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

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

In DATE the applicant had an accident at work and injured his back . As a consequence thereof , he received a sickness allowance ( sjukpenning ) . On DATE ORG ( försäkrings - kassan ; hereinafter “ the Office ” ) of ORG sent a letter to the applicant informing him that he had been referred to a physician , a psychologist and a physiotherapist for examinations of his health condition and the possibilities for rehabilitation , to be conducted on CARDINAL and DATE . He was further informed that failure to appear without a valid reason could result in a withdrawal or reduction of his sickness allowance . On DATE the applicant , questioning the competence of the persons supposed to examine him and the need for and expediency of those examinations , stated that he refused to appear without his legal counsel and asked for the examinations to be postponed . On DATE the ORG replied that it considered that the medical material available to it was not sufficient to make an appropriate examination of his right to a continued sickness allowance and that the aim of the requested medical examinations was to remedy those deficiencies .

On DATE the applicant appealed against the request for medical examinations . On DATE ORG ( länsrätten ) of GPE dismissed the appeal stating that the ORG could , under LAW ( NORP om allmän försäkring , CARDINAL:CARDINAL ) , request that the applicant undergo an examination of his health situation and the possibilities for rehabilitation . According to the preparatory works to the relevant provisions , measures taken by the ORG should be seen as part of the handling of the case and could thus only be subject to appeal when there had been a decision to withdraw or reduce the allowance in question . Since the measure in question had not had any direct consequences for the applicant , ORG found that it was prevented from examining the applicant ’s appeal and thus dismissed it .

The applicant did not appear for the medical examinations and was given a new appointment , with CARDINAL chief physicians , for DATE . In letters to the physicians , he again criticised the examinations . He eventually appeared for the appointment accompanied by his legal counsel . He declared that he was not opposed to being examined but that he was not there of his own free will but under the threat of having his allowance withdrawn . The physicians considered that the applicant was not consenting to the measure and therefore did not proceed with the examination .

Meanwhile , on DATE the applicant had appealed against ORG decision to dismiss the appeal regarding the request for medical examinations . On DATE ORG ( kammarrätten ) in GPE remitted the case to ORG as , according to the legal procedure , the ORG should have reconsidered ( omprövat ) its decision before the examination by ORG . On DATE the ORG , upon reconsideration , drew the same conclusion as ORG had done on DATE . On DATE ORG again dismissed the appeal .

On DATE ORG upheld ORG decision of DATE . On DATE ORG ( Regeringsrätten ) refused leave to appeal on this issue .

On DATE the ORG informed the applicant that it was considering discontinuing payment of his sickness allowance and invited him to submit observations . The applicant availed himself of that opportunity .

By a decision of DATE the ORG discontinued payment of the applicant ’s sickness allowance as from DATE as it had not been shown that his ability to work was reduced to such an extent that he was entitled to such an allowance . The ORG had regard to complementary medical records and reports which it had obtained concerning the applicant and the opinion of CARDINAL of its own medical doctors ( försäkringsläkare ) . Upon the applicant ’s request , the ORG reconsidered its decision on DATE . It upheld the decision , stating , inter alia , that there had been reasons to request complementary examinations , that the applicant had refused to cooperate and , that , accordingly , his entitlement to an allowance had not been shown .

On DATE the applicant lodged an appeal with ORG . Observations received by the court from the ORG were submitted to the applicant .

The applicant later lodged appeals with the court against other decisions taken by ORG . Thus , on DATE he appealed against a decision concerning the level of income on the basis of which his sickness allowance was to be calculated ( sjukpenninggrundande inkomst ) and on DATE he appealed against a decision by which the ORG rejected his applications for a disability pension ( förtidspension ) and a life annuity ( livränta ) . The applicant ’s appeals were considered in parallel by ORG .

The applicant submitted observations to ORG on DATE , CARDINAL and CARDINAL May and DATE . On the latter date he requested an extension until DATE of a time - limit to submit further observations . This was granted by the court . On DATE he submitted observations and requested a further extension until DATE , noting that there was no opposite party in the proceedings who could be harmed thereby . Also this request was granted by the court . Further submissions were made by the applicant on DATE and DATE .

On DATE the applicant ’s case file was sent on loan to ORG for use in the proceedings concerning the request that the applicant undergo medical examinations . The file was later forwarded to ORG for the same purpose . The file was returned to ORG on DATE .

On DATE and DATE and on DATE and DATE ORG received additional observations and documents from the applicant .

On DATE ORG delivered judgments in all the applicant ’s cases . In upholding the ORG ’s decision to withdraw the applicant ’s sickness allowance , it found that the ORG had had reasons to request complementary information in order to determine whether his health situation had improved to such an extent that he would be able to go back to work . Although a medical examination could probably not be performed against a person ’s will , the refusal to undergo such an examination could , under the provisions of LAW , lead to the loss of the benefits in question . The applicant ’s stance in this regard had led the physicians to conclude that it was not possible to conduct an examination and he had consequently prevented the ORG from obtaining the necessary medical evidence which , by law , it was competent to request . For these reasons , the applicant ’s entitlement to a sickness allowance under LAW could not be properly assessed .

On DATE the applicant lodged appeals with ORG against ORG judgments . He also asked for time until DATE to specify the relief sought and the grounds for the appeals . The court granted his request . Observations were received from the applicant on DATE and , on DATE , the court asked the ORG to comment before DATE , a time - limit later extended twice , ultimately until DATE . The ORG ’s reply was received on DATE and sent to the applicant for information .

On DATE , DATE and CARDINAL DATE the applicant submitted observations and medical certificates to the appellate court . On DATE he requested time until DATE to submit further observations . This was granted by the court . On DATE the applicant submitted observations and medical certificates . He also asked for a further extension until DATE , again noting that this would not cause detriment to any opposing individual party .

By a decision of CARDINAL DATE the appellate court ordered the applicant to conclude his case no later than DATE . The receipt of the order was acknowledged by the applicant on DATE , following CARDINAL reminders sent by the court .

On DATE the applicant submitted observations and reiterated his request for an extension , at least until DATE . The ORG submitted comments on these observations on DATE which were forwarded to the applicant for information . On DATE the appellate court granted an extension until DATE and informed the applicant that further extensions were unlikely to be granted .

On DATE the applicant submitted further observations and again reiterated the request for an extension until DATE . By a decision of CARDINAL DATE the appellate court ordered him to submit any additional material within DATE of receiving the order .

On DATE the appellate court received observations from the applicant in which he requested an extension until DATE . He stated that he did not consider it correct to deny him the extension which he had requested and needed , as the opposing party in the case would not be harmed thereby but rather favoured by such a measure . By a decision of DATE the appellate court ordered the applicant to submit any additional material by DATE .

On DATE the appellate court received observations from the applicant in which he requested an extension of the time - limit until DATE . He maintained that the court could not be criticised for having protracted the proceedings , since he had himself asked for the extension and his request was well - founded . On DATE the appellate court ordered the applicant to submit any additional material by DATE . It also stated that it might rule on the question of leave to appeal even if he failed to abide by the order .

By decisions of DATE ORG refused the applicant leave to appeal in all cases .

On DATE the applicant lodged appeals with ORG . He asked , inter alia , that the cases be remanded to ORG for further extensions of the time - limit to submit observations . He also requested an extension before ORG until DATE in order to submit additional medical evidence . The latter request was granted . On DATE and DATE the applicant requested further extensions until DATE and DATE , respectively . Also these requests were granted .

On DATE the applicant submitted observations to ORG . On DATE he requested a further extension of the time - limit until DATE . The request was granted .

On DATE and DATE the applicant submitted further observations and a medical certificate . On DATE he requested an extension until CARDINAL DATE . The request was granted .

On DATE the applicant submitted further observations . On CARDINAL DATE he requested an extension of the time - limit until DATE , noting that it would not cause detriment to anyone but himself . The request was granted .

On DATE and DATE the applicant requested further extensions until DATE and DATE , respectively . The requests were granted .

On DATE the applicant submitted observations to ORG and requested that the previously granted extension until DATE should continue to apply .

On DATE the applicant requested a further extension until DATE . On DATE , he submitted his final observations in all cases , including the case concerning the sickness allowance .

The cases are at present pending before ORG .

Sickness allowances are , insofar as relevant to the present case , regulated in chapter CARDINAL , sections DATE and CARDINAL a and chapter DATE , section CARDINAL of LAW . A person is entitled to such an allowance if his or her sickness reduces the ability to work by PERCENT . ORG should , if necessary for the assessment of an application for an allowance , request the person in question to undergo an examination of his medical state and working disability and the need and possibility for rehabilitation . If the person refuses without a valid reason to undergo treatment , examination or rehabilitation , the sickness allowance may be refused , entirely or partially , until further notice , provided that he or she has been notified of this consequence .

