Violation of Art. 6-1;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of violation sufficient

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

On DATE the applicant , a student in ORG in ORG , sought to enrol in ORG of ORG . For that purpose she provided , among other materials , an identity photograph which showed her wearing a headscarf .

On DATE ORG of ORG replied to the applicant , informing her that the identity photograph she had supplied did not comply with the regulations in force and that where this was the case , the person concerned could not be enrolled .

On an unspecified date the applicant lodged an application for judicial review with ORG . She requested , in particular , that the refusal of the administrative authorities be set aside as being in breach of her rights .

In a judgment of DATE , ORG rejected the application , finding that the authorities’ refusal had been in accordance with the regulations in force . The court considered , in particular , that the applicant had submitted an identity photograph which did not conform to the regulations , which stipulated that “ photographs must show the subject facing forward and be DATE , so that the person concerned is readily identifiable ; the head and neck must also be uncovered ” ( LAW ( f ) of ORG adopted by ORG on DATE ) .

Following an appeal by the applicant on points of law , ORG upheld the judgment of DATE , finding it to have been in accordance with the law and the procedural rules . The relevant parts of ORG judgment read as follows :

“ Summary of the request : ...

Opinion of PERSON , investigating judge of ORG : the judge is of the opinion that the appeal should be dismissed and the first - instance judgment upheld .

Opinion of Mr PERSON , ORG ( savcı ) at ORG : the grounds of appeal set out in the statement of grounds do not correspond to those enumerated in LAW . In view of the juridical and legal arguments on which the first - instance judgment was based , these grounds can not be said to require the quashing of the impugned judgment ... ”

Article CARDINAL of the LAW reads as follows :

“ No one may be deprived of the right to instruction and education .

The scope of the right to education shall be defined and regulated by law .

Instruction and teaching shall be provided under the supervision and control of the ORG in accordance with the principles and reforms of PERSON and contemporary scientific and educational methods . No educational or teaching institution may be set up that does not follow these rules .


The applicant was born in DATE and lives in Naklo .

On DATE the applicant was dismissed by his employer MC due to economic reasons .

On DATE the ORG rejected his complaint concerning the dismissal .

On DATE the applicant instituted proceedings against MC in ORG ( PERSON združenega dela v PERSON ) seeking the annulment of ORG first and second instance decisions concerning his dismissal .

On DATE the ORG entered into force with respect to GPE .

According to the information supplied by the ORG , CARDINAL hearings were held DATE and DATE . The hearing held on DATE was adjourned due to the absence of parties and the court subsequently decided to suspend the proceedings . At the request of the applicant , the proceedings continued after DATE .

At the last hearing , the ( renamed ) ORG ( ORG in socialno sodišče v PERSON ) decided to deliver a written judgment . The judgment , rejecting the applicant ’s claim , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( GPE delovno in socialno sodišče ) .

On DATE and CARDINAL DATE the applicant urged the court to decide on his appeal .

On CARDINAL SeptemberCARDINAL the court dismissed the applicant ’s appeal .

The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) .

On DATE the court dismissed the applicant ’s appeal .

On CARDINAL DATE the applicant lodged a constitutional appeal .

On DATE ORG ( PERSON sodišče ) requested the applicant to supplement his appeal , which he did on DATE and DATE .

On DATE ORG dismissed the applicant ’s appeal . The decision was served on the applicant on DATE .


Violation of Art. 2;Violation of Art. 13+2

The applicant was born in DATE and was a resident of GPE , GPE . She currently lives in PERSON .

The submissions of the parties with regard to the facts concerning the circumstances of the attack on the applicant and the ensuing investigation are set out in Part A below . A description of the documents submitted to the ORG is contained in Part B.

NORP In DATE the applicant produced a detailed account of the attack on her . She submitted that , prior to DATE she lived at CARDINAL FAC in the GPE settlement in LOC of PERSON . She lived in a private house together with her husband and CARDINAL children , born in DATE , DATE , CARDINAL , DATE and DATE . In DATE the applicant 's CARDINAL elder children went to ORG to stay with relatives , while the applicant , her husband and their youngest child remained in PERSON to look after the house and property .

NORP In DATE hostilities resumed in GPE between NORP forces and NORP fighters . PERSON and its suburbs came under heavy bombardment . LOC , situated in the northern and central parts of the city , was bombarded from the air and by artillery . The applicant submits that most residents of the district left for safer areas . Following heavy fighting , as of DATE the NORP forces started to regain control over the city from the north , and by DATE the central parts of the city were finally taken .

At DATE the applicant and her family also moved to ORG to flee the bombardments . There they rented housing in the village of GPE . In GPE the applicant met her neighbour from PERSON , PERSON ( also known as Satsita ) D.

On DATE the applicant saw a programme on the all - NORP ORG station about the situation in PERSON . The report allegedly stated that the GPE settlement had been brought under full control of the federal forces and that civilians had started to return . The applicant and PERSON decided to go to PERSON to check up on their houses . In addition the applicant wanted to retrieve the documents relating to her children .

On TIME the applicant and PERSON set off for ORG . The applicant took her passport and MONEY ( RUR ) , of which she paid RUR CARDINAL for the bus trip to the outskirts of ORG . They spent TIME DATE with the applicant 's relatives in PERSON . On DATE at a military roadblock where CARDINAL other women were waiting to be let through , they met another neighbour from GPE , PERSON , who had also seen the news about the return of civilians . At that time the applicant did not know ORG 's family name . ORG joined them , and the CARDINAL of them went to GPE on foot .

When they reached the applicant 's house , they saw that the house had been destroyed . The applicant was unable to find the documents . The women consoled her and they went to PERSON house , also situated in FAC . They had walked another block when they noticed , QUANTITY further along the street , a group of CARDINAL soldiers and CARDINAL armoured personnel carriers ( APCs ) . The soldiers were taking valuables out of the houses and stacking them into the APCs . The applicant and the other QUANTITY women were aware of stories about soldiers killing witnesses to looting and became very scared . They immediately turned around and were about to walk away , but the soldiers noticed them and ordered them to approach and to produce identity documents . The soldiers were dressed in camouflage uniforms , spoke NORP and addressed each other as “ Lekha ” and “ GPE ” . Some spoke with an accent and the applicant guessed that they were from LOC .

The applicant 's passport was in order , as were the passports of the other women , and all CARDINAL had permanent addresses in PERSON . The soldiers checked their passports and told the women to empty their bags and pockets . They then asked if they had forgotten anything , but the applicant was too frightened to understand that they probably meant “ any valuables ” . The soldiers accused them of being fighters ' informants and told them to get into the APCs to be taken to the military commander 's office for an identity check . The women were scared to get into the ORG and asked if they could walk instead . The soldiers permitted them to walk , but they were blindfolded with their own scarves . When the women asked why they had covered their eyes , the soldiers replied rudely that it had been “ an order from the superior ” .

They walked QUANTITY further and the soldiers took them into the courtyard of a destroyed house . The applicant walked first and the other CARDINAL women followed her . She sensed that something was wrong , lifted her scarf and saw a machine gun being aimed at her . The soldiers shot into the air and forced the women into the entrance of a CARDINAL - destroyed shed . The women started to weep and to plead for mercy . ORG approached the soldiers , while the applicant and PERSON stood by the entrance , and asked the soldiers what they wanted from them and asked them to spare their lives . Then CARDINAL of the soldiers shot FAC in the head . They then shot at PERSON and the applicant . PERSON was in front and received most of the bullets ; the applicant was also wounded . She fell , hit a concrete step with her head and lost consciousness .

She was woken by the pain in her ear when one of the soldiers tore a golden earring from her . The soldiers also picked up her ring and a chain from her neck . She realised that she should pretend to be dead or they would kill her . She fainted again .

She awoke for the second time to a strong pain in her leg and when she opened her eyes she realized that PERSON and herself were lying partially within the shed , with their legs on the steps outside , covered with a mattress which had been set on fire . The mattress was too damp to burn and was smouldering , but the applicant smelled diesel and realised that it had been spilled around . Her leg was burnt . ORG 's body was lying QUANTITY away . The applicant then heard the sound of a car leaving . She climbed out of the shed , took a few steps and fainted again .

When she regained consciousness , she had lost a lot of blood and was very weak . She could not walk , so she crawled out into the street . She made it QUANTITY to the cellar of a CARDINAL - story building called “ the pilots ' house ” in FAC , where she knew someone was living . When she reached the cellar it was already dark . She started to knock on a pipe leading into the cellar , and was picked up by some elderly women who lived in the cellar . They carried her into the cellar and gave her first aid . The applicant had received a perforating wound DATE the bullet had entered her right arm and exited on the left side of her neck .

On DATE the women told her that the soldiers had been looking for her because they had not found her body at the place where the killings had taken place . Soldiers visited their cellar but the women dressed the applicant in their clothes and told them that she was CARDINAL of them . They told her that CARDINAL girls from LOC had stayed with them DATE before that and that their relatives had also been killed ( see GPE v. GPE , no . CARDINAL ) .

