David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

ORG ( “ the Government ” ) were represented by PERSON , as Agent .

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

On DATE an indictment was issued against Mr PERSON ( the founder of a supermarket chain , FAC , from which a multinational company ORG had originated ) , his son PERSON , Chief Executive Officer of ORG , his daughter PERSON and PERSON , a former Deputy Chief Executive Officer of the ORG . It resulted from a criminal investigation instigated following a complaint by a Mr PERSON in GPE , a former colleague of ORG Executive Officer of ORG .

ORG was a major shareholder in CARDINAL-prentmiđlum ( CARDINAL ORG ) , which was the publisher of , inter alia , GPE , a national newspaper in GPE .

At the material time there was an ongoing public debate in GPE relating to allegations that undue influence had been exerted by prominent figures on the most extensive criminal investigations ever carried out in GPE .

On CARDINAL , DATE and DATE PERSON published , without the applicant ’s knowledge or consent , a number of e - mail communications which she had sent to and received from other named persons . The disputed material , consisted of direct quotations or paraphrasing of e - mail exchanges , dating back to DATE and DATE , between PERSON , the applicant and PERSON , former editor of another newspaper , ORG , and between the applicant and T.J , then Deputy Chief Executive Officer of ORG . The communications related inter alia to PERSON ’s wishes to find a suitable lawyer to assist him in handing over to the police allegedly incriminating material he had in his possession and to represent him in a future court case against the leaders of ORG ; PERSON acting as an intermediary between PERSON and ORG Advocate Jón PERSON ; the applicant ’s recommendation to PERSON that he choose PERSON ; arrangements discussed between the applicant and PERSON on the handing over of material to the tax authorities ; the applicant ’s suggestion to him that he interview PERSON . In relation to the recommendation of PERSON , reference was made to PERSON , managing Director of ORG .

The disputed publication also included information about the applicant ’s own financial situation and claims , her suggestion to PERSON that the interview with PERSON should not take place until her own claims had been honoured ; her claims against PERSON of ORG ; her intention conveyed to PERSON to publicise the documents she held in her possession unless ORG honoured her claims ; and PERSON ’s suggestion to hand the documents over to the authorities if she thought that ORG had acted unlawfully .

By the time of the disputed publications , the applicant had become a well - known figure in NORP society ; in DATE she had announced her candidacy for the forthcoming local council elections in GPE , due to be held in DATE .

The applicant submitted that , without her knowledge or consent , the e - mails had been unlawfully obtained by a third party unknown to her . Before the national courts she submitted that she had previously ran a company Aktiverum ehf . , which had operated a fitness centre under the name ORG . The company had had a computer domain , where the applicant and other employees had been allocated e - mail addresses . She alone knew the password to her e - mail account at the company . In DATE the company had been wound up and its assets sold , including the computer , or server , on which the employees’ e - mail accounts had been located . No information was available as to whether the administrator of the company ’s estate had taken measures to delete e - mails from the server before it was sold . Whilst the materials in question had been printed from her e - mail account in DATE or DATE , the computer which she had used in DATE had long since become inoperative .

According to the applicant , after the first publication on DATE , she demanded PERSON ’s editor to discontinue further publications and to hand the e - mails over to her , but the editor refused . According to the editor , the applicant had only asked whether his intention was to continue publishing , to which he had responded in the affirmative . She had not asked to have further publication stopped or to have the material handed over to her .

On DATE , the applicant requested the Reykjavík District Commissioner to issue an injunction ( sections CARDINAL ) and CARDINAL of the Seizures , Injunctions ( Etc . ) Act , No . DATE ) against CARDINAL ehf , restraining the latter from “ publishing [ the applicant ’s ] private materials in the DATE newspaper ‘ Fréttablaðið’ or in other media owned by the respondent , in part or in their entirety , by means of direct or indirect quotation , irrespective of whether the materials involved were e - mails of which the plaintiff was the sender or the recipient , or other such personal private documents of the plaintiff which the respondent had in its keeping . ”

The applicant further requested that the District Commissioner remove from the respondent all the aforementioned private materials which the respondent had in its possession and which had been used , or which were evidently intended for use , in the actions in respect of which the injunction was being requested ( section CARDINAL ( CARDINAL ) ) .

In addition , the applicant requested that the injunction be imposed without prior notice and served at the respondent ’s business LOC ( section CARDINAL and item CARDINAL of section CARDINAL ( CARDINAL ) of LAW ) .

On DATE the District Commissioner , without prior notice and with immediate effect , imposed the requested injunction against further publication and urged the respondent to hand over all the material as requested by the applicant . PERSON ’s news editor , PERSON affirmed that he had the documents in question in his possession and handed them over to the District Commissioner , who took them into his custody . The respondent ’s lawyer declared that he accepted the release of the materials and met the applicant ’s demands .

The above injunction was imposed temporarily , pending the outcome of the proceedings described below .

According to the Government no information originating from e - mails pertaining to the applicant was published either pending the court proceedings or after . This is undisputed by the applicant .

In DATE the applicant instituted judicial proceedings before ORG against the publisher , CARDINAL ehf . , and ORG editor . She requested ORG to confirm the District Commissioner ’s injunction and seizure of the material kept by the publisher but made no further claims in this respect . She did not request that the materials be handed over to her .

The applicant requested that the editor , PERSON , be convicted and sentenced for having obtained access to her private materials , which had been stored in machine - readable ( computerised ) form , by trickery or another similar unlawful method , and had pried into their contents , in violation of LAW . She also requested that he be convicted and sentenced under LAW , pursuant to which any person who publicly disclosed the private affairs of another person without sufficient justification shall be liable to pay a fine or be sentenced to a term of DATE imprisonment . In addition , she sought an order against both defendants requiring them to pay her compensation for non - pecuniary damage under , inter alia , section CARDINAL of LAW No . CARDINAL/CARDINAL .

By a judgment of DATE ORG rejected the applicant ’s action on every point .

In her appeal to ORG the applicant dropped her claims under LAW ) and instead relied on LAW ; she omitted to pursue her claims of violations of LAW no . CARDINAL and LAW no . CARDINAL/CARDINAL which had been rejected by ORG ; otherwise she maintained her claims before the latter .

On DATE , ORG upheld ORG judgment , giving the following reasoning :

“ III

As is stated above , on DATE the appellant had an injunction imposed on the publication by the defendant , CARDINAL ehf . , “ of the injunction plaintiff ’s private materials in the newspaper ORG or in other media owned by the injunction respondent , in part or in their entirety , through direct or indirect quotation , irrespective of whether the materials involved were e - mails of which the injunction plaintiff is the sender or the recipient , or other such personal private documents of the plaintiff which the defendant had in its keeping .

