds were recorded , inter alia on the nose , left ear and left forearm , to the left of the fifth vertebra , on the thumb and the right nipple and above the right knee . CARDINAL bullet was found lodged just below the skin on the inside of the left femur and removed . The cause of death was given as the injury to , and extensive bleeding in , the chest and vital internal organs . In view of the obvious cause of death , it was not considered necessary to carry out a full autopsy .

Ballistic tests on the cartridges retrieved at the scene of the incident were carried out by the regional police laboratory . A comparative examination showed up conformity in various respects indicating a single source . The cartridges and the deformed bullet were kept in the laboratory archives . The report of the examination , dated DATE , does not indicate with what kind of firearm the cartridges and bullet might have been used .

On DATE the public prosecutor , PERSON , issued a decision to the effect that he had no jurisdiction . In view of the nature of the offence , the way it had been carried out and the existing evidence , the investigation into the incident fell within the competence of the prosecutor ’s office at ORG , where the case is still pending . The decision declining jurisdiction named the suspects as CARDINAL unidentified persons .

The applicant was summoned to appear before ORG at ORG , Mr PERSON , on DATE . According to the report of her interview with Mr PERSON , the applicant said that her husband had continually received threats from the NORP for being an official of the ORG and from ORG for not complying with NORP rules . She is also reported as saying that , approximately ten days after the incident , she received a telephone call from someone she believed was called PERSON , who invited her to come to the ORG branch of ORG . The report further states that PERSON showed the applicant a petition signed by PERSON on DATE . The applicant denied having given anybody that document ; her name was not PERSON and the signature on the document was forged . However , she confirmed that she had made an application to the Commission and that she herself had signed that .

Since the facts of the case were disputed , particularly concerning events on DATE , the Commission conducted an investigation , with the assistance of the parties , and received documentary evidence , including written statements and oral evidence taken from CARDINAL witnesses : the applicant ; Mr PERSON , Chief Public Prosecutor at ORG ; Mr PERSON , Mr PERSON and Mr PERSON Şahin , the QUANTITY police officers who investigated the area where the incident took place , drew up the incident report and made a sketch of the area ; and Dr PERSON , CARDINAL of the doctors who conducted the post - mortem examination .

A further CARDINAL witnesses had been summoned but did not appear : PERSON PERSON , Mr PERSON and Mr PERSON , the witnesses who made statements to the police shortly after the incident ; PERSON , the second doctor who had performed the post - mortem examination ; Mr PERSON , the PERSON public prosecutor in DATE ; and Mr Ünal Haney , whom the Government had identified as the public prosecutor at ORG who was in charge of the investigation at the time of the hearing of witnesses by the ORG ’s delegates . It appeared that Mr PERSON and PERSON were ill and that PERSON PERSON was doing his military service and was involved in exercises which prevented his presence at the hearing . The Government had been unable to locate Mr PERSON . Mr PERSON informed the ORG that he was not prepared to attend the hearing . Although Mr PERSON was said to have boarded a bus bound for GPE , he did not appear before the ORG ’s delegates . No explanation for his failure to attend was submitted by the ORG , despite a number of requests to that effect from the ORG .

The ORG made a finding in its report ( at paragraph CARDINAL ) that the Government had fallen short of their obligations under former LAW § CARDINAL ( a ) of the LAW to furnish all necessary facilities to the Commission in its task of establishing the facts . It referred to the ORG ’s failure

( i ) to provide copies of the complete investigation file ( see paragraph CARDINAL above ) ; and

( ii ) to secure the attendance of the witnesses PERSON and PERSON .

NORP In relation to the oral evidence , the Commission was aware of the difficulties attached to assessing evidence obtained orally through interpreters . It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by the witnesses appearing before its delegates .

In a case in which there were contradictory and conflicting accounts of what actually occurred , the Commission particularly regretted the absence of a thorough domestic judicial investigation . It was aware of its own limitations as a first - instance tribunal of fact . In addition to the problems of language adverted to above , it inevitably had no detailed , direct familiarity with the conditions pertaining in the region . Moreover , the Commission had no power to compel witnesses to appear and testify . In the present case , while CARDINAL witnesses had been summoned to appear , CARDINAL gave evidence . The lack of documentary material has already been referred to . The ORG was therefore faced with the difficult task of ascertaining the facts in the absence of potentially significant testimony and with incomplete evidence .

The Commission ’s findings may be summarised as follows .

The Commission observed that no findings of fact had been made by domestic courts as regards the subject - matter of the applicant ’s complaints . ORG had accordingly based its findings on the evidence given to its delegates orally or submitted in writing in the course of the proceedings . In this form of assessment the co - existence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact and , in addition , the conduct of the parties when evidence is being obtained may be taken into account ( see , mutatis mutandis , the GPE v. the GPE judgment of DATE , Series A no . CARDINAL , pp . DATE , § CARDINAL ) .

The Commission noted that it was not in dispute that Dr GPE had been shot on PERSON on DATE . However , it had been presented with conflicting accounts as to the exact place on PERSON where the incident had occurred . Whereas the applicant contended that her husband had been lying fairly far up PERSON , near the security directorate , the QUANTITY policemen who investigated the scene of the incident indicated in their report and in the sketch they made that Dr GPE had been shot near the bottom of the hill . The Commission considered it doubtful that the applicant would have been able to see the body as she came out of the hospital gates , as she alleged , if he had been shot as far up PERSON as she contended .