On DATE CARDINAL of the applicant 's relatives came from ORG to pick her up . They were alerted by neighbours who had found her passport with bullet holes in it . With the assistance of a military officer the applicant got to ORG .

NORP The applicant submitted a hand - drawn plan of the relevant part of the district indicating the places to which she referred .

It appears that the applicant did not seek to make any direct contact with law - enforcement bodies immediately after the attack . Nevertheless the events in LOC , including the attempt on the applicant 's life , became known to the relevant authorities shortly afterwards as a result of NGO and media reports .

The applicant spent DATE in GPE hospital , where her wounded hand was operated on . In the hospital she was visited by a number of NORP and foreign journalists and members of human rights NGOs . The applicant submitted copies of press articles and NGO reports in which her story had been related . She was also visited by ORG 's and PERSON relatives , who later told her that they had found their bodies and buried them .

NORP Several human rights NGOs contacted the law - enforcement authorities in relation to the events in LOC of ORG in DATE , when CARDINAL local residents were allegedly executed by unidentified detachments of the NORP military .

In DATE ORG issued a report entitled “ Civilian Killings in LOC of NORP ” , in which it accused the NORP forces of murdering CARDINAL civilians DATE and DATE . ORG interviewed survivors , eyewitnesses and relatives of the dead . The report contained information about the deaths of PERSON and PERSON , based on an interview with the applicant in ORG .

On DATE ORG contacted the NORP authorities , including the President , ORG and PERSON , with a request to investigate credible allegations of murders of CARDINAL civilians in LOC , with reference to the applicant 's case .

On DATE the NGO Memorial addressed the Prosecutor General with information about the applicant 's case . It requested that a criminal case be opened on the basis of the applicant 's statement concerning the attack on her and the murders of PERSON and ORG by NORP soldiers . On CARDINAL and DATE Memorial was informed by ORG that their letters had been forwarded to the military prosecutor of the LOC circuit . On DATE Memorial forwarded to the prosecutors additional information concerning the applicant , including her temporary address in ORG .

On DATE the military prosecutor of military unit no . CARDINAL ( located in GPE , the main NORP military base in GPE ) replied to PERSON with information concerning several cases of alleged crimes against civilians . According to this letter , a criminal investigation had been opened on DATE in response to the applicant 's complaint under LAW part QUANTITY of LAW ( murder in aggravating circumstances ) .

On DATE the applicant received a telegram summoning her to the GPE military base on DATE at TIME “ to take part in the investigative actions related to the murder of NORP ” ( the telegram referred to PERSON 's family name ) . The applicant did not go to GPE , because it was the largest NORP military base , heavily guarded and surrounded by numerous checkpoints , and she was afraid to travel there alone . In DATE some officers from the military prosecutor 's office came to the applicant 's temporary lodging in ORG ; however , she was in hospital at the time .

In DATE ORG issued a ORG in GPE , in which it reported a lack of progress in the investigation into the attack on the applicant and into other killings committed in LOC at the same time .

On DATE Memorial wrote a letter to ORG of ORG , with a copy to ORG , asking for details of the criminal investigation into the attack on the applicant . The letter also contained a request for access to the investigation file by the applicant or her representatives . On DATE the Chief Military Prosecutor forwarded the request to ORG of the LOC and referred to “ criminal case no . CARDINAL/CARDINAL/CARDINAL - CARDINAL ” concerning the murder of QUANTITY women , referred to by their last names , and the wounding of the applicant . From this letter the applicant for the first time learned the number of the criminal case file and ORG 's family name . No further information was received .

The applicant submitted that she was never informed whether she had been granted victim status in the criminal proceedings .

As a result of the wound received on DATE the applicant 's left arm was left partially paralysed and she suffered from pains and cramps in that arm . In DATE and DATE the applicant underwent operations on her left arm in a hospital in GPE . Each time she remained in hospital for DATE . She submitted the relevant medical documents . In DATE she again spent DATE in hospital . In DATE she was granted disabled status and receives a DATE disability pension of ORG CARDINAL ( CARDINAL ( ORG ) ) . She continues to live in FAC , where she rents an apartment ; her house and all her property in GPE have been destroyed . The applicant submitted that she continued to suffer from the effects of the attack : she could no longer lift weights heavier than QUANTITY , she was scared to return to GPE , was afraid for her family and had nightmares . The applicant submitted that she was afraid of men in camouflage uniform and every time she saw them she had panic attacks .

The Government in their observations submitted that the attack on the applicant had been the subject of CARDINAL criminal investigations . CARDINAL was opened in DATE by the military prosecutor of military unit no . CARDINAL following an application by PERSON , and the second one was opened by ORG in DATE , on the basis of material taken from criminal investigation no . DATE into the “ mass murder of civilians in the Katayama settlement ” . The investigations were joined in DATE under file number DATE ( see Part B below for a description of the documents from the investigation file ) .

According to the ORG , the investigation established that on DATE the applicant and CARDINAL other women had been detained in PERSON by unidentified persons wearing masks and camouflage uniforms and armed with automatic weapons , under the pretext of conducting an identity check . They were then brought to the house at ORG and shot . The CARDINAL other women were killed , while the applicant sustained firearm wounds and was brought to ORG in GPE . The investigation was adjourned and reopened on several occasions , but failed to identify the culprits . It did not establish the involvement of servicemen of ORG , ORG ( ORG ) or the army in the crime . The applicant was questioned as a witness and later as a victim , and was granted victim status on DATE .

The parties submitted numerous documents concerning the attack and the investigation into it . The main documents of relevance are the following :

The Government submitted a copy of the investigation file in criminal case no . CARDINAL/CARDINAL/CARDINAL ( joined in DATE with criminal case no . DATE ) , which comprises CARDINAL volumes ( CARDINAL pages ) , and a list of documents contained therein . The most important documents contained in the file can be summarised as follows :

On DATE , following a letter from ORG , the military prosecutor of military unit no . CARDINAL based in GPE opened a criminal investigation under LAW ( a ) and ( j ) of LAW concerning the murders of CARDINAL women and the wounding of the applicant by “ unidentified soldiers ” on DATE . The file was assigned the number CARDINAL/CARDINAL/CARDINAL - CARDINALD. In DATE the investigation was transferred to the civilian ORG .

Independently of the above , in DATE the ORG opened criminal case file no . DATE into “ the mass murder of civilians in the Katayama settlement by the ' CARDINALth brigade ' ” , following the publication of an article entitled “ Freedom or Death ” in the ORG newspaper on DATE . In DATE the investigation decided that the information concerning the attack on the applicant and the killing of the QUANTITY women constituted a separate episode and forwarded the relevant part of the file to LOC for further investigation . On DATE the district prosecutor 's office opened criminal investigation file no . DATE .

NORP In DATE the CARDINAL files were joined at ORG under the number DATE .

The case file contains the applicant 's “ explanations ” which she gave to a military prosecutor on CARDINAL DATE . The applicant gave a detailed account of the attack , including the description of CARDINAL soldiers aged CARDINAL who had shot her and her CARDINAL companions . The applicant stated that she would be able to recognise CARDINAL of them . The document did not contain the applicant 's new address .

On DATE and in DATE the investigator from the military prosecutor 's office requested prosecutors in ORG to locate and question the applicant . On DATE the applicant was invited by telex to report for questioning to the military prosecutor in GPE .

On DATE the military prosecutor in ORG reported that the applicant had left for GPE and could not be questioned .

In DATE the applicant 's neighbour in PERSON testified that the applicant occasionally came to PERSON but was afraid to stay there . He was aware that the applicant still suffered from the effects of the attack , feared men in uniforms and was afraid to speak about the incident .

DATE and DATE the investigation on several occasions requested the military and civilian prosecutors and the local ORG entities in ORG to locate and question the applicant . Several of her relatives and neighbours were questioned about her whereabouts . In DATE the applicant 's daughter ( born in DATE ) stated that her mother had left for GPE for treatment . In DATE another relative of the applicant in ORG confirmed this information .

In DATE the applicant 's sister - in - law ORG testified that the applicant was living in ORG but went DATE to ORG , where she was registered , to receive social - security benefits . She confirmed that the applicant continued to suffer from stress and was afraid of men in uniforms .

On DATE the applicant was finally questioned in ORG by a military prosecutor . She gave a detailed statement about the attack of DATE and described in detail the servicemen who had detained the women , escorted them to the house in FAC and shot at them . She described their camouflage uniform as being “ pale ” in colour , similar to the one worn by the police , and stated that some of the men had been wearing black bulletproof jackets and carrying portable radios . The applicant stated that she could identify CARDINAL of the servicemen , addressed by the others as “ ORG ” .

ORG also took steps to find the applicant while investigating criminal case no . DATE into the murders in LOC . In DATE the applicant was questioned in ORG about the circumstances of the attack . She confirmed that the perpetrators belonged to the federal forces , referring to the uniforms , military vehicles and the fact that they had spoken LANGUAGE .

