Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE . He is a journalist writing for the ORG newspaper .

NORP In DATE a DATE boy attending the PERSON DATE camp complained to his parents that he had been beaten up and sexually abused by his DATE roommates . Further to a complaint by the boy 's parents , the police found evidence of criminal offences which , however , were not prosecutable because the offenders were minors .

One of the offenders was the son of CARDINAL federal judges , PERSON and PERSON Another culprit was the stepgrandson of the deputy head of ORG , PERSON

As the offenders ' parents held prominent positions in the region , the media took an intense interest in the story . The first article about the incident was published on DATE by ORG DATE newspaper . The publication listed the names and positions of the offenders ' relatives .

After the victim 's mother had brought the police reports and the relevant medical records to the applicant 's newspaper , the applicant undertook independent research into the events . In particular , he interviewed the principal of the PERSON DATE camp , several of its teachers , an official responsible for the supervision of DATE camps in the region , a spokesman for the police department charged with the investigation and the head of ORG .

On DATE the applicant published an article about the incident at the DATE camp in the ORG newspaper , under the headline “ Day of reckoning ” ( PERSON расплаты ) . He wrote , in particular , as follows :

“ Any story [ of battery and sexual abuse ] deserves the most rapt attention . This one is particularly shameful because of the fact that the parents of CARDINAL little bastard work as judges in a district court , and a close relative of another is one of the heads of the regional traffic police .

It is hard to write about this matter . The case affects children , their lives , their tragedy and their future . It is hard because the guilt and its extent should be determined by a court , but the underage participants in this story are , alas , not liable to prosecution ... Their parents should be responsible for their deeds vis - à - vis society and the ORG . This is why we have decided to take the matter up ...

I believe readers will excuse me for not providing a detailed description of the abuse to which the kid was subjected ( in fact , our colleagues from the PERSON newspaper have already provided one ) . I will say CARDINAL thing : the circumstances of those unchildlish deeds were established by evidence . They amount to assault and battery , punishable by LAW , and sexual assault , punishable by LAW ] . Thus , if those moral freaks had been charged with criminal offences and committed for trial , they would have risked long terms of imprisonment .

... [ After the parents of the victim had complained to the police , ] an investigation was conducted by officers from ORG of LOC , who established that the actions of the CARDINAL minor rapists indeed disclosed all the elements of criminal offences . However , no criminal proceedings were opened because the suspects were minors . Meanwhile , the press learned about the events and a scandal erupted .

It is not the first time that the attention of law - enforcement bodies has been riveted to the children of high - ranking parents . However , as a rule , such cases are abandoned at an early stage of the inquiry . Even when they are referred for trial , the general public hardly ever knows about it . Without any doubt , had the administration of the PERSON DATE camp paid attention to the facts and warned the parents in time , the investigators from [ ORG of LOC ] would have hardly been allowed to go on with the investigation . The events were , however , left to take their course and were made public .

We must do some serious thinking here . How can it be ? A kid whose parents work as JUDGES has committed a crime ! Is it a coincidence or a pattern ? What did his parents teach him ? Perhaps they thought that the judge and the PERSON were one and the same thing , that the judge was not servant but master of the law , a superhuman ? And that his children were superhumans , too ; they could do whatever they pleased , in the knowledge that their mothers and fathers would exempt them from liability ...

Another [ offender ] has a relative in the police force . Not an ordinary one , but a bigwig sporting star - studded epaulettes . So , is anything permitted ? If something happened , would he ' cover up ' and ' fix ' it ?

How will these people carry on working in the courts and the police force ? Delivering judgments , sentencing men to prison terms for crimes for which their progeny could have been convicted ? Or are they already used to doing this ? After all , all these conjectures are based on real grounds and it is very likely that the case will be hushed up thanks to ' string pulling ' by the rogues ' parents .

We were told that pressure was being put on the victim 's parents , that their physical integrity had been threatened . What is more , while our editorial board was working on that publication , we received a number of bizarre telephone calls asking us to stop the journalistic investigation and stay out of the way of the judges and their children . It is strange that none of the ' well - wishers ' who called us considered the fate of the injured child , of how he will live after what happened . Nor did they consider the fate of the underage members of the ' criminal trio ' . What will become of them ? Could it be that , having gone unpunished once , they will resume their ' sexual experiments ' in DATE ? ...

GPE Unfortunately , because of recent amendments to LAW , the newspaper may not name the young rascals or their parents and relatives ... We will carry on investigating the matter and in a future issue we will give concrete examples of how the children of judges and police officials have escaped punishment . ”

According to the applicant , subsequent publications in the GPE and PERSON newspapers and on the Internet gave the names and official positions of the offenders ' parents and relative .