According to the preparatory works of chapter CARDINAL , section CARDINAL a of LAW , the decision of a local insurance office to request an individual to undergo additional medical examinations is to be regarded as constituting part of the office ’s procedure for dealing with the matter of the individual ’s entitlement to a continued sickness allowance . The preparatory works therefore conclude that such an action by the office should be subject to appeal only in connection with a subsequent decision to reduce or discontinue payment of the allowance in question ( Government PERSON CARDINAL/CARDINAL:CARDINAL , p. CARDINAL ) .


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 PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG at ORG .

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

Until DATE the applicant was the managing director of ORG , a company incorporated under NORP law . The company ran a mail - order business selling food supplements designed to aid weight loss . Among these were a liquid product called PERSON CARDINAL and effervescent tablets called LANGUAGE - GPE . The applicant indicated that these had been purchased from “ a laboratory with the normal accreditation for such products ” , based in GPE .

The applicant added that the products in question had previously been marketed in GPE and that “ for this reason , ORG , ORG and the Environment had , in accordance with the procedure in place in the country , authorised [ their ] release onto the market after verification of [ their ] conformity as a nutrient[s ] within the meaning of Community legislation and in particular Directive No . CARDINAL/CARDINAL/EC of DATE ” . In that connection he provided , in particular , a document dated DATE , issued by ORG , acknowledging receipt of a “ notification file ” and assigning a “ plant number ” to GPE .

Advertising carried out for the marketing of these products in GPE attracted the attention of ORG , ORG , which consequently conducted a number of investigations ( in DATE and DATE ) . Noting that the Sveltys - GPE tablets contained sodium benzoate , they contacted the person who had taken over from the applicant as managing director of DATE who passed them the above - mentioned document dated DATE and then contacted ORG in GPE . The latter responded in the following terms in a letter dated DATE :

“ ... Further to your letter dated DATE relating to non - compliance of the food supplement L[y]ghtyss with Directive No . CARDINAL/CARDINAL on food additives other than colours and sweeteners ( unauthorised presence of sodium benzoate in a solid food supplement ) ... , we have taken the necessary measures to compel the company ORG that markets this product in GPE to comply with the directive within DATE . If the company fails to do so within the period we have allowed , we shall withdraw its notification number .... We thank you for this information ... ”

The applicant and the person who had succeeded him as managing director of the company ORG and the company itself were prosecuted in the criminal courts . They were charged with , inter alia , false advertising , firstly regarding the composition , essential qualities , content of active ingredients , mode of manufacture , properties and expected effects of food supplements with alleged slimming qualities , and secondly by featuring fictitious studies by researchers on the identity , qualifications or skills of the retailers of these products . They were also prosecuted for having ( during DATE and until DATE ) displayed , marketed or sold foodstuffs to be used for human consumption which they knew to be adulterated , tainted or toxic , by marketing food supplements containing sodium benzoate ( ORG tablets ) , namely , an unauthorised product in non - liquid food supplements .

By a decision of DATE , ORG found the defendants guilty on those counts . It sentenced the applicant to CARDINAL months’ imprisonment and a fine of QUANTITY ( ORG ) ; the other defendants were sentenced to fines of LAW and LAW respectively .

ORG upheld ORG ruling on these points . Its judgment , delivered on DATE , highlights the following points in particular :

“ ... the Order of DATE [ which transposes into NORP law several ORG directives on food additives , including Directive No . CARDINAL/CARDINAL/EC of DATE ] , provides that ‘ maximum levels indicated in GPE , PERSON and V refer to foodstuffs as marketed , unless otherwise stated ; sodium benzoate ( preservative E CARDINAL ) appears in GPE of this Order , which is permitted in food supplements up to a level of QUANTITY , but only in liquid food supplements .

The PERSON - Lightyss tablets were sold in solid form , so it is immaterial whether they were effervescent or intended to be ingested in liquid form .

Once ORG had acknowledged that the presence of sodium benzoate in solid tablets was such as to cause it to revise its previous position , the defendants could no longer rely on an authorisation they had obtained from the NORP authorities ; in any event , a decision taken by the authorities contrary to Community law does not create rights and can not result in an acquittal of the defendants on these charges ... ’

By a judgment of DATE , ORG dismissed an appeal lodged by the convicted parties , rejecting the ground of appeal based , inter alia , on LAW as follows :

“ It is apparent from the judgment appealed against and the documents in the proceedings that the company ORG and its CARDINAL successive managing directors ... were prosecuted in the criminal court on a charge of selling and releasing for sale adulterated food products on the grounds that in DATE and DATE theysold food supplements in the form of effervescent tablets , called PERSON and PERSON , containing an illegal additive : sodium benzoate ;

In finding the defendants guilty of the offence , ORG held that the tablets were released for sale in solid form and that , consequently , the use of sodium benzoate was not permitted , since Directive No . CARDINAL of DATE , transposed into national law by the ministerial order of DATE , restricts the use of this preservative to liquid food supplements ;

On these grounds alone , and since at the material time sodium benzoate could not be incorporated , either in GPE or GPE , into solid food supplements , ORG justified its decision with regard to the legal and LAW provisions relied on ;

Article L. CARDINAL - CARDINAL of the Consumer Code is worded as follows :

“ Anyone who

adulterates foodstuffs for human or animal consumption , medicines , drinks , or agricultural or natural products intended for sale ;

displays , markets or sells foodstuffs for human or animal consumption , drinks , or agricultural or natural products which they know to be adulterated , tainted or toxic

shall be liable to the penalties provided for in LAW

The adulteration of a product may result from the addition of a substance deemed illegal under the applicable law ( PERSON . PERSON . , DATE , No . CARDINAL ) or , more generally , from “ recourse to unlawful processing that fails to comply with the regulations in place , with the effect of altering the substance ” ( GPE . PERSON . , DATE , No . CARDINAL ) .

Directive No . CARDINAL/CARDINAL/EC of ORG and ORG on food additives other than colours and sweeteners ” ( ORG L CARDINAL of DATE , p.CARDINAL ) stipulates that the additives listed in GPE and PERSON “ may only be used in the foodstuffs referred to in [ the said ] PERSON and under the conditions specified therein ” ( LAW , paragraph CARDINAL of the Directive ) . Sodium benzoate appears in GPE ( Part A ) . Unlike “ liquid ” food supplements , “ solid ” food supplements are not mentioned in the list of foodstuffs for which they can be used . This Directive was transposed into NORP law by the Order of CARDINAL October CARDINAL “ on additives usable in the manufacture of foodstuffs intended for human consumption ” ( ORG No . CARDINAL of DATE , p. DATE ) .


Ganna Yudkivska;Karel Jungwiert;Mark Villiger

On DATE the applicant instituted proceedings in the ORG of the LOC ( “ the ORG ” ) against the GPE ORG ( “ the police office ” ) and ORG . She challenged their actions in investigating the criminal case against PERSON , who had inflicted light bodily harm on the applicant in DATE . The applicant also claimed compensation for the damage caused to her .

DATE and DATE no hearings were held since the judge sitting in the case was on holiday .

On DATE ORG left the applicant 's claim without consideration since she failed to appear . On DATE the ORG reviewed its decision and the proceedings were resumed .

On DATE the ORG partly allowed the claim and awarded the applicant ORG CARDINAL,CARDINAL ( about EUR CARDINAL,CARDINAL ) in compensation for non - pecuniary damage , to be paid by the police office .

The applicant and the police office lodged their appeals against the judgment .

On DATE and DATE ORG left the applicant 's and the police office 's appeals , respectively , without consideration due to their procedural shortcomings .

On DATE ORG of GPE ( “ the Court of Appeal ” ) dismissed the applicant 's appeal against the ruling of DATE . On DATE the applicant lodged an appeal in cassation against the ruling of CARDINAL DATE with ORG .

There was no procedural activity from DATE to CARDINAL DATE .

On DATE ORG transferred the case to ORG for consideration . On DATE the latter , acting in its cassation jurisdiction , quashed the ruling of CARDINAL DATE and transmitted the case to ORG for consideration of the applicant 's appeal against the ruling of DATE .

On DATE ORG quashed the ruling of DATE . On DATE ORG quashed the judgment of DATE and terminated the proceedings since the first instance court had no jurisdiction to consider the case .

The applicant stated in her submissions that she had challenged the decision of DATE before ORG and the proceedings are still pending . However , she provided no documents in support of that statement . According to the records provided by the Government , the applicant lodged no appeal against the decision of DATE .

In the period from DATE till DATE the applicant 's apartment was used by the acquaintances of her son , PERSON , who moved in without her permission and , according to the applicant 's submissions , damaged it .

On DATE the applicant instituted proceedings in the ORG against Mr B. and Mr S. seeking compensation for pecuniary and non - pecuniary damage . On an unspecified date the case was transferred to ORG . On DATE the latter left the applicant 's claim without consideration . On DATE ORG of the Crimean Region quashed that ruling .

On DATE ORG left the applicant 's claim without consideration and discontinued the proceedings .

On DATE the ORG of ORG of GPE allowed the protest ( extraordinary appeal ) of its Deputy President against the ruling of CARDINAL DATE , quashed it and remitted the case to ORG for fresh consideration .