Following this , she brought a legal action by a writ of summons issued by the president of ORG on DATE , the case being registered on DATE . In the writ issued by ORG , the plaintiff made the demand that the injunction be confirmed , and also that the court confirmed the decision by the GPE Commissioner to seize materials in the keeping of the defendant , CARDINAL ehf . No demand was made , on the other hand , regarding the rights in respect of which the appellant had sought temporary protection under the injunction , nor that the aforementioned materials be handed over to her . In this respect , the appellant ’s demands before ORG , which are similar , are at variance with the rule of the second paragraph of LAW . DATE , which states that a court judgment confirming both an injunction and the rights which it is designed to protect are to be sought in one and the same action . Nevertheless , this flaw in the plaintiff ’s claim is not sufficient , in itself , to result in the dismissal of the case . On the other hand , the plaintiff must content herself with the fact that in this case , the ORG ’s resolution will extend solely to whether the formal and material conditions for confirming the injunction obtain .

As has been stated above , the plaintiff applied , in her request for an injunction , to have the defendant , CARDINAL ehf . , prevented from publishing matter from unspecified private materials of hers , in their entirety or in part , and irrespective of whether this were done through direct or indirect quotation . Even though the plaintiff sought to define the content of her demand more precisely by stating that this applied to e - mails which she had either sent or received , and other similar personal private documents , no precise statement was made as to whether her demand covered all matters appearing in these materials , irrespective of whether they were generally known or corroborated by other available sources . No distinction was made in her demand between materials originating from the appellant herself or directed to her by those who sent her messages , and materials which had nothing to do with her but nevertheless had come into her possession . No further explanation was given , in the appellant ’s injunction request , of what was meant by the words “ other such personal private documents , ” and no evidence has been revealed to suggest that such documents came into the possession of the defendant , CARDINAL ehf . No attempt was made to define in further detail what matters these documents were considered to refer to . Under the circumstances , it was not possible to impose an injunction which it would be possible to maintain , in terms of its content , under the rules of section CARDINAL of the Act No . CARDINAL unless , as appropriate , the appellant had specified her demand in further detail at the time when the injunction was imposed and it came to light what materials this defendant had in its possession ( see the second paragraph of LAW ) . The appellant ’s request for an injunction was thus both too broad and too indefinite for it to be possible to grant it . In the light of these considerations , the ORG has no alternative but to reject the appellant ’s demand that it confirm the injunction .

According to the established facts of the case , the District Commissioner has held in his cusotdy the materials that were removed from the keeping of the defendant , CARDINAL ehf . , when the injunction was imposed ( see the second paragraph of LAW No . DATE ) . Under LAW of the same LAW , it is not possible to seek a separate judgment confirming such a measure taken when an injunction is imposed : a ruling on the lawfulness of such a measure is to be made in connection with the validation of the measure as a whole . The appellant has not submitted any claim in this case for the ORG to adjudicate on her right to have these materials handed over to her from the keeping of the GPE Commissioner . The question therefore can not be entertained further in this case .

IV

Before ORG , the appellant demanded that the defendant , PERSON , be punished for violations of LAW . In the writ of summons it was stated that the defendant had violated this provision by obtaining access to the appellant ’s private materials , which had been stored in machine - readable form , by trickery or another similar unlawful method , and pried into their contents . This description in the writ of summons accords with the provision of the first paragraph of LAW , which prescribes punishment for such conduct ; that provision lists letters and other materials containing the private affairs of another person . Before ORG , the appellant has dropped her demand for punishment under the first and third paragraphs of LAW . She demands that the defendant be punished under the second paragraph of LAW , which prescribes punishment for rendering useless , or concealing , the private materials listed in the first paragraph of the same Article . In the writ of summons before ORG , the defendant ’s alleged conduct was not described in such a way that this provision could apply to it and the demand for punishment could be based on it ( see item d of the first paragraph of LAW of LAW No . CARDINAL/CARDINAL ) . It follows immediately from this reason that the defendant can not be punished under the second paragraph of LAW .

The appellant also bases her demand that the defendant , PERSON be punished on LAW , under which any person who publicly discloses the private affairs of another person in the absence of sufficient reason to justify the action , is to be subjected to a fine or up to one DATE ’s imprisonment . In connection with this demand , the ORG must resolve the question of whether the coverage in PERSON concerned the appellant ’s private affairs , which were to be found in the aforementioned computer documents , and if so , whether the newspaper disclosed them publicly in the absence of sufficient reason to justify doing so .

It has been mentioned above that the coverage in the newspaper was based , to some extent , on correspondence between other persons , which passed to the appellant , and from her to the defendant , CARDINAL ehf . This correspondence contained nothing at all about the appellant , and the coverage in the newspaper that was based on it therefore did not constitute any violation against her . For the most part , the coverage in the newspaper was based on correspondence between the appellant herself and other persons which was no longer stored in her computer , but had come into the possession of other parties in printed form . Mention has been made above of the subject of that coverage , which involved the planning of charges against the managers of ORG ; the newspaper ’s coverage also focussed on e - mail correspondence between the appellant and another person concerning her financial claims against CARDINAL of the representatives of the company . Taking this into consideration , the ORG must concur with the appellant that PERSON ’s writings about her financial affairs concerned her private affairs in the sense of LAW , as did those parts of these writings which reported on the appellant ’s encouragement of , and her other involvement in , plans to bring charges against named individuals .

Then there arises the argument by the defendants that there was sufficient reason to justify the publication of coverage that drew on the aforementioned e - mail correspondence and contained , amongst other things , the appellant ’s private affairs . In adjudicating on this , the ORG must take into consideration the fact that when PERSON ’s coverage appeared , matters connected with a charge concerning alleged criminal conduct by the managers of ORG had for a long time featured prominently in public discussion in GPE and been the subject of intense controversy resulting , amongst other things , from a police search of the LOC of the company in DATE and a charge against some of its managers in DATE . The newspaper ’s coverage contained material that was of public interest and concerned a case that had been the subject of great controversy in NORP society . Even though the coverage in the newspaper had included disclosures concerning the appellant ’s financial affairs , these affairs were , says the defendant , so closely intertwined with the news material as a whole that it was not possible to distinguish between them .

The ORG concurs with the defendant that no greater encroachment was made on the appellant ’s private life than was unavoidable in a public discussion of a matter that was of concern to the public . Taking all this into consideration , the ORG can accept that sufficient reason existed to justify the publication of this coverage by the newspaper . The defendant , PERSON , can not be punished under LAW .

Finally , the appellant demands that the defendants be ordered , jointly , to pay her compensation for non - pecuniary damage amounting to ORG CARDINAL under LAW of LAW , No . CARDINAL/CARDINAL ( see LAW No . CARDINAL ) . The ORG reached the conclusion above that the limits of permitted expression were not overstepped in the coverage in PERSON . As is described in the summing - up in the ORG judgment , this claim has not been presented in such a way as to give occasion for accepting it on other grounds . The defendants must therefore be acquitted of this demand ” .

On DATE another newspaper , DV , went further than other media in its discussion of the dealings between the applicant and the editor of Morgunblaðið , in connection with the reporting on their e - mail correspondence .

The applicant brought separate court proceedings against ORG ’s editors seeking their conviction and sentence under LAW , for having , in their newspaper report , disclosed her private affairs without sufficient reason .

