Elisabeth Steiner;Guido Raimondi;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

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

ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

NORP The applicant lodged his first asylum request in GPE on DATE . He claimed then to be DATE and to have left GPE DATE before . He spent DATE in GPE and had finally left for GPE with the aid of traffickers . He and a group of others had hidden in a refrigerator truck that was held up and searched in GPE , GPE . There , police officers had allegedly taken the applicant to a police station , interviewed him without an interpreter , and held him without food or water for TIME . After his release they had handed him an order to leave the country , which the applicant had thrown away . He had taken a train for GPE , slept in a railway station , received food from a church and , finally , after DATE in GPE , travelled on to GPE . He stated that he had left GPE because the ORG had come to his village and had asked his father to cooperate with them , which he had refused to do . Thereupon , the ORG had kidnapped his father and brother , and the applicant had been afraid that he would suffer the same destiny if he stayed in GPE .

With regard to his age , the applicant claimed to have been born on CARDINAL December CARDINAL according to the NORP calendar . He stated that in GPE he had been told to say that he was born on DATE , whereas a conversion of his birth date into the Gregorian calendar would give a birth date of CARDINAL DATE . The applicant mentioned that he had a birth certificate showing that he was DATE . However , he was not entirely certain about his date of birth .

When asked whether he had lodged an asylum request in GPE , the applicant replied in the negative , stating that he wanted to lodge his asylum application in GPE , not in GPE .

On DATE ORG ( Bundesasylamt ) rejected the applicant ’s asylum request under LAW and declared that GPE had jurisdiction in respect of asylum proceedings pursuant to LAW taken in conjunction with LAW no . LANGUAGE ( hereinafter , “ LAW ” ) . It also ordered the applicant ’s transfer to GPE . It stated that the results of a forensic examination had found the applicant to be DATE . With reference to a number of country reports concerning asylum proceedings in GPE , ORG found that asylum requests could be lodged in GPE at any police station or in the local PERSON . An asylum - seeker had to present himself personally to lodge a request . The NORP authority would first examine the question of the applicability of the Dublin Regulation and would then forward the request to CARDINAL of CARDINAL Territorial Commissions to be dealt with . With regard to access to subsistence in GPE , ORG referred to legislation on the provision to asylum - seekers of shelter or financial support and access to medical treatment in accordance with the relevant ORG directives . It further stated that problems had been reported concerning immigration centres in the south of the country owing to refugees arriving by boat . Upon a request by the authority , the NORP embassy in GPE explained in DATE that every asylum - seeker could request an interpreter for his or her interviews , but that an interpreter had to be asked for specifically , which was sometimes difficult and often depended on the good will of the officials dealing with the case . As to the order to leave the country , the embassy explained that an illegal immigrant received an order to leave the country within DATE . If he or she did not leave the country , his illegal presence would become a criminal act which could lead to him or her being detained . It could happen that the order to leave the country was given in a language the foreigner could not understand , so that he would slip into a criminal illegal presence in GPE without knowledge or intent .

The applicant appealed against the decision .

On DATE ORG ( Asylgerichtshof ) dismissed the applicant ’s appeal as unfounded . Referring to country reports on GPE , it found that there was no systematic real risk that the applicant would be subjected to ill - treatment because of lack of access to asylum proceedings , refoulement , or lack of subsistence upon his return to GPE . Furthermore , it found the applicant ’s story about his stay in GPE contradictory and not credible . With reference to the “ effet utile ” principle of Community law , it concluded that the applicant had thus not substantiated his claim of a real risk under LAW sufficiently for the sovereignty clause to be engaged under LAW . Furthermore , any possible criticism with regard to the treatment of refugees arriving by boat in the south of GPE would not apply to the applicant as a returner to the north of GPE under that Regulation .

On DATE the applicant was transferred to GPE .

The applicant returned to GPE after DATE and subsequently lodged an asylum request in GPE on DATE . In his first interview at the GPE police station the applicant stated that the conditions for asylum - seekers in GPE had been inhuman and that the NORP police had treated him badly . In subsequent statements he stated that he had been stopped by police at the airport in GPE immediately upon his return and had been served with a paper ordering him to leave the country . There had again been no interpreter available . He had slept at the ORG railway station together with other foreigners , and they had been woken at TIME by the police , in some cases brutally so . When he had tried to enter an official refugee camp in GPE he had been chased away by police . He had received food from a church once per day , but the church did not distribute food at DATE . The applicant further stated that he had had problems with his stomach and kidneys , but no access to medical care .

When asked whether he had lodged an asylum request in GPE , the applicant answered that he had not .

On DATE the applicant was heard by ORG in the presence of his legal representative . In respect of his medical condition , he submitted that he was suffering from post - traumatic stress disorder and asked for a further psychiatric examination to be carried out . It can be seen from TIME of the hearing that the applicant interrupted the interview , claiming that he could not carry on because of an acute headache . A number of reports on the reception conditions for asylum - seekers in GPE were handed to his representative , who was given a DATE time - limit to comment . The applicant was placed in detention with a view to his expulsion .

On DATE the ORG applied an interim measure under Rule CARDINAL , requesting ORG to stay the applicant ’s transfer to GPE until further notice . Thereupon , the applicant ’s transfer to GPE scheduled for DATE was cancelled .

The applicant ’s subsequent asylum proceedings in GPE are still pending at first instance .

A doctor ’s note from the ORG - Med free clinic in GPE dated DATE stated that the applicant was suffering from gastritis and pain in the lower back and recommended further examinations .

In a letter of CARDINAL DATE a psychologist at the ORG centre for support for trauma patients stated after an TIME - long diagnostic meeting that the applicant was suffering from an acute stress reaction that had its origins in a post - traumatic stress disorder and posed a latent suicide risk that could very quickly become acute . The applicant further suffered from a somatoform pain disorder . A stable environment , medical investigation of the pain disorder and long - term psychotherapy were urgently recommended .

In the course of the proceedings , the applicant ’s representative provided an update by way of an information letter from the ORG centre dated DATE . It was stated therein that the applicant had been receiving regular psychotherapy since DATE and that a stable therapeutic relationship had been established in the course of the therapy . There were no diagnostic changes . The letter recommended a stable social environment for the applicant and the continuation of the promising therapy in order for him to avoid a deterioration of his current symptoms .

She also submitted an expert opinion prepared in DATE by a psychiatrist in GPE after an examination on DATE . That opinion found that the applicant ’s post - traumatic stress disorder had developed into a depressive episode with a personality change due to extreme stress . The applicant was therefore a multiply traumatised adolescent and the expert classified him as gravely psychologically impaired . She urgently recommended a safe living environment and ongoing psychotherapy to stabilise the applicant ’s mental state . His removal would lead to re - traumatisation and could pose an acute suicidal risk .

The NORP Government provided a psychological expert opinion , undated , submitted to ORG in DATE . It found that the applicant suffered from a mild adjustment disorder bordering on a stress disorder but without a clinical character . There were no indications of an acute suicidal tendency and no symptoms of serious post - traumatic stress disorder .

NORP The relevant NORP and NORP law , instruments , principles and practice have recently been exhaustively summarised in PERSON v. the GPE and GPE ( dec . ) , no . CARDINAL , § § CARDINAL and CARDINAL , DATE . Only the information that is particularly relevant to the present case is repeated below .