On DATE ORG partly allowed the applicant 's claims and awarded her CARDINAL NORP hryvnias ( ORG ) , to be paid by PERSON B. and UAH CARDINAL,CARDINAL , to be paid by PERSON The judgment was not appealed against and became final . It remained unenforced .

NORP In DATE Mr B. asked ORG to renew a deadline to appeal against the judgment of CARDINAL DATE . On DATE ORG granted his request . On DATE ORG quashed the judgment of DATE and remitted the case to ORG . In particular , ORG found that PERSON had not been duly informed about the hearings in the case and that the judgment of CARDINAL DATE had been adopted in his absence .

On DATE ORG dismissed the applicant 's appeal in cassation against the ruling of DATE .

On DATE ORG partly allowed the applicant 's claims and awarded her UAH CARDINAL ( CARDINAL , ORG ) , to be paid jointly by PERSON and PERSON

On DATE ORG dismissed PERSON appeal due to its procedural shortcomings .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 10;Violation of Art. 6-1;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in PERSON .

The applicant is the editor - in - chief of a regional newspaper “ LOC FAC ” . On DATE the newspaper published an editorial under the heading “ ORG stealthily approaches PERSON . Thoughts about CARDINAL decision of the town legislature . ” ( “ Черногоров подбирается к PERSON по поводу одного решения городской думы ” ) . The article was signed with the pseudonym of ORG . Mr PERSON was the governor of the PERSON region and the applicant 's competitor in the election to that office in DATE .

The article lamented the decision by a majority of members of the PERSON town legislative body to change the procedure of appointment of the town 's mayor : the mayor would no longer be elected by the town 's residents , but appointed by the town legislature . The publication alleged that the decision had been taken under pressure from Mr PERSON :

“ [ Members of the legislature ] were requested [ to make the decision ] by the governor himself , who attended the session , accompanied by many of his advisors , to try to persuade those in attendance ...

From that moment on , each member of the legislature has been caught in a web of sale - and - purchase transactions . We can only speculate what wonders they will be promised by ORG 's representatives . CARDINAL thing is sure , nobody will offer the legislators more than the governor himself ...

Each member of the legislature will get his share and consume it on the sly . ”

The article concluded with a critical appraisal of the governor as politician and manager :

“ Having miraculously escaped defeat in the governor 's DATE only because the regional elites failed to reach an agreement and nominate a passable candidate DATE and having avoided , for the same reason , the formation of a powerful opposition in the regional legislature , our loud and ambitious , but completely incapable governor is about to lay his hands on [ the town of GPE ] . ”

On DATE the prosecutor 's office of GPE granted the request of Governor PERSON and initiated criminal proceedings against the applicant for dissemination of defamatory statements in the mass - media ( LAW ) .

On DATE an investigator ordered a linguistic examination of the publication . The examination was performed on DATE by Mr B. , a professional journalist with degrees in language studies and law , teaching at ORG and ORG of ORG . The expert came to the following conclusion :

“ General conclusion : The text of the article submitted for examination ... conveys in a rather harsh and emotional form the author 's opinion and his judgments on the role of LOC governor , PERSON , in the forthcoming election of the PERSON town mayor . The text does not contain any words or expressions that are insulting for the governor , with the exception of the controversial description ' incapable ' . ”

NORP The expert admitted that certain sentences conveyed a negative attitude towards the managerial abilities of the governor ; however , he asserted , the publication did not contain any allegations about violations of laws , including electoral laws , by the governor or any statements damaging his professional reputation . The expert also pointed out , referring to an academic article by the FAC town prosecutor , that ideas , opinions and value - judgments were not subject to a court - ordered refutation for being untrue , and the aggrieved person should instead exercise his right to a reply in the same medium .

On an unspecified date the applicant was charged with criminal defamation involving an allegation about the commission of a serious crime ( Article CARDINAL § CARDINAL of LAW ) and with publicly insulting a ORG official in connection with the performance of his duties ( LAW ) . The case was referred to a court .

NORP Before the court the applicant pleaded not guilty . He maintained that the publication in question had not contained any statements of fact , which could be declared untrue .

Mr PERSON asserted that the statements in the publication to the effect that he had obtained a decision from the town legislature through bribes and that he had had a narrow escape at the DATE election , as well as a reference to him as being “ completely incapable ” , were libellous and damaging to his honour , dignity and professional reputation .

The court heard evidence from CARDINAL members of the PERSON town legislature , who denied that they had been offered any goods or benefits by the governor in exchange for their consent to the mayor 's appointment . The governor 's advisors testified in the same vein .

On DATE ORG of Stavropol delivered a judgment in the applicant 's case . In the judgment the court rejected the conclusions of the linguistic examination of DATE on the ground that the report was a “ subjective appraisal ” by PERSON of the publication and , in addition , that it had not been shown that ORG or PERSON had had a licence to carry out linguistic examinations . The court substituted its own assessment of the article 's contents :

“ The court considers that the article contains not judgments and assumptions , as asserted by the defence , but precisely statements of fact ... because the article specifies when , where and under what circumstances the decision on amendments to the PERSON town charter was made and what the result of the voting was . The use of the future tense and infinitives in the text of the article is the author 's way of writing and it does not indicate that the discourse is about hypothetical future events ... ”

The court further held that it was not possible to establish who had been the author of the article . The prosecution had not proven that it had been written by the applicant . However , he was responsible for its publication in the newspaper of which he was the editor .

The court found as follows :

“ The disseminated defamatory statements damage the honour and dignity of LOC governor PERSON , undermine his professional reputation , and accuse him of a serious crime . The repeated statements that ' each member of the legislature has been caught in a web of sale - and - purchase transactions ' , that ' they will be promised wonders by ORG 's representatives ' , that ' nobody will offer the legislators more than the governor himself ' , and that each member of the legislature ' will get his share and consume it on the sly ' accuse the governor PERSON of bribing the members of the legislature for adoption of a desired decision . The statements that each member of the legislature has been caught in ' a web of sale - and - purchase transactions ' and each member of the legislature ' will get his share ' accuse Mr PERSON of bribing each member of the legislature who took part in the adoption of the decision , that is of a serious criminal offence under LAW , repeatedly committed [ emphasis in the original ] .

[ The applicant 's ] statements that Mr Chernogorov ' has miraculously escaped defeat in the governor 's election only because the regional elites failed to reach an agreement ' and ' nominate a passable candidate ' are also untrue , and [ the applicant ] knew that they were untrue . Being himself a candidate in the DATE elections of ORG governor , [ the applicant ] could not be ignorant of the election results , in which Mr ORG polled MONEY more votes than the other candidates ... This result does not permit concluding that Mr PERSON has ' miraculously ' won the elections . [ The applicant ] disseminated untrue statements that Mr Chernogorov 's election as LOC governor had not been the product of an informed choice of a majority of the Region residents but had been brought about accidentally because of lack of consent between certain ' regional elites ' . Those statements damage the reputation of the legitimately elected governor among the Region residents , denigrate and belittle his person .

The court considers that [ the applicant 's ] statement that ' our loud and ambitious , but completely incapable governor is about to lay his hands on [ the town of PERSON ] ' was also an untrue statement damaging Mr ORG 's honour and dignity and undermining his reputation . No one has ever established that Mr Chernogorov was incapable in the legal sense of this term . Moreover , as the Region residents re - elected Mr PERSON as LOC governor for a second term , it can not be concluded that Mr ORG is a ' completely incapable governor ' in the sense of incapability to act . ”

The court found the applicant guilty of defamation . However , the applicant was acquitted of publicly insulting a ORG official because , in the court 's opinion , the publication did not contain cynical or obscene language in respect of the governor .

NORP The applicant was given a suspended sentence of DATE imprisonment , conditional on DATE probation .

The applicant and his lawyer appealed against the conviction to ORG . Their grounds of appeal invoked , in particular , LAW and referred to the special place of journalistic freedom in a democratic society and wider limits of criticism in respect of a public figure , which LOC governor undeniably was . The applicant 's lawyer also complained about the first - instance court 's refusal to accept the linguistic examination report on the pretext that the expert did not have the required licence , whilst domestic law did not provide for such a requirement .

On DATE ORG of ORG upheld the judgment of DATE . ORG did not address the applicability of LAW or the first - instance court 's decision not to admit the linguistic examination report in evidence .

Article CARDINAL of the LAW of the Russian Federation guarantees freedom of ideas and expression , as well as freedom of the mass - media .

Article CARDINAL § CARDINAL of LAW of GPE defines defamation as dissemination of information known to be untrue that damages the honour and dignity of another person or undermines the person 's reputation . LAW provides that defamation disseminated in a public statement , publicly displayed work of art or in the mass - media is punishable by a fine and/or correctional work for a period of DATE . Article CARDINAL § CARDINAL penalises defamation , involving an accusation against a person that he or she committed a serious or especially serious crime , by DATE imprisonment .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure of GPE of DATE establishes that a person having technical knowledge may be commissioned to give an expert opinion in a criminal case . Pursuant to LAW a forensic expert study may be carried out by a ORG court expert or by any other expert having relevant technical knowledge .