The editors argued that the news report in question was of interest and concern to the public in view of the public discussion about the connection between the persons referred to in the report and the PERSON case . At the same time , they pointed out that the applicant was a candidate in the primary round of selection of candidates for ORG for the elections to ORG , and that PERSON had been an influential figure in ORG and NORP politics in general for DATE . When such persons were connected by particular bonds at the same time as they were working for the advancement of a matter in which they were interested , in order to promote justice , as they saw it , it was important for the normal formation of opinion that the public be allowed to know about the connections that existed between the persons in question .

ORG rejected these arguments by a judgment of DATE , and convicted both editors of a violation of the applicant ’s rights under LAW and sentenced them each to a fine of LAW and to pay her ORG CARDINAL,CARDINAL in compensation for non - pecuniary damage . On an appeal by the editors , ORG , by a judgment of DATE , upheld the ORG judgment .

Articles CARDINAL and CARDINAL of ORG , No . CARDINAL may be found in its Chapter XXV on “ LAW against ORG ” . These provisions read :

Article CARDINAL

“ Any person who pries into letters , documents , diaries or other comparable materials containing information about another person ’s private affairs , having gained access to the materials by trickery , opened letters , entered a locked container or employed another similar method , shall be liable to a fine or up to DATE imprisonment . The same punishment shall apply to a person who unlawfully obtains access to other ORG data or programs stored in a computerised form .

The same punishment shall apply to the destruction or concealment of the private materials referred to in the first paragraph of this Article .

Any person who pries into containers belonging to another person without sufficient reason shall be liable to up to CARDINAL months’ imprisonment . ”

Article CARDINAL

“ Any person who publicly discloses the private affairs of another person in the absence of sufficient reason to justify the action shall be liable to a fine or up to DATE imprisonment . ”

Section CARDINAL of LAW , No . CARDINAL/CARDINAL read :

Article CARDINAL

“ A person who

a. intentionally , or through gross negligence , causes bodily harm or

b. is responsible for an unlawful act of malice against the freedom , peace , honour or person of another person may be made to pay compensation for non - financial damage to the person against whom the offence was committed .

A person who , intentionally or through gross negligence , causes the death of another person , may be made to pay the spouse , children or parents of that person compensation for non - financial damage . ”

The applicant drew attention to section CARDINAL ) of LAW , no . CARDINAL/CARDINAL . LAW on the protection of personal data and the sanctity of private life , read :

“ Any person who by coincidence , mistake or without special authorisation receives telegrams , pictures or other telecommunicated signs or symbols , or listens to telephone conversations may not write down any such material or use them in any manner . Additionally , he should notify the sender that data were incorrectly received by him . It is obligatory to exercise the utmost confidentiality in such instances ”

According to section CARDINAL violations of the Act were punishable by fines or imprisonment .

The applicant also pointed to sections CARDINAL and CARDINAL of the LAW on ORG as regards ORG , no . CARDINAL .


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1 and 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants were born in DATE and DATE respectively . At the time of lodging the application , they were in ORG and PERSON prisons respectively .

On DATE a hand grenade was thrown at a police service vehicle in the Gaziosmanpaşa district of GPE . Around QUANTITY police officers were injured . An illegal armed organisation , namely the ORG ( ORG ) , took responsibility for the incident . Following this incident the police carried out an operation against members of the ORG .

On DATE and CARDINAL DATE respectively , the applicants were arrested and taken into custody on suspicion of their involvement in the ORG . They remained in police custody until DATE .

On DATE and CARDINAL DATE respectively , the second and first applicants were questioned by police officers at ORG of ORG , where they gave a detailed signed account of the activities in which they had taken part within the ORG . On DATE the second applicant was questioned again . On DATE first applicant took part in a reconstruction of events concerning the bombing of the police vehicle . On various dates the applicants also took part in identification procedures via photographs .

In the application form the applicants complained that they had been subjected to torture while they were being held in police custody . In this connection , they maintained that they were put in a dirty and unventilated cell , deprived of sleep , food and water , blindfolded , sworn at and threatened , made to listen to loud music , beaten , stripped , hosed with water from a high - pressure hose , made to stand in front of a fan and suspended . The first applicant further claimed to have been subjected to sexual harassment , stripped and suspended , and that her hair and fingers had been pulled and a weight put on her feet .

On CARDINAL DATE the applicant was examined by a doctor at ORG at ORG , who noted that she had a bleeding nose , pain in the groin , CARDINAL CARDINAL-cm grazes on her right arm and a circular swelling on the right wrist , weakness and numbness on both arms , pain in CARDINAL of the fingers of the right hand and a QUANTITY graze on the right knee . The doctor further mentioned bleeding due to a gynaecological trauma which had occurred DATE previously . However , he stated that the applicant had refused a gynaecological examination .

On DATE the applicant was examined by the prison doctor , who noted , inter alia , that she had widespread back and waist pain , together with a loss of power and numbness in both arms . The doctor further found a number of bruised and swollen areas of various sizes on the applicant 's body , notably under her armpits , right arm and wrist , left arm , knees , legs and ankles . Finally , he mentioned that the applicant had pain in her left ovary and bladder region .

On DATE the applicant was examined by doctors at the Third Section of Expertise of ORG . The doctors also checked the applicant 's previous medical reports and the results of an EGM test . They concluded that the applicant was suffering from bilateral brachial plexitis ( damage to nerves ) .

According to a number of reports , consultation notes , a medical scan and the analysis contained in the case file , the applicant , who has been diagnosed with irreversible brachial plexitis in her right arm and reversible brachial plexitis in her left arm , was treated mainly with physical therapy for CARDINAL years . As a result , her left arm improved . However , her right arm is irreversibly damaged .

On DATE the applicant was examined by the doctors at the Third Section of Expertise of ORG . On DATE , upon the request of ORG , ORG ( PERSON ) submitted their opinion , in which they considered that the applicant 's left arm was near to normal but that her right arm was paralysed and that this constituted a permanent invalidity ( uzuv zaafı ) .

On DATE the applicant was examined by a doctor at ORG at ORG , who noted that he had pain and difficulty in moving his neck , pins and needles in the right hand and pain under his left arm .

On DATE the applicant was examined by a doctor at ORG , who diagnosed him as suffering from cervical herniated disc syndrome . The applicant was treated with a neck brace and medication . However , the doctor noted that , since this condition was permanent , the applicant had to be monitored and treated continuously .

On DATE the applicants were brought before a public prosecutor and a judge at ORG , where they refused to give any statements as a protest , on the ground that they had been subjected to torture while in police custody .

On DATE the public prosecutor at ORG filed a bill of indictment against the applicants and other suspects , charging them with undermining the constitutional order of ORG under LAW . In particular , the first applicant was accused of having participated in the bombing of the police vehicle on DATE .

On an unspecified date the criminal proceedings commenced before ORG . The applicants were both represented by the same lawyer , PERSON . At a hearing held on DATE the applicants ' lawyer maintained that her clients had been subjected to torture and asked the court to request the authorities to initiate a criminal investigation ( suç duyurusu ) . ORG dismissed this request , stating that the applicants could lodge their complaints themselves with the public prosecutor 's office and that there was no need for the court to do so .