Under the ORG , the member GPE must determine , on the basis of a hierarchy of objective criteria ( Articles CARDINAL to CARDINAL ) , which member ORG bears responsibility for examining an asylum application lodged on their territory . The aim is to avoid multiple applications and to guarantee that each asylum - seeker ’s case is dealt with by a single member ORG .

Where it is established that an asylum - seeker has irregularly crossed the border into a member ORG , having come from a third country , the member ORG thus entered is responsible for examining the application for asylum ( LAW ) . This responsibility ceases DATE after the date on which the irregular border crossing took place .

Where the criteria in the regulation indicate that another member ORG is responsible , that ORG is requested to take responsibility for the asylum - seeker and examine the application for asylum ( LAW ) .

By way of derogation from the general rule , each member ORG may examine an application for asylum lodged with it by a third - country national , even if such an examination is not its responsibility under the criteria laid down in the Regulation ( LAW ) . This is called the “ sovereignty ” clause . In such cases the ORG concerned becomes the member ORG responsible and assumes the obligations associated with that responsibility .

Section CARDINAL of LAW DATE ( Asylgesetz ) provides that an asylum application must be rejected as inadmissible if , under treaty provisions or pursuant to LAW , another ORG has jurisdiction to examine the application for asylum . When rendering a decision rejecting an application , the authority shall specify which ORG has jurisdiction in the matter .

Section CARDINAL establishes – with the exception of cases falling under section CARDINALa – de facto protection against deportation ( faktischer PERSON ) for aliens who have lodged an application for asylum . However , section CARDINALa provides that a person whose asylum application has been rejected because of lack of jurisdiction under LAW ( section CARDINAL of LAW ) is not entitled to such de facto protection against deportation in the event that he or she lodges a second asylum application .

Asylum - seekers can lodge an appeal with ORG against decisions rejecting their application rendered by ORG as the first - instance asylum authority within DATE of the decision ( see section CARDINAL ) ) . However , section CARDINAL ) stipulates that such an appeal shall not have suspensive effect . LAW allows ORG to grant suspensive effect to such an appeal DATE or to an appeal against a deportation order issued in conjunction with the rejection of an asylum application – within DATE if there is reason to believe that the individual ’s deportation will give rise to : ( i ) a real risk of a violation of Articles CARDINAL of the Convention or of LAW CARDINAL to the LAW ; or ( ii ) a serious threat to his or her life or person as a result of arbitrary violence in connection with an international or internal conflict in relation to which the applicant is a civilian . Against decisions rendered by ORG , claimants may lodge a complaint with ORG alleging a violation of a constitutionally guaranteed right ( LAW ) . Such a complaint has no automatic suspensive effect ; however , such suspensive effect can be granted by ORG upon a request by the claimant .

Reference is made to the extensive description of the NORP asylum procedure and domestic law in PERSON , cited above , § § CARDINAL - CARDINAL .

NORP In particular , paragraphs CARDINAL state as follows :

“ CARDINAL . A person wishing to apply for asylum in GPE should do so with the border police or , if already in GPE , with the police ( questura ) immigration department . As soon as an asylum request has been filed , the petitioner is granted access to GPE as well as to the asylum procedure , and is authorised to remain in GPE pending the determination of the asylum request by ORG for ORG .

For petitioners who do not hold a valid entry visa , an identification procedure ( fotosegnalamento ) is carried out by the police – if need be – with the assistance of an interpreter . This procedure comprises the taking of passport photographs and fingerprints . The fingerprints are checked for matches in ORG and the domestic ORG ( Automated Fingerprint Identification System ) database . At DATE procedure , the petitioner is given a notice confirming the first registration ( cedolino ) , on which future appointments are noted , in particular the appointment for the formal registration of the request .

The formal asylum request will be made in writing . On the basis of an interview held with the petitioner in a language which he or she understands , the police will fill out the ‘ Standard form C/CARDINAL for the recognition of refugee status according to LAW ( ORG C/CARDINAL per il riconoscimento dello status di rifugiato ai sensi della PERSON di PERSON ) , which contains questions on the petitioner ’s personal data ( name , surname , date of birth , citizenship , name and surname of parents / spouse / children and their whereabouts ) as well as the details of the journey to GPE and reasons for fleeing the country of origin and for seeking asylum in GPE . The petitioner will be asked to provide a written paper , which will be appended to the form , containing his or her asylum account and written in his or her own language . The police will retain the original form and provide the petitioner with a stamped copy .

The petitioner will then be invited by a notification served in writing by the police for a hearing before the competent ORG for ORG . During this hearing , the petitioner will be assisted by an interpreter . ”

The ‘ Dublin II Regulation National Report’ on GPE of DATE states , in addition to the above - mentioned information with regard to access to the asylum procedure for GPE - returners ( pages CARDINAL and CARDINAL of the report ) :

“ At the arrival in the main airports , the applicant finds NGOs / associations which may help him / her to find an accommodation centre and provide him / her with further information on the asylum procedure . At the airport , FAC carry out the fotosegnalamento and verify the person ’s identity in the ORG database . After having undertaken these procedures , the applicant will receive a letter ( called “ verbale di invito ” ) saying that s / he has to go to the PERSON competent to continue the asylum procedure . The asylum seeker may be addressed to the office of the PERSON where s / he was fingerprinted and photographed or to the office where s / he lodged the asylum application or where the documents related to his / her case are kept . The law does not foresee any support for reaching the competent PERSON . In the practice the NGOs working at the border points can provide the train ticket for that destination on the basis of a specific agreement with the competent GPE . However , this support is not always guaranteed and often it happens that the ORG does not have information on the real arrival of the asylum seekers and on whether s / he has found an accommodation there .

Once the person is at the PERSON , s / he may face different outcomes according to whether s / he did not apply or s / he did apply for asylum when s / he was in GPE previously .

If the person had never applied for international protection before , s / he is able to ask for protection DATE and is entitled to the same rights as the other asylum seekers . ... ”

Both the ORG in its “ Recommendations on Important Aspects of Refugee Protection in GPE ” of DATE ( page CARDINAL ) and ORG and the NORP NGO Juss - Buss in their report “ Asylum procedure and reception conditions in GPE ” of DATE ( page CARDINAL ) refer to incidents in which asylum - seekers have had difficulties lodging a formal asylum application with the PERSON , or only obtained an appointment with the PERSON DATE after their arrival in GPE . During this period of time however , asylum - seekers have no access to accommodation or subsistence .

The reception scheme and the reception conditions in GPE are also summarised in PERSON , cited above , § § DATE .

NORP In particular , it is noted in respect of vulnerable asylum - seekers that , pursuant to Legislative Decree no . PERSON implementing Council Directive CARDINAL of DATE laying down minimum standards for the reception of asylum - seekers , asylum - seekers in GPE are entitled to reception facilities . According to LAW , reception arrangements are to be made on the basis of the specific needs of asylum - seekers and their families , in particular the needs of vulnerable persons , namely unaccompanied minors , disabled persons , pregnant women , single parents with minor children , and persons who have been subjected to torture , rape or other forms of serious psychological , physical or sexual violence . NORP domestic law provides for special guarantees for such vulnerable persons , including a reserved quota of places in the ORG reception scheme ( see ibid . , § DATE ) . The NORP authorities specified in their comments on the report by ORG for Human Rights dated DATE that the system of reception in the ORG centres , which accommodate asylum - seekers , envisaged that a range of services must be provided to migrants , including , inter alia , socio - psychological support , with special attention for persons belonging to vulnerable categories , and medical appointments with consultants . These reception conditions were also guaranteed to GPE - returners . This category received a preliminary form of reception upon arrival from the services present in the main airports ; subsequently these asylum - seekers were accommodated in government reception centres . When the transferring country reported an asylum - seeker as belonging to a vulnerable category , appropriate medical measures were taken in the centres with the aim of providing appropriate reception conditions . Special attention was paid to migrants with physical or psychological trauma and to victims of torture , who were entrusted to the medical stations of the reception centres or to a local centre to receive treatment and support of a professional and appropriate nature ( see ibid . , § CARDINAL ) .