The applicants were born in DATE and DATE respectively and live in Şırnak . They stood for election in the parliamentary elections of DATE as candidates of ORG ( DEHAP ) in the province of PERSON , but neither of them was elected .

Following the DATE earthquakes GPE went through CARDINAL serious economic crises in DATE and DATE . There then followed a political crisis , due firstly to the state of health of the then Prime Minister and secondly to the numerous internal divisions within the governing coalition , a grouping of CARDINAL political parties .

It was in that context that on DATE ORG of Turkey ( “ the ORG ” ) decided to bring forward the date of the next parliamentary elections to DATE .

In DATE left - wing political parties , ORG , ORG and ORG , decided to form a “ ORG ” and to form a new political party , DEHAP . The applicants began their electoral campaign as the new party ’s leading candidates in the province of Şırnak .

The results of the elections of DATE in the province of PERSON gave the DEHAP list CARDINAL of the CARDINAL votes cast , a score of PERCENT . However , as the party had not succeeded in passing the national threshold of PERCENT , the applicants were not elected . The CARDINAL seats allocated to Şırnak province were shared as follows : CARDINAL seats for the ORG ( ORG ve GPE – the Justice and ORG , a party of the conservative right ) , which had polled PERCENT ( CARDINAL votes ) , and CARDINAL seat for PERSON , an independent candidate who had polled PERCENT ( CARDINAL votes ) .

Of the CARDINAL parties which had taken part in the elections only the ORG and the ORG ( PERSON – ORG , a left - wing party ) succeeded in passing the PERCENT threshold . With PERCENT of the votes cast , the ORG won CARDINAL seats , PERCENT of those in ORG . The ORG , which polled PERCENT , obtained CARDINAL seats , or PERCENT of the total . CARDINAL independent candidates were also elected .

The results of these elections were generally interpreted as a huge political upheaval . Not only did the proportion of the electorate not represented in parliament reach a record level in GPE ( PERCENT ) but in addition the abstention rate ( PERCENT of registered voters ) exceeded PERCENT for the first time since DATE . As a result , ORG which emerged from the elections was the least representative since DATE , DATE in which a multi - party system was first introduced . Moreover , for the first time since DATE , CARDINAL parties were represented in parliament .

To explain ORG unrepresentativity , some commentators have referred to the cumulative effect of a number of factors over and above the existence of a high national threshold . For example , because of the protest vote phenomenon linked to the economic and political crisis , the CARDINAL parties which had obtained seats in the DATE parliamentary elections were unable to reach the PERCENT threshold in DATE and were accordingly deprived of representation in parliament . Similarly , electoral fragmentation had an effect on the results in that numerous attempts to form pre - electoral coalitions had come to nothing .

The electoral system is one of the subjects which have been the most debated in GPE ; it still remains highly controversial .

NORP The elections of DATE in which the majority representation system was used DATE were unable to ensure an institutional balance between the majority in parliament and the opposition . This imbalance was CARDINAL of the main reasons for the DATE coup ORG . Following the intervention of the armed forces parliament adopted proportional representation , using the D’Hondt method , to strengthen pluralism and the political system . As a result , the elections in DATE and DATE produced stable majorities in ORG while enabling small parties to be represented . However , in the elections of DATE and DATE the main political movements were unable to establish stable governments , although they had wide electoral support . That period of government instability was marked by the formation of CARDINAL coalition after another , each made fragile by the disproportionate influence of the small parties on government policy .

Following the military regime of DATE PERSON no . CARDINAL on the election of members of ORG , enacted on CARDINAL DATE , re - established proportional representation , with CARDINAL electoral thresholds . To the PERCENT national threshold was added a provincial threshold ( the number of electors divided by the number of seats to be filled in each constituency ) ; in DATE ORG declared the provincial threshold null and void . In the DATE parliamentary elections ORG ( ANAP ) obtained an absolute majority in parliament .

The parliamentary elections of CARDINAL DATE likewise enabled the PERSON , with PERCENT of the vote , to form a stable parliamentary majority . CARDINAL other parties also won seats . PERCENT of votes were cast in favour of parties which ultimately failed to reach the PERCENT threshold . In the elections of DATE CARDINAL parties gained seats in parliament . This result was due in particular to the fact that CARDINAL small political parties ( ORG , ORG and ORG ) had taken part in the elections under the banner of other political parties with the aim of circumventing section CARDINAL of Law no . CARDINAL , which makes it illegal to form joint lists before elections . The proportion of the votes cast in favour of parties not represented in the new parliament thus fell to PERCENT . The Government was based on a coalition of CARDINAL parties . In those elections the CARDINAL candidates of the HEP ( ORG DATE pro - NORP ) were elected to parliament on the list of the ( social - democratic ) ORG party ; they later resigned from the ORG to join the ranks of their own party , the ORG .

In the general election of DATE CARDINAL parties gained seats in parliament . However , as none of them had a parliamentary majority , a coalition was formed . The proportion of the votes cast in favour of parties not represented in parliament came to PERCENT .

The DATE parliamentary elections again resulted in no party having a parliamentary majority . CARDINAL political parties won seats in ORG . A coalition of CARDINAL parties formed a government . The proportion of the votes cast in favour of parties not represented in parliament came to PERCENT .

At present , numerous proposals to correct the effects of the PERCENT threshold have been put forward , both in parliament and by leading figures of civil society .

Article CARDINAL § CARDINAL of the LAW , as amended on DATE , provides :

“ Electoral laws must strike a balance between fair representation and governmental stability . ”

Article CARDINAL of the LAW provides :

“ Members of ORG of GPE shall represent the whole nation and not the regions or persons which have elected them . ”

Law no . CARDINAL on the election of members of ORG , published in ORG on DATE , lays down the rules of the system for parliamentary elections .

ORG has CARDINAL members , elected in CARDINAL constituencies in a single round of voting . They take place throughout the national territory , on DATE , under the proportional representation system . The suffrage is free , equal , universal and secret . Counting the votes and recording the results is done in public . Each province forms CARDINAL electoral constituency .

Section CARDINAL of Law no . CARDINAL provides :

“ ... [ P]olitical parties may not present joint lists ... ”

Section CARDINAL of Law no . CARDINAL ( as amended on CARDINAL DATE ) provides :

“ In a general election parties may not win seats unless they obtain , nationally , PERCENT of the votes validly cast ... An independent candidate standing for election on the list of a political party may be elected only if the list of the party concerned obtains sufficient votes to take it over the PERCENT national threshold ... ”

In allocating seats the D’Hondt system of proportional representation is used . That method DATE under which the votes cast for each list are first divided by a series of whole numbers ( CARDINAL , CARDINAL , DATE , DATE , CARDINAL etc . ) and seats then allocated to the lists which have the highest quotients – tends to favour the majority party .

In a judgment of CARDINAL DATE ( PERSON , PERSON ) ORG had the opportunity to rule on the constitutionality of CARDINAL of PERSON no . CARDINAL . That section , which referred to section CARDINAL of the same law , also imposed the electoral threshold of PERCENT for the allocation of the seats for ORG members elected in the “ national constituency ” .

The Constitutional Court declared the provisions establishing the national constituency null and void , but held that the PERCENT national threshold could be regarded as compatible with LAW .

The relevant passages of the judgment read as follows :

“ ... [ T]he LAW defines ORG as a Republic ... The constitutional structure of the ORG , which is based on national sovereignty , is a product of the nation ’s will , mediated through free elections . That choice , emphasised in the various Articles of the LAW , is set forth clearly and precisely in LAW , entitled ‘ The right to vote , to be elected and to engage in political GPE . Paragraph DATE , as amended , provides that electoral laws must be framed in such a way as to strike a balance between the principles of ‘ fair representation’ and ‘ governmental ORG . The aim is to ensure that the electors’ will is reflected as far as possible [ in ] the legislature . ... [ In order to ] choose the system whose methods are most conducive to the expression of the collective will and the taking of collective decisions in the legislature , ... enacting the appropriate legislation in the light of the country ’s specific circumstances and the requirements of the LAW , it is necessary to opt for [ the system ] which is most compatible with the LAW or to reject any system incompatible with it .

The impact of a representative democracy is visible in various fields . The effect of unfair systems adopted with the intention of ensuring stability is to hamper social developments . ... Where representation is concerned , the importance attached to fairness is the main condition for governmental stability . Fairness ensures stability . However , the idea of stability , in the absence of fairness , creates instability . The principle of ‘ fair representation’ with which the LAW requires [ compliance ] consists in free , equal , secret and universal [ suffrage ] , with CARDINAL round of voting and public access to the counting of votes and the recording of results , and produces a number of representatives proportional to the number of votes obtained . The principle of ‘ governmental ORG is perceived as a reference to methods designed to reflect votes [ within ] the legislature so as to guarantee the strength of the executive power . The ‘ governmental ORG which it is sought to ensure through the threshold ( described as a ‘ hurdle’ ) , just like ‘ fair representation’ ... , is protected by the LAW . In elections ... importance must be attached to combining these CARDINAL principles , which seem antinomic in certain situations , in such a way [ as to ensure ] that they counterbalance and complement each other ...