In the course of the trial the court heard the accused , some of the police officers who had been injured during the bombing of the police vehicle and the police officers who had taken part in various measures during the applicants ' detention . During the hearing of CARDINAL such police officer , the first applicant and another co - accused asked the court not to hear him , alleging that this man was a torturer and had tortured them . The court further examined the video recordings of the reconstruction of events concerning the bombing of the police vehicle . On DATE , CARDINAL DATE and DATE , the second applicant submitted his written statements to the court . Only in the first one did he claim that he had retracted his police statements because he had signed them under duress and torture without having had the opportunity to read them . In later submissions the applicant principally maintained that he was a revolutionary , but that he had no relationship with any illegal organisation . In particular , he submitted that the guns and bombs found at his house belonged to CARDINAL of the accused , who had requested the use of a cupboard for his personal belongings , had brought them in a bag and had asked him to guard them . The applicant had had no prior knowledge of their existence .

On DATE , CARDINAL DATE and DATE , the first applicant submitted her written statements to the court . Except for the second one in which she criticised the ORG system , the applicant submitted a detailed account of the ill - treatment she had been subjected to in police custody and denied involvement in any illegal organisation . She submitted that the materials found at the house where she was staying with the second applicant belonged to CARDINAL of the coaccused and that she did not know what they were . Likewise she gave explanations regarding her fake identity card and marriage certificate .

On DATE ORG found the applicants guilty of the accusations against them and convicted the first applicant under LAW and the second applicant under LAW .

On DATE ORG quashed the judgment of the first - instance court on the ground that the final hearing had been held in the absence of the first applicant despite the fact that she had had a valid medical report excusing her . The hearing had thus violated her defence rights . In view of the factual and legal relationship between the accused the court held that the first - instance court 's judgment had to be quashed in respect of all the defendants .

On an unspecified date the case was remitted to the firstinstance court whereupon the latter held regular hearings . It appears that after the capture of PERSON the applicants and some of the accused informed the court that they were on an unlimited hunger strike in protest . Moreover , in a number of hearings held after DATE , the applicants refused to appear before the court on the ground that ORG had found that ORG lacked independence and impartiality . On DATE the applicants ' representative informed the court that she would no longer be attending the hearings and asked the court to discontinue the proceedings on the ground that they were not an independent and impartial tribunal , as ORG had ruled .

In the meantime , on DATE , PERSON no . DATE on Conditional Release , Deferral of Procedure and Punishments was promulgated . However , the benefits of this PERSON were not available to persons who had committed offences under Articles CARDINAL and CARDINAL of LAW . Thus , it was not applicable to the applicants ' case . On DATE the applicants unsuccessfully requested ORG to send the case file to ORG for an examination of the compatibility of this PERSON with the relevant provisions of LAW .

On DATE ORG found the first applicant guilty of undermining the constitutional order of the ORG and sentenced her to life imprisonment under LAW . In its decision the court took into account the evidence in the case file , which included documents regarding the illegal organisation found at the applicant 's house , expert reports , verbatim records regarding identification procedures , the photograph of her taken at the incident scene , the verbatim records of the reconstruction of events and the verbatim records of the video recording regarding the reconstruction of events . The court noted that there were proceedings pending before the domestic courts regarding the applicant 's allegations of ill - treatment during police custody . However , it considered that it need not await their outcome since its decision to convict the applicant did not rely solely on her police statements but on material evidence .

DATE the court found the second applicant guilty of membership of an illegal armed organisation under LAW and sentenced him to DATE and DATE imprisonment . In so doing , it took into account the evidence in the case file , including the applicant 's statements given whilst in police custody , the verbatim records of the reconstruction of the events , the statements of other suspects , documents regarding the illegal organisation and other evidence , such as guns and chemical explosive materials found at his house . In its decision the court also noted that the accused had unnecessarily prolonged the criminal proceedings after the case was remitted by ORG , by not appearing before the court , maintaining a hunger strike , requesting extensions and obtaining medical reports excusing their participation on hearing DATE .

The applicants appealed . They maintained , in particular , that the first - instance court had failed to conduct an additional investigation , that it had refused their request for the hearing of key witnesses or the conduct of a reconstruction of events so as to dispel factual contradictions . They criticised the manner in which the domestic court had interpreted evidence . Moreover , the applicants complained that the first - instance court had based itself on evidence obtained unlawfully . In this connection , they maintained that the domestic court had relied on their police statements despite medical reports attesting to their torture . They further submitted that the other documents secured by the police during the preliminary investigation had also been obtained unlawfully . Finally , the applicants maintained that the court had erred in the qualification of the offence .

On DATE ORG held a hearing and upheld the judgment of ORG .

Upon the first applicant 's complaint , via her legal representative PERSON , an investigation was instigated by the PERSON public prosecutor .

DATE and DATE , the PERSON public prosecutor heard evidence from CARDINAL police officers who had taken part in the applicant 's arrest and interview . They all denied the applicant 's allegations of ill - treatment .

On DATE the PERSON public prosecutor heard evidence from the applicant . She gave a detailed account of the alleged ill - treatment which included beating , being left wet in the cold , sexually molested and periodically suspended . The applicant also gave brief descriptions of the alleged perpetrators .

On DATE the PERSON public prosecutor sent his opinion to the GPE public prosecutor with a view to criminal proceedings for ill - treatment being brought against CARDINAL police officers working at FAC of ORG .

On DATE the GPE public prosecutor filed a bill of indictment against the CARDINAL officers for the ill - treatment of PERSON . The charges were brought under LAW of LAW .

On DATE the criminal proceedings against the accused police officers commenced before ORG .

In the hearings held on DATE and DATE , the court heard evidence from the applicant , who gave details regarding the ill - treatment and identified the accused police officers as those responsible , except for CARDINAL about whom she was not sure . On DATE , the court also heard the testimony of Mr K.Y. , another detainee and witness on behalf of the applicant .

On DATE the court heard testimony of PERSON , another detainee and witness on behalf of the applicant .

On DATE ORG discontinued the proceedings against the accused police officers on the ground that the prosecution of the offence , DATE at the time of the events , had become time - barred . This decision was upheld by ORG on DATE .

On DATE the President of the Republic , referring to a ORG report dated DATE , remitted the remainder of PERSON sentence on grounds of chronic illness , pursuant to LAW . The applicant was released from prison on DATE .

The relevant domestic law and practice in force at the material time , as well as recent developments , can be found in the following judgments : PERSON GPE ( no . CARDINAL , § DATE , DATE ) , PERSON v. GPE ( [ ORG ] , no . CARDINAL , § § DATE , DATE ) , GPE and Others v. GPE ( nos . CARDINAL and FAC , ECHR CARDINAL-IV ) , and PERSON v. GPE ( no . CARDINAL , CARDINAL DATE ) .


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

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

Following an administrative ordinance issued by ORG ( ORG ) on DATE the applicant and his family were denied to access to the military LOC on the grounds that a photo showing his wife wearing an NORP scarf was not acceptable for the military and social security identity cards . The applicant ’s close relatives wearing NORP scarves were also not allowed in the military buildings .