DATE . On DATE the military prosecutor questioned PERSON sister , PERSON , who testified that on DATE she had learned from the applicant 's relatives in ORG of the death of her sister PERSON ( Satsita ) in PERSON . Also on DATE the witness talked to the applicant in ORG . On DATE the witness and CARDINAL other women had gone to the house in FAC indicated by the applicant and found CARDINAL bodies – that of her sister PERSON and a second woman . PERSON 's body had numerous wounds to the chest area , while the body of the other woman had the upper part of the head missing . Both bodies had been damaged by animals . The witness concealed the bodies in the courtyard and left to seek help . Both women were buried CARDINAL in CARDINAL grave in the cemetery of the Oktyabrskiy sovkhoz , bordering on LOC , with the assistance of a local imam . PERSON agreed to identify the burial place and to allow her sister 's body to be exhumed for the purposes of a forensic expert report . In DATE PERSON was again questioned by civilian investigators in PERSON and confirmed her previous statements .

On DATE the investigation questioned PERSON widower , PERSON , whose cousin was married to the applicant . He testified that on TIME of CARDINAL January CARDINAL he had seen PERSON and the applicant to the bus to ORG . DATE he learnt that his wife , the applicant and a third woman had been shot in PERSON by servicemen . They had CARDINAL daughters from the marriage . He did not object to the exhumation of his wife 's body for forensic purposes . In DATE PERSON was questioned by the civilian prosecutors and gave similar statements . In DATE he was again questioned and granted victim status in the proceedings . In DATE PERSON was again questioned and this time he expressly objected to the exhumation of his wife 's remains .

PERSON , PERSON 's other sister , and her husband PERSON testimony in DATE which tallied with the statements of PERSON They indicated , in addition , that near the body of NORP they had found her passport and thus learnt her family name . The passport was kept by the imam who later gave it to her relatives . They indicated the date of burial as DATE . PERSON also gave detailed statements about the discovery of the bodies . She stated that the clothes on the bodies of her sister and PERSON had been opened , as if they had been searched . They found an open wallet which they guessed had belonged to ORG and an empty pouch which her sister Satsita had worn around her neck and where she had kept her gold jewellery . PERSON produced a detailed drawing of the site and gave a description of the district , indicating the places to which she had referred . She indicated the locations occupied by the military units , but could not identify those units by name or by any other means . She also stated her firm conviction that the murders had been committed by servicemen , based on the accounts of the applicant and the women who had sheltered her in the cellar . The witness asserted that by DATE there had been no fighters left in the district , and that therefore the armed men could only have been soldiers . On DATE PERSON was granted victim status .

In DATE the local imam testified that on DATE he had assisted in the burial of CARDINAL women found in the courtyard of a house in FAC with gunshot wounds . He identified them as PERSON and PERSON ( ORG ) T.

In DATE the investigation forwarded requests for information about the family of PERSON to the town of ORG where her family had lived .

The investigation questioned a number of local residents of the LOC district in an attempt to find witnesses to the attack on the applicant . Other local residents did not have any additional information , because they had spent DATE away from ORG .

On DATE the LOC civil registry office issued a death certificate for Satsita Akhmadovna D. The date and place of death were recorded DATE , LOC of PERSON . Death had occurred as a result of a gunshot wound to the head , according to death certificate no . CARDINAL issued on CARDINAL DATE by [ ORG no . CARDINAL .

NORP The investigation requested the corresponding information from the hospital , which in DATE replied that the medical document had been issued on the basis of a report by an officer of the PERSON dated DATE .

The investigation also tried unsuccessfully to find out whether the death of PERSON had been recorded by the medical authorities or by the civil registry bodies in ORG or Achkhoy - Martan .

On DATE and DATE the military investigators examined the courtyard of the house at ORG . During the first examination in the courtyard they collected CARDINAL cartridges from QUANTITY automatic rifles and CARDINAL cartridges from MONEY automatic rifles . During the second examination they collected CARDINAL QUANTITY calibre bullet . Some photographs and a drawing of the site were annexed to the reports .

On DATE the ballistics expert report concluded that the bullet had come from a standard round of ammunition used for PERSON automatic rifles with a calibre of QUANTITY , and that no other information could be obtained owing to the deformation of the bullet .

On DATE the investigator forwarded the collected cartridges for a ballistics report . However , it appears that on DATE the military prosecutor of the LOC military circuit ordered that the compilation of an expert report would serve no purpose and its conclusions would have no evidential value , given the length of time ( over DATE ) that had elapsed between the murders and the collection of the cartridges .

A further examination of the site was carried out in DATE when the investigators , together with PERSON , PERSON sister , travelled around LOC . PERSON showed her route on DATE and indicated the cellar of the house in FAC where she had first seen the wounded applicant , CARDINAL military roadblocks ( still functioning at that time ) , the former hostel of a radio manufacturing plant in which a detachment of ORG troops from GPE had been stationed at the relevant time and , finally , the house at ORG where she had found the bodies of her sister and PERSON

In DATE and DATE the investigators from ORG again examined the house and courtyard at ORG , but found nothing of interest .

The investigation sent CARDINAL of requests and collected various pieces of information relating to the participation of military units of ORG and ORG in operations in LOC of ORG in DATE .

NORP In DATE the military prosecutor requested the chief of staff of ORG ( UGA ) ( начальник штаба ORG ) , the chief of staff of ORG in LOC ( начальник штаба группировки ORG МВД РФ на территории GPE региона ) and the chief of staff of the LOC military circuit to submit copies of the combat situation maps and situation reports for PERSON and , in particular , LOC for CARDINAL and DATE .

In DATE the military prosecutor again requested the chief of staff of the ORG , the chief of staff of ORG in LOC and the head of the mobile detachment of ORG in PERSON ( мобильный отряд ORG РФ г. PERSON ) to identify the exact location of their respective units at the relevant time , to identify the commanding officers and to retrieve combat situation maps , situation reports and mission orders and submit information relating to the vehicles used , including APCs , and the types and numbers of weapons .

On DATE ORG of ORG notified the investigation that they had no information relevant to the case . It appears that in DATE the headquarters of the ORG replied to the military prosecutor that no copies of the documents in question existed . On DATE the headquarters of ORG in LOC replied that all the relevant information had been transferred to the central archives of ORG . On DATE the chief of staff of the ORG replied that all information related to the counter - terrorist operation in LOC prior to CARDINAL DATE had been forwarded to the archives of the LOC military circuit . In DATE the archives of the LOC military circuit and the central archives of ORG stated that they did not have the documents requested .

In DATE the headquarters of ORG informed the investigation that on DATE no detachments of ORG had been based or been operating in LOC or the GPE settlement .

DATE . In DATE the investigation requested similar information from the commander - in chief of ORG and the archives of the LOC military circuit . The archives again stated that they did not have the documents in question .

In DATE the investigation again requested the ORG to disclose information about the engagement of military units in LOC on the relevant dates and to indicate which military unit had been based in the area of the former metal storage facility in the GPE settlement . The letter referred to the previous correspondence with the archives of the LOC military circuit which denied receiving any such information from the ORG . Another request to identify the temporary and permanent positions of the military units in question was sent to the staff of the ORG in DATE .

In DATE the investigation again requested the chief of staff of the LOC military circuit to submit details about the deployment and positioning on DATE in the LOC district of CARDINAL military units , the numbers of which had been previously communicated to the investigation . In DATE the staff responded that they had no information about the operations in question and submitted the addresses of the relevant military units .

NORP In DATE the investigation requested access to the relevant documents at the headquarters of the ORG . The reply stated that the documents in question had either been transferred to the archives of the LOC military circuit or been destroyed .

In the meantime , in DATE , having obtained a list of all the military units involved in operations in ORG DATE , the investigators requested the chief of staff of ORG in LOC and the chief of staff of the ORG to submit detailed information about the participation of these military units in operations in LOC . The investigation received replies from the relevant authorities containing some of the requested information . On the basis of these , the investigators sent CARDINAL of requests to the current locations of the military units and to the military prosecutors in those regions . The investigation also forwarded a number of requests to the relevant civilian prosecutors and the regional departments of the interior whose detachments had been deployed in ORG in DATE .

It appears that all the military and interior servicemen questioned about their participation in the operations in ORG denied that their detachments had taken part in operations in or near FAC and FAC . In particular , the commander of the PERSON from GPE wrote to the investigators and stated that their servicemen had not been on mission in GPE DATE . Other military units replied that they had no information relevant to the investigation of the criminal case .

In DATE and DATE the military prosecutor in ORG , PERSON region , reviewed the operation reports , orders and log book of the FAC motor rifle brigade ( CARDINAL омсбр ) for the period DATE and concluded that they contained no information relevant to the investigation of the criminal case . CARDINAL officers of that military unit stated that their unit had been engaged in LOC in DATE , but that by DATE they had advanced to the centre of the city . They stated that their unit had no APCs and that their servicemen had not been involved in patrolling the territory either on their own or in cooperation with other military units . They denied having any information about the attack on the applicant or any other attacks on civilians .