In order to achieve the goal of ‘ governmental ORG , set forth in the LAW , a national [ threshold ] has been introduced ...

Clearly , the [ threshold ] of PERCENT of the votes cast nationally laid down in section CARDINAL of Law no . CARDINAL ... came into force with the approval of the legislature . Electoral systems must be compatible with constitutional principles ... , and it is inevitable that some of these systems should contain strict rules . Thresholds which result from the nature of the systems and [ are expressed ] in percentages , and [ which ] at national level restrict the right to vote and to be elected , are applicable [ and ] acceptable ... provided that they do not exceed normal limits ... The [ threshold ] of PERCENT is compatible with the principles of governmental stability and fair representation ... ”

CARDINAL judges of ORG disagreed with the arguments of the majority , considering that the PERCENT national threshold was incompatible with LAW .

In the same judgment , however , ORG declared null and void an electoral threshold of PERCENT for the allocation of seats within provinces ( provincial threshold ) . Holding that such a threshold was inconsistent with the principle of fair representation , it observed :

“ Although a national threshold is imposed in parliamentary elections in accordance with the principle of ‘ governmental ORG , imposing in addition a threshold for each electoral constituency is incompatible with the principle of ‘ fair representation’ . ”

The Government referred to the report of ORG for the Observation of Parliamentary Elections in GPE ( DATE ) , produced on DATE . The relevant parts of the report read as follows :

“ As widely reported by the media , CARDINAL parties only out of CARDINAL found their way into the new ORG ; the ORG ( ORG and ORG ) and ORG ( ORG ) , leaving out all other parties , which had been represented so far in the parliament because they could not meet the PERCENT threshold . The party in government until the elections received PERCENT of the votes . Economic and corruption problems were determining in the elections .

A clear and absolute majority has emerged with CARDINAL seats for the ORG , CARDINAL seats for the opposition and CARDINAL seats for independent members . ( These independent members are elected in small towns where they have a good reputation . ) It should be recalled that ORG had CARDINAL seats in the previous parliament , and the CHP DATE elections ) .

This situation might create probably greater stability in the country by avoiding complicated and unstable coalitions . On DATE the NORP stock exchange went up by PERCENT .

However , it also means that PERCENT of the voters have no representation in the ORG .

The results must thus be considered as a clear protest vote against the establishment as a whole , since none of the CARDINAL parties in the old governing coalition got enough votes for a single seat ! ”

ORG has not issued any binding standards for electoral thresholds . The question has not been raised in the organisation ’s standard - setting texts . On the other hand , the Code of good practice in electoral matters , adopted by ORG , makes recommendations on the subject ( see ORG , “ Code of good practice in electoral matters : Guidelines and explanatory report ” , Opinion no . CARDINAL/CARDINAL ) . As a general principle , the LAW requires suffrage to be direct , but in the case of a bicameral parliament it permits CARDINAL of the ORG to be elected by indirect suffrage . As for the electoral system to be used , the PERSON ’s guidelines state that any system may be chosen .

Paragraphs CARDINAL and CARDINAL of Resolution CARDINAL ( DATE ) on “ Honouring of obligations and commitments by GPE ” , adopted by ORG of ORG on DATE , are worded as follows :

“ CARDINAL . With regard to pluralist democracy , the ORG recognises that GPE is a functioning democracy with a multiparty system , free elections and separation of powers . The frequency with which political parties are dissolved is nevertheless a real source of concern and the ORG hopes that in future the constitutional changes of DATE and those introduced by the DATE legislation on political parties will limit the use of such an extreme measure as dissolution . The ORG also considers that requiring parties to win PERCENT of the votes cast nationally before they can be represented in parliament is excessive and that the voting arrangements for NORP citizens living abroad should be changed .

The ORG therefore invites GPE , as part of its authorities’ current reform process , to :

ii . NORP amend the electoral code to lower the PERCENT threshold and enable NORP citizens living abroad to vote without having to present themselves at the frontier ;

Although there is no uniform classification of types of ballot and electoral systems , it is usual to distinguish CARDINAL main types : majority vote systems , proportional systems and mixed systems . In majority vote systems the winner is the candidate or list of candidates obtaining the majority of the votes in the decisive round of voting . This type of ballot makes it possible to vote in governments with clear parliamentary majorities , but at the same time it militates against the representation of minority political parties . Thus , for example , in GPE the use over DATE of a single round of voting in a single - member majority - vote system ( “ first past the post ” ) , combined with the existence of CARDINAL dominant political parties , has had the effect of giving few seats to other parties in relation to the number of votes that they obtain . There are other similar cases , in GPE for instance , where there is a majority - vote system spread over CARDINAL rounds of voting . At the opposite extreme , the aim of the proportional representation system is to ensure that the votes cast are reflected in a proportional number of seats . Proportional representation is generally considered to be the fairest system because it tends to reflect more closely the various political forces . However , the disadvantage of proportional representation is that it tends to lead to fragmentation among those seeking electoral support and thus makes it more difficult to establish stable parliamentary majorities .

Currently , proportional systems are the most widely used in LOC . By way of example , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE have opted for CARDINAL or other variant of proportional representation . There are also mixed systems containing various combinations of the CARDINAL types of ballot ( in GPE , GPE , GPE , GPE and GPE , for example ) .

In order to ensure stable majorities in legislatures elected by proportional representation , statutory electoral thresholds are often used . Thresholds are “ limits , fixed or variable , defined in terms of the electoral result , which determine the share of a list or candidate in the distribution of seats ” . However , the role played by thresholds varies in accordance with the level at which they are set and the party system in each country . A low threshold excludes only very small groupings , which makes it more difficult to form stable majorities , whereas in cases where the party system is highly fragmented a high threshold deprives many voters of representation .

Among the member ORG which use CARDINAL or other variant of proportional representation in the context of a mixed system , and which set an electoral threshold , the following examples may be found . In GPE a party must gain PERCENT of the votes cast nationally or PERCENT of the votes cast in the base constituency in which the seat is to be allocated . In GPE a national threshold of PERCENT is imposed . In GPE it is necessary to pick up PERCENT of the votes cast nationally . In GPE parties must either pick up PERCENT of the votes cast nationally or obtain a particular number of votes in CARDINAL of the country ’s CARDINAL geographical zones . In the GPE there is a national threshold fixed at PERCENT of the votes cast .

As a general rule , the threshold fixed does not apply as such to coalitions , which must pass higher thresholds . In GPE , for example , the threshold for CARDINAL party is PERCENT , whereas in the case of a coalition it is raised by PERCENT for each of the constituent parties . In GPE the base threshold of PERCENT is raised by PERCENT , and only a further PERCENT for coalitions with CARDINAL or more members . In GPE the electoral threshold varies PERCENT for local lists and PERCENT for national lists ; for a coalition the threshold is set at PERCENT whatever the number of constituent parties . Following the same logic , the threshold for independent candidates is lower PERCENT in GPE , for example .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The first applicant was born in DATE and lives in GPE . The second applicant was born in DATE and lives in GPE . The third applicant was born in DATE and lives in GPE , GPE Region .

The applicants are members of ORG .

On DATE a group of CARDINAL members of ORG occupied the waiting area of the President ’s administration building in GPE and locked themselves in an office on the ground floor .

They asked for a meeting with the President , the deputy head of the President ’s administration and the President ’s economic adviser . They handed out leaflets through the windows featuring a printed letter to the President which listed CARDINAL ways in which he had allegedly failed to comply with the LAW and which called for his resignation .

The intruders stayed in the office for TIME until the police broke down the locked door and arrested them . They did not offer any resistance to the authorities .

On DATE the ORG of GPE ordered the applicants’ detention on the ground that they were suspected of an especially serious criminal offence .

The applicants were charged , on DATE , with the attempted violent overthrow of ORG power ( LAW ) and the intentional destruction and degradation of others’ property in public places ( Articles CARDINAL § CARDINAL and CARDINAL ) .

By separate decisions of CARDINAL , DATE and DATE the ORG of GPE extended the applicants’ detention until DATE on the basis of the gravity of the charges . The court also found that the second applicant had no registered place of residence in GPE or the GPE region , and therefore there was a possibility that she might abscond or interfere with the investigation . In respect of the third applicant the court held that his permanent place of residence in the GPE region , ongoing studies at a university in GPE , previously clean criminal record and good character references were insufficient to warrant his release , given the gravity of the charges laid against him .

On DATE the applicants’ charge was amended to that of participation in mass disorder , an offence under LAW .

By separate but identically worded decisions of DATE ORG granted the prosecution ’s request for an extension of the applicants’ detention until DATE , for the following reasons :

“ The court takes into account that the case involves CARDINAL defendants who have just started , together with their counsel , to study the case file which comprises CARDINAL volumes ... Moreover , the prosecution needs additional time in order to prepare the bill of indictment ...