On DATE the applicant published a follow - up article , under the headline “ Chocolate Kids . High - ranking parents of minor rapists seek to hush up the scandal ” ( “ FAC детишки. FAC родители малолетних насильников пытаются замять скандал ” ) . He wrote as follows :

“ The case developed into a scandal because the parents of CARDINAL suspect were the spouses [ Mr and PERSON ] , judges in a district court of GPE , and a close relative of another , [ Mr PERSON ] , was deputy head of the regional traffic police .

Quite naturally , these high - ranking parents were not prepared to put up with the course of events . In addition to the ethical dimension , the scandal was a potential threat to their careers and financial well being . In the beginning they attempted to portray the events as an ordinary fist fight ! With that purpose , and with the complicity of the regional administration , the prosecutor 's office ordered an additional inquiry ...

Judging from the diligence with which all that has been done , as well as from the fact that the official newspapers were suddenly full of lengthy articles DATE wonderfully organised DATE for children , attempts are being made to exert pressure on the course of the resumed investigation .

Most likely , this inquiry will establish that all the suspects are ' warm and fuzzy ' . Yet , the fact that the abuse did indeed take place is confirmed by the fact that , precisely because of those scandalous events , one of the little scoundrels has been placed in a detention centre for juvenile offenders pursuant to an order of ORG . It follows that the son of simple factory workers is segregated from society , while his accomplices , the children of judges and bigwigs from the police , are at liberty ! ...

Our journalistic inquiry uncovered sensational information about [ Mr V. ] It turns out that this criminal scandal is not the first one in his family . His eldest son , ORG , has been on the list of fugitives from justice since DATE : he was suspected of assault with intent to rob . His youngest son , also a traffic police officer , caused a road accident DATE , in which a young woman was seriously injured ... But he managed to escape responsibility . And now this gloomy story involving [ Mr PERSON 's ] stepgrandson . It begs a question for the management of the regional police , who are certainly aware of these facts : how can such a person still work in the field of law enforcement in a position of leadership in the traffic police ?

DATE the [ judicial ] qualification board will decide on the destiny of the judges [ Mr and PERSON ] . If they carry on working as judges , this again begs a question : how will these people sentence others if they were unable to bring up their own child [ properly ] ? ... ”

Mr and PERSON brought a civil action for defamation and disclosure of private information on their own behalf and on behalf of their minor son . They named as defendants the founders of the ORG newspaper and its journalists , as well as the applicant and the company that owned his newspaper . They sought a retraction and compensation for non - pecuniary damage . They enclosed the text of the retraction , containing an apology that they wished the applicant 's newspaper to publish .

On DATE the ORG of PERSON gave judgment . It noted that the statements accusing PERSON and PERSON son of violent acts were true because the police had found evidence of a criminal offence . The allegedly insulting statements ( “ little bastards ” , “ young rascals ” and the like ) were not actionable because they constituted value judgments not amenable to verification . The alleged breach of the duties of a journalist arising out of LAW , namely , disclosure of confidential or private information , was not actionable in civil proceedings because LAW provided for criminal or disciplinary , rather than civil , sanctions for such breaches . On the other hand , relying on LAW , the court granted the claimants ' request for a retraction of the allegation that they “ had attempted to interfere with the investigation ” because the journalists had not produced any proof of such interference . It ordered that the newspaper and the applicant publish a retraction containing an apology to PERSON and PERSON It further ordered that the applicant pay PERSON and PERSON in respect of non - pecuniary damage in the amount of MONEY ( RUB , MONEY ( ORG ) ) .

The applicant appealed . He submitted , in particular , that the articles authored by him did not contain any statements accusing PERSON and PERSON of interfering with the investigation . He further complained that the order to publish a retraction containing an apology had had no basis in domestic law .

On DATE ORG upheld the judgment on appeal , finding that it had been lawful , well - reasoned and justified . As regards the order to publish an apology , ORG found that it was for ORG to determine the contents of the retraction .

Mr V. , on his own behalf , and his daughter - in - law , on behalf of her son , brought a civil claim against the same defendants for defamation and disclosure of information about their private life . They sought compensation for non - pecuniary damage under LAW . They also sought a retraction and submitted a draft retraction containing an apology .

On DATE the ORG granted the claim in part . It found that the journalists had failed to prove the allegation that PERSON ORG “ had interfered with the investigation ” , as required by LAW . It rejected as unsubstantiated , without further reasoning , the applicant 's argument that his articles had not contained any such statements . It also held the journalists liable for a violation of the claimants ' constitutional right to the inviolability of their private lives , finding as follows :

“ Under LAW , if a citizen has incurred non - pecuniary damage through actions impairing his personal non - pecuniary rights ... the court may order the person responsible to compensate for the damage .