As regards medical assistance , the NORP comments established as follows ( ibid . ) .

“ In GPE , foreign citizens , even those not complying with the provisions regulating their presence , are entitled to ordinary and/or urgent treatment through ORG .

In the government centres for migrants the psychic / physical health of guests is recognized as an unalienable right of the individual , which is safeguarded by article CARDINAL of LAW and it has always been put at the forefront when the regulatory and management system of the centres is being prepared .

More specifically , the medical assistance service provided for in the centres for migrants must grant guests the following :

a ) Visit upon entry and medical first aid , carried out in a consulting room set up within the facility with medical staff and nurses , whose shifts must be based on the ratio guests / staff as indicated in the tables of the tender specifications ;

b ) When the need arises , possible transfer of guests to hospitals outside the centres , in compliance with LAW as migrants hosted in ORG centres can benefit from the services of ORG by showing their ORG cards ( Temporarily Present Alien ) , issued by ORG , whereby they can enjoy treatment in the consulting room or in hospitals , when it is urgent or essential in case life is in peril ;

c ) Administering of medicines and medical devices necessary for first aid and for ordinary medical assistance , including for generic conditions of psychological type ;

d ) Recording of a personal medical file , a copy of which must be handed over to the guest . In this connection it is worth mentioning that doctors , when screening the guests upon entry must also evaluate their psychic - social situation as well as the presence of vulnerability factors ( serious psychic - psychological conditions , including previous ones , victims of mistreatment / torture , substance addiction , etc . ) in order to prescribe possible drug treatment or psychological counselling .

It is further specified that as provided for by the above mentioned LAW ( ORG ) , foreign citizens who are on the national territory but do not comply with provisions regulating their presence are anyway entitled to treatment in public health care facilities either in consultation rooms and/or in hospital ( both urgent and continuing treatment ) because of illness or accident and they also benefit from the programmes of preventive medical treatment aimed at safeguarding individual and collective health .

Regardless of the possession of a residence permit , the NORP legislation provides for the social protection and medical assistance to expectant mothers and to mothers , the protection of the psychic - physical health of minors ( as a result of ORG , interventions of prevention , diagnosis and treatment of infectious diseases and the decontamination of the related centres of infection .

Finally , when aliens not complying with provisions regulating their presence visit public medical facilities , they are not reported to ORG .

As far as social services are concerned , the principle enshrined in LAW LAW – according to which the status of a refugee is equal to that of a national DATE is embodied in the NORP legislation also as a consequence of article CARDINAL of the above mentioned Legislative Decree No . CARDINAL of CARDINAL DATE , which lays down that individuals benefiting from refugee status and from subsidiary protection have the same status as NORP citizens and thus they have access to all services and benefits , including economic ones , covered by the social and medical assistance system .

Furthermore , the projects funded through resources of the ORG include measures to ease the access to social security , particularly on the part of vulnerable groups . ”

And finally , with regard to the reception of GPE - returners , the “ Dublin II Regulation National Report ” on GPE stated in particular ( ibid . , § DATE ) :

“ Within this broader category , another distinction is deemed necessary according to whether the returnee had already enjoyed the reception system while s / he was in GPE .

If returnees ( international protection seekers , beneficiaries of international protection or of a permit of stay for humanitarian reasons ) had not been placed in reception facilities while they were in GPE , they may still enter reception centres . Due to the lack of available places in reception structures and to the fragmentation of the reception system , the length of time necessary to find again availability in the centres is DATE in most of the cases - too long . Since , there is no general practice , it is not possible to make a quantification of the time necessary to access to an accommodation . However , in DATE , temporary reception systems have been established to house persons transferred to GPE on the basis of GPE . However , it concerns a form of temporary reception that lasts until their juridical situation is defined or , in case they belong to vulnerable categories , an alternative facility is found .

Such temporary reception has been set up thanks to targeted projects funded by ORG . For instance , in GPE , there are currently projects providing assistance to CARDINAL persons – within this broader category CARDINAL places are for vulnerable categories .

However , it happens that GPE returnees are not accommodated and find alternative forms of accommodation such as self - organized settlements . ... ”


CASE OF STOIMENOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award (applicant);Non-pecuniary damage - claim dismissed (members of the applicant's family);Costs and expenses partial award - domestic proceedings

The applicant , Mr PERSON who was born in DATE and lives in PERSON , in the former GPE .

On DATE the Ministry lodged with the public prosecutor a criminal complaint against the applicant and CARDINAL other persons for the unauthorised production of , and trade in , drugs and narcotic substances , which was an offence under section CARDINAL of LAW .

On DATE ORG ( Управа за криминалистичка техника ) ( “ the Bureau ” ) at ORG drew up an expert report ( no . X-CARDINAL/CARDINAL ) on the quality of poppy - tar that had been confiscated from Mr I.P. According to this opinion , all CARDINAL cakes of poppy - tar contained substances which indicated that it was opium .

On DATE another expert opinion ( no . PERSON ) was issued concerning the quality of CARDINAL cakes of poppy - tar that had been confiscated from Mr M.

Both expert opinions were given by the same expert at the ORG , were almost identically worded and provided succinct information about the technique used to determine the composition of the poppy - tar and the conclusion that it was opium . They read , inter alia , as follows :

“ ... [ S]everal tests were carried out on the samples of the substance . Positive results were received as to the existence of alkaloids ... A chromatography analysis was made of the samples to determine the chemical composition of the substance . Samples of several alkaloids from our collection and a sample of opium were used for comparison ... The analysis of the chromatogram revealed that it was identical to that of the opium , i.e. that the analysed substance contained several alkaloids ... The analysis led to the conclusion that the unidentified substance was opium . ”

According to depositions taken on DATE in the pre - trial proceedings , the applicant stated , inter alia :

“ ... When I was a child , I heard from my grandmother and grandfather that they used to have in their possession poppy - tar which they used for medicinal purposes . Mr NORP [ the third accused ] asked me on several occasions whether they still had any ... I went to see Mr M. [ the first accused ] , my uncle , and told him about this . We both searched the cellar in my grandfather 's house where my uncle used to live . We found QUANTITY of poppy - tar in a plastic bag ... I gave the bag to Mr D ... The agreement was to divide the money from the sale of the poppy - tar into CARDINAL parts if Mr NORP sold it . He said that he could sell it for MONEY ( DEM ) ... Some time later Mr NORP said that the poppy - tar was of poor quality , as it had been mixed with soil and had [ therefore ] been difficult to sell . I asked him to return it if he could not sell it so that I could put it back where it came from . However , Mr NORP did not return the poppy - tar ... Once I visited his house , but he was not there ... PERSON did not know that there was poppy - tar in the cellar . The idea to search for it was mine and I was incited to do so by Mr D ... ”

Mr NORP stated , inter alia :

“ ... PERSON [ the applicant ] told me that he had DATE poppy - tar and asked me if I could find a buyer ... He said that the price was DEM CARDINAL,CARDINAL ... After a while I met with Mr PERSON [ the fourth accused ] and asked him whether he could find a buyer for the poppy - tar ... DATE , PERSON came to my house and told me that he could find a buyer and asked me for a sample ... Mr PERSON said the price was too high ... I met PERSON and asked him to take the poppy - tar as there was no one interested in buying it at that price . However , PERSON did not come because of the bad weather : it was snowing . On DATE Mr PERSON came to my house and told me that he had found a buyer . On DATE Mr PERSON came accompanied by PERSON I.P. [ the fifth accused ] ... and said that a buyer from ORG had offered ORG CARDINAL per kg of poppy - tar ... ”

On DATE the public prosecutor lodged an indictment ( обвинителен акт ) with ORG against PERSON , the applicant , PERSON , PERSON and PERSON They were charged with having been in possession in DATE of QUANTITY of opium and on DATE of offering for sale and selling QUANTITY of opium . The charges were based , inter alia , on the statements of the accused in the pre - trial proceedings and the expert opinion no . X-CARDINAL/CARDINAL dated DATE .