On DATE ORG ( Yüksek Askeri Şura ) decided to discharge the applicant from the army on grounds of acts of “ insubordination and immoral conduct ” pursuant to LAW .

The Government submit the following in the light of the intelligence reports concerning the applicant :

The applicant , a non - commissioned officer , was a member of the PERSON sect . He was involved in disseminating the ideology of the sect . He was further involved in activities contrary to the secular republic . He had an antisocial character and refused to participate in social gatherings on account of his religious beliefs . He was considered as an undisciplined and insubordinate soldier .

A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .

The relevant provisions of the LAW are as follows :

“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”

“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions . ...

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”

“ All acts or decisions of the administration are subject to judicial review ...

Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .

Article CARDINAL § § CARDINAL , CARDINAL and DATE of the LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .

Section CARDINAL ( c ) of ORG provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .

Where their conduct and attitude reveal that they have adopted unlawful opinions . ”

Section CARDINAL ( c ) of LAW provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”

Section CARDINAL ( b ) of LAW provides :

“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :

Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned ORG cases concerning their discharge from the army should be examined by ORG . ”

LAW on assessment of officers and non - commissioned officers provides :

“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :

( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by Mr E. Petruska , a lawyer practising in GPE . The respondent Government are represented by Mr PERSON , Deputy ORG - Secretary , ORG .

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

In DATE ORG pronounced the divorce of the applicant and his wife , ORG , who was granted custody of their daughter , PERSON , born in DATE .

On DATE ORG changed the first instance decision and granted custody to the applicant .

After a first unsuccessful motion in DATE to reclaim custody , in DATE NORP requested LAW to transfer , as an interim measure , the custody of PERSON to her . The ORG inspected the child 's environment and found that she enjoyed herself in the family of the father , with whom she had a ' warm , loving and ideal ' relationship . On CARDINAL DATE it dismissed the request .

On DATE PERSON suffered an accident while visiting her mother . She broke her elbow and needed surgery . According to GPE , the child wished to stay with her until her recovery . Despite the applicant 's opposition , ORG refused to return PERSON to him .

On DATE the applicant requested ORG to enforce the court decision on custody . On DATE an enforcement order was issued and the case was transferred to the competent ORG .

The bailiff 's attempt , on DATE , to return PERSON to the applicant was unsuccessful , since GPE 's new husband did not let him into their flat .

On DATE the GPE XIV ORG attempted in vain to return PERSON to the applicant , as their officer did not find anyone at GPE 's home .

On DATE ORG promised ORG to return PERSON by the end of her usual period of access , CARDINAL . On DATE the applicant went to fetch PERSON who refused to go with him .

On DATE ORG ordered its decision to be enforced with the assistance of the police .

On DATE an officer of the Budapest II ORG and the bailiff , assisted by the police , attempted to return PERSON to the applicant . PERSON was hiding from the officials in the attic of GPE 's home and refused to join the applicant . The child - care officer considered that forcible execution would risk injury to PERSON In the circumstances , the applicant himself agreed to the suspension of the execution .

On DATE ORG contacted PERSON 's school in order to facilitate a meeting between PERSON and the applicant .

On DATE the applicant and ORG signed an agreement before ORG to avoid PERSON 's forcible return to the applicant . ORG promised not to prevent PERSON from returning to the applicant , if she wanted to do so .

On DATE the applicant attempted to fetch PERSON from school . PERSON was reluctant and requested ' protection ' from the school director . On CARDINAL DATE she requested the director to tell the applicant to refrain from coming to her school . Nevertheless , the applicant did so on several occasions and in a manner which interfered with her school life .

ORG meanwhile brought an action before the Budapest II / III ORG seeking a change of the custody order . On DATE the ORG heard GPE The child said that she did not want to live with her father and that she would escape from home , if forced back to live with the applicant .

On DATE an expert psychologist , GPE , examined the child , her parents and their new partners . ( The applicant had by this time started a new family , from which the child had felt excluded . )

On DATE the applicant requested LAW to continue with the earlier enforcement procedure . Subsequently a competence dispute arose between the Budapest II and ORG . In DATE the case file was transferred to the latter . On DATE ORG provided guidance to ORG as to the potential enforcement measures . It explained that the police might only use force against NORP and that it was for ORG to consider whether the circumstances required the use of force against PERSON herself .

On DATE of NORP 's usual DATE period of access , DATE , execution was attempted again , but PERSON refused to follow the applicant and asked him to ' leave her alone ' .

The Budapest II ORG organised a reconciliatory meeting for the parties on DATE . However , neither parent appeared .

On DATE and CARDINAL DATE CARDINAL further attempts at police - assisted execution took place but failed , since the officials did not find anyone at GPE 's home .

On DATE a guardianship officer went to see PERSON in order to explain that she was to live with the applicant . PERSON did not allow anyone to lay a hand on her and refused to join the applicant . It was considered that enforcement would only have been possible by applying force .

On instruction by ORG , ORG imposed a fine of MONEY ( ORG ) on ORG , apparently in DATE . Her appeal was finally dismissed on DATE .

Meanwhile , on DATE the Budapest II / III ORG dismissed GPE 's action for custody together with the applicant 's counter - claim for the termination of GPE 's parental rights . The applicant 's appeal was finally dismissed on DATE .

Further fines of ORG CARDINAL were imposed on NORP on DATE and DATE , respectively .

In a statement addressed to ORG on DATE , ORG observed that , inexplicably , the competent authorities could not , for DATE , restore the lawful situation and thus , in their view , the child 's fundamental rights were being infringed .

On DATE PERSON , accompanied by NORP , made a declaration before ORG . She said that she did not wish to return to the applicant , although she was ready to maintain contacts with him on condition that he dropped the execution measures .

On DATE ORG renewed her action to reclaim custody .

On DATE ORG instructed LAW to impose fines repeatedly on NORP until she complied with the court decision .

On DATE ORG arranged for PERSON to be returned to the applicant at her school . The girl again refused to follow her father . She explained to the officials present that she was afraid of her father , because the latter had attempted to fetch her with the assistance of the police on several occasions .

On DATE a fine of ORG MONEY was imposed on GPE On DATE , DATE , DATE and CARDINAL DATE fines of ORG CARDINAL were imposed on her .

On DATE ORG dismissed ORG 's action for custody .

In reply to the applicant 's complaint , on DATE ORG took the view that the principal reason for the failure of the execution was ORG reluctance to have recourse to coercive measures .

On DATE I.T. appeared before ORG with PERSON , who had her CARDINALth birthday on DATE . PERSON declared that she did not wish to live with her father .

On DATE ORG informed ORG that , of a total of ORG CARDINAL,CARDINAL imposed on her in fines since DATE , ORG had thitherto only paid ORG CARDINAL,CARDINAL and was ORG CARDINAL in arrears . On DATE a further fine of ORG CARDINAL was imposed on her .