In accordance with Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW , everyone has the right to the inviolability of his private life , to personal and family secrets , [ and ] to the protection of his honour and goodwill ; it is an offence to collect , keep , use or disseminate information about a person 's private life without that person 's consent .

The court has not seen any proof that the authors of the articles published in ORG and ORG newspapers obtained consent to the dissemination of information about the private lives of [ Mr PERSON and his minor stepgrandson ] . Accordingly , [ their ] constitutional right to the inviolability of their private lives has been breached . ”

The court ordered that the newspaper and the applicant publish a retraction containing an apology to PERSON and his family . It further ordered that the applicant pay compensation to PERSON and his daughter - in - law in the amount of RUB CARDINAL ( approximately EUR CARDINAL ) .

NORP In his grounds of appeal the applicant complained about ORG inconsistent approach to the issue of whether disclosure of private information was actionable in the civil proceedings . In holding the applicant responsible for dissemination of personal information , ORG had disregarded the fact that the information had been first published by another newspaper , ORG , and that from that moment it had entered the public domain . Furthermore , ORG had not identified any statements which could be construed as implying that PERSON had interfered with the investigation .

On DATE ORG upheld the judgment , finding that disclosure of personal information was actionable under LAW of LAW .

Article CARDINAL prohibits collecting , storing , using or disseminating information about a person 's private life without that person 's consent .

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

Article CARDINAL provides that a court may award compensation for non - pecuniary damage to an individual who has incurred such damage as a consequence of acts that have violated his personal non - pecuniary rights . Article CARDINAL lists , among other personal non - pecuniary rights , the inviolability of a person 's private life , and personal and family secrets .

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

The Mass Media Act ( Law no . CARDINAL-I of DATE ) provides that the mass media may not publish information which permits a minor who has committed a criminal or an administrative offence or is suspected of such an offence to be identified , directly or indirectly , unless the minor concerned and his or her guardian has consented to the publication ( section CARDINAL(CARDINAL ) ) .

An individual or an organisation is entitled to require that the editorial board of a mass medium publish a retraction of untrue statements that are damaging to his / her / its honour , dignity or professional reputation . If the editorial board is unable to prove the truthfulness of the contested statements , it must publish a retraction in the same mass medium . If the individual or the organisation submits a draft text of the retraction , the editorial board must publish the submitted text , provided that it is compatible with the LAW ( section CARDINAL ) . A retraction must specify which statements are untrue , as well as where and when they were published ( section CARDINAL(CARDINAL ) ) .

A journalist is entitled to express his personal opinions and valuejudgments in the publications bearing his name ( section CARDINAL ( CARDINAL ) ) .

A journalist must check the truthfulness of the information he publishes . Before publishing information about an individual 's private life , a journalist must obtain the consent of the individual concerned or his or her guardian , except in cases where the publication of such information serves the public interest ( section DATE ) and ( CARDINAL ) . A journalist who has not complied with these duties may be held criminally , administratively or disciplinarily liable in accordance with the law ( section CARDINAL(CARDINAL ) ) .

Editorial boards , editors - in - chief and journalists are not liable for untrue statements damaging the honour and dignity of individuals or organisations , or for statements infringing the rights and lawful interests of citizens , if such statements are a verbatim reproduction of statements or materials , or extracts of them , that have been published earlier by another mass medium that may be identified and held liable ( section ORG ) ) .

Resolution of ORG of GPE no . CARDINAL of DATE ( amended on DATE and in force at the material time ) provided that , in order to be considered damaging , statements had to be untrue and contain allegations of a breach of laws or moral principles ( for example , the commission of a dishonest act , or improper behaviour at the workplace or in everyday life ) . “ Dissemination of statements ” was understood to be the publication of statements or their broadcasting ( section CARDINAL ) . The burden of proof was on the defendant to show that the disseminated statements were true and accurate ( section CARDINAL ) .

On DATE ORG of GPE adopted Resolution no . CARDINAL , which required the courts examining defamation claims to distinguish between statements of facts which can be checked for veracity , and value judgments , opinions and convictions which are not actionable under LAW because they are expressions of a defendant 's subjective opinion and views and can not be checked for veracity ( paragraph CARDINAL ) . Furthermore , it prohibited the courts from ordering defendants to extend an apology to a claimant , because that form of redress had no basis under NORP law , including LAW ( paragraph CARDINAL ) .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She is represented before the Court by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agents , PERSON and PERSON , of ORG .

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

On DATE PERSON brought an action against the applicant and her husband seeking a declaration that a contract whereby they had acquired the title of an apartment was null and void .