ORG also attempted to identify the relevant military units while investigating the murders of civilians . In DATE the staff of the LOC military circuit forwarded to ORG information about the military operations in the district in DATE , which stated that the NORP motor rifle brigade had been involved in operations in LOC from DATE to CARDINAL DATE . On DATE the brigade had been stationed in FAC .

DATE . In DATE ORG Office requested the military prosecutor of the ORG to provide it with the information concerning the relevant military units and to question ORG servicemen .

The investigation questioned several servicemen from LOC , who stated that their office had been set up on DATE . The servicemen from the office of the district military commander stated that their office had been set up on DATE . Neither office had any information relating to the events preceding these dates , and both were staffed by servicemen from different regions on short - term missions to GPE . They had no information relating to the crime , but stated that in DATE a group of the special police forces ( PERSON ) from the NORP region and a group of servicemen from ORG of the ORG had been deployed in the district .

In DATE and again in DATE , the investigation requested PERSON to submit information about the location and manning of roadblocks in the district on DATE .

In DATE and DATE the servicemen of the PERSON informed the investigation that a criminal case into the murder of CARDINAL women and the wounding of the applicant had been opened by ORG in DATE . They also stated that the applicant and her relatives did not live in the district and could not be found , and that they had not identified any witnesses to the crime .

NORP In DATE the head of the LOC department of the interior ( ROVD ) informed the military prosecutor that the killings in question had been committed by a group of servicemen stationed at the relevant time in FAC . He gave the family name of PERSON , and stated that her body had been buried by her relatives in ORG in DATE . He also stated , in DATE , that no witnesses to the crimes could be identified in view of the time that had elapsed , and that the applicant did not live at her permanent address .

The military investigation then requested information about the case from ORG ; however , it appears that no reply was received .

In DATE the head and deputy head of LOC testified about the events of DATE . Both stated that they had arrived in the district around DATE with the troops , that they were aware of the applicant 's case and that it was CARDINAL of many instances of servicemen killing civilians in the district . The head of LOC stated that he was aware of CARDINAL similar cases in the district , all committed in the same style – people shot with automatic rifles in courtyards and garages . Both servicemen also spoke of widespread looting committed by servicemen who had been conducting house - to - house searches . The witnesses testified that , according to their information , the crimes against civilians had been committed by servicemen of ORG , most probably by a consolidated team of special police forces ( ORG ) of the NORP region , which had included servicemen from the LOC region and GPE . The witnesses described them as well - built men aged CARDINAL , dressed in various types of camouflage and clearly distinguishable from the military units , which were usually staffed by younger conscripts . They stated that various detachments of ORG had been stationed in the district and had refused to cooperate with the newly established ORG , in contrast to the military units who had maintained stricter discipline and better control of their troops .

The investigation questioned a number of local residents of the LOC district in an attempt to find witnesses to the attack on the applicant .

In DATE the investigation questioned PERSON ( born in DATE ) , who stated that in DATE she had remained in PERSON . She had moved in to the ORG ' house in LOC , where QUANTITY people were staying in the cellar , and remained there until DATE . They had then moved to another house at CARDINAL FAC , because the shelling had become too intense and the first house had been damaged . CARDINAL people , mostly elderly , had stayed in the big cellar at CARDINAL FAC . The NORP fighters had left their district DATE . The witness testified that the federal soldiers had regularly visited their cellar and forced the inhabitants to help them retrieve the wounded and dead . On CARDINAL or DATE the CARDINAL youngest men from the cellar ( aged below CARDINAL ) had been taken away by soldiers and later found dead . The witness described the soldiers as wearing blue - grey camouflage uniforms . She also testified that on DATE , along with the CARDINAL ORG sisters , she had visited the ORG 's house , where CARDINAL persons had been staying : PERSON , his wife PERSON , his brother PERSON and an elderly woman , “ NORP ” . They had found the bodies of Mr PERSON and PERSON in the house with gunshot wounds ; the cellar was closed up and burning . A neighbour told them to leave because the killers could return , and later told them that he had buried the CARDINAL bodies in the courtyard . On DATE , DATE , the witness had left for ORG .

In DATE , on the basis of this information , the military investigators requested the ORG to provide them with information about the murder of CARDINAL members of the ORG family and the woman named PERSON . It appears that no reply was received .

Within the framework of criminal case no . DATE concerning the murders in LOC , ORG questioned PERSON , the author of the article “ Freedom or Death ” . She testified that in DATE she had been in ORG and in LOC of PERSON , where she had interviewed several witnesses to the killings and relatives of the deceased . She had also interviewed the applicant in the hospital in GPE , and the article contained a piece about the attack on her . PERSON stated that in their interviews several witnesses had referred to the “ FAC brigade ” as being responsible for the murders .

On DATE an expert report was drawn up on the basis of the applicant 's medical file from the hospital . It stated that the applicant suffered from gunshot wounds to the left shoulder and neck that could have been sustained in the circumstances described .

In DATE the ORG also ordered a medical examination of the applicant while investigating criminal case no . MONEY ( mass murders in the PERSON settlement ) and sought the relevant medical documents from ORG . Similar requests were again sent in DATE .

NORP In DATE the ORG district hospital confirmed to the military prosecutors that the applicant had remained there from DATE to CARDINAL DATE with gunshot wounds .

Several decisions were issued by the investigation granting the applicant victim status in the proceedings . None of them was countersigned by the applicant .

DATE the case was adjourned and reopened on QUANTITY occasions . In their decisions the supervising military and civilian prosecutors criticised the investigation as being “ carried out at a low professional level ” , “ superficial and incomplete ” and “ failing to take the necessary steps to identify the culprits ” .

NORP The case file reviewed by the ORG concludes with the order issued by LOC on DATE for the investigation to be reopened and a number of tasks to be performed , including questioning the applicant and granting her victim status , identifying the culprits , carrying out the exhumation of the bodies and preparing forensic expert reports .

In DATE the applicant submitted a number of documents relating to the events of DATE . The main documents of relevance are as follows :

The applicant 's story was related in a number of NORP and international publications submitted by the applicant . She was also cited in ORG and PERSON reports of DATE concerning the murders of civilians in LOC .

On DATE ORG issued a memorandum on the state of the national investigation into human rights and international humanitarian law violations in GPE . The report stated that the investigation into the mass murder of civilians in PERSON , including the applicant 's case , was not being conducted effectively and had produced no results . The report deplored the situation of impunity and called upon the authorities to carry out a proper investigation into the attacks on civilians .

In a letter dated CARDINAL DATE the deputy Prosecutor General PERSON PERSON replied to a request for information sent by PERSON , a member of ORG . The letter contained information relating to the prosecution of army servicemen in GPE for crimes committed against civilians . According to that letter , since the beginning of the “ counter - terrorist operation ” , CARDINAL indictments had been forwarded to the courts by the military prosecutors and CARDINAL persons had been indicted . Of those , CARDINAL cases related to murder , CARDINAL to theft , CARDINAL to abuse of power and CARDINAL to reckless driving of military vehicles . CARDINAL persons had been found guilty , of whom CARDINAL were officers , CARDINAL were professional soldiers and sergeants , CARDINAL were conscript soldiers and CARDINAL were non - commissioned officers . In addition , ORG brought CARDINAL charges against CARDINAL servicemen of ORG for crimes against the civilian population . The list of cases attached to the letter showed that in the majority of cases the sentences were conditional or had been lifted under an amnesty .

The applicant submitted an extract from the book “ My War ” by General PERSON , who at the relevant time had been the Commander of ORG of the UGA in GPE ( командующий восточным направлением Объединенной группировки ORG федеральных войск в ORG ) . The book stated that by DATE all major parts of the LOC district of PERSON were under the control of NORP forces .


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by Ms Á. Gyuris , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , Agent , ORG and Law Enforcement .

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

In DATE criminal proceedings were instituted against the applicant . On DATE he and CARDINAL accomplices were indicted for fraud and other offences . A first judgment of ORG was reversed by PERSON on DATE , whose decision was in turn quashed by ORG on DATE .

In the repeated proceedings , on DATE ORG convicted the applicant of CARDINAL counts of fraud and other offences , and sentenced him to DATE imprisonment . The court appreciated as an important mitigating factor the excessive protraction of the proceedings and stressed that this was the reason for imposing a relatively light sentence . The court went on to hold that , again because of the excessive duration of the proceedings , it was appropriate further to mitigate the punishment by suspending its execution . Once more denoting the length of the trial as its reason , it decided to limit the probationary DATE . This judgment was upheld by ORG on DATE .


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

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

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

Upon the applicant ’s entry into GPE ( GPE ) on DATE , the customs authorities found her to be in possession of QUANTITY of heroin , wrapped in CARDINAL parcels in her suitcase .

She was interrogated from TIME until TIME by a customs officer ( AS ) . According to the report , the interview was held in NORP and the applicant did not wish a lawyer to be present . No interpreter was present . The applicant explained that the parcels had been given to her by a named female friend ( ORG ) at FAC to be delivered to ORG ’s brother , who lived in GPE , and whom the applicant had met several times in GPE . The brother was supposed to pick her up in his car and take her to GPE . The applicant was to stay in his apartment over DATE . The purpose of her stay in GPE was tourism . The packages contained a product to wash money . She did not know that the parcels contained drugs .