On appeal , on DATE ORG changed the decision of DATE and granted the custody of GPE to GPE

On DATE the applicant complained to ORG that his right of access was not respected . In reply to his allegations , ORG stated that she had explained to PERSON that she was to spend DATE of CARDINAL DATE with the applicant . However , on DATE PERSON had returned from the meeting with the applicant within TIME , and was upset because of the applicant 's conduct .

On DATE the applicant renewed his complaint about access . On DATE ORG requested ORG to mediate .

On DATE ORG granted NORP leave to pay the outstanding fines in CARDINAL DATE instalments , but refused to reduce the total payable . NORP did not comply with this decision , although on DATE she paid HUF CARDINAL .

On DATE ORG dismissed the applicant 's petition for review .

In its reasoning , ORG recapitulated the reasons for the first and second instance decisions as follows :

“ In the criminal proceedings [ instituted by the applicant against the mother , see below ] the police obtained the opinions of expert psychologists on the child and the parties . In the course of these examinations the child recounted , in concrete terms , what she had experienced in the defendant 's environment , which made her feel hurt or ignored .

Expert psychologist PERSON concluded from the explorations that the stress “ caused by the parents ' conflict had , since DATE , overwhelmed the child . The stress , however , did not cause any neurotic distortion , as her psychological defence mechanisms worked well . For this reason she opted for the mother 's less strained environment and rejected her father 's environment . She did everything she could to prevent the conflicts between her parents and to escape , in general , from any conflict , which caused emotional stress . However , those conflicts , which she was unable to digest , would affect the development of her personality disadvantageously and suppress the frustration , which her separation from her relatives caused . Her negative attitude towards her father 's family would change if she did not fear being taken out of her present environment , with which she increasingly identifies herself , and if she could determine on her own how often and where to meet her father . ”

Expert psychologist PERSON concluded that the emotional relationship between the father and the girl had deteriorated to such a degree that the girl almost seemed to keep fleeing from her father . The situation would be much better if the child did not perceive it as a constraint to maintain contact with her father . She also concluded that , between the mother and the girl , a good mother - child relationship had developed from the very beginning and that this prime and privileged relationship remained DATE on . The expert emphasised that the child 's healthy development would be endangered if – by disregarding this very close mother - child relationship and the child 's emotions – she were forced back into an environment where she did not like to live because she felt neglected .

According to the statements of the parties , no fundamental change had occurred in their relationship since the termination of the proceedings instituted in DATE . The defendant continued receiving the family allowance in respect of the child and the maintenance payment deducted from the plaintiff 's salary and , according to him , he used these sums to cover the costs of the litigation . He in no way contributed to the maintenance of the child ; he did not even give her a single present .

On the basis of the above facts , the first instance court dismissed the plaintiff 's renewed claim . According to the reasoning of the court , the defendant 's personality and circumstances made him fit to bring up the child . Assessing the circumstances , the court found that a change in placement would not serve the interests of the child , who had completely taken over the plaintiff 's argumentation and whose environment , in which she had been enveloped since DATE , was therefore unsuitable to preserve her respect and love for the other parent . Since that time the plaintiff , whether intentionally or not , had contributed to the alienation of the child from the defendant and – in direct opposition to the previous court decision – she had continued to keep the child with her . The court held that the child could not , on account of her age and situation , be regarded as a person having full capacity to make sound judgments ; it stressed that the parties had in vain claimed that they had acted in the child 's interests ; the child was in fact the victim of the parents ' struggle for and over her , and it was to be feared that this situation would cause her serious mental damage .

By its final decision , the second instance court modified the first instance decision and placed the child with the mother . As from DATE , it transferred the obligation to pay maintenance to the defendant and regulated contact between the defendant and the child in the usual way .

In its reasoning , the appellate court agreed with the findings of the first instance court as to the negative evaluation of the plaintiff 's unlawful conduct and declared this conduct to be contrary to the long - term interests of the child . At the same time , it observed that “ there was no possibility ” to enforce the previous court decision ; enforcement against the will of the CARDINAL-year - old girl was hopeless . Although the situation was imputable to the plaintiff , the relationship between the child and the father had , even in the latter 's opinion , deteriorated to such a degree that the change of placement would not serve the interests of the child or reduce her negative emotions towards her father . If she were placed with her mother , there could be some hope that , after some time , she might realise and appreciate her father 's affection for her . ”

ORG reasons for upholding the second instance decision were as follows :

“ The petition for review is well - founded to the extent that the impossibility to enforce the previous court decision must not have any bearing on the decision on the merits of the case , i.e. on the statutory evaluation of the aspects to be taken into account when deciding on the question of placement : unenforceability in itself can not result in the alteration of the placement .

However , the fact that , at the date of the delivery of the final decision , the child had already passed the age of CARDINAL amounts to a substantial difference in the circumstances , as opposed to the earlier situation .

Section CARDINAL of the Act on Family Law provides – in accordance with LAW ( done at GPE on DATE ) , incorporated into NORP law by Act no . CARDINAL of DATE that if a child has reached the age of DATE , no decision concerning his / her placement shall be taken without his / her consent , except when the placement chosen by the child endangers his / her development . Therefore , section GPE , which provides the possibility of changing the placement in the interests of the child , must be interpreted in conjunction with section CARDINAL ; accordingly , the child 's placement as s / he wishes would not run counter to his / her interests unless it would put him / her in danger . Consequently , the court had to examine whether the girl 's placement with her mother , which has been ordered by the court after considering the child 's firm and express wish , would endanger her physical , mental or moral development .

The first instance court based itself on the fact that the plaintiff had unlawfully kept the child since DATE . The court found that , with the passage of time , the mother 's influence , directed against the defendant , had been decisive in turning the child against the father and in completely detaching her from the other parent emotionally . In the court 's view , her placement with the plaintiff would endanger the child 's future development , despite her objective and subjective fitness for the child 's upbringing .

This position , however , attributes unrealistic and excessive significance to the plaintiff 's harmful influence in the flow of events , and disregards the concurring findings of [ CARDINAL ] expert psychologists , as laid down in their [ respective ] opinions of DATE and DATE , which were corroborated by other findings of fact .

Both the opinions of the appointed experts and the statements of the child demonstrate that , after the defendant had established a new relationship , the child became alienated primarily from her environment , i.e. her foster mother and grandmother ; since her early childhood , she has adopted defence mechanisms in order to resist the distressing impact of her parents ' conflict and , after her accident in DATE , she chose her mother 's care . The defendant , however , was not attentive to this temporary wish of the child ; he tried to enforce his rights through coercive measures , as a result of which the parents ' conflict appeared to the child as an oppressive experience , with which she could not cope .

ORG agrees with the reasoning of the appellate court in that , after the child 's recovery , the plaintiff should have prepared her psychologically for her return to the defendant and that she should have provided the emotional stability and support needed by the child within the framework of regular contact . Instead , the plaintiff did not comply with her obligations flowing from the final decision and , by leaving the decision partly to the child , she actively contributed to the failure of the child 's return to the defendant and the maintenance of undisturbed contact . This conduct amounts to influencing the child , has led to the alienation of the child from her father and is , therefore , imputable to the plaintiff .