At the trial on DATE , Mr ORG , the applicant 's grandfather stated , inter alia :

“ ... the poppy - tar was collected by my parents and my wife . I can not say where it was stored . Maybe it was buried ; there was a war . It was DATE ; people said that it was of poor quality . I have never seen the poppy - tar nor do I know where it was stored . I never told PERSON or Mr M. where it was , nor did they ask me about it ... I offered the poppy - tar for sale to the ORG company , but it turned it down as it was of poor quality . This happened after the Second World War , but I can not say when exactly ... ”

The applicant 's representative lodged a request for an alternative expert opinion to be obtained from a scientific institution concerning the quality of the poppy - tar for the following reasons : the GPE operated within ORG , which had lodged the criminal complaint against him ; the poppy - tar was old and had been buried for DATE ; and an authorised organisation had refused to buy it as it was of poor quality . The counsel representing the other persons accused made a like request .

At the hearing on DATE the court refused the request for another expert opinion . In his concluding remarks the applicant 's representative reiterated , inter alia , his arguments about the poor quality of the poppy - tar and about the report drawn up by ORG .

DATE ORG gave judgment . It found the applicant and the other accused guilty and sentenced them to terms of imprisonment of DATE . The applicant obtained the longest sentence ( DATE imprisonment ) . All other CARDINAL defendants received sentences below the statutory minimum for crimes of that kind ( DATE ) on the ground that they had no previous convictions and some of them were young and/or had not played a crucial role in the crime .

The trial court found that the applicant and his uncle PERSON had found QUANTITY poppy - tar in the latter 's cellar , i.e. opium belonging to Mr PERSON 's father , who had kept it from the Second World War . They had agreed to keep the opium at Mr M. 's house and to prepare it for sale . Later , the applicant had offered QUANTITY of the poppy - tar for sale to the third accused , Mr NORP , whose task was to find a further buyer . Then Mr NORP and the fourth accused , PERSON , had checked the quality of the opium and given it to the fifth accused , PERSON , whose task had been to sell the drugs to PERSON ORG , an unidentified final buyer from GPE . As Mr I.P. feared detection , he had tried to escape and had thrown the bag with the opium out of his car . He was later arrested by the police and the bag containing the opium was found .

The court found that the accused had acted in concert , namely that the applicant had firstly found the opium and then offered it to Mr NORP , who had offered it to Mr M.G. The opium was finally offered for sale to Mr GPE , the fifth accused . The court made reference in its decision to the statements of the applicant and the other accused in the pre - trial proceedings concerning their roles in the crime . It also referred to the applicant 's statement at the hearing , but disregarded it as self - serving . The testimony of several witnesses and items of real evidence were also taken into account , along with the expert opinions nos . X-CARDINAL/CARDINAL and PERSON provided by ORG .

The court held that the poppy - tar , a term used by the accused , was in fact opium , the production of and trade in which was classified as a criminal offence . It based its findings entirely on the written expert opinion provided by the ORG , stating inter alia :

“ ... the court established that it was a psychotropic substance on the basis of the written evidence , namely the expert opinions nos . X-CARDINAL/CARDINAL and PERSON submitted by ORG , in which it was definitely indicated that it was opium containing several alkaloids ... ”

It noted that the ORG was a state body authorised to perform such expert examinations and that section CARDINAL(CARDINAL ) of LAW did not prohibit it from providing such an expert opinion . It further stated :

“ ... The court disregards the defence 's argument that the opium was of poor quality i.e. what its quality and [ opium ] percentage was , because the expert report undoubtedly established that it was opium containing all the necessary substances to be considered a psychotropic substance ... ”

In his appeal , the applicant complained , inter alia , of the trial court 's refusal to order an alternative , independent analysis of the quality of the poppy - tar . He claimed that it was not a type of opium prohibited by law , but poppy - tar that had been buried for a long time and that moisture was known to destroy its morphine content . In support of his arguments about the quality of the poppy - tar , he noted that after the Second World War its owner , PERSON father , had been unable to sell it to an authorised buyer because it was of such poor quality . As it had not been properly stored its quality had deteriorated over time . He considered that a chemical analysis was necessary to determine the quality of the poppy - tar and proposed an institution which in his opinion had the equipment necessary to make the required analysis . He also complained that the expert examination of the opium had been performed by ORG which had then brought the criminal charges against him .

The applicant also argued that the offence had been set up by a police agent provocateur and would never have been committed without his intervention ( he claimed that the unidentified final buyer PERSON was that agent ) . He further argued that he had been wrongly convicted as he had voluntarily called off the sale of the opium at CARDINAL point , when he had changed his mind and asked the third accused to give him the poppy - tar back . He also appealed against sentence .

At a public hearing held on DATE ORG dismissed the applicant 's appeal and upheld the lower court 's decision . It found that the lower court had not erred in refusing the applicant 's request for an alternative expert examination of the quality of the drug , as the expert opinion provided by the Bureau was unambiguous . It also noted that it was known that the older the poppy - tar , the better it was for opium use . It further stated that the expert examination by the Bureau had been carried out properly and that the lower court had relied entirely on the ORG 's report and had therefore dismissed the applicant 's request for an alternative examination by another institution .

ORG also found that although the identity of the final buyer of the opium had not been established , it was irrelevant to the applicant 's conviction : he had been convicted for having the opium in his possession and offering it for sale . It did not accept the applicant 's assertion that he had decided not to proceed with the offence , finding that the lower court had correctly based its findings on the applicant 's statements in the pre - trial proceedings in which he had described the whole event and had made a confession . It also found that the applicant had failed throughout the proceedings to put forward any evidence in support of his allegations .

In a request to ORG for extraordinary review of a final decision ( барање за вонредно преиспитување на правосилна пресуда ) , the applicant referred to the complaints he had already raised in his appeal .

On DATE ORG dismissed the applicant 's request for extraordinary review and upheld the lower courts ' decisions . It found that the lower courts had not erred in establishing the facts and evaluating the evidence concerning the applicant 's assertion that he had decided not to proceed with the offence .

As to the applicant 's complaint that his defence rights had been violated as the trial court had refused to order an alternative expert examination of the quality of the poppy - tar , ORG stated :

“ ... such complaint is ill - founded because the trial court could reasonably establish on the basis of the expert opinion provided by ORG that it was opium of good quality . There were no doubts in the expert opinion that would have warranted ordering a fresh examination or an opinion by other experts . The expert opinion submitted by ORG does not contain any shortcomings or deficiencies which would raise reasonable doubts as to its validity ... ”

On DATE and DATE ORG dismissed the applicant 's request for extraordinary mitigation of the penalty imposed ( барање за вонредно ублажување на казната ) .