On DATE the ORG rescinded the contract . In a judgment of DATE the ORG quashed the lower court ’s judgment and remitted the case for fresh examination .

DATE and DATE ORG held CARDINAL hearings , CARDINAL of which were adjourned because the applicant and her husband had not been duly summoned . On DATE the domestic court rescinded the impugned contract .

The applicant and her husband appealed . In a judgment of CARDINAL DATE the ORG quashed the lower court ’s judgment in respect of CARDINAL of the real estate and upheld it in respect of the other CARDINAL .

The applicant ’s husband lodged a cassation appeal . The applicant did not file such an appeal and did not participate in the cassation proceedings .

In a judgment of DATE ORG annulled the lower court ’s judgment and terminated the proceedings , holding that the plaintiff had had no standing to bring the action .


CASE OF YOUNG, JAMES AND WEBSTER v. THE UNITED KINGDOM (ARTICLE 50)

Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The case of PERSON , PERSON and PERSON was referred to the Court by ORG ( " the Commission " ) in DATE . The case originated in CARDINAL applications against GPE and GPE lodged with the ORG in DATE and DATE by Mr. PERSON , Mr. PERSON and Mr. PERSON .

On DATE , the ORG constituted to examine the case relinquished jurisdiction in favour of ORG ( Rule CARDINAL of the Rules of Court ) . By a judgment of CARDINAL DATE , the latter held , inter alia , that the ORG dismissal from employment for failure to join a specified trade union had entailed a breach of LAW ( LAW ) of LAW no . DATE , point CARDINAL of the operative provisions and paragraphs CARDINAL of the reasons , pp . CARDINAL and CARDINAL - CARDINAL ) .

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to DATE of the above - mentioned judgment ( ibid . , pp . CARDINAL ) .

At the hearings of CARDINAL and CARDINAL March CARDINAL , counsel for the applicants had indicated that , should the ORG find a violation , his clients would seek just satisfaction under LAW ) in respect of material losses , legal costs and allied expenses , and non - material damages .

In its judgment of CARDINAL DATE , ORG reserved the whole of the question of the application of LAW ) and referred it back to LAW . On DATE , ORG invited the ORG to submit , within DATE , its written observations on the said question , including notification of any friendly settlement at which ORG of GPE ( " the Government " ) and the applicants might have arrived ( ibid . , p. CARDINAL ) .

Following several extensions by the President of ORG above - mentioned time - limit and in accordance with his Orders and directions , the registry received

- on DATE , observations of ORG concerned with the issue under LAW ) ;

- on DATE and CARDINAL DATE , through the Secretary to ORG , observations of the applicants ;

- on DATE and CARDINAL DATE , comments of the Government and their replies to questions put to them by ORG .

These documents revealed that no friendly settlement of the ORG claims had been arrived at ; they gave details of negotiations conducted to this end , with the assistance of ORG , between the Government and the applicants , of an offer made by the Government on DATE and of the applicants’ views thereon .

In his observations , the ORG ’s ORG submitted that just satisfaction should be afforded in the form of payments by the ORG to the applicants , on the terms which he mentioned , of the same total amount as that offered by the Government during the negotiations , namely £ MONEY less certain sums already received by the applicants from the Government by way of payments on account in respect of pecuniary losses and from the Commission by way of legal aid .

For ease of reference , further particulars concerning the applicants’ claims and the ORG ’s offer are set out below in the section " As to the law " .

Having consulted , through the Registrar , the Agent of the ORG and ORG , the ORG decided on DATE that there was no call to hold hearings .

Mr. PERSON , a substitute judge , took the place of Mr. PERSON , who was prevented from taking part in the consideration of the case ( Rules CARDINAL - CARDINAL and CARDINAL - CARDINAL of ORG ) .


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

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

On DATE the applicant deposited an amount of MONEY ( hereafter “ the USD ” ) in cash with Mr Nevmerzhytsky , who at the relevant time was the Head of the GPE office of ORG ( hereafter “ the Bank ” ) . PERSON issued a receipt for this money , in which he undertook to repay it immediately on the applicant ’s demand . The receipt was countersigned by the applicant and CARDINAL witnesses .

On DATE , in the course of an ongoing preliminary criminal inquiry , the premises of the ORG were searched by the police and an amount of ORG in cash was seized which had been stored underneath the table of an employee .

On DATE ORG of ORG of ORG of GPE in GPE began a criminal investigation into allegations of illegal currency transactions that had allegedly been committed by PERSON . Subsequently this charge was dropped and he was charged with financial fraud , forgery committed by an official , aggravated forgery , abuse of power , tax evasion , aggravated fictitious trading and aiding and abetting the concealment of the proceeds of currency sales ( see GPE v. GPE , no . CARDINAL , § § DATE , ECHR DATE ) .