Having regard to the fact that [ the first and the second applicants ] are not registered with a permanent place of residence in GPE or the GPE region and taking into account the gravity of the charges and the prosecutor ’s arguments that [ the applicants ] , once released , might flee from justice , the court considers that [ the applicants ] should remain in custody . ”

On appeal , counsel for the applicants asked for their release as they had no previous criminal record , had good character references and a permanent place of residence and were in employment or studying at the university . He further submitted that the applicants did not require much time to study the case file . At the appeal hearing before ORG the applicants confirmed that they had finished studying the case file .

On CARDINAL DATE ORG upheld the decisions of DATE , finding that they had been lawful , sufficiently reasoned and justified .

The investigation was completed on DATE and CARDINAL persons , including the applicants , were committed for trial .

On DATE the ORG of GPE scheduled the preliminary hearing for DATE and held that all the defendants should meanwhile remain in custody .

On DATE ORG held a preliminary hearing . It rejected the GPE requests for release , taking into account their character , young age , frail health , family situation and stable way of life . However , it found , referring to the gravity of the charges , that “ the grounds on which the preventive measure [ had been ] previously imposed still persist[ed ] ” and that “ the case file gave sufficient reasons to believe that , once released , the defendants would flee or interfere with the trial ” . It therefore ordered that all the defendants should remain in custody pending trial .

The applicants lodged applications for release . On DATE ORG rejected these requests , finding that their detention was lawful and justified .

On DATE the applicants filed new applications for release . On DATE ORG rejected the requests . It held :

“ The court takes into account the defence ’s argument that an individual approach to each defendant ’s situation is essential when deciding on the preventive measure .

Examining the grounds on which ... the court ordered and extended the detention of all the defendants without exception ... the court notes that these grounds still persist DATE . Therefore , having regard to the state of health , family situation , age , profession and character of all the defendants , and to the personal guarantees offered on their behalf by certain private individuals and included in the case file , the court concludes that , if released , each of the applicants might abscond or obstruct the course of justice in some other way ...

In the court ’s view , in these circumstances , having regard to the gravity of the charges , there are no grounds for varying or revoking the preventive measure in respect of any defendant ... ”

On DATE ORG found the applicants and their co - defendants guilty of participation in mass disorder . It gave each applicant a suspended sentence of DATE and released them all on probation .

The first and third applicants were held in remand prison no . GPE in GPE .

The Government provided the following description of the conditions of detention in respect of the first and third applicants .

As regards the number of inmates sharing a cell with the first applicant , the Government relied on a number of excerpts from the prison population register in respect of DATE and the certificates prepared by the remand prison administration in DATE .

As regards the number of inmates sharing a cell with the third applicant , the ORG relied on a number of excerpts from the prison population register in respect of DATE and the certificates prepared by the remand prison administration in DATE .

According to the ORG , the first and third applicants were each provided with their own bed and bedding , a mug , a dish and a spoon .

The lighting in the cells was in compliance with applicable standards . At TIME low - voltage bulbs were used to maintain lighting for surveillance purposes . The cells were serviced by a ventilation system in good working order . The inmates were allowed exercise for TIME per day in the prison yard . The cells were regularly disinfected .

The first and third applicants contested the Government ’s submissions . According to them , the cells where they were detained were overcrowded at all times and infested with insects . The toilet had only been separated by a screen from the living area of the cell and did not offer any privacy . The applicants had been allowed to take a TIME shower once a week . The food was scarce and no medicine , other than aspirin and other analgesics , was available . The applicants had been permitted a walk for TIME . The exercise yard was sheltered and measured QUANTITY in area . No books or newspapers had been available .

The second applicant was detained in remand prison no . IZ-CARDINAL/CARDINAL in GPE . According to the Government , she was held in cells nos . CARDINAL and CARDINAL which measured CARDINAL and QUANTITY respectively . Cell no . CARDINAL was equipped with CARDINAL beds and housed CARDINAL inmates . Cell no . CARDINAL was equipped with CARDINAL beds and housed from QUANTITY to CARDINAL inmates . The second applicant had been provided with bed sheets , soap and personal hygiene products . The ventilation system in the cells had been in good working order . Additional access to fresh air was possible through the windows . The cells were disinfected once DATE .

According to the second applicant , the cells were infested with cockroaches and crickets . The toilet was separated from the living area of the cell by a screen – QUANTITY in height DATE which did not offer any privacy . She had been allowed to take a QUANTITY - minute shower once a week . The food was of poor quality . No books were available . The inmates received CARDINAL periodical a DATE behind publication .

For a summary of the relevant domestic provisions governing conditions and length of pre - trial detention , see the cases of ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL , § § CARDINAL - CARDINAL , DATE .


Preliminary objection rejected (six month period);No violation of Art. 8

The applicant , an NORP national , was born in DATE in GPE and lives at GPE ( GPE ) .

He entered GPE in DATE at DATE . He has lived there ever since , as have all the members of his family . He has CARDINAL brothers and sisters , all NORP nationals . He did the whole of his schooling in GPE where he obtained a professional diploma ( certificat NORP professionnelle ) as a fitter in DATE . DATE he did various jobs and attended a number of professional training courses . In DATE he met a NORP national , PERSON , with whom he had a steady relationship .

DATE the applicant performed his military service in GPE .

NORP In DATE gendarmes from the ORG investigation squad were informed of the plight of an DATE girl whose father had just died of Aids and whose mother , PERSON , was also suffering from the same disease , taking drugs and keeping company with several addicts . After an investigation had been opened on a complaint against a person or persons unknown for drug - related offences , the gendarmerie discovered in the course of their inquiries in DATE a drug - trafficking syndicate in which CARDINAL people were implicated to differing degrees . The applicant was arrested and charged in the course of that investigation . He was accused by a number of co - defendants of being a dealer in drugs . It was established in the inquiry that he had been cohabiting with PERSON since DATE . He had been supplying her with hashish and heroin and together they had engaged in illegal trade in heroin .

On DATE ORG convicted the applicant of drug trafficking , sentenced him to QUANTITY , CARDINAL of which were suspended , and made an order excluding him from NORP territory for a period of DATE .

The applicant appealed . On DATE ORG increased the term of imprisonment to DATE , CARDINAL suspended , and upheld the exclusion order .

In its judgment , ORG stated , inter alia :

“ PERSON , who became PERSON ’s companion in DATE , acknowledges that he has taken hashish for DATE and began taking heroin in DATE .

He admits that DATE and DATE he made CARDINAL trips DATE to PERSON to obtain drugs from CARDINAL A. , ... who supplied him with the drugs , in particular , QUANTITY doses of heroin for MONEY ( ORG ) or FRF CARDINAL .

He shared the drugs with his companion ... but also sold a part ...

Ultimately the heroin - trafficking offence of which ORG stands accused , which the investigating judge ’s investigations fully establish , concerned QUANTITY of heroin , some being for his own and his companion ’s use and some being sold on to finance further purchases after being adulterated in a way that made it particularly hazardous for the LOC health ... ”

The applicant lodged an appeal on points of law , which was dismissed by ORG on DATE .

PERSON died in DATE .

In DATE the applicant began a relationship with PERSON , a NORP national , whom he had known for DATE .

After serving his sentence , the applicant was deported to GPE on DATE , where he would appear still to be at the date of this judgment .

On DATE , while still in FAC , the applicant applied to ORG for rescission of the exclusion order . He relied on LAW .

In a judgment delivered on DATE , ORG dismissed his application . The applicant lodged an appeal on points of law through his counsel against that decision relying , inter alia , on LAW .

On DATE ORG dismissed the appeal , holding :

“ ... after noting that PERSON had been convicted for his part in a heroin - trafficking syndicate , ORG said that while it was true that his family lived in GPE and most of its members were NORP nationals , he had not lost all contact with GPE , having often spent his holidays there and done military service there in DATE and DATE . The mere fact that he was planning to set up home with a NORP woman was not decisive as , at the material time , he was living with another woman whom he had involved in his drug trafficking .

ORG concluded from that that the exclusion order had not disproportionately interfered with the right to family life guaranteed by LAW ...

It added that although LAW prohibited any discrimination on grounds of national origin , paragraph CARDINAL of LAW No . CARDINAL , an additional protocol , allowed aliens to be denied access to the territory if the measure was necessary in the interests of national security or public safety , for the maintenance of ordre public , and for the prevention of crime ; that paragraph applied in the instant case , which concerned trafficking in narcotics , particularly heroin ... ”

That judgment was not served on the applicant . His representative says that he ( the representative ) received a copy of the judgment in DATE .

Article L. CARDINAL - CARDINAL , sub - paragraph CARDINAL , of LAW , as worded at the material time , provided :

“ Without prejudice to the application of Articles CARDINAL et seq . of Ordinance no . ORG of DATE , the courts may make an order excluding an alien convicted of an offence under PERSON , PERSON , PERSON , PERSON or L. CARDINAL from NORP territory for DATE . They may make an order permanently excluding an alien convicted of an offence under LAW .