Neither the report of the post - mortem examination nor the oral evidence given by PERSON to its delegates enabled the ORG to establish whether PERSON was shot from the front or from behind , information which could have provided an indication of the place from where the bullets had been fired .

The applicant submitted that anyone trying to escape by going up PERSON or via a side alley would have done so within sight of the members of the security forces DATE CARDINAL of them – who were standing at the top of the hill and that the perpetrators therefore could not have been concerned about the reaction of the police . The Government disputed that there would have been CARDINAL police officers as described by the applicant . They submitted that there were CARDINAL officers standing guard at the front of the security directorate , round the corner from the top of PERSON , and that they were under strict orders not to leave their post . The Commission noted that , while this state of affairs was confirmed by police officers PERSON and PERSON before its delegates , it was at odds with the situation portrayed on the photographs and the video film which , according to the ORG , corresponded to the situation on DATE of Dr GPE ’s death . On the photographs and the video film , CARDINAL uniformed police officers could be seen standing guard at the back of the security directorate as well .

As regards the general credibility of the applicant , the ORG found that her evidence was on the whole detailed , precise and consistent . However , even if it accepted that CARDINAL armed police officers had been present at or near the scene of the incident , the Commission considered that a finding to the effect that the killing of Dr GPE had been carried out either by these officers or with their connivance would be based more on conjecture , speculation and assumption than on reliable inference . The Commission was of the opinion that the evidence available did not allow for inferences to be drawn capable of supporting such a finding . This was so even if account was taken of the background against which the applicant submitted that the incident should be seen : her husband ’s arrest DATE previously on suspicion of harbouring a ORG terrorist ; the refusal of his leave ; the fact that his name was rumoured to feature on a hit list ; and the large number of civil servants being killed in PERSON by unknown assailants at the time .

In reaching the conclusion that the applicant ’s allegations had not been sufficiently proved , the ORG pointed out that it had not been provided with any other eyewitness evidence or evidence corroborating the applicant ’s account to a decisive extent . Moreover , the documentary evidence with which it had been presented was incomplete , inconsistent and on some points even contradictory .

In its evaluation of the evidence relating to the investigation into the killing of the applicant ’s husband , the ORG noted that there had been no thorough domestic judicial investigation . Referring to the incomplete investigation file and the failure of CARDINAL public prosecutors to appear before its delegates , the ORG further pointed out that it was only able to evaluate the investigation to the extent that information concerning that investigation had been made available . In this respect it also noted that it had not been provided with any evidence showing what , if any , inquiries had been conducted following the drawing up of the incident report by CARDINAL police officers TIME after the shooting .

In its assessment of the various investigative steps that had been taken by the domestic authorities , the ORG was particularly critical of the limited scope of the initial investigation carried out by the QUANTITY police officers who had arrived at the scene shortly after the shooting . It found the sketch map they had made to be both imprecise and uninformative . In the absence of information to the contrary , it had to assume that no photographs had been taken of the scene . The Commission was further struck by the fact that the applicant ’s statement had not been taken until DATE and it was not persuaded that attempts had been made to speak to her sooner . Finally , the ORG noted that only very little forensic information had been gathered and it expressed doubt as to the expertise possessed in this field by the CARDINAL physicians who had carried out the post - mortem examination .

Before the ORG the applicant referred to the so - called ORG , which was first produced to the ORG in the case of GPE v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINALVI , pp . CARDINAL - CARDINAL , § DATE ) . The report became available in DATE , after counsel had submitted the final pleadings on behalf of the applicant in the proceedings before the Commission . This confidential report was initially intended to be only for the Prime Minister , who had commissioned it on DATE from ORG within his ORG . After receiving the report in DATE , it would appear that the Prime Minister then made it available to the public , although CARDINAL pages from the body of the report and its appendices were withheld .

The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report . It was intended for information purposes and purported to do no more than describe certain events that had occurred mainly in south - east GPE and which tended to confirm the existence of a tripartite relationship involving unlawful dealings between political figures , government institutions and clandestine groups .

The report analyses a series of events , such as murders carried out under orders , the killings of well - known figures or supporters of the NORP and deliberate acts by a group of “ informants ” supposedly serving the ORG . It concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that had been formed as a result , particularly in the drug - trafficking sphere .

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .

Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public ORG offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor ’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants , which restricts the public prosecutor ’s jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local ORG ( for the district or province , depending on the suspect ’s status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the ORG . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces under the governor ’s authority .

If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person ’s life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender ’s superior .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

“ All acts or decisions of the authorities shall be subject to judicial review .

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG ’s strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people ’s lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

DATE of Legislative Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL ) , provides :

“ No criminal , financial or legal liability may be asserted against … the governor of a state of emergency region or provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant ’s guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( Article CARDINAL § CARDINAL of the LAW and Articles CARDINAL and CARDINAL of LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative act ” or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim ’s right to bring an action against the authority on the basis of its joint liability as the official ’s employer ( LAW ) .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicants , Mr QUANTITY Harutioenyan , Mr PERSON and PERSON Harutioenyan are NORP nationals who were born in DATE and DATE respectively . The first applicant is the father of the second and third applicants . They live in GPE and are represented before the Court by PERSON , a lawyer practising in GPE .