On DATE a police investigator ordered that the money seized at the premises of the ORG be attached to the file in the criminal case against PERSON and be used in the subsequent trial as real evidence .

On DATE the applicant was put on the list of wanted persons for his alleged involvement in illegal currency transactions . On DATE he was apprehended by the police . On DATE the applicant was formally charged with engaging in illegal currency transactions .

On DATE the investigator discontinued the criminal proceedings against the applicant , holding that there was no evidence that the applicant had been aware of the fact that Mr Nevmerzhytsky had conducted illegal financial transactions .

On DATE the applicant lodged a civil - party application in the context of the criminal case against PERSON , asserting his rights to the money seized at the bank in the amount of ORG CARDINAL,CARDINAL .

On DATE the investigator dealing with case against Mr Nevmerzhytsky , allowed the applicant to join the proceedings as a civil claimant . In his decision the investigator stated , inter alia , that the applicant had a valid claim for part of the money seized at the premises of the ORG .

During the trial proceedings against PERSON , which started in DATE and continued , with several interruptions ( see GPE , cited above , § § DATE ) , until DATE , the applicant was heard as a witness . He stated that on several occasions in DATE and DATE he had deposited cash with the defendant , including the amount USD CARDINAL,CARDINAL , handed over on DATE .

On DATE ORG convicted PERSON of repeated financial fraud , acts in preparation of financial fraud , forgery committed by an official , aggravated forgery and abuse of power . It sentenced him to DATE and CARDINAL months’ imprisonment , and ordered the confiscation of all his personal property . The trial court acquitted him of the offences of aiding and abetting the concealment of the proceeds of currency sales , tax evasion and aggravated fictitious trading . ORG also ordered the amount of ORG forfeited to the ORG as its rightful owner had not been established during the hearings .

On DATE ORG issued a separate ruling , noting that the investigating authorities had permitted the applicant to join the proceedings as a civil claimant on the ground that in DATE and DATE he had deposited substantial amounts in cash with PERSON . However , the applicant could not be a party to the criminal proceedings as the authorities had failed to verify the source of this money and the lawfulness thereof . ORG suggested that the investigating authorities should reconsider their decision of DATE to discontinue the criminal proceedings against the applicant . There is no indication that the criminal investigation against the applicant was ever reopened .

On an unspecified date the applicant appealed against the judgment of DATE , stating that ORG had unfairly denied him access to the proceedings in his capacity as civil claimant . The applicant further complained that the trial court had unreasonably ordered the forfeiture of the cash seized at the LOC of the ORG , as the major part of this money belonged to him .

Pursuant to LAW , the applicant ’s appeal in cassation was handed over to ORG , which examined its compliance with the relevant procedural requirements ( see the relevant domestic law below ) . On DATE this court declared the appeal inadmissible as the applicant was not a party to the criminal trial and therefore not entitled to appeal against the judgment of CARDINAL DATE . The applicant challenged this decision before ORG .

On DATE ORG , following a hearing held in presence of the applicant ’s lawyer , upheld ORG finding that the applicant was not a civil party to the criminal proceedings against PERSON and was therefore not entitled to file an appeal against the judgment of DATE . ORG stated , inter alia , that the amount of cash seized during the search differed from that deposited by the applicant with PERSON on DATE and that the seized cash did not have any features that would permit to identify it as that belonging to the applicant . Moreover , it was highly improbable that such a significant sum of money would be stored for DATE ( from DATE ) by the bank employees in the counter hall underneath a table .

Civil proceedings

On DATE the applicant sued PERSON for breach of contract , claiming that the latter owed him ORG CARDINAL,CARDINAL .

On DATE the ORG of GPE suspended the proceedings in this case .

On DATE ORG , acting as supervisory instance , quashed this decision and remitted the case for examination on the merits .

On an unidentified date the case was transmitted from the PERSON to GPE ORG of GPE .

On DATE the GPE ORG of GPE dismissed the applicant ’s claim because he had repeatedly failed to appear in court .

On DATE ORG , on the applicant ’s appeal , quashed this decision on the ground that the case file did not contain any evidence that the applicant had been duly informed of the scheduled hearings .

On an unknown date before DATE the applicant amended his claims , requesting the court to order to ORG to join the proceedings as a co - defendant and requesting that the sum of ORG CARDINAL be excluded from the attachment order of CARDINAL DATE .

On DATE the Starokyivskyy ORG of GPE suspended the proceedings pending the outcome of the criminal proceedings against PERSON .

This decision was quashed on an unspecified date by a higher court .

On DATE the Starokyivskyy ORG of GPE dismissed the applicant ’s claims because he had repeatedly failed to appear . The applicant did not appeal against this decision .