The Government have also indicated that on DATE ORG rejected a second request by the applicant for extraordinary review of the final decision .

In accordance with section CARDINAL ) and ( CARDINAL ) of LAW ( “ LAW ” ) , an expert examination is requested by a written order of the body which carries out the procedure . The order specifies the facts for which the examination is required and the person appointed to perform it . If a special institution exists or if the examination can be carried out by a ORG body , the examination , especially in more complex cases , is as a rule entrusted to that institution or body . The institution or body appoints one or more experts to carry out the expert examination .

Section CARDINAL of the LAW provides that the opinion of other experts must be ordered if the expert opinion already given contains inconsistencies or deficiencies or if there are reasonable doubts as to its accuracy and these can not be eliminated by referring to the experts who gave the opinion .


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

On DATE the applicant was stabbed by ORG On DATE the police took statements from ORG and the applicant separately . They were both wounded and accused each other of starting the fight . On DATE the ORG delivered its reports on the applicant and ORG , which stated that they were unfit for work for DATE respectively . On DATE ORG filed an indictment against the applicant and GPE for assault occasioning bodily harm . The indictment was not served on the applicant or ORG On DATE the Bakırköy Magistrate ’s Court issued a penal order without holding a hearing and found the applicant and ORG guilty as charged . The court fined each of them MONEY . In doing so , it relied on the “ simplified procedure ” stipulated in LAW for relatively minor offences . On DATE the applicant challenged this decision before ORG . On DATE ORG dismissed the objection without holding a hearing .


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

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicants are NORP nationals residing in GPE .

By a judgment of CARDINAL DATE ORG awarded the fourth applicant CARDINAL NORP hryvnias ( ORG ) in compensation for various work - related payments and teachers ' benefits due to him LAW CARDINAL § § TIME ) and CARDINAL ) of LAW and legal costs to be paid by ORG .

By separate judgments of CARDINAL September CARDINAL ORG awarded the first applicant ORG DATE , the second applicant ORG DATE , the third applicant ORG MONEY , the fifth applicant ORG CARDINAL,CARDINAL.CARDINAL , the sixth applicant ORG CARDINAL.CARDINAL , and the seventh applicant ORG CARDINAL in compensation for similar payments and teachers ' benefits as above .

The judgments became final and enforceable . Parts of the judgment debts were paid to the first , third , fourth , fifth , sixth and seventh applicants during DATE . The judgments were enforced in full on DATE .

The relevant domestic law and practice are summarised in the judgments of PERSON v. GPE ( no . CARDINAL , § § DATE ) , ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) , and Skrypnyak and Others v. GPE ( nos . GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL , § § CARDINAL , DATE ) .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

On DATE the applicant was issued with a penal order ( Strafbefehl ) by ORG on the ground that , in his capacity as managing director of a limited liability company , he had wilfully omitted to notify the company ’s insolvency within the statutory time limit pursuant to sections CARDINAL ) and CARDINAL ) of the LAW pertaining to companies with limited liability . He was sentenced to a fine of MONEY per day for DATE .

Upon the applicant ’s objection lodged with the assistance of his lawyer at the time , main proceedings were instituted before ORG . A hearing was first scheduled for DATE and then postponed to DATE . Even though the applicant was present , the hearing was not opened but discussions only took place between the judge , public prosecutor and the applicant ’s counsel at the time .

On DATE ORG provisionally stayed the proceedings on an application by ORG pursuant to LAW with reference to separate preliminary proceedings instituted against the applicant on account of different criminal charges . The applicant ’s objection against the decision to stay the proceedings was not accepted by ORG .

On DATE the NORP - ORG rejected an appeal by the applicant as inadmissible on the ground that the applicant had not been adversely affected by ORG decision . ORG found that a decision to provisionally stay proceedings pursuant to LAW would only be to the detriment of the accused in the event his innocence was clearly established and he therefore would have a right to be acquitted . It held that these criteria had not been met in the instant case .

On DATE ORG ( GPE . : CARDINAL BvR CARDINAL/CARDINAL ) declined to consider a constitutional complaint lodged by the applicant on the ground that the decision of ORG to provisionally stay the proceedings did not constitute a legal detriment for the applicant and that there was no indication that the decision had been arbitrary . It further held that the applicant still benefited from the presumption of innocence and that in general there was no right to demand continuance of criminal proceedings with a view to being acquitted . The decision was served on the applicant ’s counsel on DATE .

Section CARDINAL(CARDINAL ) of LAW provides for the provisional stay of criminal proceedings in the following terms :

( CARDINAL ) Once proceedings have been instituted , the court may provisionally stay them at any stage at the request of ORG .

( CARDINAL ) If the proceedings were provisionally terminated on account of a penalty or measure of reform and prevention which is to be expected for another offence , the proceedings may be resumed , unless barred by limitation in the meantime , within DATE after the judgment imposed for the other offence has entered into force .

( CARDINAL ) If the court has provisionally terminated the proceedings , a court order is required for their resumption . ”


CASE OF MÜLLER AND OTHERS v. SWITZERLAND

ORG The first applicant , PERSON , a painter born in DATE , lives in FAC . The other CARDINAL applicants are :

( a ) PERSON , art critic , born in DATE and living in GPE ;

( b ) PERSON , art teacher , born in DATE and living at PERSON , ORG ;

( c ) PERSON , picture restorer , born in DATE and living at PERSON ;

( d ) PERSON , bank clerk , born in DATE and living at PERSON ;

( e ) PERSON , architect , born in DATE and living in GPE ;

( f ) PERSON , community worker , born in DATE and living at FAC ;

( g ) PERSON , artist , born in DATE and living at Montagny - la - GPE ;

( h ) PERSON , photographer , born in DATE and living at FAC ;

( i ) PERSON , assistant lecturer , born in DATE and living in GPE .

PERSON has exhibited on his own and with other artists on many occasions , particularly since DATE , both in private galleries and in museums , in GPE and elsewhere .

With the assistance of ORG , he took part in the Sydney Biennial in GPE in DATE , as GPE ’s representative . He has been awarded several prizes and has sold works to museums such as the PERSON in GPE .

ORG In DATE , the CARDINAL last - mentioned applicants mounted an exhibition of contemporary art in GPE at the former ORG , a building due to be demolished . The exhibition , entitled " Fri - Art CARDINAL " , was held as part of the celebrations of the CARDINALth anniversary of the GPE of GPE ’s entry into ORG . The organisers invited several artists to take part , each of whom was allowed to invite another artist of his own choosing . The artists were meant to make free use of the space allocated to them . Their works , which they created on the spot from DATE onwards , were to have been removed when the exhibition ended on DATE .

ORG In the space of TIME PERSON , who had been invited by CARDINAL of the other artists , produced CARDINAL large paintings ( measuring QUANTITY , MONEY QUANTITY and QUANTITY ) entitled " Drei Nächte , drei Bilder " ( " Three Nights , ORG " ) . They were on show when the exhibition began on DATE . The exhibition had been advertised in the press and on posters and was open to all , without any charge being made for admission . The catalogue , specially printed for the preview , contained a photographic reproduction of the paintings .