NORP , may be summarised as follows .

In DATE , the applicants fled from GPE to GPE . Allegedly unable to register formally with the authorities there , they managed through bribery of local policemen to reside illegally in GPE until DATE when DATE after the first and second applicant had been briefly held in DATE in a police station in GPE ( GPE ) , where they had been illtreated by policemen – the CARDINAL applicants travelled to the GPE , where they arrived on DATE and applied for asylum .

The first applicant stated that he had been an active member of an NORP opposition political party . In the campaign for the NORP presidential elections in DATE , the first applicant had actively campaigned for an opposition candidate . After having started these activities in DATE , he had received an anonymous telephone call in which he and his family were threatened if he did not cease his activities . DATE after this call , he had been attacked in the street by CARDINAL unknown men . He had not filed a criminal complaint with the police , but had mentioned it to persons in the party office .

In the subsequent campaign for the NORP parliamentary elections in DATE , the first applicant had been CARDINAL of the campaign leaders of an opposition candidate , due to which activity the first applicant had received fresh anonymous telephone threats . Furthermore , on an unspecified date at DATE , the first applicant ’s car had been vandalised by CARDINAL unknown persons who had fled in a white car without licence plates . The first applicant had filed a criminal complaint about this incident at the NORP neighbourhood police station in GPE . The first applicant had continued with his political activities . On CARDINAL or CARDINAL May CARDINAL , the first applicant had again received anonymous threats by telephone .

On DATE at around TIME , after the first applicant had come home from a political meeting where he had given a speech , the applicants’ spouse / mother had gone to the upstairs bedroom where she had been shot and killed by a single shot fired through the bedroom window . The first applicant , who had been downstairs when the shot had been fired , and the second applicant had called an ambulance . The ambulance staff had alerted the police . DATE after his wife ’s funeral on DATE , the first applicant had received an anonymous telephone call . He had understood from that conversation that the perpetrator(s ) had sought to kill him and not his wife and that he risked being killed if he continued with his political activities .

On DATE , in order to obtain information about the police inquiry into his ORG death , the first applicant had gone to a local police inspector who had treated him with indifference . He had then gone to ORG where he had been refused entry but at the door had spoken with an official who had been called . When the applicant had started to relate what had happened to him , this official had reacted in a very offhand manner .

In the course of a political meeting held on DATE , the applicant had seized the microphone and in a poignant manner had informed the audience about what had happened to his wife . After he had been accompanied home by the second applicant and a friend , the phone had rung . When the first applicant had picked up the phone , no one had answered . TIME , after the second and third applicant had gone to sleep , the first applicant had heard the sound of breaking glass . When he had checked the cause , he had discovered that fire had broken out in his own bedroom and a guestroom . He and his children had fled outside and after TIME the fire brigade had arrived . The fire brigade had alerted the police , who had questioned the applicants about the origins of the fire and drawn up an official report on the fire . The first applicant was asked to sign a statement drawn up by the police . After having stayed for DATE with a friend , the applicants had left for GPE . Their identity and other official documents had gone missing in the fire in their home .

The asylum request filed by the second and third applicant was based on their father ’s account .

After an initial negative decision given on DATE by the Deputy Minister of Justice ( ORG ) had been withdrawn on DATE , the Minister for ORG ( Minister PERSON Integratie ; the successor of the Deputy Minister ) rejected the applicants’ asylum request in CARDINAL new , separate decisions given on DATE . The applicants filed an appeal with ORG ( rechtbank ) of GPE . A hearing was scheduled for DATE .

On DATE , the applicants were informed that the Minister had withdrawn her impugned decisions of CARDINAL DATE . Consequently , the applicants withdrew their appeal pending before ORG of GPE on DATE .

On DATE , the Minister requested ORG to examine the CARDINAL applicants in order to see whether their state of health militated against expulsion . On DATE , ORG drew up and transmitted its advice in respect of each of the applicants to the Minister . It found that all CARDINAL were suffering from mental health problems for which treatment was available in GPE .

On DATE the Minister informed the applicants of her intention ( voornemen ) to reject their respective asylum requests . On DATE the ORG lawyer submitted written comments ( zienswijze ) on this intended rejection .

In CARDINAL separate decisions of DATE , the Minister rejected the applicants’ asylum requests . As regards the first applicant , the Minister considered inter alia DATE apart from the fact that his identity , nationality , and travel itinerary had not been substantiated with documents , which detracted from the credibility of his asylum account – it had not been established that the first applicant had attracted the negative attention of the NORP authorities or persons in authority or that the events related in the first applicant ’s account could be linked to such authorities or persons . This allegation was solely based on personal assumptions and suspicions which did not tally with information set out in official country assessment reports ( ambtsberichten ) on GPE drawn up on DATE and CARDINAL DATE by ORG , according to which ORG supporters did not encounter any obstacles in GPE . The Minister therefore found that the first applicant ’s account lacked positive persuasiveness and credibility . The Minister further considered that the medical care in GPE could not be considered to be of such a low standard that , for this reason , the first applicant ’s expulsion should be seen as entailing a real risk of a violation of LAW . The Minister lastly found no reasons of a compelling humanitarian nature that would warrant the issuance of a residence permit . As the asylum requests of the other CARDINAL applicants depended on their father ’s account , their asylum requests were also rejected by the Minister , who did not find that their removal to GPE would entail a real risk of a violation of their rights under LAW on account of their state of health .