Article CARDINAL of the Code of Criminal Procedure provides that a person who sustained material damage from a crime shall be entitled to lodge a civil claim against the accused person or any other persons who bear material liability for the actions of the accused . The civil claim can be filed during the pre - trial proceedings as well as at the initial stages of the trial proceedings . The person who has not filed a civil claim in the context of the criminal proceedings , as well as a person , whose claim was left without consideration , is entitled to bring proceedings before civil courts .


Violation of Article 6 - Right to a fair trial

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

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

NORP In DATE the applicant concluded a contract with A. , a private bank ( “ the Bank ” ) , by which it would invest the applicant ’s funds in the construction of an apartment by ORG “ PERSON ( “ the Construction Company ” ) , to be completed by DATE . Pursuant to the provisions of this contract , in the event of a delay in completion of the construction works , the applicant could claim late - payment penalties from the ORG .

As ORG officially completed the works only on CARDINAL DATE , on DATE the applicant instituted civil proceedings in the ORG of GPE claiming payment from the ORG for delay in completion of the works .

On DATE Judge PERSON held a hearing . Subsequently Judge PERSON , the President of ORG at the material time , withheld the case from Judge PERSON for unspecified reasons .

On DATE the ORG lodged a counterclaim , alleging that the promise to pay a penalty for ORG failure to fulfil the work on time had been given by it ultra vires , and had to be annulled as incompatible with the applicable banking law .

On DATE Judge PERSON pronounced a judgment dismissing the applicant ’s claim and allowing the ORG ’s counterclaim . However , he did not sign this judgment .

On DATE the applicant lodged a cassation appeal with ORG .

On DATE , pursuant to the requirements of the procedural law in place at the material time , the appeal was forwarded to Judge Z. to decide on its compliance with procedural formalities .

NORP In DATE a new appeal procedure was introduced , and ORG was transformed into ORG .

In DATE Judge PERSON was dismissed on disciplinary grounds .

On DATE ORG informed the applicant that it had investigated his complaint about the lengthy consideration of his cassation appeal and discovered that former Judge PERSON had failed to register it and had withheld the case file from the court ’s registry . ORG assured the applicant that the case would be promptly transferred to ORG for consideration .

On DATE ORG quashed the judgment of DATE as unsigned by the presiding judge and remitted the case for a fresh consideration .

On DATE ORG allowed the applicant ’s claim and dismissed the ORG ’s counterclaim . On DATE the ORG appealed .

On DATE ORG reversed the judgment , having annulled the clause concerning the ORG ’s responsibility for ORG delay as incompatible with the applicable law .

On DATE the applicant appealed in cassation before ORG .

On DATE ORG rejected the applicant ’s request for leave to appeal in cassation .

On DATE Judge PERSON was convicted of failure to perform official duties and sentenced to CARDINAL years’ imprisonment , suspended . His criminal case included several episodes , none of which concerned the applicant ’s civil case .

Subsequently the applicant unsuccessfully sought to reopen the proceedings , alleging that a similar complaint by another investor had been upheld in the investor ’s favour .


Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by PERSON , a lawyer practising in PERSON . The respondent Government were represented by their Agent , PERSON , PERSON , of ORG .

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

The applicant was arrested on DATE on suspicion of having bought cocaine from H. and of having subsequently sold it to unknown consumers . H. had previously acquired the drugs in the GPE where he had travelled for this purpose in the company of GPE and S.

In the course of preliminary investigations against the drug supplier H. , B. and PERSON , who had both been involved only in the importing of the drugs by PERSON but not in the subsequent sale to the applicant , were questioned by police officer PERSON and gave , inter alia , hearsay evidence about statements made by PERSON and other circumstances indicating that ORG had subsequently sold part of the imported drugs to the applicant .

On DATE a chamber of ORG ( ORG ) , with judge PERSON presiding , convicted PERSON of drug trafficking , sentenced him to CARDINAL years’ imprisonment and ordered him to undergo treatment in a detoxification centre . The judgment was primarily based on a full confession made by PERSON following an unrecorded plea bargain reached with the court providing for mitigation of ORG ’s expected prison sentence in return for a confession . The veracity of the confession was confirmed by the testimony given by police officer P. regarding the statements made by B. and PERSON during previous police questionings .