ORG On DATE , the day of the official opening , the principal public prosecutor of the GPE of GPE reported to the investigating judge that the paintings in question appeared to come within the provisions of LAW , which prohibited obscene publications and required that they be destroyed ( see paragraph CARDINAL below ) . The prosecutor thought that CARDINAL of the CARDINAL pictures also infringed freedom of religious belief and worship within the meaning of Article CARDINAL of LAW .

According to the Government , the prosecutor had acted on an information laid by a man whose daughter , a minor , had reacted violently to the paintings on show ; DATE another visitor to the exhibition had apparently thrown down CARDINAL of the paintings , trampled on it and crumpled it .

ORG Accompanied by his clerk and some police officers , the investigating judge went to the exhibition on DATE and had the disputed pictures removed and seized ; DATE , he issued an attachment order . On DATE , ORG dismissed an appeal against that decision .

After questioning the CARDINAL applicants on DATE and DATE , the investigating judge committed them for trial to the NORP ORG .

ORG On DATE , the court sentenced each of them to a fine of MONEY ( GPE ) for publishing obscene material ( LAW ) - the convictions to be deleted from the criminal records after DATE - but acquitted them on the charge of infringing freedom of religious belief and worship ( Article CARDINAL ) . It also ordered that the confiscated paintings should be deposited in ORG of the GPE of GPE for safekeeping . At the hearing on DATE , it had heard evidence from Mr. PERSON , the curator of the PERSON in GPE , as to PERSON artistic qualities .

In its judgment , the court pointed out first of all that " the law [ did ] not define obscenity for the purposes of LAW [ LAW ] and the concept [ had ] to be clarified by means of interpretation , having regard to the intent and purpose of the enactment as well as to its place in the legislation and in the overall legal system " . After referring to ORG case - law on the subject , it said among other things :

" In the instant case , although Mr. PERSON ’s CARDINAL works are not sexually arousing to a person of ordinary sensitivity , they are undoubtedly repugnant at the very least . The overall impression is of persons giving free rein to licentiousness and even perversion . The subjects - sodomy , fellatio , bestiality , the erect penis - are obviously morally offensive to the vast majority of the population . Although allowance has to be made for changes in the moral climate , even for the worse , what we have here would revolutionise it . Comment on the confiscated works is superfluous ; their vulgarity is plain to see and needs no elaborating upon .

Nor can a person of ordinary sensitivity be expected to go behind what is actually depicted and make a second assessment of the picture independently of what he can actually see . To do that he would have to be accompanied to exhibitions by a procession of sexologists , psychologists , art theorists or ethnologists in order to have explained to him that what he saw was in reality what he wrongly thought he saw .

Lastly , the comparisons with the works of PERSON and PERSON are specious . Apart from the fact that they contain no depictions of the kind in PERSON ’s paintings , no valid comparison can be made with history - of - art or cultural collections in which sexuality has a place ... , but without lapsing into crudity . Even with an artistic aim , crude sexuality is not worthy of protection ... . Nor are comparisons with civilisations foreign to western civilisation valid . "

On the question whether to order the destruction of the pictures under paragraph CARDINAL of Article CARDINAL ( see paragraph CARDINAL below ) , the court said :

" Not without misgivings , the court will not order the destruction of the CARDINAL works .

The artistic merit of the CARDINAL works exhibited in GPE is admittedly less obvious than is supposed by the witness Ammann , who nevertheless said that the paintings PERSON exhibited in GPE were more ‘ ORG . The court would not disagree . PERSON is undoubtedly an artist of some accomplishment , particularly in the matter of composition and in the use of colour , even though the works seized in GPE appear rather scamped .

Nonetheless , the court , deferring to the art critic ’s opinion while not sharing it , and concurring with the relevant findings of ORG in the PERSON judgment ( ORG CARDINAL IV CARDINAL et seq . ) , takes the view that in order to withhold the CARDINAL paintings from the general public - to ‘ destroy’ them - it is sufficient to place them in a museum , whose curator will be required to make them available only to a few serious specialists capable of taking an exclusively artistic or cultural interest in them as opposed to a prurient interest . ORG of the GPE of GPE meets the requirements for preventing any further breach of LAW . The CARDINAL confiscated paintings will be deposited there . "

ORG All the applicants appealed on points of law on DATE ; in particular , they challenged the trial court ’s interpretation as regards the obscenity of the relevant paintings . For example , it was argued by PERSON ( in pleadings of CARDINAL DATE ) that something which was obscene sought directly to arouse sexual passion , and that this had to be its purpose , with the essential aim of pandering to man ’s lowest instincts or else for pecuniary gain . This , it was alleged , was never the case " where artistic or scientific endeavour [ was ] the primary consideration " .

ORG , sitting as a court of cassation , dismissed the appeals on DATE .

Referring to ORG case - law , it acknowledged that " in the recent past , and still DATE , the public ’s general views on morality and social mores , which vary at different times and in different places , have changed in a way which enables things to be seen more objectively and naturally " . The trial court had to take account of this change , but that did not mean that it had to show complete permissiveness , which would leave no scope for the application of LAW .

As for works of art , they did not in themselves have any privileged status . At most they might escape destruction despite their obscenity . Their creators nonetheless fell within the thrust of LAW , " since that statutory provision as a whole [ was ] designed to protect public morals , even in the sphere of the fine arts " . That being so , the court could dispense with deciding the question whether the pictures complained of were the outcome of " artistic ideas , though even then , intention [ was ] CARDINAL thing and realisation of it another " .

Like the trial court , the appellate court found that PERSON paintings aroused " repugnance and disgust " :

" These are not works which , in treating a particular subject or scene , allude to sexual activity more or less discreetly . They place it in the foreground , depicting it not in the embrace of man and woman but in vulgar images of sodomy , fellatio between males , bestiality , erect penises and masturbation . Sexual activity is the main , not to say sole , ingredient of all CARDINAL paintings , and neither the appellants’ explanations nor the witness Mr. PERSON ’s learned - seeming but wholly unpersuasive remarks can alter that fact . To go into detail , however distasteful it may be , CARDINAL of the paintings contains CARDINAL erect members . All the persons depicted are entirely naked and CARDINAL of them is engaging simultaneously in various sexual practices with CARDINAL other males and an animal . He is kneeling down and not only sodomising the animal but holding its erect penis in another animal ’s mouth . At the same time he is having the lower part of his back - his buttocks , even - fondled by another male , whose erect penis a third male is holding towards the first male ’s mouth . The animal being sodomised has its tongue extended towards the buttocks of a fourth male , whose penis is likewise erect . Even the ORG tongues ( especially in the smallest painting ) are more suggestive , in shape and aspect , of erect male organs than of tongues . Sexual activity is crudely and vulgarly portrayed for its own sake and not as a consequence of any idea informing the work . Lastly , it should be pointed out that the paintings are large ... , with the result that their crudeness and vulgarity are all the more offensive .

The court is likewise unconvinced by the appellants’ contention that the paintings are symbolical . What counts is their face value , their effect on the observer , not some abstraction utterly unconnected with the visible image or which glosses over it . Furthermore , the important thing is not the artist ’s meaning or purported meaning but the objective effect of the image on the observer ... .

Not much of the argument in the appeal was directed to the issues of intention or of awareness of obscenity , nor indeed could it have been . In particular , an author is aware of a publication ’s obscenity when he knows it deals with sexual matters and that any written or pictorial allusion to such matters is likely , in the light of generally accepted views , grossly to offend the average reader ’s or observer ’s natural sense of decency and propriety . That was plainly so here , as the evidence at the trial confirmed . ... Indeed , several of the defendants admitted that the paintings had shocked them . It should be noted that even someone insensible to obscenity is capable of realising that it may disturb others . As the trial court pointed out , the defendants at the very least acted recklessly .