Subsequently , at TIME the applicant was arrested .

The applicant was interrogated again in the customs office from TIME until TIME by a customs officer ( ORG ) . The interview was held in NORP with the assistance of an authorised interpreter on the telephone . The applicant added various details , for example that she did not have the address of the said brother , but had his telephone number on her telephone . The applicant also made changes to her previous statement , notably that she could not get a place on the plane from GPE to GPE , so she had to go to GPE . From there she intended to go to GPE by train and the said brother was supposed to pick her up at the railway station in GPE . She was supposed to stay in a hotel in GPE . The brother was supposed to show her the town . The applicant also stated that ORG had told her that the parcels contained a product to be used to wash discoloured notes . The record stated that it was read out to the applicant and approved by her .

DATE , from TIME to TIME a third interview was held with the applicant and ORG , during which a lawyer and a LANGUAGE - speaking interpreter were present . During that interview PERSON reminded the applicant about the statement provided during the second interview , including her statement that she thought that the content of the packages was a product to be used to wash discoloured notes . The applicant added that she had heard ORG , who was actually a man , speak to CARDINAL other men at the applicant ’s workplace about a product to be used to wash discoloured notes and for this reason she believed that the packages contained such a product . The applicant intended to visit her cousin in GPE , but the cousin did not know about her visit . At the restaurant where the applicant worked , ORG had heard her mention her forthcoming trip and DATE before her trip , she bought the ticket , and by chance ORG called her the same day and asked her to take the parcels to the named person in GPE . PERSON came to the airport in GPE on DATE and gave her the parcels . She had not asked what they contained because she trusted ORG . According to the record , the statement was read out to the applicant who approved it .

Criminal proceedings were initiated against the applicant before ORG ) and the applicant was heard with the assistance of an interpreter during various pre - trial hearings about whether she should remain in detention on remand . During the trial hearing on DATE , with the assistance of an interpreter , the applicant stated , inter alia , that she had been going to visit her cousin in GPE . She had mentioned her forthcoming trip to ORG who was a respectable and regular customer at the restaurant where she worked . It was he who had asked her to take the parcel to the named person in GPE . The latter , whom the applicant had seen a few times at the restaurant , was supposed to call her when she arrived in GPE . She had had no idea that the parcel contained drugs . When the customs officers had told her this , she could not believe it and proposed that it could be anything , for example “ a product to wash money ” . She had been misunderstood during the first interview because no interpreter had been present , and during the second interview , the interpreter had “ not been good either ” .

A customs officer , ORG , was heard as a witness . She described the applicant ’s reaction when passing through customs . She added that since the applicant could not speak LANGUAGE or NORP and the customs officers at the customs desk could not speak LANGUAGE , they had had to use sign language . Thereafter , ORG was summoned and interviewed the applicant .

By a judgment of CARDINAL DATE ORG found the applicant guilty of drug trafficking . It found it established that she was aware that the packages contained narcotics , but did not find it substantiated that the applicant had known what kind of narcotics the packages contained or that she had a precise idea of the quantity . The applicant was therefore sentenced to DATE and CARDINAL months’ imprisonment . In addition she was expelled from GPE for DATE .

Both the applicant and the prosecution appealed against the judgment to ORG NORP ) , before which both the applicant and the witnesses , ORG and AS , were heard . AS was of the view that she and the applicant had communicated well during the first interview held on DATE and that there had been no need for an official interpreter . She had spoken clearly and slowly and asked the applicant several questions in order to make sure that they had understood each other . AS considered herself sufficiently skilled to conduct the interview in NORP , which she had learned at school . Moreover , she had lived in a LANGUAGE - speaking home for DATE because her former husband was NORP and spoke LANGUAGE to their children . AS maintained that , during the first interview , the applicant had said that the packages contained a product to wash money . At the same time the applicant had rubbed her hands as if washing them with soap . The applicant insisted that she had never said anything about washing money and that AS must have misunderstood her in that respect . What she had intended to say was that she needed to go to the toilet . The applicant also alleged that the parcels had been on top of her clothes in her suitcase . ORG maintained that they had been found among the applicant ’s clothes .

NORP By judgment of DATE ORG convicted the applicant of drug trafficking with heroin and sentenced her to DATE imprisonment . Moreover , the ban on her entry into GPE was set to expire on DATE . In its reasoning , the following was stated :

“ ORG initially notes that the packages were not so large or heavy that they could not easily have been sent via normal post . Compared to normal postal services , the manner in which the packages were sent entailed a great deal more work and expense . [ ORG ] had to travel to PERSON airport to hand over the packages to [ the applicant ] [ who in turn ] - in a country with which she is not familiar – had to contact a person whom she had indeed seen on CARDINAL occasions as a guest at the restaurant , but for whom she had no address and whom she could only contact by calling the number she had been given . Any reasonable person would have wondered about the reason for such an odd procedure .

[ The applicant ] has stated that she did not know what the bag with the packages contained . The question , then , is how far we can trust her statements . The investigation has revealed that the packages were discovered packed separately in amongst the clothes that were in the luggage . Therefore , [ the applicant ’s ] statement that she had placed the plastic bag with its contents at the top of the bag is incorrect . In view of the fact that the packages were not found packed together in a plastic bag when the inspection was carried out , she must - as ORG found - also have held the packages themselves in her hands .

Moreover , the interview conducted by [ AS ] revealed that [ the applicant ] , when questioned following the customs check , claimed that the packages contained a substance used for washing money . This makes her story contradictory , as she herself claimed not to know anything about the contents . The fact is that there is no reason to assume that [ AS ] , who says that she asked several control questions , could have misunderstood what [ the applicant ] said .

[ The applicant ] has said that she received a telephone number for [ the contact person in GPE ] at PERSON airport . The investigation of her mobile telephone revealed , however , that she had already received a call lasting just over TIME from the same telephone number in DATE . [ The applicant ] has confirmed that she received this call , as the investigation has shown , but claims that no conversation whatsoever took place . The circumstances suggest that [ the applicant ] has had more extensive contact with [ the contact person in GPE ] than she is willing to admit . [ The applicant ] , who says that she is not acquainted with GPE and that she was going to visit a relative in GPE at an address she did not know , has been extremely vague about why she travelled specifically to GPE .

In the light of the information given above , [ the applicant ’s ] statements can not be trusted .

Instead , the circumstances surrounding the import of these packages are such that [ the applicant ] must have realised that there was a very high risk that she was involved in drug smuggling . ORG refers here , above all , to the remarkable way in which the CARDINAL smallish packages were imported into GPE , and to the fact that both [ ORG ] and [ the contact person in GPE ] were people of whom [ the applicant ] had little knowledge . Despite this , she failed to ask what the packages contained and took them with her to GPE hidden in her luggage . No information has emerged that suggests that she would have refused to take the packages if she had known that they contained drugs , or if she had known that they contained as dangerous a drug as heroin . In this case , it must be assumed that she was indifferent to whether the packages contained heroin , and she is therefore to be regarded as having had the intention of carrying out the act of which she is accused . This is to be judged as drug smuggling , an aggravated offence . ”

Leave to appeal was refused by ORG ( ORG domstolen ) on DATE .

Section CARDINAL of the Act on Penalties for Smuggling ( lagen om straff for smuggling , SFS CARDINAL:CARDINAL ; hereinafter “ the DATE Act ” ) provides that a person who imports goods which are subject to a specific prohibition or condition for import , and who intentionally contravenes the prohibition or condition by failing to report the goods for customs clearance , shall be sentenced for smuggling to a fine or imprisonment for a period not exceeding DATE . Where such smuggling relates to drugs , a sentence of imprisonment for a period not exceeding DATE shall be imposed ( section CARDINAL , paragraph CARDINAL ) . In the case of the offence being judged as aggravated , a sentence of imprisonment should be imposed for a period of DATE and not exceeding DATE ( section CARDINAL , paragraph CARDINAL ) . Particular consideration shall be given to whether the act related to a particularly large quantity of narcotics , whether the act formed part of a step in an activity that was conducted on a large scale or professionally , or whether the activity or act was otherwise of a particularly dangerous or unscrupulous nature ( ibid ) .

LAW , section CARDINAL of LAW ( rättegångsbalken , ORG ; hereinafter “ the DATE Code ” ) set out that with some exceptions , NORP is the language to be used in NORP courts . There is no express prohibition on the use of a foreign language during part or the whole of a main hearing . However , to hold a hearing in a language other than NORP would be contrary to the rule that court hearings shall be open to the public ( see LAW , section CARDINAL ) .

LAW , section CARDINAL of the DATE Code contains rules on the use of interpreters in court , which are considered to apply by analogy to preliminary crime investigations in general . The provision states , inter alia , the following . If a party , a witness , or any other person who shall be heard by the court is incapable of understanding and speaking NORP , an interpreter may be engaged to assist the court . If a public interpreter for the language in question serves at the court , he shall be assigned . Otherwise , the court shall assign a suitable person to assist as interpreter in the case .