The judgment enumerates the several clients to which ORG had sold drugs on various occasions and among them mentions a person called “ Jürgen Kriegisch ” , to whom he had sold cocaine on CARDINAL occasions . The related passages of the judgment establishing the facts of the case which refer to the said person read as follows :

“ ... he [ H. ] ... brought the narcotics to ORG and sold them there as follows : - to PERSON QUANTITY of cocaine at a price of QUANTITY ; - to ... ; ... ... he [ H. ] ... brought the narcotics to GPE and sold them there as follows : ORG to PERSON at DATE of its acquisition QUANTITY but at most QUANTITY of cocaine at a price of CARDINAL and at most QUANTITY ; - to ... ; ... He [ H. ] brought the narcotics to GPE . From the quantity he had purchased in this manner , he sold a gross amount of QUANTITY of cocaine directly following his return to PERSON , who is being prosecuted separately , at a price of CARDINAL and at most QUANTITY and to ... ”

On DATE the main hearing in CARDINAL cases against the applicant on charges of drug trafficking was opened before a chamber of ORG presided over by the same judge , PERSON , who had previously presided over the trial against PERSON The applicant was represented by counsel throughout the proceedings .

On DATE ORG heard evidence from , inter alia , police officer PERSON , regarding the statements made by PERSON and B. when questioned earlier by the police . PERSON refused to give evidence regarding the case as such and , on a request by the applicant to testify , stated that all he could do for the applicant was to remain silent .

During a break the presiding judge made an offer to the applicant that if he confessed , any prison sentence imposed on him would not exceed DATE ; otherwise the hearing would be adjourned and should the charges brought against the applicant prove true in the course of the resumed proceedings , a term of imprisonment of DATE was to be discussed . The applicant refused the offer , which was not recorded .

Evidence was also heard from B. and S. as hearsay witnesses . B. refrained from making statements about the case as such . S. gave hearsay testimony on statements made by ORG in relation to the sale of the drugs to the applicant following their importation but stated that he could not give any information regarding the sale of the drugs by ORG to the applicant as such .

By a decision of DATE ORG , sitting as a panel of CARDINAL judges including PERSON , ordered the continuation of the applicant ’s detention pending trial on the ground that the outcome of the main hearing had confirmed the suspicion of drug trafficking against the applicant . The court based its decision essentially on the information given by police officer PERSON , the hearsay testimony given by PERSON , and on H. ’s refusal to testify .

At the opening of the resumed hearing on DATE the applicant objected to the participation of the presiding judge , PERSON , on the ground of possible bias . He argued , in particular , that PERSON had already presided in the previous trial against PERSON and had obtained a confession from the latter after having indicated that if PERSON confessed he would not impose preventive detention ( GPE ) on him . Pursuant to NORP law , a ruling on preventive detention constituted a legal consequence that was not subject to the discretion of the judge , and any such plea bargain was therefore unlawful . Furthermore , the assessment of the evidence given by the witnesses during the hearing of CARDINAL DATE and the interpretation of ORG ’s refusal to testify as reflected in the court ’s decision to continue the applicant ’s detention had been partial . Finally , the applicant maintained that the offer to terminate the trial made by the presiding judge at the hearing of CARDINAL DATE showed that the judge had sought to exert undue pressure on the applicant with a view to expediting the proceedings and avoiding a proper investigation of the case .

The applicant ’s objection against presiding judge PERSON was dismissed by the substitute chamber ( Vertreterkammer ) of ORG DATE . As regards the court ’s order continuing the applicant ’s detention pending trial , the court found that it was based on the outcome of the discontinued hearing of CARDINAL DATE and did not anticipate the judges’ assessment following examination of the case in the course of the proceedings . As regards the offer to terminate the proceedings , the substitute chamber found that an accused person would reasonably presume that such an offer by the presiding judge could only mean that in the event of a confession the accused would not face a sentence longer than DATE and that otherwise he could be acquitted or face a sentence of DATE , depending on the outcome of the trial . Under no circumstances could the offer be interpreted to imply that in respect of the same facts and circumstances the applicant would be liable to CARDINAL or CARDINAL years’ imprisonment depending on whether or not he made a confession .

At subsequent hearings , on CARDINAL and DATE and on CARDINAL and CARDINAL November CARDINAL , the ORG again heard H. , S. , B. and police officer PERSON The court also heard PERSON , who had been a non - presiding judge ( beisitzender PERSON ) during the previous hearing of CARDINAL DATE and whose testimony gave an account of the statements made by PERSON that hearing . S. again stated that he could not give any information regarding the sale of the drugs by ORG to the applicant as such , and withdrew any statements previously made to police officer PERSON during the police interview , indicating that PERSON had mentioned the applicant as purchaser of the drugs . PERSON himself denied having been involved in drug trafficking with the applicant . The court heard a number of further witnesses called by the applicant in his defence , but refused the applicant ’s request for expert opinions , with a view to verifying the credibility of B. ’s testimony . The applicant refrained from making statements regarding the case as such throughout the proceedings .