Lastly , it is immaterial that similar works have allegedly been exhibited elsewhere ; the CARDINAL paintings in issue do not on that account cease to be obscene , as the trial court rightly held them to be ... "

ORG On DATE , the applicants lodged an application for a declaration of nullity ( Nichtigkeitsbeschwerde ) with ORG . They sought to have the judgment of DATE set aside and the case remitted with a view to their acquittal and the return of the confiscated paintings or , in the alternative , merely the return of the paintings .

In their submission , ORG had wrongly interpreted LAW ; in particular , it had taken no account of the scope of the freedom of artistic expression , guaranteed inter alia in LAW ) of the LAW . Mr. PERSON , CARDINAL of the most distinguished experts on modern art , had confirmed that these were works of note . Similar pictures by PERSON , moreover , had been exhibited in GPE in DATE and it had not occurred to anyone to regard them as being obscene .

As to the " publication " of obscene items , which was prohibited under LAW , this was a relative concept . It should be possible to show in an exhibition pictures which , if they were displayed in the market - place , would fall foul of Article CARDINAL ; people interested in the arts ought to have an opportunity to acquaint themselves with all the trends in contemporary article Visitors to an exhibition of contemporary art like " Fri - Art CARDINAL " should expect to be faced with modern works that might be incomprehensible . If they did not like the paintings in issue , they were free to look away from them and pass them by ; there was no need for the protection of the criminal law . It was not for the court to undertake indirect censorship of the arts . On a strict construction of Article CARDINAL - that is , CARDINAL which , having regard to the fundamental right to freedom of artistic expression , left it to art - lovers to decide for themselves what they wanted to see - , the applicants should be acquitted .

Confiscation of the disputed paintings , they submitted , could only be ordered if they represented a danger to public order such that returning them could not be justified - and that was a matter the court of cassation had not considered . Since the pictures had been openly on display for DATE without giving rise to any protests , it was difficult to see how such a danger was made out . PERSON would certainly not show his paintings in GPE in the near future . On the other hand , they could be shown without any difficulty elsewhere , as was proved by his exhibition in GPE in DATE . It was consequently out of all proportion to deprive him of them .

ORG of ORG dismissed the appeal on DATE for the following reasons :

" The decided cases show that for the purposes of LAW , any item is obscene which offends , in a manner that is difficult to accept , the sense of sexual propriety ; the effect of the obscenity may be to arouse a normal person sexually or to disgust or repel him . ... The test of obscenity to be applied by the court is whether the overall impression of the item or work causes moral offence to a person of ordinary sensitivity ...

The paintings in issue show an orgy of unnatural sexual practices ( sodomy , bestiality , petting ) , which is crudely depicted in large format ; they are liable grossly to offend the sense of sexual propriety of persons of ordinary sensitivity . The artistic licence relied on by the appellant can not in any way alter that conclusion in the instant case .

The content and scope of constitutional freedoms are determined on the basis of the federal law currently in force . This applies inter alia to freedom of the press , freedom of opinion and artistic freedom ; under LAW [ of LAW ] , ORG is bound by federal enactments ... In the field of artistic creation [ it ] has held that works of art per se do not enjoy any special status ... A work of art is not obscene , however , if the artist contrives to present subjects of a sexual nature in an artistic form such that their offensiveness is toned down and ceases to predominate ... In reaching its decision , the criminal court does not have to view the work through an art critic ’s spectacles ( which would often ill become it ) but must decide whether the work is liable to offend the unsuspecting visitor .

Expert opinion as to the artistic merit of the work in issue is therefore irrelevant at this stage , though it might be relevant to the decision as to what action to take in order to prevent fresh offences ( destruction or seizure of the item ; Art . CARDINAL § CARDINAL CC ... ) .

ORG duly scrutinised the paintings for a predominantly aesthetic element . Having regard in particular to the number of sexual features in each of the CARDINAL ( CARDINAL of them , for instance , contains CARDINAL erect members ) , it decided that the emphasis was on sexuality in its offensive forms and that this was the predominant , not to say sole , ingredient of the items in dispute . ORG of ORG agrees . The overall impression created by PERSON ’s paintings is such as to be morally offensive to a person of normal sensitivity . ORG finding that they were obscene was accordingly not in breach of federal law .

The appellants maintained that the publication element of the offences was lacking . They are wrong .

The obscene paintings were on display in an exhibition open to the public which had been advertised on posters and in the press . There was no condition of admission to ‘ DATE , such as an age - limit . The paintings in dispute were thus made accessible to an indeterminate number of people , which is the criterion of publicity for the purposes of LAW ... "

Finally , ORG of ORG declared the alternative application for return of the paintings to be inadmissible as it had not first been made before the cantonal courts .

ORG On DATE , the NORP ORG granted an application made by PERSON on DATE and ordered the return of the paintings .

On the basis that it had been requested in effect to reconsider the confiscation order it had made in DATE , the court held that it had to decide whether the order could stand " DATE " . Hence , the reasons for its decision were as follows :

" In NORP law , confiscation is a preventive measure in rem . This is already clear from the legislative text , which classifies LAW under the heading ‘ other MONEY - the heading in the margin for ORG CARDINAL - CARDINAL ORG - and not under the subsidiary penalties prescribed in Articles CARDINAL ...

The confiscation of items or assets may admittedly constitute a serious interference with property rights . It must be proportionate and a more lenient order may thus be justified where it achieves the desired aim . Confiscation remains however the rule . It should be departed from only where a more lenient order achieves the desired aim ... In this case , when the confiscation order was made in DATE , the statutory provision ( LAW ) would normally have required the destruction of the paintings . Giving a reasoned decision , the court preferred a more lenient measure which achieved the aim of security , whilst complying with the principle of proportionality ... . The measure itself should remain in force only as long as the statutory requirements are satisfied ... .

It is true that the LAW makes no provision for an order under LAW to be subsequently discharged or varied . The legislature probably did not address itself to this question at the time , whereas provision was made whereby other measures , which were admittedly much more serious because they restricted personal liberty , could be re - examined by a court of its own motion ( Articles DATE ORG ) . It does not follow that discharge or variation is completely illegal . ORG has , moreover , held that a measure should not remain in force where the circumstances justifying it cease to obtain ... .

Accordingly , the view must be taken that an order confiscating a work of art may subsequently be discharged or varied , either because the confiscated item is no longer dangerous and a measure is no longer required , or because the necessary degree of security may be achieved by another more lenient measure ( judgment of ORG of DATE , in the PERSON case ) .

Judgments concerning freedom of expression and its scope often refer to LAW ( article DATE , article CARDINAL ) [ of the Convention ] .

In this area , the decisions of the ORG authorities have a direct influence on the NORP legal system , by way of strengthening individual liberties and judicial safeguards ...

In this case , where the applicant has availed himself of the possibility of applying for the return of his paintings , the court must consider whether the grounds on which it made the confiscation order in the first place , which restricted PERSON freedom of expression , are still valid .

While the restriction was necessary in a NORP society in DATE and was justified by the need to safeguard and protect morality and the rights of others , the court considers , admittedly with some hesitation , that the order may now be discharged . It should be noted that the confiscation measure was not absolute but merely of indeterminate duration , which left room to apply for a reconsideration .