An exclusion order shall automatically entail deportation of the convicted person at the end of his sentence ... ”

Former Article L. CARDINAL of LAW provided :

“ Anyone who shall have contravened the provisions of the public - administration regulations laid down in the preceding Article concerning toxic plants or substances classified under the regulations as narcotics shall be liable on conviction to CARDINAL years’ imprisonment and a fine of between FRF CARDINAL,CARDINAL and ORG CARDINAL , or CARDINAL only of those penalties . The sentence for offences of importing , producing , manufacturing or unlawfully exporting the said substances or plants shall be between CARDINAL and twenty years’ imprisonment ...

Penalties for attempts to commit any of the offences referred to in the preceding paragraph shall be the same as for the substantive offence . A like rule shall apply to criminal association or conspiracy to commit such offences ...

The following persons also shall be liable to imprisonment of DATE and a fine of between FRF CARDINAL,CARDINAL and FRF CARDINAL,CARDINAL,CARDINAL , or to one only of those penalties :

( CARDINAL ) Anyone who shall have facilitated the use by another of the said substances or plants by procuring LOC or by any other means , and whether or not for consideration ...

Where the person whose use of the said substances has been facilitated is a minor DATE ... the term of imprisonment shall be DATE ... ”

Article CARDINAL - CARDINAL of the Criminal Code provides :

“ ... anyone who shall have incurred a disability ... as an automatic consequence of a criminal conviction or on whom such disability ... has been imposed by the convicting court in its judgment ... may request the court which convicted him ... to rescind the disability ... , in whole or in part , or to vary its duration . ”

Mr PERSON applied to the Commission on DATE . He alleged that the exclusion order imposed on him violated his right to respect for his private and family life guaranteed by LAW .

On DATE the Commission declared the application ( no . CARDINAL/CARDINAL ) admissible . In its report of CARDINAL DATE ( former LAW ) , it expressed the opinion ( by CARDINAL votes to CARDINAL ) that there had been a violation of LAW .


No violation of Art. 8;Remainder inadmissible

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant and PERSON got married . PERSON already had a daughter , PERSON , by a different father . On DATE Ms B. gave birth to a daughter , A. In DATE the applicant moved out of his and PERSON household . He continued to visit DATE . From DATE PERSON refused all contact between the applicant and the girl . His attempts to see PERSON , with the help of the local custody and guardianship office , were unsuccessful .

On DATE was examined by PERSON , the director of the psychological centre , Inex-CARDINAL . PERSON stated that A. had a wide range of fears and displayed increased anxiety . On the basis of the tests conducted , it was established that A. had a close relationship with her mother and elder sister , but was distanced from her father and tended to reject him .

On DATE was examined by psychologist M - va , with a view to determining her emotional state following the long absence of her father . M - va 's conclusion stated :

“ CARDINAL . [ A. ] easily establishes contact with a stranger ( psychologist ) which proves that [ she ] has developed a feeling of safety .

[ A. ] is in stable emotional state . The girl is cheery , clever , actively reacts to jokes , displays initiative in communication and in games .

The child is surrounded by love and care from her mother and grandmother [ and ] likes to play with her elder sister .

The following [ ORG 's ] statements give rise to concern : “ My father does not give me presents ... ” , “ I feel good without him ... ” and “ I do n't want to see him ” .

The absence of the father is compensated by communication with a great - uncle and role - play games ( used as a therapeutic means ) . ”

On DATE the applicant 's marriage was dissolved and PERSON was granted full custody of A.

On DATE the applicant sued PERSON for the obstruction of access to his daughter , A.

On DATE PERSON filed a counter - claim seeking to divest the applicant of his parental rights .

On DATE GPE Psychoneurological Dispensary No . CARDINAL carried out a psychological examination of the applicant at the request of ORG of GPE . The applicant consented to the examination . The panel of CARDINAL doctors that examined the applicant stated that he might be suffering from paranoid personality disorder or “ sluggish schizophrenia ” . However , the conclusive diagnosis could only be made upon an in - patient examination .

On DATE was examined for a second time by PERSON , the director of the psychological centre , Inex-CARDINAL . PERSON stated that PERSON was highly communicative , intellectually developed and emotionally free . She also displayed a high degree of reflection , stability of mood , optimism and an interest in life . Various tests conducted revealed close relationships between PERSON and her mother and her elder sister and a rejection of her father . The main reasons for the rejection were expressed by A. as follows : “ he offends PERSON ( the elder sister ) ” , “ it is bad with him ” and “ he is mean ” . According to PERSON , the latter statement could be understood to mean that the applicant had an excessive tendency to preach . PERSON further stated that ORG 's rejection of her father was of a stable psychological and motivated nature , which might have been caused by a previous traumatic experience and was not inspired by another person . At the same time , PERSON willingly accepted the father of her elder sister , her maternal grandfather , sports coaches and a male psychologist . PERSON concluded that there had been a positive development in GPE over DATE that had passed since her first examination : the fears had disappeared , the anxiety had eased , she displayed optimism and emotional stability . A phobic reaction to men , which had previously been observed , had also disappeared . PERSON stated that , in his view , it was necessary to take into account ORG 's opinion concerning the choice of parent so as not to cause repeated psychological trauma .

On DATE PERSON examined the applicant . He noted that the examination was of a superficial nature and could not substitute a complete in - patient psychological examination . PERSON further stated that the examination did not reveal any psychopathic symptoms . However , taking into account A 's persistent rejection of her father , he recommended exercising caution as regards their interaction so as not to cause repeated psychological trauma .

On DATE the Izmaylovskiy ORG of GPE allowed the applicant to visit DATE between CARDINAL noon and TIME in the presence of PERSON The court relied , inter alia , on an expert 's opinion which stated that contact with the father would not have a negative effect on the child . At the same time the court dismissed PERSON counter - claim .

The applicant appealed , requesting additional visiting TIME . On DATE ORG dismissed his appeal and upheld the judgment .

PERSON failed to comply with the court order and the visit scheduled for DATE did not take place . On DATE the bailiffs ' office opened enforcement proceedings .

The applicant was not able to see PERSON on either DATE or DATE . The bailiff summoned PERSON and requested her to obey the court order on pain of an administrative fine .

The applicant saw his daughter on DATE , DATE , DATE , DATE and DATE , and DATE , DATE , DATE , DATE , CARDINAL May and DATE . The meetings were held in the presence of PERSON who , according to the applicant , prevented PERSON from speaking to him , playing with him or accepting his gifts .

On DATE the applicant applied to the Izmaylovskiy ORG claiming additional visiting TIME without PERSON supervision . PERSON requested that the applicant 's access rights be terminated .

On DATE ORG held a hearing during which it granted PERSON motion to adduce the following documents for examination : the medical report from ORG CARDINAL on A. 's psychological state , psychologists ' reports on her mental state DATE , reports from the school and the sports centre that A. had attended and the CARDINAL reports from ORG 's psychological examinations . The applicant submitted a detailed statement in support of his claim and requested an expert psychological examination of NORP The court granted the request . It also granted the motion of the local custody and guardianship office to examine A. at the hearing .

Following the examination conducted pursuant to the court order , expert PERSON stated the following .

a ) PERSON and her mother had a close relationship characterised by an emotional bond and cooperation . PERSON attitude to her daughter was emotionally - open , she tried to understand and accept the child 's emotional state and the relationship was based on the girl 's interests . The mother undertook a democratic approach to parenting , which included a high level of verbal communication , the inclusion of the girl in discussions on family issues , the supporting of the child 's interests and independence . She paid sufficient attention to the girl 's physical and intellectual development .

b ) During DATE contact with the applicant had been of an episodic and formal nature and , as a rule , in the presence of third persons . The applicant substituted direct parental communication with moralising and attempts to obtain assurances of A. 's affection in front of third persons or to demonstrate PERSON “ undue ” conduct . The values and behavioural motives of the applicant and PERSON differed significantly . The applicant typically had formal relationships with people devoid of pronounced emotional involvement , which were based on certain rules , worked out in the course of his life . His approach to parenting was based on control , implying significant restrictions to the child 's conduct . The applicant did not recognise his daughter 's right to her own interests and independent choice . He poorly understood , and did not take into account , the girl 's psycho - emotional and age - related behaviour .

c ) A child 's “ core personality ” is formed at DATE . A. had a sufficiently high level of intellectual development . However , her emotional sphere was much more labile than that of an adult and mostly depended on her environment . Her own values and opinions were being developed in the course of communication within the family . Furthermore , it is typical for children to copy the conduct of other persons , primarily the parent of the same sex . Therefore , it might be asserted that ORG 's perspective of the issue was nearly identical to her mother 's . From the point of view of further social adaptation , her female upbringing ( mother , grandmother , elder sister ) was sufficiently auspicious as it enabled a model of “ female conduct ” in society to be successfully put into practice . The remote negative result is that A. might have difficulties in building her own family , due to the absence of an adequate model of conjugal partnership . However , this applies to all children from single - parent families .