NORP In crime - fighting activities by analogy the NORP ORG apply section CARDINAL of LAW ( förvaltninglagen ; SFS CARDINAL ; hereinafter “ the DATE LAW ) , which states that when an authority is dealing with someone who does not have a command of the LANGUAGE language , or who has a severe hearing impairment or speech impediment , the authority should use an interpreter when needed . During their basic training , all customs officers are informed about section CARDINAL of the CARDINAL Act and how it applies to the activities of ORG . In practice , the assessment of the need for assistance by an interpreter is made on a case - by - case basis having regard to relevant circumstances such as the nature of the case , its level of importance to the individual and the customs officer ’s knowledge of the foreign language at issue .

Immediately after a seizure ( beslag ) has been made , a short initial hearing is often held by CARDINAL of the customs officers in connection with the customs control at the border . If a non - NORP speaker is involved , the customs officers present at the time decide among themselves whether any of them has sufficient skills in the relevant language to conduct the hearing . The purpose of this initial hearing is primarily to inform the person in question about the suspicions against him or her and his or her right to be represented by defence counsel . After the initial hearing , the case is normally taken over by a customs investigator . It is only in rare cases that such an investigator holds a hearing that involves the use of a foreign language without the assistance of an authorised interpreter . Authorised interpreters are engaged , directly or indirectly , via established and approved interpreting agencies .


The applicant , a NORP citizen , was born in DATE . He resides in GPE .

The facts of the case submitted by the applicant may be summarised as follows :

DATE the applicant served as an officer in the secret police , ORG ( LOC ) of ORG .

On DATE all agents of the former ORG ( funkcjonariusze PERSON ) were dismissed from their service by virtue of the Act on State Security Bureau of DATE and new selection procedures were established . ORG ( uchwała PERSON ) of CARDINAL DATE provided for special selection procedure for the former agents and created both first and second - instance screening boards for this purpose .

In DATE the first - instance screening board in ORG in its opinion about the applicant considered that he did not meet the relevant requirements , including moral standards , and would not be readmitted to the service in ORG . Consequently , on DATE the applicant was dismissed . He lodged an appeal with ORG , to no avail , as on DATE this body upheld the opinion of the first - instance board .

Subsequently , the applicant lodged CARDINAL appeals with ORG against the opinion of the examining board . He submitted that the contested opinion was unjustified and the selection procedure was made without taking his professional skills into consideration . The applicant maintained that the fact that he was religiously indifferent had in fact been the main reason for which he obtained a negative opinion as to his further ability to serve in ORG . He further complained that the decisions of the boards did not contain any grounds .

On DATE ORG rejected the applicant 's complaints . The court did not recognise the opinion of the screening board as the administrative decision against which an appeal to that court would lay and , consequently , found the complaints inadmissible .

In reply to the applicant ’s complaints , on DATE ORG informed him that the screening boards created under LAW had ceased to work in DATE as the process of qualification and re - admission had been completed . Moreover , according to the Resolution of DATE , which did not provide for any possibility to re - open the screening proceedings , the opinions given by them were definitive and not subject to any procedure in which they could be challenged .

By decisions of CARDINAL DATE and DATE ORG rejected the applicant ’s further requests to have his service status regularised . The court observed that the applicant had been dismissed from service automatically , i.e. ex lege , under the provisions of LAW . There was no legal basis under which he could claim that a decision be given to re - admit him to the service . Therefore his requests were inadmissible .

In a letter of DATE ORG , in reply to the applicant ’s renewed request to be readmitted to the service , informed him that the DATE ORG remained in force and that the opinions given pursuant its provisions were valid . Accordingly , the Minister could not re - admit to the service any persons who in DATE had obtained negative opinions as to their ability to be readmitted to the service .

On DATE the applicant submitted a complaint to ORG , requesting that it be examined by that court . He stated that he had been dismissed from ORG by the DATE decision , given in proceedings which did not meet the requirements of a fair hearing in that they were not adversarial . He contested the outcome of the proceedings in which he was dismissed , invoked LAW and requested that the court appraise the lawfulness of the decisions given by the first- and second - instance screening boards in DATE .

By a letter of DATE the President of ORG informed the applicant that his complaint can not be examined as he had failed to indicate in what kind of judicial proceedings it could be examined and against whom it was directed . Moreover , the legal provisions invoked by the applicant did not provide for jurisdiction of a civil court in respect of any decisions taken by the screening boards in DATE .


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

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

The applicant worked as a sales manager in a ORG shop . Following its privatisation on DATE , she was obliged to take unpaid leave . By an order of DATE , the administration of the shop ( “ the employer ” ) dismissed the applicant in view of the suppression of her post .

The applicant brought an action against the employer , requesting reinstatement in her post and recovery of the salary for the period of compulsory leave and unlawful dismissal . After a series of remittals of the case between various judicial instances , ORG ( “ the ORG ” ) partly allowed her action on DATE . Acknowledging that the applicant had been dismissed without prior notice , in breach of Article ORG ) of LAW , the court annulled the order of DATE and awarded her the amount corresponding to the loss of salary . As to the reinstatement claim , it was dismissed due to the extinction of the post in question .

The judgment of DATE was not appealed and became binding . On DATE the respondent discharged the judgment debt in full .

On DATE the applicant brought an action for non - pecuniary damage against the employer , claiming to have suffered distress and frustration on account of her unlawful dismissal . She demanded CARDINAL NORP laris ( ORG CARDINAL ) and , relying on her work record as a proof of unemployment , requested under LAW ( “ the ORG ” ) exemption from the ORG fee due for proceeding with that claim .

In a decision of DATE , the ORG in GPE ( “ the ORG ” ) refused the exemption sought , and ordered the applicant to pay the required fee by a fixed date , on pain of leaving her claim without consideration .

In reply , the applicant requested , on DATE , that the payment of the ORG fee be deferred until after examination of the case in accordance with LAW ORG . ORG granted that request on DATE .

On DATE , ORG , in view of the respondent party’

On DATE the applicant appealed to ORG , complaining that the lower court had applied the wrong law to her dispute . She did not however refer to another legal provision arguably providing for the right to claim non - pecuniary damage in her situation . Considering that the appellate proceedings concerned legal issues rather than factual matters , the applicant paid a ORG fee of GEL CARDINAL ( EUR CARDINAL ) .

In a decision of DATE , ORG ordered the applicant to pay , in an allotted period , the outstanding part of the fee , GEL CARDINAL ( ORG CARDINAL,CARDINAL ) , on pain of leaving her appeal without consideration .

On DATE the applicant , re - submitting her work record as evidence , reiterated that she had been unemployed for DATE , did not have any other source of revenue and requested an exemption under LAW ORG .

On DATE ORG decided to leave the applicant ’s appeal without examination for non - compliance with its decision of DATE . The court considered that the exemption under LAW ORG could not be applied , since the applicant had failed to substantiate her allegedly difficult financial situation .

On DATE the applicant lodged with ORG an interlocutory appeal against the decision of DATE . She complained that no other official document , except for her work record , could have been submitted in support of her indigence .

On DATE ORG ordered the applicant to pay a ORG fee of GEL MONEY ( EUR CARDINAL ) for the interlocutory proceedings . In reply , the applicant filed , on DATE , another request for exemption , attaching a certificate of unemployment issued by a municipal agency .

In a decision of CARDINAL DATE , ORG dismissed the applicant ’s request of DATE , reasoning that the unemployment certificate was insufficient to prove financial difficulties . The court allotted the applicant additional time to pay the fee for the interlocutory proceedings .

In a decision of DATE , ORG rejected the applicant ’s interlocutory appeal for non - compliance with its previous fee payment orders , and transmitted the case to ORG for a final decision .

On DATE ORG upheld the decision of DATE . It stated that , since the lower court had not deemed it necessary to exempt the applicant from the ORG fee , and the latter had failed to abide by the payment orders , the interlocutory appeal could not be entertained . The proceedings were thus discontinued .

A reasoned copy of ORG decision of DATE was communicated to the applicant on DATE .

As disclosed by the case file , the ORG fee imposed by the judgment of DATE has not been paid by the applicant to date .

The provisions concerning the payment of court fees due for proceeding with civil claims , which include the ORG fee , were cited in paragraph CARDINAL of the ORG ’s judgment in the case of ORG v. GPE ( no . CARDINAL , CARDINAL DATE ) .

The LAW of DATE on State Fees , as it stood at the material time

The LAW regulated the modalities of payment of ORG fees in various situations , including that of court proceedings relating to a civil claim .

Pursuant to section CARDINAL § CARDINAL , the paid ORG fee should be returned to the payer in full or in part , in the event that the relevant court proceedings were discontinued or the claim left without consideration .

Article CARDINAL § CARDINAL

“ Non - pecuniary damage , which amount should be reasonable and equitable , can be claimed exclusively in the situations explicitly envisaged by law . ”

The Civil Code did not provide for the right to claim non - pecuniary damage in employment disputes .