On DATE the applicants filed an appeal which was heard on DATE before ORG of The GPE sitting in GPE .

In its judgment of DATE , ORG of The Hague rejected the ORG appeal . Although it accepted that the first applicant ’s account was coherent and detailed , ORG was not convinced of the alleged impossibility for the applicants to obtain replacement identity documents during their DATE stay in GPE . It concluded that the applicants had not demonstrated that they DATE if expelled to GPE – would be exposed to a real and personal risk of being subjected to treatment proscribed by LAW . If need be , they could seek the protection of the NORP authorities .

ORG further found no compelling reasons of a humanitarian nature warranting the issuance of a residence permit to the applicants .

NORP The applicants’ subsequent appeal to ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) was dismissed on DATE . It upheld the impugned judgment of DATE . No further appeal lay against this ruling .

On DATE the applicants requested the ORG under Rule CARDINAL of ORG to indicate to the Government not to expel them pending the proceedings before the ORG . On DATE the President of the Section decided not to issue the interim measure sought by the applicants .


CASE OF GRZEGORZ HULEWICZ v. POLAND (No. 2)

No violation of Article 5 - Right to liberty and security

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in Lębork . He is currently serving a prison term .

On DATE the applicant was arrested on suspicion of forgery of documents as well as armed robbery and drug trafficking , committed in an organised criminal group . Since DATE he had been in hiding .

On DATE the ORG ( Sąd Rejonowy ) remanded him in custody , relying on the reasonable suspicion that he had committed the offences in question . It also considered that detaining the applicant was necessary to secure the proper conduct of the proceedings , because the applicant had threatened the victim at the time of the commitment of the alleged offence . The court also stressed the severity of the anticipated sentence and the fact that the applicant had a previous criminal record .

An appeal by the applicant against the detention order was unsuccessful . On DATE the ORG ( PERSON ) upheld the challenged decision , basically repeating the arguments of ORG and relying additionally on the fact that in DATE the applicant had gone into hiding .

NORP The argument that the applicant had gone into hiding was repeated by ORG in its decisions of DATE and DATE , extending the applicant 's detention .

Numerous appeals by the applicant against decisions extending his detention and all his subsequent applications for release were unsuccessful .

Subsequently , the applicant 's pre - trial detention was prolonged on several occasions ( on DATE , DATE , DATE , DATE and DATE and on DATE , DATE and CARDINAL DATE ) . In all their detention decisions the courts repeatedly relied on a strong suspicion that the applicant had committed the offences in question , which was supported by evidence from witnesses . They attached importance to the grave nature of those offences and the likelihood of a severe sentence of imprisonment being imposed on the applicant .

On DATE ORG lodged a bill of indictment with ORG . The bill of indictment comprised CARDINAL charges of , among others , participation in an organised criminal group , drug trafficking , uttering threats and robberies brought against CARDINAL defendants . The applicant was charged with participation in an organised criminal group , drug smuggling , uttering threats and forgery of documents .

Once the length of the applicant 's detention had reached the statutory DATE maximum laid down in LAW of LAW ( Kodeks Postępowania Karnego ) , the first - instance court no longer had jurisdiction to extend it . Consequently , it was ORG ( Sąd Apelacyjny ) which issued further extensions . In its first extension decision , on DATE , ORG relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and on the considerable complexity of the case . The court also held that the risk that the applicant and other co - accused would obstruct the investigation had been established .

The applicant 's detention was subsequently extended by ORG on DATE , CARDINAL DATE and DATE . The ORG relied on the reasonable suspicion that the applicant had committed the offences in question and on their serious nature . It also stressed that the fact that the applicant and the co - defendants were charged with participation in an organised criminal group created the reasonable fear that they might obstruct the proceedings or try to influence witnesses . The ORG additionally examined the conduct of the proceedings and found no undue or unjustified delays . DATE and DATE ORG held CARDINAL hearings . In DATE QUANTITY hearings were held and in DATE QUANTITY hearings were held .

On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment .

On DATE the court lifted the applicant 's detention .

On DATE the applicant and his lawyer lodged appeals against the first - instance judgment .

On DATE ORG heard the appeals , partly varied the first - instance judgment , acquitted the applicant of CARDINAL charge of forgery and sentenced the applicant to DATE and DATE imprisonment .

The applicant lodged a cassation appeal ( kasacja ) with ORG ( Sąd Najwyższy ) .

On DATE ORG dismissed the cassation appeal as manifestly ill - founded .

NORP The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ 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 .

For the latest amendments of the provisions concerning detention on remand see the ORG 's judgment in the case of ORG v. GPE , no . CARDINAL , § DATE , DATE .