It appears to the court that the preventive measure has now fulfilled its function , namely to ensure that such paintings are not exhibited in public again without any precautions . Those convicted have themselves admitted that the paintings could shock people . Once the order has achieved its aim , there is no reason why it should continue in force .

Accordingly , the artist is entitled to have his works returned to him .

It is not necessary to attach any obligations to this decision . If PERSON decided to exhibit the CARDINAL paintings again elsewhere , he knows that he would be running the risk of further action by the courts under LAW .

Finally , it appears that by exhibiting CARDINAL provocative paintings in a former seminary in DATE , PERSON deliberately intended to draw attention to himself and the organisers . Since then he has become known for more ‘ ORG works , to use the terms of the art critic who gave evidence in DATE . Having achieved a certain repute , he may find it unnecessary to shock by resorting to vulgarity . In any event , there is no reason to believe that he will use the CARDINAL paintings in future to offend other people ’s moral sensibilities .

PERSON recovered his paintings in DATE .

Article CARDINAL of the Swiss Criminal Code provides :

" CARDINAL . Anyone who makes or has in his possession any writings , pictures , films or other items which are obscene with a view to trading in them , distributing them or displaying them in public , or who , for the above purposes , imports , transports or exports such items or puts them into circulation in any way , or who openly or secretly deals in them or publicly distributes or displays them or by way of trade supplies them for hire , or who announces or makes known in any way , with a view to facilitating such prohibited circulation or trade , that anyone is engaged in any of the aforesaid punishable activities , or who announces or makes known how or through whom such items may be directly or indirectly procured , shall be imprisoned or fined .

Anyone supplying or displaying such items to a person under the age of CARDINAL shall be imprisoned or fined .

The court shall order the destruction of the items . "

ORG has consistently held that any works or items which offend , in a manner that is difficult to accept , the sense of sexual propriety , are obscene ; the effect may be to arouse a normal person sexually or to disgust or repel him ( Judgments of ORG ( ORG ) , vol . CARDINAL ( DATE ) , part ORG , pp . CARDINAL - CARDINAL ; vol . CARDINAL ( DATE ) , part IV , pp . CARDINAL - CARDINAL ; vol . CARDINAL ( DATE ) , part IV , pp . CARDINAL ) ; making such items available to an indeterminate number of people amounts to " publication " of them .

ORG held in DATE that , for the purposes of paragraph CARDINAL of Article CARDINAL , if an obscene object was of undoubted cultural interest , it was sufficient to withhold it from the general public in order to " destroy " it .

In its judgment of CARDINAL DATE in the case of PERSON v. Attorney - General of GPE ( ORG vol . CARDINAL ( DATE ) , part IV , pp . CARDINAL ) , it held inter alia " that , in making destruction mandatory , the legislature had in contemplation only the commonest case , publication of entirely pornographic items " . As " destruction is a measure as opposed to a punishment " , " it must not go beyond what is necessary to achieve the desired aim " , that is to say " the protection of public morality " . The court went on to state :

" In other words , ‘ destruction’ , as prescribed by LAW of LAW , must protect public morality but go no further than that requirement warrants .

In the commonest case , that of pornographic publications devoid of artistic , literary or scientific merit , the destruction will be physical and irreversible , not just because of the lack of any cultural value , but also because , in general , this is the only adequate way of ultimately protecting the public from the danger of the confiscated items ... .

It is quite a different matter when one is dealing , as in the present case , with an irreplaceable or virtually irreplaceable work of article There is then a clash of CARDINAL opposing interests , both of them important in terms of the civilisation to which GPE belongs : the moral and the cultural interest . In such a case , the legislature and the courts must find a way of reconciling the CARDINAL . This court has thus held , in applying Article CARDINAL , that it must always be borne in mind that artistic creativity is itself subject to certain constraints of public morality , but that there must nonetheless be artistic freedom ... .

It is , accordingly , a matter for the courts to consider in each case in view of all the circumstances , whether physical destruction is essential or whether a more lenient measure suffices . The mandatory requirement of LAW will , therefore , be complied with where the courts order that an obscene item devoid of any cultural value is to be physically destroyed , and , in respect of an item of undoubted cultural interest , where effective steps are taken to withhold it from the general public and to make it available only to a limited number of serious specialists ... .

If such precautions are taken , LAW will not be applicable to items which are inherently obscene but of genuine cultural interest . A distinction must also be drawn between such items and pure pornography . The cultural interest of an item admittedly does not prevent it from being obscene . But it does require the courts to determine with particular care what steps must be taken to prevent general access to the item , while making it available to a well - defined number of serious connoisseurs ; this will comply with the requirements of LAW of LAW , which , as has been shown , makes destruction mandatory but only as a measure whose effects must be in proportion to the intended aim ... . "

This particular case concerned CARDINAL ivory reliefs and CARDINAL prints of antique NORP art ; the court held that the requirement to " destroy " them was met by placing them in a museum .

ORG Previous to the NORP ORG decision of DATE ( see paragraph CARDINAL above ) , ORG had already discharged a confiscation order made pursuant to LAW . In a judgment of CARDINAL DATE , to which ORG referred , ORG granted an application to restore to the heirs of the painter PERSON a painting confiscated in DATE , after he had been convicted of an infringement of freedom of religious belief and worship ( LAW ) .

ORG held inter alia that as confiscation " always interferes with the property rights of the person concerned , a degree of restraint is called for and , in accordance with the principle of proportionality , such a measure must go no further than is essential to maintain security " . The court added ( translation from the NORP ) :

" This principle applies , in particular , where ( on account of its distinctiveness ) the item subject to confiscation is hard or impossible to replace . Therefore the principle applies more strictly to a work of art ( e.g. a painting ) than to a weapon used to commit an offence ... . Finally , having regard to its preventive character , the measure should remain in force only for as long as the legal requirements are satisfied ... . "

Accordingly , the view had to be taken that " an order confiscating a work of art may subsequently be discharged or varied , either because the confiscated item is no longer dangerous and the measure no longer required , or because the necessary degree of security may be achieved by another more lenient measure " .

In that particular case , the reasoning of ORG was as follows :

" To apply present - DATE criteria , both parties agree with the court that the public ’s ideas of obscenity , immorality , indecency , blasphemy , etc . have changed considerably in DATE and have become distinctly more liberal . Although the confiscated painting is undoubtedly liable to offend a great many people ’s religious sensibilities even DATE , there is no reason to fear that , by exhibiting it in a private or suitable public place , one would be endangering religious harmony , public safety , morals or public order within the meaning of LAW ...

Whether there is a danger thus depends primarily on where the item to be confiscated is liable to end up ... . In this case , the exhibition of the painting in a museum would at present clearly be unobjectionable in the context of LAW . However , even if the picture were to be returned unconditionally , the likelihood of misuse must be regarded as minimal because PERSON , who deliberately set out , by means of a provocative exhibition , to draw attention to himself as a painter and to his ideas and works , has since died . There is no reason to believe that the applicants have any intention of using the picture to offend other people ’s religious sensibilities . At any rate , the picture would not lend itself to such a purpose ( LAW ) sufficiently to permit the DATE confiscation order to stand ... . Any danger of that kind arising from the picture is no longer serious enough to justify action under LAW . Nor is there any reason to hand this picture over to a scientific collection , i.e. a museum , in order to protect the public and morality . The confiscation order should be discharged and the picture unconditionally returned to the applicants , whose main application is thus granted . "