The Labour Code was the sole legislation regulating the rights and responsibilities of private employers and employees . It contained a mechanism for settling employment disputes in court .

Chapter XV of the Labour Code ( Articles CARDINAL - CARDINAL ) specified the different types of pecuniary damage that , subject to certain conditions , a claimant could request in court , together with the claim for reinstatement to a post – i.e. the right to be compensated for a salary loss caused by unlawful dismissal or downgrading . However , neither that Chapter nor any other provision of the Labour Code provided , at least on arguable grounds , for a situation of a dismissed or otherwise dissatisfied person claiming non - pecuniary damage .


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano

The applicant , PERSON , is an NORP national who was born in DATE and lives in PERSON . She is a journalist working for the newspaper DV . In DATE , a Mr A contacted the applicant about a story which he asked to be published by DV . According to Mr A ’s account Mr B , a person known for being violent and whose acts of violence had recently been commented on in the press , had attacked him at his strip club , called Strawberries . He had allegedly done so on the order of the owner of a rival strip club . The applicant responded that she would look into the story and would contact Mr B in order to hear his account and also the owner of the rival strip club . Being dissatisfied with the applicant ’s reply , Mr A insisted that his version of events be published . The applicant refused to do so and decided to carry out research in relation to Mr A ’s account . She interviewed him and recorded the interview on tape .

On DATE DV published a news report by the applicant entitled “ Strip Kings Battle ” , on the subject of Mr A ’s accusations against Mr B with regard to the alleged assault at the NORP strip club . The article referred to interviews with PERSON A , PERSON and Mr Y.

Mr A was reported to have stated that on TIME DATE , Mr B had been among the patrons of LAW accompanied by CARDINAL other men . He left the club in the course of the night , but returned just before closing time , when he allegedly attacked the employees of the restaurant . Following this Mr A had tried to show him out . Suddenly Mr B attacked Mr A and struck him with his fist , as a result of which he sustained a cracked skull and severe injuries to his eye . Mr A reported the incident to the police .

Mr B. , whose interview with the applicant was published in the same news coverage , was reported to have denied all the accusations made by Mr A. According to Mr B , he and his CARDINAL friends had been out partying and had decided to visit the NORP club . They had only been there for a short while when PERSON A insisted that they leave . As they refused , the doormen forcibly removed PERSON In the commotion both he and PERSON A had been injured .

Mr A instituted defamation proceedings against the applicant before ORG , arguing that the following statement made by Mr B amounted to unlawful defamation in breach of LAW , CARDINAL and/or CARDINAL of LAW and requested that it be declared null and void ( dauð og ómerk ) under LAW :

“ He [ the plaintiff ] has been spreading all around town the rumour that no one with an attitude would come to Strawberries , because he has the NORP mafia in there , and that I was just taken and beaten up in there . I do n’t really get this . He really needs to make up his mind whether he thinks I was beaten up or he was . ”

He also submitted that the following sub - heading amounted to unlawful defamation and should be declared null and void :

“ Rumour about the mafia ”

Mr A in addition sought CARDINAL NORP krónur ( ORG ) ( corresponding MONEY ( ORG ) at the time ) plus interest in compensation for damages , an order under LAW ) to pay him ISK QUANTITY to cover the costs of publication in the press of the court ’s reasons and conclusion in the defamation case , plus legal costs .

NORP In her pleadings before ORG , the applicant prayed in aid the freedom of expression guaranteed under LAW and LAW as well as the ORG ’s caselaw . She further relied on LAW no . MONEY , according to which the author of a statement was responsible for the publication of its content . The article had indicated the identity of the author of the disputed statements and the transcripts of the interview had shown that they had been quoted from their named author , PERSON Accordingly the applicant could not be regarded as the author of the allegations . In so far as the sub - heading was concerned , she pointed out that this had only paraphrased PERSON remarks .

The applicant further disputed that item CARDINAL was defamatory . The first part of that remark had consisted of Mr B ’s account that the plaintiff had himself spread the rumour that no one came to the FAC club with an attitude , because the NORP mafia was present there . PERSON remark did not amount to an allegation that the NORP mafia was present at FAC , but that PERSON A wanted the rumour to be spread . In fact , it was clear from the interview that those interviewed by the applicant thought that no NORP went to the club but that this was a false rumour that the plaintiff wanted to have spread around town . When considering the remark in its true context , it was clear that in no way did it contain Mr B ’s claim that the plaintiff was involved in criminal conduct . Whatever could be said about mafia operations , the remark contained no allegation regarding the plaintiff ’s activities that could be singled out as mafia related , i.e. criminal conduct . The main point was whether the plaintiff had been accused of such conduct . This had clearly not been the case . Accordingly , there was no basis for considering that the remarks were covered by the provisions in LAW on protection of reputation . Moreover , the word “ mafia ” had no defined meaning in the NORP language .

As regards the second part of the remark , Mr B had stated that PERSON A was spreading the rumour that Mr B had been taken and beaten up inside Strawberries . As could be gathered from the interview and the remark itself , it was nowhere stated that the plaintiff had beaten up Mr B or anyone else . However , the interview and the above - mentioned remark stated that the plaintiff had mentioned in many places the story that Mr B had been beaten up inside the club . That statement was true , as Mr B had been in a fight inside the club and the plaintiff had taken the initiative to contact DV and had provided information regarding that incident .

Finally , the applicant stressed that the whole dispute had originated in Mr A ’s own initiative to have the story published . It would have been reasonable for him to expect that the journalist would seek to provide information about both versions of the events and that the person against whom he had levelled serious accusations would have a different version .

By a judgment of DATE ORG found for the plaintiff Mr A and against the applicant , giving the following reasons .

“ The defendant bases her claim for acquittal mainly on lack of involvement , as the remarks have been quoted word for word from their named author , [ Mr B ] .

The defendant admitted in court to have written the said article and stated that she believed she had been the author of the disputed sub - heading .

According to an audio recording of the [ applicant ’s ] interview with [ Mr B ] , the disputed statement made by [ Mr B ] went as follows : ‘ He has been spreading rumours all around town about it . That no - one really enters Strawberries with an attitude you see . ‘ Cause he has the NORP mafia and I was just taken and beaten up in there , you know.’ A slight change in wording has been made in the [ applicant ’s ] article , not affecting the contents and only involving removing the emphasising words you see and you know . The remark was published within MONEY in the paper .

Having regard to ORG judgment in case No . CARDINAL , the [ applicant ] is found to be the article ’s and sub - heading ’s author for the purposes of section CARDINAL(CARDINAL ) of LAW No . GPE , regardless of whether Mr B can also be found to be the author of the remarks quoted verbatim after him , and the [ applicant ] is responsible for remarks presented there , as well as sub - headings .

It is clear that the interview with the plaintiff , [ Mr A ] , whether he initiated it or not , had been taken with his consent and wishes , even though he was dissatisfied with the article when it was published in the paper , where also the opinions expressed by other persons in interviews conducted by the [ applicant ] had been published . In her interview with the plaintiff he had accused [ Mr B ] of various matters . It ought to have been clear to him that his remarks would be shown to the person concerned and that this person would be given an opportunity to state his version of events . The words that the article ’s author had quoted directly from [ Mr B ] , which had been the cause for the plaintiff ’s action , are intended to give the article ’s readers the impression that the plaintiff is in charge of an organised , international criminal organisation . The journalist has not demonstrated or sought to ascertain that the allegation , which rendered [ Mr B ] ’s words , is true . The allegation contained a defamatory innuendo , see Article CARDINAL of LAW , and should , in accordance with the plaintiff ’s claim , be declared null and void , as should the sub - heading ‘ Rumour about the mafia’ , which referred to the remark .

By virtue of the statements declared null and void the [ applicant ] has unlawfully injured the plaintiff ’s honour . She is therefore obliged to pay him damages in accordance with section CARDINAL ( CARDINAL ) of LAW No . CARDINAL . In the present case the amount of ORG CARDINAL [ approximately ORG CARDINAL,CARDINAL at the time ] is deemed a reasonable level of compensation . ...

With reference to LAW No . CARDINAL the plaintiff ’s request that the [ applicant ] be punished for the statements is rejected .

The plaintiff is found to be entitled to the reimbursement of expenses incurred for the publication of the motives and conclusions of the judgment , as he requested under LAW . The plaintiff has not presented any particulars in support of his claim as to the size of the amount requested nor supported it with any arguments . This item will therefore be determined on the basis of the court ’s own assessment and the amount of ORG CARDINAL is considered reasonable .

In light of the foregoing , the [ applicant ] is required to pay the plaintiff ’s legal costs , which it is considered reasonable to assess at ORG CARDINAL ( inclusive of GPE ) . ”

The applicant sought to appeal to ORG but on DATE the latter refused her leave to appeal . This was on the ground that the financial value of what was at stake in the appeal ( legal costs not being relevant ) did not reach the statutory minimum level for grant of leave to appeal and that there were no special circumstances warranting an exception being made to this requirement in the applicant ’s case .