SECKERSON v. THE UNITED KINGDOM AND TIMES NEWSPAPERS LIMITED v. THE UNITED KINGDOM

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants are Mr PERSON ( “ the first applicant ” ) and ORG ( “ the second applicant ” ) . The first applicant is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . The second applicant is the proprietor and publisher of The ORG newspaper and is a company registered in GPE . It is represented before the ORG by PERSON , a lawyer practising in GPE .

CARDINAL .

The first applicant was the foreman of the jury at the trial of a childminder , GPE , for the manslaughter of a baby who sustained fatal injuries while in her care . The prosecution case was that she had shaken the baby so violently that she had died . The prosecution did not call any eye witnesses to testify that GPE had injured the child but instead relied on expert medical evidence as to how the injuries were sustained .

The trial lasted for DATE and the jury deliberated its verdict over a period of DATE . ORG was convicted by a majority of CARDINAL of the CARDINAL members .

In DATE , following the conviction , the first applicant contacted The ORG to express grave concerns about the trial and the conviction .

On DATE The ORG published CARDINAL articles based on the first applicant ’s comments . CARDINAL article appeared on the front page in the following terms :

“ Jurors question guilt of killer childminder

The role of expert witnesses in baby death trials was called dramatically into question TIME after CARDINAL jurors spoke out to challenge the conviction of a childminder for killing a baby in her care . Senior judges and law officers faced calls DATE for a fresh review of the role of expert witnesses in baby - death cases .

In an unprecedented move , the jurors disputed the recent conviction of [ GPE ] DATE , a mother of CARDINAL married to a former police officer , for shaking DATE [ GPE ] so violently that the baby was left blind and irreparably brain - damaged . She died DATE .

The jury foreman , who can not be named for legal reasons , has told The ORG that he believes [ GPE ] is innocent . ‘ A case relying on circumstantial evidence and forensic opinion based on evidential proof from other cases should never have reached a court.’

The case comes amid increasing concern over cases involving baby deaths that turn on the evidence of medical experts . [ GPE ] , [ ORG ] and [ T.P. ] were all accused of killing their children , only later to be found innocent . [ GPE ] , a solicitor who was finally released from prison after DATE , died in DATE from alcoholism and psychological trauma caused by her ordeal .

... [ T]he chairman of ORG , called DATE on the Lord Chief Justice and Attorney - General to set up a fresh inquiry into the way that courts use medical expert evidence . ‘ Jurors think that [ GPE ] is innocent,’ he said . ‘ When we are asking medical expert witnesses to diagnose innocence or guilt , we need more certainty than is the case for most medical treatment — a false diagnosis of guilt can generally cause far more damage than a false medical diagnosis.’ ”

The second article appeared on the inside pages in the following terms :

“ Jurors break silence to insist childminder did not kill baby

CARDINAL jurors have spoken out to question the guilty verdict in a case DATE in which a childminder was jailed for shaking a baby to death .

In an unprecedented move , the CARDINAL jurors – a man and a woman – say they believe that [ GPE ] , DATE , a childminder and mother , was wrongly convicted of killing DATE [ GPE ] by shaking her so violently that she was left blind and brain damaged .

[ GPE ] , a respected ORG leader , allegedly lost her temper and shook the baby so hard that she was taken to hospital , blind and unconscious . She died DATE .

But the jury foreman , who can not be named for legal reasons , has told The ORG that he does not think the case should ever have come to court .

‘ A case relying on circumstantial evidence and forensic opinion based on evidential proof from other cases should never have reached a court,’ he said . He added : ‘ I think that although the trial was very carefully run , the case in my view was flawed and the accused innocent.’

He said : ‘ I think [ ORG ’s ] heartrending response [ she broke down in uncontrolled weeping ] to the verdict confirms that it was flawed.’

A second juror named as PERSON told ORG CARDINAL Live DATE : ‘ I believe a miscarriage of justice has occurred and there ’s nothing I can do about it .

I do n’t think you can get a fair outcome . I will never know , as long as I live , whether the verdict was right or not because we have not got all this medical expertise and I think if medics ca n’t decide between themselves , what chance have we got?’

Jurors are prohibited by law from disclosing the secrets of the jury room and the discussions as to how a verdict was reached . But the readiness of CARDINAL of the CARDINAL in this trial to speak out is an indication of how strongly they feel .

A campaign has already begun by friends and relatives who maintain that [ GPE ] is innocent and want to secure her release . She was jailed for DATE . And DATE an MP called for an inquiry into the use of medical experts in trials .

At the time of the trial , some media commentators suggested that the verdict was unjust . They said that it raised a question mark over majority verdicts , implying that given more time the jury might have reached a different verdict .

But the foreman of the jury insisted that the verdict was understandable on the basis of medical expert evidence presented .

[ ORG ] qualified as a childminder in DATE and often had CARDINAL children in her care at her home in PERSON , GPE . She had looked after [ GPE ] since DATE , having been recommended to her parents ... by a mutual friend .

On DATE [ GPE ] died she was described as ‘ full of LOC although she had been unwell in DATE before her death .

The jury foreman told The ORG that there was no question , as has been suggested , of the jury being rushed . It was given ample time and the ‘ consensus was taken TIME after the foreman was voted in . It was CARDINAL against , all based on the evidence . After that there was no going back.’

He added : ‘ The jury majority voted guilty because it could do no other .