However , as to whether this extremely embittered situation has been brought about by the plaintiff alone , which amounted to endangering the healthy development of the now DATE child , the lower courts took a CARDINAL - sided and , therefore , incorrect position by overemphasising certain factors while disregarding others .

According to the elements of the case file , the contact between the father and the child had already loosened prior to the child 's accident in DATE . This was the result of the change which had taken place in the defendant 's environment ; the defendant 's new family created an atmosphere which made the child realise their malice and criticism towards her beloved mother . This attitude severely distressed the then DATE child and caused her to feel isolated . In this situation her accident and subsequent longing for motherly care was the turning point , which resulted in her resistance to adapting herself to the defendant 's family .

It is also a fact that the defendant is fond of his child and that he is able to ensure the objective conditions of her placement . However , in his present family , the emotional harmony between him and the now adolescent child , which was referred to as a decisive factor when her placement was decided , is missing . Being emotionally reserved and inflexible , as pointed out by all the expert opinions , the defendant tried to substitute this missing harmony by firmness , rationally planned official procedures and coercive measures . This , however , further deteriorated his relationship with the child – who , because of her age , has been more vulnerable – and provoked resistance in her .

It follows that the plaintiff 's influence on the child has not in itself led to the present situation , which is undoubtedly unfavourable for the child . Rather , her influence has only been CARDINAL factor in the above - mentioned circumstances ; therefore , it can not be argued that the child 's placement with the plaintiff – which the child has consistently chosen and which meets the objective conditions of placement – would endanger the child 's future development . In the absence of such danger , the final decision is in compliance with section CARDINAL of the Act on Family Law and does not contradict section ORG ) It is , therefore , not unlawful . ”

On DATE the applicant initiated criminal proceedings against NORP charging her with unlawfully changing a minor 's placement .

On DATE the applicant brought further charges against NORP accusing her of the offences of endangering a minor and failure to pay maintenance .

On DATE the GPE XIV / ORG preferred a bill of indictment against ORG charging her with having unlawfully changed a minor 's placement .

On DATE expert psychologist PERSON , who was appointed by the criminal court , examined K.

On DATE the Pest Central District Court convicted GPE of having unlawfully changed a minor 's placement , but refrained from imposing a sentence pending DATE .

On DATE expert psychologist PERSON examined K. and her parents .

On DATE ORG preferred a bill of indictment charging GPE with endangering a minor .

On DATE ORG quashed GPE 's conviction of DATE for procedural shortcomings and remitted the case to the first criminal instance .

On DATE the Pest Central District Court joined the CARDINAL criminal proceedings . In the ensuing proceedings , ORG found the opinions of GPE and GPE incomplete and contradictory . Consequently , it appointed an expert psychiatrist , PERSON , to examine the child , which she did on DATE .

On DATE the court heard all CARDINAL experts .

On DATE the Pest Central District Court convicted GPE of the offences of ' endangering a minor ' and ' unlawfully changing a minor 's placement ' . In its reasoning , of the altogether CARDINAL opinions – which included that of GPE , prepared in the civil case in DATE the court accepted the latter , along with that of PERSON , as completed and amended orally .

The court noted that , according to the earliest assessment made by GPE , the then CARDINAL - and - a - half - year - old PERSON , instinctively frank , had displayed rough traces of her mother 's influence :

“ At that time , the girl expresses her feelings to the expert openly ; she almost takes pride in the advantages , from which she benefits on the part of the better - off mother and her new family , in contrast with the severe and puritan fatherly environment ... ”

The court also noted the conclusion of the latest expert opinion of DATE , prepared by PERSON , according to which it could not be established that PERSON 's estrangement from her father was the consequence of the mother 's influence . For the court , this held true only for the teenage girl , whose personality had inevitably changed :

“ The girl 's very intense emotional link to her mother has grown into a strong symbiosis , an alliance of interests , which , for the court , has camouflaged the actual state of mind of the DATE personality .

The CARDINAL opinions are exact and authentic , but momentary , records of CARDINAL and the same person , against different backgrounds . Common elements are the attachment to the mother and the rejection of the father . Then [ in DATE , ] the [ mother 's ] manipulation predominantly underlay this [ choice ] ; by now [ DATE , ] this background has changed ; and it is the sovereign and final decision of the teenage girl , who has grown into a ' competent person ' , to live with her mother . Moreover , both experts agreed that the litigation and , in particular , the child 's involvement therein , is very harmful for the child and constitutes mental abuse in itself , which the parent actually taking care of the child is significantly more likely to exert than the other parent , who has been almost completely isolated from her . ”

GPE was sentenced to DATE imprisonment , execution being suspended for DATE .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in the city of GPE , GPE .

The applicant is a former military serviceman . In DATE he was transferred to the reserve .

On an unspecified date the applicant instituted proceedings in ORG of Gorlovka ( “ the court ” ) against ORG ( “ the enlistment office ” ) claiming payment of a single - payment allowance due to him , compensation for non - pecuniary damage and CARDINAL NORP hryvnias ( ORG ) in compensation for the court fees .

While the proceedings were still pending , the enlistment office paid the allowance . Therefore , the applicant withdrew his claims regarding payment of the allowance and compensation for non - pecuniary damage .

On DATE the court awarded the applicant UAH CARDINAL in compensation for the court fees , to be paid by the enlistment office . The judgment was not appealed against and became final .

On an unspecified date ORG ( “ ORG ” ) initiated enforcement proceedings in respect of that judgment .

On DATE ORG suspended enforcement proceedings since the court had not indicated the debtor 's account in the enforcement writ .

Later the enlistment office was closed down . The latter 's debts were transferred to its successor , ORG . On DATE the court granted the applicant 's request and changed the debtor in the enforcement proceedings . The applicant re - lodged the enforcement writ with ORG .

The judgment remains unenforced .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


Violation of Art. 3 (procedural aspect);No violation of Art. 3 (substantive aspect)

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of theft . He was taken to FAC No . CARDINAL ( « Опорний пункт охорони правопорядку № CARDINAL GPE ) , where the police body - searched him and discovered , in the presence of CARDINAL attesting witnesses , CARDINAL packets of opium extract . The record of the search and seizure , which contained a signature appearing to be that of the applicant , indicated that he had admitted having bought those drugs for his own use . However , once the drug seizure was documented , the applicant cut his neck with his key - ring as an indication of protest . The police called an ambulance , which documented the injury as being of a minor nature and provided the applicant with the required aid .

The applicant was placed under DATE administrative detention pending clarification of all the circumstances of the supposed drug offence .

On DATE he was delivered to ORG ( « РОВД м. Євпаторія DATE ) , where , according to the applicant , police officer NORP beat him severely .

According to the applicant , NORP asked him not to raise any complaints in exchange for a promise that the police would turn a blind eye to any future misdemeanours from his side . The applicant accepted this .