d ) The feeling of safety is a vital human need . The basic feeling of safety is provided by the family . In DATE of a child 's life , communication with the mother is more important , irrespective of the child 's gender . The child forms an image of the father through the prism of the mother 's perception and his / her own communication with him , which A. had been deprived of for DATE . At the time in question , PERSON saw the applicant as an incomprehensible stranger , whose actions had subverted her feeling of safety . Her mother and grandmother , in compliance with the court order , had effectively forced A. to communicate with her father , whom she did not love and was afraid of . As a result , ORG 's immediate family ( mother and grandmother ) and relatives ( father ) , instead of being the safety factor , became the danger factor . A. 's negative emotional stress , brought about by the meetings with her father was expressed in affective reactions ( shouts , tears , obsessive movements ) observed after the meetings . The increase of the duration of the meetings , especially in the mother 's absence , would entail the risk of the child 's persistent neurosis or depression , due to the impossibility of avoiding the subjectively distressing situation . The extreme manifestation of such a condition is self - aggression ( suicidal tendencies , thoughts and actions ) .

e ) The so - called “ female upbringing ” was not a factor that would foster a negative or “ wrong ” attitude by the girl towards men in general . A. was unlikely to develop serious problems from the point of view of social or professional adaptation . She had sufficient experience of communication with the opposite gender through contacts with her peers , teachers , sports coaches , and so on .

f ) Blood relations do not guarantee mutual love , respect or deep attachment . Emotional relationships are formed in the course of cohabitation , communication , upbringing and communal activity . The inability or unwillingness of the parents to establish a civilised relationship might have affected the negative attitude of ORG towards the applicant . The prolonged conflict between the applicant and PERSON , with whom PERSON identifies , resulted in the child 's lack of belief in the possibility of a positive development of her relationship with her father .

g ) Ignoring the girl 's emotional and rational rejection of her father and forcing her to meet with him might cause irretrievable adverse effects on the latter 's health and psychological well - being . It might also adversely affect ORG 's moral development , since in such a situation neither the family nor the ORG would provide her with psychological support and safety .

On DATE the Izmaylovskiy ORG delivered its judgment . The court had studied several expert reports . In particular , in DATE and DATE had been referred to a psychologist at the GPE centre for children . In the report , the psychologist stated that in DATE had been provided with psychological aid after meetings with her father since , after the resumption of contacts with her father , the girl was highly agitated , irritable and suffered from nightmares . The same psychologist had consulted the applicant and stated that he was showing no parental interest in or affection for his daughter . His perception of the child was “ inadequate ” and he displayed “ a pathological tendency towards litigation ” .

NORP The court also studied the report of the expert examination conducted pursuant to its order of CARDINAL DATE and examined expert PERSON during the hearing . She confirmed the conclusions she had stated in the report and emphasised that forcing PERSON to meet with the applicant , especially without the presence of PERSON , might irreversibly affect her physical and psychological well - being and possibly lead to neurosis and depression . Furthermore , expert PERSON asserted a strong opinion that the applicant was interested in having contact with A. only to boost his self - esteem and not to establish a relationship with the child . The absence of such a relationship was acknowledged by the applicant himself in his letters to PERSON and the bailiff , where he stated that his daughter did not wish to see him , hated him , wanted to change her surname and refused to accept his gifts .

ORG further examined the opinion of the local custody and guardianship service which stated that meetings between the applicant and PERSON should be discontinued , having regard to the interests and wishes of the latter , who strongly resisted communication with her father .

The court questioned the applicant , who reiterated his claim . It also questioned PERSON , who stated that during the meetings the applicant had provoked a negative reaction on the part of GPE , for example , by forcibly removing her glasses or earphones , forcing her to accept a book as a present and then taking pictures so as to document her refusal . He failed to establish a relationship with the girl , did not take into account her opinion , applied coercion and brought her to tears . After the meetings with the applicant A. developed nervousness , problems sleeping and refused to leave the house . This behaviour was noted in the psychologists ' reports .

ORG further examined several other witnesses . A. 's school sports coach and her aunt stated that the girl was very sociable , but reacted negatively to her father , wanted to have her mother 's surname , had not allowed him to take a picture of her and had left the classroom when the applicant had come to visit her at school . The applicant 's father and brother believed that PERSON had turned her daughter against her former husband . PERSON step - father said that the applicant and his child had had a wonderful relationship until the parents ' separation .

ORG also questioned PERSON in the presence of a teacher . A. explained that she did not like her father , did not want to see or talk to him and wanted to have her mother 's surname .

ORG held as follows :

“ In accordance with LAW [ of LAW ] and section CARDINAL of ruling no . CARDINAL of CARDINAL DATE of ORG of GPE , in exceptional cases a court may refuse a parent 's claim to determine the order of [ his or her ] participation in the child 's upbringing when communication between the child and ... the parent may adversely affect the child , his physical and psychological wellbeing .

The court grants the claim to discontinue the father 's contact with his daughter and dismisses [ his ] claim for additional visiting TIME , having regard exclusively to the interests of the minor , in particular : the contact ... affects the child 's physical and psychological well - being , which is demonstrated by the lack of mutual understanding and communication between the father and the daughter during the meetings ordered by the court 's previous decision ; having the father 's surname is a traumatising situation for the child ; the meetings have a very formal nature ; the child 's conduct at the appearance of her father , when in her mother 's presence , is characterised by strong rejection ( [ she ] hid under the desk ; ran away ; tore up [ her ] letter of commendation bearing the surname “ GPE ” ; after seeing her father , she refused to go to a picnic with her classmates ) , which is not conducive to creating psychological comfort and a feeling of safety for the child ; the very litigation is psychologically traumatising since it was initiated by [ the applicant ] but is centred around the DATE child , who knows about it because the court decision of CARDINAL DATE is being enforced with her participation . Furthermore , the court takes into account that the child was being seen repeatedly by psychologists ...

The lack of contact between the father and the daughter and the psychologically traumatising environment for the child is corroborated by the parties ' explanations , documentation from the case , statements by witnesses and the opinion of the local custody and guardianship office . ”

At the hearing of DATE the judge removed CARDINAL of the applicant 's representatives from the courtroom . The applicant also asked his second representative to leave the courtroom and requested that the judge provide him with legal representation . After the refusal to grant his request , the applicant unsuccessfully challenged the judge .

On DATE ORG upheld the first - instance judgment . It also mentioned that the applicant 's representatives had been removed for contempt of court .

“ CARDINAL . The exercising of parental rights shall not be in contradiction with the children 's interests . Providing for the children 's interests shall be an object of the parents ' primary care .

In exercising the parental rights , the parents will not have the right to inflict damage on the physical and psychological well - being of the children , or on their moral development . The methods of the children 's upbringing must exclude neglectful , cruel , rude or degrading treatment , insults or exploitation of the children .

Parents exercising parental rights to the detriment of children 's rights and interests shall be made answerable in conformity with the law - established procedure .

All issues concerning the children 's upbringing and education shall be resolved by the parents by mutual consent based on the children 's interests and taking into account [ their ] opinion . In the case of a disagreement , the parents ( or CARDINAL of them ) shall have the right to apply to a custody and guardianship office or to a court to resolve any differences .

NORP If the parents live apart , the children 's place of residence shall be established by an agreement between the parents .

In the absence of an agreement , a dispute between the parents shall be resolved in court , proceeding from the children 's interests and taking into account [ the children 's ] opinion . The court shall take into account the child 's attachment to each of his parents and to his brothers and sisters , the child 's age , the moral and other personal qualities of the parents , the relations existing between each of the parents and the child , the possibility to create optimal conditions for the child 's upbringing and development ( the parents ' activity , their work routine , their financial and family situation , etc . ) .

NORP The parent residing apart from the child shall have the right to communicate with the child , participate in [ the child 's ] upbringing and take decisions concerning the child 's education .

The parent with whom the child resides shall not prevent the child from communicating with the other parent , unless the communication damages the child 's physical or psychological well - being and his moral development .

Parents shall have the right to conclude a written agreement concerning the way in which the parent residing apart from the child exercises his parental duties .

If the parents fail to reach an agreement , the dispute shall be settled in court , upon the parents ' claim ( or CARDINAL of them ) , with the participation of a custody and guardianship office .

In the case of failure to comply with the court 's decision , the parent at fault shall be subjected to the measures provided in LAW . In the case of persistent failure to comply with the court 's decision , the court may decide , upon the claim of the parent residing apart from the child , to transfer the child to that parent , proceeding from the child 's interests and taking into account his opinion .

NORP The parent residing apart from the child shall have the right to receive information about the child from educational and medical establishments , institutions for social protection and other similar bodies . The information may be withheld only if the parent presents a threat to the child 's life and well - being . The refusal to provide information may be challenged before a court .

Section CARDINAL of the Ruling provides that , when a court has to determine the level of participation in a child 's upbringing of the parent who resides apart from the child , it has to take into account the child 's age , his state of health , his attachment to each of his parents and other circumstances which could affect the child 's physical and psychological well - being and moral development . In exceptional cases , when communication with the parent who resides apart from the child may adversely affect the latter , the court may dismiss that parent 's claim to participation in the child 's upbringing on the basis of LAW of LAW . The reasons should be stated in the court 's decision .