‘ The medical evidence was overwhelming . All the necessary ingredients of what the experts call the “ triad ” [ a collection of features typically caused by shaking that lead to hypoxic - ischaemic brain injury and death ] were there .

But many expert witnesses vouchsafe that the literature on shaken baby syndrome is contentious and far from complete . And so who caused the death , or whether anyone did , is not proved . The evidence , whether expert or other , was merely circumstantial – probabilities , therefore GPE

The juror said that the defence was good ; but up against ‘ the weight of a CARDINAL medical and forensic experts , was clearly on a hiding to nothing .

The circumstances were that of amateurs made to do a professional ’s job .

Such a complex case was made easier by the judge ’s excellent , well - rounded summary ... although we were told we could not have a transcript.’ Had the jury been given a transcript they might have reached a better verdict , he added .

What was not proved , he said , was who caused the death ‘ or indeed whether anyone ORG .

He added : ‘ Ultimately the case was decided by laymen and laywomen using that despicable enemy of correct and logical thinking , that wonderfully persuasive device , common sense.’

The outcome has left him disillusioned with the jury system . ‘ One ’s peers , however good and true , are generally not up to the job.’

The ... chairman of ORG , called on the ORG and the judiciary to set up a review of medical expert evidence . ‘ [ GPE ’s ] case had been taken up by ORG , who believe that a miscarriage of justice has ORG he said .

‘ This makes it clear that the way in which our courts use expert evidence , and particularly medical expert evidence , has insufficient intellectual rigour . Evidence which is clearly unreliable and based upon pet theories without proper research groundings is accepted as fact in court.’ ”

Section CARDINAL of the Contempt of Court Act DATE ( “ the DATE LAW ) prohibits the disclosure of information regarding the deliberations of a jury ( see “ Relevant domestic law and practice ” , below ) .

The first applicant was interviewed under caution by the police on DATE as a result of the comments he had made regarding the GPE case . He accepted that he had written an article and given interviews about his experience on the case . However , he explained that his sole intention had been to describe his general experience and that he had had no intention of disclosing any particulars of statements made , opinions expressed or votes cast by members of the jury in the course of their deliberations , nor did he consider that he had done so .

The journalist who had written the articles was interviewed by the police on DATE . She also indicated that she did not believe that anything in the articles rendered her liable for contempt of court . She confirmed that the article had been reviewed by the legal team of The ORG prior to publication to ensure that it complied with the law .

The Attorney General subsequently applied to ORG for permission to make a committal application against the applicants for their contempt of court on the ground that they had breached section CARDINAL of the DATE Act . It was alleged that the first applicant had disclosed to the journalist at The ORG particulars of votes cast , arguments advanced and opinions expressed by members of the jury in the course of their deliberations as to the verdict and that the second applicant had published that information , or some of it , in an article in The ORG on DATE . On DATE permission was granted and the proceedings were issued on DATE .

At the subsequent hearing , counsel for the Attorney General accepted that for a juror after a trial to express his own views in a general way about the merits or demerits of the jury system would not be a breach of section CARDINAL . Similarly , the juror would not breach section CARDINAL by expressing general views about jurors relying on expert evidence . He identified the disclosures in the articles which he alleged infringed section CARDINAL as :

“ ... the consensus was taken TIME after the foreman was voted in . It was CARDINAL - CARDINAL against , all based on the evidence . After that there was no going back . ”

“ The jury majority voted guilty because it could do no other . ”

“ The medical evidence was overwhelming . ”

“ Ultimately the case was decided by laymen and laywomen using that despicable enemy of correct and logical thinking , that wonderfully persuasive device , commonsense . ”

Counsel for the second applicant , supported by counsel for the first applicant , referred to LAW and to the right and duty of the press , in the interests of the administration of justice , to tell the public what had happened in court proceedings . He argued that a purposive construction of section CARDINAL was required and that involved limiting breaches to disclosures which interfered with the proper administration of justice . Considered in the context of the article as a whole , the first applicant was using his experience of the GPE trial to criticise the way in which cases based on medical opinion evidence were tried . It was not a disclosure of confidential information but of information about how the system worked , much of it favourable to the system . Fears were expressed about reliance on expert medical evidence and the expression of such concerns was legitimate . The ORG counsel accordingly argued that the order sought by the Attorney General would amount to a violation of the applicants’ rights under LAW . There was no ‘ pressing social ORG to curtail the disclosures made and , on the facts of the case , the balance between LAW CARDINAL right and the general community interest came down on the side of freedom of expression .

Lord PERSON , delivering the judgment of the court on DATE , found the applicants guilty of contempt of court . He observed that it was not suggested that section CARDINAL was incompatible with LAW , and observed that this ORG had acknowledged the legitimacy of the rule governing the secrecy of jury deliberations in GPE . He therefore declined to read down the words in section CARDINAL of the CARDINAL Act , pursuant to LAW DATE , in order to interpret restrictively the relevant words contained in that section .