On DATE he was delivered to ORG , where he was placed in a cell shared by CARDINAL inmates . According to the registration journal , he arrived there without any visible bodily injuries . During DATE of his detention he did not request or receive any medical assistance .

On DATE the applicant was released .

On DATE he complained to a traumatologist in the GPE hospital that he was suffering from pain in the chest and was prescribed some antibacterial medication .

Having repeatedly sought medical assistance for continuous pain , on DATE the applicant was diagnosed with post - traumatic intercostal neuralgia and painful hypodermic indurations from both sides of the rib cage . He told the doctor that he had accidentally fallen down some stairs on CARDINAL DATE .

On DATE the applicant was hospitalised with the following diagnoses : right - lung pneumonia concentrated in the inferior lobe , fracture of CARDINAL of the breastbone and closed fracture of the seventh rib on the right side . He underwent treatment as an in - patient until DATE .

On DATE the applicant complained to ORG ( “ the FAC ” ) that on DATE he had been beaten up by police officer NORP , as a result of which he had several rib fractures . He explained the delay in bringing that complaint by the alleged agreement with NORP ( see paragraph CARDINAL above ) , which he considered to have been breached .

On DATE the hospital where the applicant had been treated submitted all the related medical documentation ( namely the X - ray films , the medical history sheet and other medical records ) to the GPE Deputy Prosecutor at the latter 's request . As it would be later admitted in the course of the investigation , the content of those documents was never reflected in the investigation paperwork .

Overall , in the period from DATE ORG refused CARDINAL times to open a criminal case against NORP on the basis of the applicant 's complaints . All those refusals were subsequently quashed by ORG or by ORG as unlawful , premature or groundless .

The major investigative steps taken and the omissions indicated by the higher - level prosecution authorities were as follows .

In DATE ORG questioned police officer NORP and the investigator dealing with the applicant 's own criminal case , who denied the alleged ill - treatment .

NORP In DATE the ambulance doctors who had provided the applicant with medical aid on account of the cut to his throat on DATE were questioned and noted that he had not raised any illtreatment allegations , whereas the cut itself had been an insignificant injury . The therapist who had hospitalised the applicant in DATE was also questioned , but could not remember any details .

At about the same time it was found out that the medical documentation seized earlier from the hospital was missing .

In DATE ORG criticised his lower - level colleague for not having questioned the applicant and his family members . Among the other omissions he pointed out the failure to conduct a medical forensic examination of the applicant with a view to establishing the nature , date and gravity of the injuries complained of .

That criticism was repeated in DATE , DATE and DATE .

On DATE a forensic medical examination was conducted to clarify which of the applicant 's versions concerning the date and origin of his injuries – from the alleged beatings on DATE or from the accidental fall on DATE was more plausible . The examination was limited to an analysis of the few medical documents which were available and concluded that both dates were possible for the applicant 's injuries at issue , whereas their nature and origin could not be established in the absence of the X - ray films of the material time , as well as the other essential medical documentation ( see paragraphs CARDINAL and DATE above ) .

NORP In DATE the attested witnesses present at the applicant 's arrest on DATE stated that they had not witnessed any illtreatment .

The applicant 's mother , who was questioned in DATE , stated that after his release on DATE the applicant had complained that he had been beaten by the police and of pain in the chest .

On DATE ORG instructed the investigator , inter alia , to find the applicant 's medical documentation and to question the inmates with whom he had been sharing a cell in DATE .

In DATE and DATE efforts were taken to find the applicant 's cellmates . The whereabouts CARDINAL of them were established . CARDINAL inmates did not remember the applicant complaining of ill - treatment or being in need of medical aid , whereas the fourth one mentioned that the applicant had complained to him that he had been beaten by the police without giving any further details .

On DATE ORG criticised the investigator for not having undertaken an inquiry in respect of the loss of the applicant 's medical documents . In DATE such an inquiry was held , but to no avail . The GPE Deputy Prosecutor stated that he had handed the documents to his superior , who had retired in DATE and whose current place of residence was unknown .

On DATE another forensic medical examination was held . It confirmed the conclusions of the earlier CARDINAL , also referring to the absence of the X - ray films as an impediment to more specific conclusions .

In DATE the applicant was questioned for the first time in the framework of the investigation of his allegation of ill - treatment . The administration of the prison where he was serving his sentence at the time questioned him at the investigator 's request . According to the investigation documents , he stated that he had earlier explained his injuries by an accidental fall because he did not want to bring the police officer to criminal liability , without giving any further details .

On DATE the applicant was X - rayed , as a result of which a consolidated fracture of CARDINAL rib was confirmed . The film was lost in the course of DATE .

On DATE ORG noted that the investigation had fallen short of meeting any of its or ORG earlier instructions , given on TIME occasions .

On DATE the third forensic medical examination was held . This time it was based on a visual examination of the applicant and took place in the prison where he was serving his sentence . As the X - ray films both of DATE and of DATE remained missing and the ORG machine in the prison was not operational , the expert made a general conclusion that the applicant might have had his rib broken in DATE . In any event , it appeared impossible to clearly establish the date , nature and origin of his injuries given the considerable lapse of time . The report contained a general observation that , as a rule , establishing the precise time of a fracture was possible only within DATE after it had taken place , as later consolidated fractures appear the same .

On DATE ORG issued the fourteenth and last decision on the refusal to open criminal proceedings against police officer NORP on the basis of the applicant 's complaints . It noted that all possible investigative measures had been taken , but had failed to yield any substantiation of the applicant 's allegations .

On DATE , DATE and DATE respectively ORG ( “ the ORG ” ) , ORG ( “ the ORG ” ) and ORG upheld the above ruling . The reasoning of the CARDINAL courts was confined to a finding that the requirements of LAW had been fulfilled , with no facts established in proof of the applicant 's allegation .

On DATE and DATE and DATE respectively , ORG , ORG and ORG found the applicant guilty of possession of illegal drugs and theft and sentenced him to DATE and DATE imprisonment .

On DATE the applicant was arrested ( with the reasons for the delay before his arrest being unclear ) .

On DATE ORG found the applicant guilty of some CARDINAL counts of theft committed during DATE and sentenced him to DATE imprisonment . The final sentence under both verdicts – of DATE and of CARDINAL DATE was set at DATE .

NORP The applicant appealed against the charge of the drug offence .

On DATE ORG rejected the appeal as related to another verdict ( of DATE ) .

On DATE ORG rejected the applicant 's request that his mother be allowed to represent him , referring to the fact that both verdicts against him had entered into force .

On DATE the applicant was released from prison , having served his sentence in full .

In DATE he was provided with an opportunity to copy the entire case file .

On DATE he underwent computer tomography , which revealed old fractures of the breastbone and CARDINAL ribs .

Pursuant to LAW , a prosecutor , an investigator , an enquiry body or a court shall refuse to open a criminal case if there are no grounds for deciding otherwise .

Other relevant legal provisions can be found in the NORP v. GPE judgment , no . CARDINAL , § § DATE , DATE .


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

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

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

The applicant ’s wife died on DATE . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . On DATE the applicant made a request for reconsideration and on DATE the previous decision was upheld . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .