Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) read in the light of Article 11 - (Art. 11) Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

On CARDINAL DATE ORG ( ORG ) held a demonstration in GPE to protest against racism and hatred ( hereinafter : PERSON demonstration ) . Simultaneously , members of ORG , a legally registered right - wing political party assembled in an adjacent area to express their disagreement .

The applicant , silently holding a so - called ORG - striped flag in the company of some other people , was observed by police as he stood nearby , at the steps leading to the GPE embankment ( the location where in CARDINAL/CARDINAL , during the ORG regime , NORP were exterminated in large numbers ) . His position was close to the ORG event and QUANTITY away from the lawn of the square where the PERSON demonstration was being held .

According to the testimonies which the police officers subsequently gave in court , they had been instructed not to tolerate the ORG - striped flag if it was displayed closer than QUANTITY to the PERSON demonstration . The applicant and other witnesses later stated in court that the holders of the ORG - striped flag were called “ fascists ” and “ arrow - crossers ” by the bystanders . The police supervising the scene called on the applicant either to remove the banner or leave . The applicant refused to do so , pointing out that this flag was a historical symbol and that no law forbade its display . Subsequently he was committed to ORG , where he was held in custody and under interrogation for TIME . After he had been released , the GPE CARDINALth ORG fined him MONEY ( MONEY ) for the regulatory offence of disobeying police instructions . The applicant ’s complaint to ORG was to no avail .

NORP On appeal , the court held hearings on DATE and CARDINAL DATE and upheld the applicant ’s conviction . The court was satisfied that his conduct had been of a provocative nature , likely to result in unruliness in the context of the ongoing NORP demonstration , and that his right to free expression could not be considered as reaching so far as to cause prejudice to public order . Despite the opinion of a heraldic expert , submitted by the applicant and stating that the flag in question was a historical one , the court considered its display offensive in the circumstances , because it had been placed higher than the national flag representing GPE . Therefore , the applicant ’s behaviour was considered to have been provocative .

Act no . XX of DATE on LAW ( as in force at the material time ) provides :

“ ( CARDINAL ) In GPE everyone has the right to freedom of expression and speech , and to access and distribute information of public interest . ”

“ ( CARDINAL ) GPE recognises the right to peaceful assembly and ensures the free exercise thereof . ”

Act no . III of DATE on ORG ( “ the LAW ” ) provides :

“ The right of assembly is a fundamental freedom guaranteed for everyone . GPE recognises this right and ensures its undisturbed exercise . ”

“ ( CARDINAL ) In the framework of the exercise of the right of assembly , peaceful gatherings , marches and demonstrations ( henceforth jointly : assemblies ) may be held where the participants may freely express their opinion . ... ”

“ ( CARDINAL ) The order of the assembly shall be secured by the organiser .

( CARDINAL ) The police and other competent bodies shall , upon the organiser ’s request , contribute to the maintenance of the order of the assembly and arrange for the removal of persons disturbing the assembly . ”

“ ( CARDINAL ) Where the exercise of the right of assembly violates section CARDINAL(CARDINAL ) or the participants appear bearing arms or carrying weapons or in an armed manner , or hold an assembly subject to prior notification despite a prohibiting decision , the assembly shall be dispersed by the police .

( CARDINAL ) The dispersal of the assembly shall be preceded by a warning . ”

Act no . ORG of DATE on ORG provides :

“ ( CARDINAL ) Anyone who

a ) fights or invites another person to fight ,

b ) in case of disturbance or disorderly conduct manifests disobedience to a measure imposed by the acting official person ,

shall be punishable with imprisonment or a fine up to ORG CARDINAL,CARDINAL .

( CARDINAL ) Anyone who appears at a public assembly

a ) possessing firearms or ammunition or any tool suitable for killing or causing bodily injury ,

b ) disobeying the organiser ’s or the police ’s security - related instructions

shall be punishable with a fine up to ORG CARDINAL .

( CARDINAL ) The perpetrator of the administrative offence specified in subsections ( ORG ) may also be subjected to a ban .

( CARDINAL ) Proceedings for the administrative offence specified in subsection ( CARDINAL ) fall within the competence of the court , whereas proceedings for the administrative offence specified in subsection ( CARDINAL ) fall within the competence of the police .

( CARDINAL ) For the purposes of this LAW , public assembly means : an assembly falling within the ambit of the LAW on the Right to Freedom of Assembly and accessible for anyone under identical conditions . ”

Section CARDINAL of Act no . CV of DATE on Defence and ORG ( as in force at the material time ) lists the ORG - striped flag as CARDINAL of the historical NORP banners .

Government Decree no . CARDINAL . ( ХП.CARDINAL . ) on Certain Administrative Offences provides as follows :

“ ( CARDINAL ) A fine of up to HUF CARDINAL may be imposed on a person who disobeys the lawful measures of a professional member of a law enforcement body . ”

Decision no . CARDINAL/CARDINAL . ( V.CARDINAL . ) AB of ORG contains the following passages :

“ CARDINAL . ORG establishes that the right of assembly recognised in Article CARDINAL(CARDINAL ) of the Constitution also covers the holding of events organised in advance including peaceful events where the assembly can only be held shortly after the causing event . In addition , the right of assembly covers assemblies held without prior organisation .

ORG holds that it is a constitutional requirement following from LAW that in the application of LAW no . III of ! CARDINAL , the obligation of notification pertains to organised events to be held on public ground . It is unconstitutional to prohibit merely on the basis of late notification the holding of such peaceful assemblies that can not be notified DATE prior to the date of the planned assembly , because of the nature of the causing event . ”

Decision no . PERSON . ( ORG . CARDINAL . ) ORG contains the following passages :

“ ... In so far as the necessity of restricting the right of assembly is concerned , an independent examination should be made on the restriction realised in the form of the obligation to give notification in advance of assemblies planned to be held on public places of any kind , and on the restriction realised in the form of the right of the authorities to prohibit in certain cases the holding of the assembly .

In the opinion of ORG , the necessity of applying the obligation of notification to assemblies to be held on public grounds is justified by the fact that , in line with the detailed definition in section PERSON ) of Act no . III of DATE , public ground is an area , road , street or square with unlimited access for everyone . Here , unlimited access for everyone means that both the participants in the assembly and everyone else who does not participate therein should have equal access to the public ground . The possibility to use the public ground is a precondition not only for the enforcement of the freedom of assembly but for that of another fundamental right as well : the right of free movement guaranteed in LAW . ”

The Report of ORG against Racism and Intolerance on GPE ( fourth monitoring cycle ) , adopted on DATE , contains the following passages :

“ CARDINAL . Since [ the Report of the third monitoring cycle ] , and apparently building on , at least in part , a series of highly charged anti - government demonstrations at DATE , there has been a disturbing increase in racism and intolerance in public discourse in GPE . In particular , the creation and rise of the radical right - wing ORG ( PERSON ) – a group bearing close ties to a well known radical right - wing political party – is consistently cited as a cause for deep concern . Since its creation in DATE and the public swearing in of CARDINAL new members in DATE , ORG has organised numerous public rallies throughout the country , including in villages with large GPE populations ; despite apparently innocuous articles of association , amongst the group ’s chief messages is the defence of ethnic NORP against so - called “ Gypsy crime ” . Members of the NORP Guard parade in matching , paramilitary - style black boots and uniforms , with insignia and flags closely resembling the flag of ORG , an openly NORP organisation that briefly held power in GPE during World War II , and during whose spell in power CARDINAL of NORP and GPE were killed or deported .

In DATE , the Prosecutor General initiated court proceedings to ban ORG . ”

In GPE v. GPE ( Communication No . CARDINAL , ORG . CCPR / C/CARDINAL/D/CARDINAL/CARDINAL ( DATE ) ) , ORG held as follows :

“ CARDINAL.CARDINAL ORG finds that a requirement to notify the police of an intended demonstration in a public place TIME before its commencement may be compatible with the permitted limitations laid down in DATE of the LAW . In the circumstances of this specific case , it is evident from the information provided by the parties that the gathering of several individuals at the site of the welcoming ceremonies for a foreign head of ORG on an official visit , publicly announced in advance by ORG authorities , can not be regarded as a demonstration . Insofar as ORG contends that displaying a banner turns their presence into a demonstration , the ORG notes that any restrictions upon the right to assemble must fall within the limitation provisions of article CARDINAL . A requirement to pre - notify a demonstration would normally be for reasons of national security or public safety , public order , the protection of public health or morals or the protection of the rights and freedoms of others . Consequently , the application of NORP legislation on demonstrations to such a gathering can not be considered as an application of a restriction permitted by LAW .

CARDINAL.CARDINAL The right for an individual to express his political opinions , including obviously his opinions on the question of human rights , forms part of the freedom of expression guaranteed by LAW . In this particular case , the author of the communication exercised this right by raising a banner . It is true that article CARDINAL authorizes the restriction by the law of freedom of expression in certain circumstances . However , in this specific case , ORG has not referred to a law allowing this freedom to be restricted or established how the restriction applied to Ms. GPE was necessary to safeguard the rights and national imperatives set forth in article DATE , paragraph CARDINAL ) and ( b ) of the LAW . ”

In its decision no . BVerfG , CARDINAL BvR CARDINAL/CARDINAL of CARDINAL DATE , ORG of Germany held that , in the light of the specific circumstances arising from the location and time of the demonstration , it was constitutionally acceptable to restrict the route of a planned extreme right - wing rally , despite its prior announcement , in order to defend the dignity of the NORP victims of NORP violence and tyranny . ORG , appreciating the historical origins of GPE , upheld , in derogation from the principle of priority , the restriction of the earlier announced demonstration in favour of a commemorating assembly on the concerned location with special regard to the anniversary of the surrender in World War II .

The current position of ORG of GPE is summarised in GPE v. Black , CARDINAL GPE CARDINAL ( DATE ) , in the context of cross burning ( a traditional threatening activity of ORG ) . According to this judgment , the burning of a cross is a “ symbol of hate ” , regardless of whether the message is a political one or also meant to intimidate . And while cross - burning sometimes carries no intimidating message , at other times the intimidating message is the only message conveyed . The protections afforded by LAW are not absolute , and the government may regulate certain categories of expression , including the ban of a “ true threat ” . Intimidation , in the constitutionally proscribable sense of the word , is a type of true threat , where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death . The fact that cross - burning is a symbolic expression does not resolve the constitutional question . Sometimes the cross - burning is a statement of ideology , a symbol of group solidarity . ORG required effort to distinguish among these different types of cross - burnings and considered the contextual factors that were necessary to decide whether a particular cross - burning was intended to intimidate . ORG went on to state :

“ It may be true that a cross burning , even at a political rally , arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross . But this sense of anger or hatred is not sufficient to ban all cross burnings . As PERSON has stated , « The lesson I have drawn from my childhood in NORP GPE and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot ’s hateful ideas with all my power , yet at the same time challenging any community ’s attempt to suppress hateful ideas by force of law LOC ( GPE v. Black , CARDINAL GPE CARDINAL , CARDINAL - CARDINAL ( DATE ) ) .

The impact of ( undeniably outrageous ) speech on a funeral procession was considered in PERSON v. PERSON ( CARDINAL GPE . CARDINAL ( DATE ) . Members of a church picketed within QUANTITY from a soldier ’s funeral service . The picket signs reflected the church ’s view that GPE is overly tolerant of sin and that God kills NORP soldiers as punishment .

ORG held :

“ In public debate [ we ] must tolerate insulting , and even outrageous , speech in order to provide adequate ‘ breathing ORG to the freedoms protected by LAW ... funeral picketing is certainly hurtful and its contribution to public discourse may be negligible . But [ it ] addressed matters of public import on public property , in a peaceful manner ... The speech ... did not itself disrupt that funeral ... Speech is powerful . It can stir people to action , move them to tears of both joy and sorrow , and – as it did here DATE inflict great pain . On the facts before us , we can not react to that pain by punishing the speaker . As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate ” ( PERSON v. PERSON , CARDINAL GPE . CARDINAL , CARDINAL ( DATE ) ) .

In PERSON v. PERSON , CARDINAL GPE CARDINAL ( DATE ) , ORG upheld a municipal ban on residential picketing that had been adopted in response to the picketing by anti - abortion protestors of the home of a physician who performed abortions . Here the offensive and disturbing picketing focused on a “ captive ” home audience .


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

On DATE ORG awarded the applicant against the ORG - owned coal - mine “ Pioner ” UAH CARDINAL in compensation for work - related damage to his health . On DATE the ORG of Appeal reduced the award to ORG CARDINAL .

On DATE ORG instituted the enforcement proceedings .

DATE the applicant was paid the judgment debt owed to him .

The judgment of CARDINAL DATE was enforced in full on DATE .

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


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

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

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

On DATE the applicant was charged with assaulting a police officer . On CARDINAL DATE ORG issued a penal order against the applicant to which the public prosecutor filed an objection . The indictment and the penal order were served on the applicant by a policeman on DATE .

In a separate set of proceedings the public prosecutor , on DATE , indicted the applicant for unlawful possession of a firearm and making violent threats .

In a third set of proceedings the applicant was indicted , on DATE , for trespassing and attempted theft .

ORG scheduled the main hearing in the proceedings concerning the indictment of CARDINAL DATE for DATE . The summons was served on the applicant on DATE . The applicant gave no explanation for his failure to appear .

The hearing was adjourned until DATE and the police were requested to ensure the applicant 's attendance . The police were unable to do so .

The police were again asked to bring the applicant to a hearing scheduled for DATE . That hearing was adjourned until DATE .

On DATE the judge appointed an ex officio lawyer to defend the applicant 's rights in the proceedings .

On DATE the police informed the court that the applicant had not been at his permanent address and that it had not been possible to establish his whereabouts .

On DATE ORG joined the above CARDINAL indictments into a single set of proceedings . It observed that the applicant had gone missing and ruled that the proceedings would continue in his absence as against a fugitive in accordance with Articles CARDINAL et seq . of LAW . Reference was made to a police report indicating that the applicant was not at his address and that , according to his neighbours , he lived abroad . His address could not be established .

The court took evidence regarding which the lawyer appointed to defend the applicant made no comments . ORG then found the applicant guilty as charged and sentenced him to DATE imprisonment . After the delivery of the judgment both the public prosecutor and the applicant 's counsel stated that they waived the right to appeal .

The applicant 's copy of the judgment with reasons was served on the lawyer . The judgment became final and binding on DATE .

On DATE and DATE , and DATE and DATE the judge requested that the sentence be enforced .

The police issued an arrest warrant but failed to establish the applicant 's whereabouts until DATE . On that date the applicant informed the NORP embassy in GPE that he had lost his passport .

On DATE ORG issued an international warrant for the applicant 's arrest .

The applicant was arrested by the NORP authorities on DATE . He was extradited to GPE where he started serving his prison term on DATE .

While in prison , the applicant made numerous written requests to ORG , ORG , ORG and his lawyer , demanding that a copy of his judgment be served on him , that he be allowed to inspect the court file , and that he be heard in person . He also complained that there had been no reasons for prosecuting him in absentia , that the lawyer had not represented him properly , and that his rights of defence had been ignored .

According to the applicant , the lawyer did not respond to his requests for a copy of the judgment .

By a letter of DATE the Prosecutor General informed the applicant that he considered his trial and conviction lawful . He further advised the applicant that , pursuant to LAW , a copy of a judgment against a fugitive was to be served only on his or her ex officio lawyer . In so far as his complaints concerned his lawyer , the applicant was advised to contact ORG . The applicant obtained a similar response from ORG on DATE and CARDINAL DATE and from ORG on DATE and DATE .

In the meantime , on DATE , the applicant lodged a petition with ORG for the reopening of his case . He argued that there had been no reasons for his trial in absentia , that his trial had been unfair and the conviction arbitrary . The applicant requested a hearing .

By a letter of CARDINAL DATE , a ORG judge informed the applicant that there appeared to be no legal grounds for reopening his case within the meaning of LAW .

The applicant replied that he maintained his request and proposed that the lawyer who had been appointed to defend him ex officio in the criminal proceedings also be appointed for the proceedings concerning the request for their reopening . The court appointed that lawyer on DATE .

A hearing on the request for the reopening of the proceedings was held on DATE . Following verbal attacks by the applicant , the judge granted the lawyer 's request to be excused from the duty of defending the applicant . The hearing was adjourned until DATE . Prior to leaving the courtroom the applicant stated that he withdrew his request for the proceedings to be reopened .

On DATE ORG allowed the applicant to inspect the court file .

Having served his sentence , the applicant was released on DATE .

Under LAW , a person accused of an offence has the right to have adequate time and facilities for preparing his or her defence and to defend himself or herself either in person or represented by counsel .

Under section CARDINAL(a ) of LAW DATE , in conjunction with Articles CARDINAL and CARDINAL § CARDINAL of the Code of Civil Procedure , ORG may appoint an advocate to represent a natural or legal person at that person 's request , provided that it is justified by the plaintiff 's situation and that the case is not clearly devoid of any prospect of success .

In judgment II . ÚS CARDINAL of DATE , ORG admitted that the ORG may bear liability in cases where a person 's constitutional right to judicial protection has been impaired as a result of the misconduct of a lawyer who was appointed ex officio to defend that person 's rights . However , such liability is not absolute . It is likely to arise in cases where shortcomings in the defending lawyer 's conduct are obvious or where the person concerned draws the competent authority 's attention to such shortcomings .

In judgment III . ÚS CARDINAL/CARDINAL of DATE , ORG found that a criminal court had breached LAW ( b ) and ( c ) of the LAW in that it had tried and convicted the plaintiff in absentia without having reliably established whether or not he could be considered a fugitive . ORG quashed the relevant judgment , returned the case to the criminal court concerned and ordered the plaintiff 's immediate release from prison where he had been serving the sentence imposed . It also made a just satisfaction award to the plaintiff .

At the material time the following provisions of LAW were in force .

Article CARDINAL § CARDINAL entitles ORG or the Minister of Justice to lodge a complaint with ORG about a breach of law in respect of final court decisions which are contrary to the law or which were delivered as a result of erroneous proceedings .

Where ORG concludes that there has been a breach of law as a result of a court 's decision or the proceedings preceding its delivery , it delivers a judgment to that effect ( Article CARDINAL § CARDINAL ) . Where a new decision on the case is required , ORG returns the case to the authority concerned for fresh adjudication . Its legal opinion binds that authority ( LAW ) .

Under LAW , where criminal proceedings against a person ended by a final decision , the same proceedings may only be resumed subject to the court 's decision granting their reopening .

ORG is to be granted in respect of proceedings which ended by a final judgment where there are new facts or evidence which were not available to the court earlier , provided that they are likely to justify a different conclusion on the accused person 's guilt or the damages awarded to an injured party , or where the sentence imposed would be too heavy in the light of such facts or evidence .

Under LAW a person may be tried in absentia only when that person avoids the criminal proceedings in that he or she stays abroad or hides .

In such proceedings the accused must always be defended by counsel , who enjoys the same rights as the accused ( Article CARDINAL ) .

Under LAW , all documents for the accused are in such cases served on the defence counsel only . LAW CARDINAL requires the summons to main hearings to be made public in an appropriate manner . The hearing is then to be held , as the case may be , even in the accused person 's absence regardless of whether or not the accused has learned of it .

In accordance with established practice , a person who has been tried and convicted by a final judgment in absentia in accordance with Articles CARDINAL et seq . of LAW is not entitled to have the judgment served or to appeal against it once he or she has learned of it .


The applicants , Denho Ay and PERSON , a married couple born in DATE and DATE , respectively , are NORP citizens residing in GPE in GPE . Before the ORG they are represented by Mr PERSON , a legal advisor practising in GPE .

The applicants entered GPE in DATE together with their CARDINAL children and applied for asylum .

The first applicant and CARDINAL of the applicants’ children commenced work , whereupon , based on LAW ) in force at the time , they were each obliged to pay , as a surety ( Sicherheit ) for welfare benefits obtained , PERCENT of their salary to a special closed account of ORG ; henceforth ORG ) .

On DATE ORG refused the ORG request for asylum , though they were permitted provisionally to remain in GPE . Upon the applicants’ appeal , ORG ( Asylrekurskommission ) ordered ORG on DATE to accept the applicants as refugees and to grant them asylum . This , ORG did on DATE .

On DATE ORG prepared a final balance ( Abrechnung ) of the CARDINAL closed accounts of the applicants and their CARDINAL children . ORG considered that the amounts of the CARDINAL accounts totalled MONEY ( CHF ) , whereas the applicants had obtained welfare benefits in the amount of CHF CARDINAL . As a result , it informed the applicants that no money could be paid back from the account , though they would only be requested to compensate the outstanding amount of CHF MONEY within the limits of the former LAW of LAW in force at the time .

On DATE the applicants filed an appeal with ORG and Police ( Eidgenössisches Justiz- und NORP , henceforth ORG ) . Therein , and in subsequent submissions , the applicants requested ORG to pay them back the entire amount of the closed surety account . They claimed that their recognition as refugees was declaratory and hence had retroactive character . Thus , their status as refugees extended back to the moment when they entered GPE . The law only required a surety from asylum seekers , i.e. persons applying for the status of refugee , but not from refugees themselves . As the applicants had had refugee status from the outset , the amounts on the surety account should be paid out to them . The applicants also complained , inter alia , of procedural errors and that they had been discriminated against as foreigners .

On DATE ORG prepared a new , amended balance of the CARDINAL closed accounts of the applicants . It considered that the applicants’ children had , at the relevant time , not yet been of age for which reason they were not obliged to pay back the welfare benefits obtained , and they would receive the amounts paid into their closed accounts . In respect of the first applicant , ORG considered that his account contained CHF MONEY and that , after deduction of welfare benefits amounting to CHF CARDINAL , there remained a negative balance of CHF MONEY . The applicants would not , however , be obliged to pay back this amount according to LAW of LAW .

On DATE ORG confirmed that the remaining debt ( ORG ) for the applicants arising from the welfare benefits amounted to CHF MONEY , though this amount would not be collected as long as the applicants had no means and the payment appeared unreasonable .

The applicants’ appeal of CARDINAL DATE was dismissed by ORG on DATE . The decision noted that the applicants were contesting , not a particular amount , but the obligation in principle to pay back the welfare benefits out of the closed account , alleging that their recognition as refugees had retroactive effect . However , the rights under LAW only applied upon recognition of a person as a refugee . The specific obligation for persons applying for asylum to provide for a surety was not affected by the subsequent decision to award refugee status to a person . The decision continued :

“ ( I)t must be emphasised that the lower authority was entitled , regardless of whether the status of asylum was granted , to deduct from the [ first ] applicant ’s surety account a global sum in respect of the welfare benefits obtained both by him and his wife during the asylum proceedings . It will not depend on the applicants’ economic situation whether or not it is admissible to deduct this amount . For this reason , the lower authority did not have to undertake any investigations in this respect . The applicants have not proved lower welfare expenses and indeed do not contest the amounts to be deducted . As a result , the contested decision is lawful and the complaint must be dismissed ... ”

LAW in force at the relevant time provided in Sections CARDINALa § DATE that both refugees and persons applying for such a status , were entitled to welfare benefits if they could not afford to pay for their own subsistence . According to LAW :

“ if the recipient of welfare benefits subsequently obtains means which secure to him and his family an adequate subsistence , he will have to pay back the benefits to the extent that this is reasonable . ”

Section CARDINALa § CARDINAL specifically concerned persons applying for the status of refugee . These persons were obliged , in addition , to provide a surety for future welfare costs . The percentage of the person ’s salary to be paid would be decided by the competent cantonal authority .

In practice , a surety bank account was opened , and the employer of the person concerned would directly transfer the contributions to this account .

In respect of the closing of the account , LAW of LAW no . CARDINAL , GPE , in force at the time ) provided as follows :

Once the asylum proceedings have been concluded and the applicant ’s residence situation in GPE has been settled by means of a residence permit or a provisional stay , ... ORG [ for Refugees ] shall order the transfer to ORG amounts to be paid back for social security and implementation .

The ORG shall furthermore order the final balance ( GPE ) and the transfer of any credit to an account mentioned by the applicant . The final balance shall be transmitted to the applicant subject to § CARDINAL .

If the residence situation of an applicant , who is not a refugee , has been settled by means of a provisional stay , the surety account will remain open . ”


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

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

On DATE ORG convicted the applicant of CARDINAL counts of rape . It sentenced him to DATE imprisonment and ordered his preventive detention ( LAW , see Relevant domestic law below ) .

On DATE the applicant requested ORG to suspend the remainder of his sentence , which he would have served fully on DATE , and his preventive detention on probation .

The applicant was initially represented by counsel K .- B. By letter of CARDINAL DATE he requested ORG to appoint counsel PERSON , practising in GPE , to represent him in the proceedings , arguing that K .- B. was not qualified in respect of the subject - matter of the proceedings whereas counsel PERSON was specialised in execution of sentences and sexual offences .

On DATE the presiding judge of ORG dismissed that request , arguing that the applicant was already represented by counsel and that there was no reason to appoint counsel who was not practising within the court 's judicial district .

On DATE the presiding judge of ORG informed the applicant that counsel PERSON had withdrawn from the case and that it intended to appoint counsel PERSON , practising in GPE and specialised in criminal law , to represent him ( LAW , applied by analogy ; see Relevant domestic law below ) . The applicant was invited to either give grounds if he objected to that appointment , to propose a different counsel practising in GPE as officially appointed counsel or to mandate a new counsel .

By letter dated DATE , counsel PERSON submitted a power of attorney and applied for access to the case - file and to be officially appointed as the applicant had insufficient means to afford a lawyer .

Having received that letter , the presiding judge of ORG asked counsel PERSON by letter dated DATE whether he intended to act as the applicant 's mandated counsel ; otherwise , the court would appoint a lawyer practising in GPE . The presiding judge further refused PERSON access to the case - file because it was not sure whether the files would be available for the hearing scheduled on CARDINAL DATE if they were sent to GPE after having been returned by the expert .

By a decision of DATE , the presiding judge of ORG dismissed the applicant 's fresh request to appoint counsel PERSON to represent him . He found that there was nothing to indicate that a firm relationship of trust had developed between them which would justify appointing PERSON despite the considerable additional costs involved .

On DATE the presiding judge of ORG , having received no objections by counsel PERSON , appointed counsel PERSON to act for the applicant .

On DATE ORG , in his submissions on the applicant 's appeal against the decision of DATE , took the view that the applicant 's appeal was well - founded as ORG should have appointed him counsel PERSON as he had requested . ORG considered that in cases in which the detainee , as in the present case , had proposed to appoint him defence counsel who met the professional requirements and was able to guarantee a proper conduct of the proceedings , the court had to appoint him the counsel he had chosen . This equally applied in cases in which the defendant had chosen a counsel who was not practising within the court 's judicial district . Weighing the interests involved , the interest in proximity was outweighed by the defendant 's interest in being defended by a counsel he particularly trusted in . The distance between GPE and GPE , having regard to the good traffic connections and modern means of communication , did not jeopardize a proper defence and conduct of the proceedings .

On DATE ORG dismissed the applicant 's appeal against ORG decision of DATE refusing to appoint him a counsel not practising within the court 's judicial district as ill - founded .

It agreed with ORG view that the applicant had to be represented by counsel in the proceedings at issue pursuant to LAW , applied by analogy , as the proceedings were complex , as the decision on the applicant 's preventive detention was of importance and as the applicant could not defend himself in person in the hearing in which an expert report on him had to be examined .

However , unlike ORG , ORG considered that ORG had not been obliged to appoint the applicant counsel PERSON , who was not practising within its judicial district . The appointment of defence counsel named by the detainee required , as a rule , that he proposed a lawyer admitted to practise within the court 's judicial district ( LAW ; see Relevant domestic law below ) . This rule was adequate because defence counsel 's proximity to the court was essential in order to conduct a proper defence .

It facilitated the conduct of the proceedings and counsel 's communication with his client in detention DATE for which modern methods of communication did not make a difference – and with the other parties to the proceedings . The lack of proximity was a significant ground not to appoint a lawyer chosen by the detainee for the purposes of LAW . Counsel PERSON resided QUANTITY away from the court and from the prison in which the applicant was detained .

ORG further found that an external counsel could only be appointed in exceptional cases , in which there was a particular relationship of trust between him and the detainee . However , there was nothing to indicate and the applicant failed to substantiate that there was a firm relationship of confidence between him and counsel PERSON The applicant had never met in person counsel PERSON who had never previously defended him . The fact that counsel PERSON had applied for access to the case - file did not suffice to demonstrate such a relationship of trust . There was also nothing to indicate that counsel PERSON was more experienced in execution matters than counsel PERSON who had been appointed to represent the applicant .

On DATE the presiding judge of ORG dismissed the applicant 's fresh request dated DATE , made in person , to appoint counsel PERSON to represent him in the proceedings concerning the execution of his sentence . Relying on LAW , applied by analogy , the court found that the applicant had already been appointed counsel PERSON for the proceedings at issue and that there were no apparent grounds to appoint him another counsel .

On DATE ORG , endorsing the reasons given by ORG , dismissed the applicant 's appeal .

ORG disagreed with the applicant 's view that he was not represented by counsel in accordance with the requirements of a fair trial . It further rejected counsel PERSON 's argument that the court 's appointment of counsel PERSON was arbitrary in view of what was at stake in the proceedings , the applicant 's preventive detention .

ORG expressly endorsed the reasons it had given in its decision of CARDINAL DATE ( see above ) , in which it had already dismissed the applicant 's request to appoint counsel PERSON by a final decision . These reasons also applied if the applicant had to be understood now to have requested the appointment of counsel PERSON to a more limited extent , namely only in order to appeal against a decision taken on his challenges for bias . Having regard to the complexity of the proceedings , the applicant had been appointed counsel PERSON for the entire proceedings concerning his preventive detention . As ORG had dismissed the applicant 's request to be appointed counsel PERSON by its final decision of CARDINAL DATE , the applicant 's new request to be appointed counsel PERSON for the proceedings or for parts thereof was inadmissible .

On DATE the applicant lodged a constitutional complaint with ORG against the decision of ORG of DATE . He complained about the failure to appoint him the counsel of his choice , PERSON , and argued that this had deprived him of an effective defence and had led to his prolonged detention beyond CARDINAL DATE when he had fully served his sentence .

On DATE ORG declined to consider the applicant 's constitutional complaint as it lacked prospects of success ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

ORG reiterated that the right of a defendant to a fair trial comprised the right , aimed at ensuring equality of arms , to defend himself by counsel of his own choosing . Therefore , if the requirements of LAW were met , the defendant should be appointed the lawyer he or she trusted in unless there were important grounds not to do so . However , a defendant could not claim to be represented by a counsel proposed by him in all circumstances .

ORG found that the impugned decision of ORG of DATE complied with these constitutional requirements . In its thoroughly reasoned decision of CARDINAL DATE , to which the impugned decision had referred , ORG considered that a lawyer who did not practise within the court 's judicial district could only be appointed by the court if there was a special relationship of trust between that counsel and the applicant . It had not been arbitrary for ORG to refuse to appoint the lawyer not practising within the court '

On DATE ORG , having regard to the report submitted by a psychiatric expert it had consulted , ordered that the applicant be placed in preventive detention pursuant to Article CARDINAL § CARDINAL of LAW ( see Relevant domestic law below ) .

LAW lays down the circumstances in which a defendant must be represented by defence counsel . Pursuant to paragraph CARDINAL of Article CARDINAL , the presiding judge shall appoint defence counsel on request or ex officio if the assistance of defence counsel appears necessary in view of the seriousness of the offence or in view of the factual or legal complexity of the proceedings or if it is evident that the defendant can not defend himself in person . The latter provision is applied by analogy , in particular , to proceedings under Article CARDINAL § CARDINAL of LAW for review , before completion of the offender 's prison term , of whether the execution of a preventive detention order against him or her is still necessary in view of its objective to protect the public from a dangerous offender ( see LAW ) or shall be suspended on probation .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure , in its version in force at the relevant time , provided that defence counsel to be appointed shall be chosen by the presiding judge , if possible , from the group of lawyers admitted to practice before a court within the court 's judicial district . The defendant is to be given the opportunity of naming an attorney - at - law within a time - limit to be specified . The presiding judge shall appoint defence counsel named by the defendant unless there are significant grounds for not doing so .


RECHACHI AND ABDELHAFID v. THE UNITED KINGDOM

The first applicant , PERSON , is an NORP national , born in DATE . The second applicant , PERSON , is a NORP national , born in DATE . Both live in GPE . They are represented before the ORG by ORG , a firm of solicitors practising in GPE .

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

The first applicant , a paraplegic , is in a wheelchair . He has a pending asylum application in GPE . On TIME DATE the police arrested him pursuant to ORG ( Temporary Provisions ) Act DATE ( “ ORG ” ) . He was detained in the police station until DATE when he was charged under sections ORG ( possession of articles for suspected terrorist purposes ) and CARDINAL ( collection of information likely to be useful for terrorist purposes ) of the ORG and remanded in custody by ORG . He was held in the prison medical wing . Numerous bail applications were refused until he was released on bail on DATE . He claims that he suffered ill - health during detention , that the facilities in the prison were not adapted for paraplegics and that he developed urinary infections because he was unable to maintain the personal hygiene necessary for the catheter which was in place .

The second applicant was also arrested on CARDINAL DATE under the ORG . After detention in police custody , he too was charged with offences contrary to sections ORG and CARDINAL of the ORG and remanded in custody by ORG . He was released on DATE when the charges against him were dropped .

On DATE an article appeared in a legal journal ( Criminal Law Week ) suggesting that sections ORG and CARDINAL of the ORG had lapsed on DATE . On DATE the criminal proceedings against the first applicant were formally discontinued on the basis that the offences of which he had been charged were no longer part of LANGUAGE law .