The judge accepted that the articles were published in a reputable newspaper , following legal advice given in good faith , and that the first applicant was not harassed to provide his views but had approached the newspaper unprompted . He further accepted that the first applicant was genuinely concerned about the use made of medical evidence in criminal trials , which was an issue of public interest . However , he noted :

“ DATE . The words used in section CARDINAL in relation to the ‘ deliberations’ ; ‘ statements PERSON , ‘ opinions PERSON , ‘ arguments advanced’ , and ‘ votes PERSON appear to me to cover the entire range of a jury ’s deliberations when considering their verdict or verdicts in the case . Provided the disclosure is in relation to their deliberations in the case , and not about an extraneous matter , it comes within the section . ”

Reiterating the rationale for the need to keep secret the deliberations of the jury as stated in previous cases , he continued :

“ CARDINAL . ... The jury system has shown itself to be robust in operation and is valued highly in this jurisdiction . Its strength and value depend on the open and frank expression of views CARDINAL people in the secrecy of the jury room . Confidence to express views in that way depends on the juror ’s knowledge that the views will not be revealed outside the jury room . Jurors should not be constrained by fears a juror would legitimately have if his friends and neighbours , and the general public , may come to know of his views , which could be unpopular views . If views were expressed in the hope of their being disclosed , or with an intention to disclose , that would also have a deleterious effect on the quality of deliberations .

DATE . It is the principle of the secrecy of the jury room which is at stake and which is central to the proper administration of justice in this jurisdiction , as stated in the authorities . It is not necessary to establish that the disclosure has led to injustice in the case concerned . Disclosures must be examined individually if the principle is to be maintained . Disclosures found to be in breach of the section do not obtain cover by being interwoven , whether intentionally or unintentionally interwoven , with expressions of general concern , which may legitimately be made by a juror . They do not obtain cover by the addition of favourable comments about how the jury functioned , as some of the disclosures in this case may have done . Indeed , disclosures incorporating favourable comment about other jurors could constitute a breach . ”

Accordingly , he concluded :

“ CARDINAL . In my judgment , the disclosure of the CARDINAL vote was a clear breach of section CARDINAL(CARDINAL ) . It was a breach as disclosing a vote . Moreover , it revealed the opinions expressed by CARDINAL members of the jury , at an early stage of a long deliberation . The reference to ‘ no going back’ also revealed a firm intention on the part of those CARDINAL members not to change their minds , a revelation of the opinions they held .

The paragraph dealing with common sense also constituted a breach . It was disclosed that the majority who convicted used a ‘ despicable enemy of correct and logical thinking’ . That was the foreman ’s assessment of the opinions of and statements expressed by the majority members and he disclosed them by making those comments . The majority members were , in the opinion of the foreman , guilty of incorrect and illogical thinking , an accusation against them , combined with a disclosure of , their opinions .

It is disclosed that the majority members used that ‘ wonderfully persuasive device , common ORG . That is a disclosure of their approach to the evidence , which necessarily was based on statements they had made or opinions they had expressed during the deliberations . If the foreman ’s assessment of their opinions was incorrect , it may add to the wrong done to them , but that is not material ; the mischief is in the disclosure of the deliberations . It is not necessary to prove that the accusations made against fellow jurors were true .

The assumption is made in the foreman ’s disclosure that common sense is the enemy of correct thinking , and therefore of justice . That assumption can of course be questioned ; common sense is generally perceived to be valuable and does not inevitably lead to the acceptance of expert medical evidence . Debate of the merits of common sense is not , however , in point for present purposes . What is relevant is that the disclosures reveal the approach of this jury to the evidence in this case ; reliance on common sense and not correct and logical thinking . Whether or not that is a disclosure offensive to the majority members need not be decided ; it was a disclosure of their approach , as assessed by the foreman , thereby revealing their opinions . It offended against the secrecy of the jury room , as that concept is viewed in the authorities . The foreman should not have disclosed the approach to the evidence of other jurors . What may be legitimate debate in the course of deliberations should not be revealed outside . ”

As regards the remaining CARDINAL disclosures about which the Attorney General had complained ( see above ) , the judge found that they were general comments on the strength of the evidence for the prosecution and did not breach the DATE Act .

The first applicant was fined GBP CARDINAL . The second applicant was fined GBP CARDINAL and ordered to pay costs of ORG .

On DATE the second applicant sought leave to appeal to ORG . Leave was refused by the newly instituted ORG on DATE .

DATE three high - profile trials took place concerning the death of children in which expert medical evidence had been critical to the prosecution case . In CARDINAL of the cases , convictions were handed down at first instance . However , the convictions were subsequently overturned and the medical evidence called into question . These cases were referred to in the front page article published in The ORG .

In DATE , ORG published a consultation paper on ORG and PERSON , seeking views on whether there should continue to be a ban on all research into a jury ’s deliberations . The summary of responses received , published in DATE , indicated that the majority of respondents were in favour of allowing some degree of research into the jury decision - making process . However , no amendment was made to the DATE Act .

In DATE a ORG published a report on forensic evidence used in criminal trials ( ORG of Session CARDINAL–CARDINAL , ORG ) which recommended an amendment to section CARDINAL of the DATE Act to permit research into ORG deliberations .

NORP The matter of the death of babies in which the triad of intracranial injuries , considered by most experts to be indicative of non - accidental head injury , or “ shaken baby syndrome ” , was present was also of topical importance , following the review of CARDINAL convictions by ORG in DATE which resulted in CARDINAL convictions being overturned . ORG explained in its judgment that while the triad pointed strongly to non - accidental head injury it did not automatically and necessarily lead to such a diagnosis .