On DATE ORG convicted the applicant of drug trafficking in CARDINAL case and acquitted him in the other CARDINAL cases . He was sentenced to DATE imprisonment . ORG based its judgment mainly on the testimony given by PERSON , police officer PERSON and judge PERSON The court pointed out that PERSON had only been a hearsay witness but had also testified as to her own perception of the events . The court stated that it was aware that the credibility of PERSON ’s statements required particular scrutiny , and gave reasons as to why the content and circumstances of her testimony before the court had confirmed its credibility . ORG further reasoned that its finding was supported by PERSON ’s refusal to testify in order to protect the applicant and the evidence given by PERSON during his interview with police officer PERSON court further pointed out that PERSON ’s confession during his own trial had not been taken into consideration in the trial against the applicant .

On DATE the applicant lodged an appeal on points of law with ORG ( ORG ) arguing that the presiding judge had been biased and should have been excluded from the trial . He further complained , inter alia , that the admission of evidence and the assessment of the ORG statements by the court had been arbitrary .

On DATE ORG rejected the appeal as unfounded , following a statement of ORG ( ORG ) .

On DATE the applicant lodged a constitutional complaint alleging that the decisions of ORG and ORG infringed his right under LAW , second sentence , of the German Basic Law ( Grundgesetz ) , which provided that no one should be deprived of his right to a decision rendered by the court established by law ( gesetzlicher Richter ) , on the ground that the presiding judge had been biased and the refusal to exclude him from the trial had been arbitrary . The conduct of the proceedings against ORG and the plea bargain offered to the applicant at the beginning of his trial showed that the presiding judge had been convinced of the applicant ’s guilt from the beginning of the proceedings . He further complained that ORG ’s confession had been obtained in violation of LAW and should therefore not have been admissible as evidence in his own trial .

By a decision of DATE ORG declined to consider the applicant ’s constitutional complaint on the ground that it was unfounded . It held that the dismissal of the applicant ’s objection to the presiding judge by the relevant courts had not been based on arbitrary considerations and did not therefore constitute a violation of the applicant ’s right under LAW , second sentence , of the German Basic PERSON . As regards the participation of the presiding judge in the proceedings against PERSON , ORG pointed out that the lower courts could rely on the principle that the participation of a judge in separate proceedings did not generally give rise to bias on that judge ’s part .

ORG specified that even though the considerable difference in the length of the prison sentences mentioned by the presiding judge in his offer to the applicant might give cause for concern , the alternatives given were only meant to indicate the scope within which a possible sentence was “ to be discussed ” and not to give binding alternatives regarding the length of a possible prison sentence depending on whether the applicant confessed or not . An indication by the presiding judge that a confession might entail a substantial mitigation of sentence and an offer of an upper limit on the prison sentence did not in itself constitute an attempt by the presiding judge to unduly influence the applicant . The fact that the offer was made by the presiding judge at a time when important witnesses had not yet made a statement during the main hearing , but only during police interviews , did not establish bias on his part either , particularly as ORG had already heard the police officer who had previously interviewed those witnesses .

ORG further held that the presiding judge ’s attempt to reach a plea bargain with the applicant with a view to terminating the proceedings did not amount to a violation of his basic rights , since in any event it had been to no avail and the judgment of ORG had thus not been based on it . The same applied to the alleged violation of the provisions of LAW in connection with the confession obtained from ORG , since ORG did not base its judgment in the proceedings against the applicant on PERSON ’s previous confession .

The relevant provisions of LAW read as follows :

Article CARDINAL § CARDINAL

“ An objection can be raised on the ground of fear of bias if there is a reason which may justify doubts regarding the impartiality of a judge . ”

Article CARDINALa

“ ( CARDINAL ) The accused ’s freedom to make up his mind and to manifest his will shall not be impaired by ill - treatment , induced fatigue , physical interference , administration of drugs , torture , deception or hypnosis . Coercion may be used only as far as this is permitted by the statutory criminal procedure . Threatening the accused with measures not permitted under its provisions or holding out the prospect of an advantage not envisaged by statute shall be prohibited .

Article CARDINAL

“ An appeal on points of law may be lodged against judgments of the penal chambers ... ”

Article CARDINAL

“ A judgment shall always be considered to be based on a violation of the law

... CARDINAL . if a professional judge or lay judge has participated in the drafting of a judgment after being challenged for bias and if the application to challenge was either declared to be well - founded or erroneously rejected ... ” .

LAW , second sentence , of the German Basic Law ( Grundgesetz ) provides that no one shall be deprived of his right to a decision rendered by the court established by law ( gesetzlicher Richter ) . In its case - law , ORG has consistently dealt with the issue of whether a judge should be excluded for suspicion of bias as a problem of the right to a decision rendered by the legally competent judge .