Article CARDINAL of the LAW of GPE No . CARDINAL/CARDINAL read :

Article CARDINAL

“ Everyone has the right to freedom of opinion and belief .

Everyone shall be free to express his thoughts , but shall also be liable to answer for them in court . The law may never provide for censorship or other similar limitations to freedom of expression .

Freedom of expression may only be restricted by law in the interests of public order or the security of the ORG , for the protection of health or morals , or for the protection of the rights or reputation of others , if such restrictions are deemed necessary and in agreement with democratic traditions . ”

The Penal Code No . CARDINAL contained in Chapter XXV , entitled “ Defamation of character and violations of privacy’ , the following relevant provisions :

Article CARDINAL

“ Any person who harms the reputation of another person by an insult in words or in deed , and any person spreading such insults shall be subject to fines or to imprisonment of DATE . ”

Article CARDINAL

“ If a person alleges against another person anything that might be harmful to his or her honour or spreads such allegations , he shall be subject to fines or to imprisonment of DATE . ”

Article CARDINAL

“ The making or spreading of an injurious allegation against a person ’s better knowledge , this shall be subject to up to DATE imprisonment .

If an allegation is published or spread in a public manner , even where the person spreading the allegation did not have a probable reason to believe it to be correct , this shall be subject to fines or up to CARDINAL years’ imprisonment . ”

Article CARDINAL

“ In a defamation action , defamatory remarks may be declared null and void at the demand of the injured party .

A person who is found guilty of a defamatory allegation may be ordered to pay to the injured person , on the latter ’s demand , a reasonable amount to cover the cost of the publication of a judgment , its main contents or reasoning , as circumstances may warrant in CARDINAL or more public newspapers or publications . ”

Section CARDINAL(CARDINAL ) of LAW No . CARDINAL/CARDINAL provided :

“ A person who

a. deliberately or through gross negligence causes physical injury or

b. is responsible for an unlawful injury against the freedom , peace , honour or person of another party

may be ordered to pay non - pecuniary damages to the injured party . ”

The Printing Act No . GPE , LAW on the liability for the contents of publications , contained the following relevant provisions .

Section CARDINAL

“ Any person who publishes , distributes , or is involved in the publishing or distribution , of any publication other than a newspaper or periodical shall bear criminal liability and liability for damages pursuant to the general rules of law if the substance of the publication violates the law . ”

Section CARDINAL

“ As regards liability for newspapers or magazines other than those listed in section DATE , the following rules shall apply :

The author is subject to criminal liability and liability for damages if he or she is identified and either resident in GPE when the publication is published or within NORP jurisdiction at the time proceedings are initiated .

If no such author is identified , the publisher or editor are liable , thereafter the party selling or distributing the publication , and finally the party responsible for its printing or lettering . ”

The Code of Ethics of ORG included the following provisions :

Article CARDINAL

“ A journalist will endeavour to do nothing which will bring discredit upon his or her profession or professional association , paper or newsroom . A journalist shall avoid any actions which could undermine the public opinion of PERSON work or damage the interests of the profession . A journalist shall always exhibit fairness in dealings with colleagues . ”

Article CARDINAL

“ A journalist is aware of his or her personal responsibility for what he or she writes . He or she shall bear in mind that he or she will generally be regarded as a journalist in his or her writings and speech , even when he or she is acting outside his or her profession . A journalist will respect the confidentiality of his or her sources . ”

Article CARDINAL

“ A journalist will exercise care in his or her gathering of material , the use of the material and presentation to the extent possible , and show due consideration in sensitive matters . A journalist shall avoid any actions which could cause unnecessary distress or dishonour . ”


The applicants , NORP nationals , are born in DATE and DATE , respectively , and live in GPE . They are represented before the ORG by PERSON , LAW in GPE .

A.

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

The applicants own jointly the real property Hälleberget CARDINAL:CARDINAL on the island of ORG . The island is part of LOC in LOC and it belongs to the city of GPE in the vicinity of GPE . The first applicant acquired the property in DATE together with the second applicant ’s mother . The latter donated her part to the second applicant in DATE .

The real property consists of QUANTITY and its value is estimated at QUANTITY ( about the same in ORG ) . In DATE , a QUANTITY house with a surface of QUANTITY was erected . It has been used exclusively as a summer cottage and has been registered as such . On the land there are also accessory buildings with a surface totalling CARDINAL mCARDINAL .

At DATE , ORG of PERSON decided to start drawing up a master plan ( yleiskaava , generalplan ) for the area . On DATE , following the city ’s proposal , ORG prohibited construction in the area by virtue of LAW . This building prohibition was prolonged repeatedly by DATE temporary orders . It remained in force until DATE .

In DATE and DATE the inspection authorities of the city of GPE certified that the property in question had been equipped with the required water and waste management systems , if necessary also for permanent habitation . On DATE , the applicant ’s cottage was inspected by the relevant authorities but was found not to meet the requirements of a dwelling for DATE - round use due to insufficient insulation

There are apparently CARDINAL dwellings for DATE - round use on ORG , these having been constructed in DATE , DATE and DATE .

On DATE , ORG of Espoo decided to start drawing up a more detailed town plan ( asemakaava , stadsplan ) for the area . As a result the area was placed under a building prohibition in accordance with section CARDINAL , subsection CARDINAL ) , of LAW ( rakennuslaki , byggnadslag , CARDINAL/CARDINAL ) . By virtue of the same provision the building prohibition has been prolonged DATE .

In addition to the building prohibition under section DATE , subsection CARDINAL ) , of LAW , a building prohibition under LAW , subsection CARDINAL , of LAW is also in force ( prohibition on urban development ) . Exemptions may be granted from both prohibitions .

On DATE , ORG of Espoo adopted a partial master plan ( osayleiskaava , delgeneralplan ) for , inter alia , the PERSON area . On DATE , ORG refused to confirm the plan , inter alia , in so far as it concerned the island of ORG and another island . The ORG noted that the plan was largely based on the existence of independent drinking - water and waste - water management systems on each individual property designated for permanent habitation . So far there had existed CARDINAL dwelling for DATE - round use on ORG , whereas the master plan had envisaged CARDINAL new ones . Given the topography of the island and the significantly increased permanent habitation , the Ministry considered that the ground water conditions had not been sufficiently investigated .

On DATE , ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) upheld the ORG ’s decision .

In DATE , the first applicant applied for an exemption from the building prohibition in force pursuant to LAW CARDINAL of LAW . His request concerned the construction of a house with a surface of QUANTITY and intended for DATE - round use . On DATE , ORG refused to grant the exemption . On DATE , ORG upheld the ORG ’s decision .

In DATE the first applicant applied anew for an exemption from the building prohibition in force by virtue of LAW CARDINAL of LAW . His request now concerned the construction of a permanent dwelling with a surface of QUANTITY . At the same time , the existing house would be demolished . ORG Director of PERSON favoured the request in his advisory opinion of DATE to ORG . The city found that the applicants’ intention to replace the existing building , which was in poor condition , with a new dwelling would be in line with the objectives outlined for the use of the relevant area . Therefore , an exemption from the building prohibition would not create any significant obstacle to the implementation of the planning or other forms of organising the settlement in the area .

On DATE , ORG refused to grant the exemption . It noted that in DATE part of the master plan had not been confirmed due to insufficient investigations concerning the groundwater conditions , bearing in mind the topography on the island of Svartholmen and the important growth of its permanent settlement which had been foreseen in the plan . These matters were to be clarified during the process of drawing up the town plan . ORG furthermore stressed the need to guarantee the equal treatment of the property owners affected by the building prohibition .

On DATE , a regional plan ( seutukaava , regionplan ) for the GPE area , including the island of ORG , gained legal force . In the regional plan the area in question was designated for urban development . This plan did not abolish the prohibition on urban development in force by virtue of LAW .

DATE , CARDINAL exemptions from the building prohibition were granted by ORG on the island of GPE in the immediate vicinity of Svartholmen . The permitted construction included , inter alia , changing DATE cottages into DATE - round residences .

The area comprising the applicants’ property has not been included in the programme for town planning to be completed during DATE .

B. Relevant domestic law

According to section CARDINAL of the Building Act , only an area for which there is a confirmed town plan , building plan or shore plan may be used for urban development ( taaja - asutus , tätbebyggelse ) . For special reasons , exemptions may nonetheless be granted by the competent county administrative board or , in respect of larger cities , ORG . The relevant local authority shall be consulted regarding any application for an exemption .

According to section CARDINAL of the Building Act , a building permit is required for all new construction . Subject to the municipality ’s discretion this requirement may be waived in respect of construction of accessory buildings belonging to an existing dwelling or farm in an area outside a town plan or building plan . Building permits are issued by the local building committees ( rakennuslautakunta , byggnadsnämnd ) .

In considering an application for a building permit the authority shall satisfy itself that the proposed building is in accordance with any confirmed plan and does not contravene any building prohibition or related regulations . In the absence of any obstacles , a permit shall be granted .