The criminal case at issue in the present applications had itself received considerable publicity . It had been suggested in the press , prior to the publication of the CARDINAL articles by The ORG , that the jury had not been given adequate time to deliberate and that a miscarriage of justice had occurred .

In DATE ORG issued a consultation paper on ORG and GPE . The paper noted :

“ CARDINAL However , the possibility or likelihood of jury deference in relation to complex fields of knowledge gives rise to a danger if there are legitimate questions about the reliability of the expert ’s evidence . This may be because the expert ’s field of knowledge is a novel or developing science with little in the way of peer review , or because there are doubts as to the validity of the expert ’s methodology , hypothesis or assumptions , or for some other reason .

CARDINAL The problem is particularly worrying if there is no available expert in the same field who can be called by the opposing party to provide an effective criticism of the expert evidence in question , particularly if the forensic tool of cross - examination ( by a non - specialist advocate ) would provide only an ineffectual substitute . The jury in such cases may have no real option but to defer to the view of the expert even though his or her testimony may be insufficiently reliable to warrant such deference or , indeed , any consideration at all .

CARDINAL A related problem , touched upon in the preceding paragraph , is that the non - specialist individuals involved in the criminal trial process may have an insufficient understanding of the limitations of expert evidence , scientific evidence in particular . They may assume that just because an expert ’s evidence is presented as ‘ scientific’ it may be taken to be reliable . Certainly there is evidence to suggest that juries may find it difficult to understand or follow cross - examination aimed at revealing flaws in scientific methodology , a problem which is likely to be more acute if the evidence is complex . ”

A jury in GPE is composed of CARDINAL members , although its number may be reduced to a minimum of CARDINAL in the case of the discharge of a member or members because of illness or for some other reason .

The jury ’s verdict is given in open court in the presence of all the jurors and the parties to the proceedings . Majority verdicts are possible . Where a majority verdict is handed down the foreman of the jury must state in open court the number of jurors who agreed to and dissented from the verdict . The minimum majorities possible are CARDINAL or DATE . In the case of a jury which has been reduced in number to CARDINAL or QUANTITY members , the minimum permissible majorities are CARDINAL - CARDINAL or CARDINAL respectively . A jury of CARDINAL members must be unanimous .

Section CARDINAL of the Contempt of Court Act DATE provides , in so far as relevant :

“ Confidentiality of jury ’s deliberations .

( CARDINAL ) Subject to subsection ( CARDINAL ) below , it is a contempt of court to obtain , disclose or solicit any particulars of statements made , opinions expressed , arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings .

( CARDINAL ) This section does not apply to any disclosure of any particulars–

( a ) in the proceedings in question for the purpose of enabling the jury to arrive at their verdict , or in connection with the delivery of that verdict , or

( b ) in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings , or to the publication of any particulars so disclosed .

In Attorney - General v. ORG and Others [ DATE ] ORG CARDINAL , ORG held that the word “ disclose ” in section CARDINAL of the DATE Act was apt to describe both offending revelations by a juror to a newspaper and the further disclosure of those revelations by their publication in the newspaper , provided that this amounted to a disclosure rather than re - publication of facts already known .

In NORP v. PERSON [ DATE ] ORG CARDINAL , Lord PERSON cited with approval a passage in a judgment of ORG in R v. PERSON SCC CARDINAL in which PERSON identified the principal reasons for the common law rule of jury secrecy in the following terms :

“ The first reason supporting the need for secrecy is that confidentiality promotes candour and the kind of full and frank debate that is essential to this type of collegial decision making . While searching for unanimity , jurors should be free to explore out loud all avenues of reasoning without fear of exposure to public ridicule , contempt or hatred . This rationale is of vital importance to the potential acquittal of an unpopular accused , or CARDINAL charged with a particularly repulsive crime . In my view , this rationale is sound , and does not require empirical confirmation .

ORG also placed considerable weight on the second rationale for the secrecy rule : the need to ensure finality of the verdict . Describing the verdict as the product of a dynamic process , the court emphasized the need to protect the solemnity of the verdict , as the product of the unanimous consensus which , when formally announced , carries the finality and authority of a legal pronouncement . That rationale is more abstract , and inevitably invites the question of why the finality of the verdict should prevail over its integrity in cases where that integrity is seriously put in issue . In a legal environment such as ours , which provides for generous review of judicial decisions on appeal , and which does not perceive the voicing of dissenting opinions on appeal as a threat to the authority of the law , I do not consider that finality , standing alone , is a convincing rationale for requiring secrecy .

The respondent , as well as the interveners supporting its position and , in particular , the Attorney General of GPE , place great emphasis on the third main rationale for the jury secrecy rule – the need to protect jurors from harassment , censure and reprisals . Our system of jury selection is sensitive to the privacy interests of prospective jurors ... , and the proper functioning of the jury system , a constitutionally protected right in serious criminal charges , depends upon the willingness of jurors to discharge their functions honestly and honourably . This in turn is dependent , at the very minimum , on a system that ensures the safety of jurors , their sense of security , as well as their privacy . ”