On DATE the ORG Secretary made a statement to ORG confirming that the offences in question had indeed lapsed from LANGUAGE law . He said that this had escaped the notice of the draftsman , Ministers ( including himself ) , ORG and the legal profession . The matter had come to light because of the relevant legal article published in DATE and , as soon as the article had been brought to his attention , he had taken legal advice . Once the status of the sections had been clarified , the police had been advised not to rely on them . Certain persons had been erroneously charged on the basis of those lapsed sections and certain steps had been taken to resolve those cases . He referred to the first applicant ’s case ( without naming him ) , noting that the indictment had been quashed .

The applicants applied for compensation for the time spent in detention under the ex gratia compensation scheme operated by ORG .

In a letter of DATE the ORG representative informed the ORG that the ORG Secretary had made offers of interim ex gratia payments . The applicants had also made a claim for damages against the Commissioner for ORG for false imprisonment , assault and battery and malicious prosecution . The Commissioner had made a pre - issue offer and the applicants had made a counter - offer which was under consideration by the Commissioner .

The applicants were requested by the ORG , by letter of DATE , to confirm whether they were considering a settlement or withdrawal of the application before the ORG . No response was received .

By letter dated DATE the Government noted that it was for the Home Secretary to determine eligibility for the ex gratia compensation scheme and he considered that the applicants qualified . The amounts to be awarded would be determined by an independent assessor . While the final awards had not yet been determined , each applicant had been offered an interim payment of MONEY ( GBP ) . The first applicant had not yet accepted this interim award whereas the second applicant had .

By letter of DATE the ORG requested the applicants to provide full information to the ORG on the current position concerning ex gratia compensation and any civil proceedings .

By facsimile dated DATE the ORG representative confirmed an interim ex gratia payment of GBP CARDINAL to the first applicant by the Home Secretary and that his final award was being currently assessed . The Home Secretary had made a final ex gratia award of GBP CARDINAL to the second applicant . No admission of liability had been made in either case .

The ORG representative further confirmed that the applicants had sent a “ pre - action ” letter to the Commissioner for ORG claiming false imprisonment , assault , battery and malicious prosecution . The threatened civil proceedings had not issued since the Commissioner had paid each applicant ORG in settlement . As to the first applicant , the Commissioner acknowledged that he may well have been unable to prove the lawfulness of the arrest and that the detention following his being charged had been on the basis of lapsed legislation . He expressed regret for unlawfully arresting and detaining the first applicant . With respect to the second applicant , the Commissioner contended that he would have been able to prove the lawfulness of the arrest but acknowledged that the detention following his being charged had been on the basis of lapsed legislation and was therefore unlawful .

The ORG was first enacted in DATE . It is temporary legislation which lapses after DATE unless renewed . The procedure for such renewal involves laying before ORG a statutory instrument which is subject to affirmative resolution of both ORG .

The ORG had CARDINAL parts ( I , II , PERSON and V ) and section CARDINAL of ORG DATE inserted a new part ( IV.A ) which included sections ORG and CARDINAL DATE , Part ORG was continued in force , together with the remaining provisions of the ORG , by statutory instruments coming into force on DATE .

The DATE Order expired on DATE . On DATE ( Partial Continuance ) Order came into force . However , Parts II and ORG had been omitted from that renewal LAW and , therefore , lapsed on DATE .

ORG operates a discretionary scheme which provides for the ex gratia payment of compensation , upon application , to people who have spent time in custody following a wrongful charge or conviction . The Home Secretary decides whether an individual qualifies for the scheme and an independent assessor calculates the level of ex gratia compensation required .


Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

PERSON lives at GPE ( province of GPE ) . The facts established by the Commission pursuant to LAW CARDINAL ( LAW are as follows ( paragraphs CARDINAL of its report ) :

" CARDINAL . On DATE the applicant instituted proceedings against the Minister of the ORG before the GPE magistrate ’s court ( pretore ) " ,

seeking payment of a DATE disability allowance which the PERSON social - security department had refused her .

" CARDINAL . Preparation of the case for trial began at the hearing of CARDINAL DATE , on which date the court ordered an expert opinion . The expert appointed took the oath at the hearing of CARDINAL DATE . At the end of the hearing held on DATE the court ordered the Minister of the ORG to pay the allowance requested . The text of this decision was deposited with the registry on DATE .

On DATE CARDINAL the Minister of the ORG appealed against the above decision and , on CARDINAL DATE , the President of ORG arranged for the appeal to be heard by the competent division of the court on DATE . On DATE ORG dismissed the appeal and upheld the contested decision . "

According to the information given to the ORG by the applicant , the judgment was filed in the registry on DATE ; the Minister appealed on points of law on DATE , but ORG dismissed the appeal in a judgment of CARDINAL DATE that was filed in the registry on DATE .

The applicant ’s claim was based on Law no . CARDINAL of CARDINAL DATE ( Law no . CARDINAL/CARDINAL ) , enacted pursuant to LAW , which provides :

" All citizens who are unfit for work and lack the basic wherewithal to live shall be entitled to means of subsistence and welfare assistance .

The bodies and institutions set up or supported by the ORG shall be responsible for discharging the functions provided for in this Article .

Under LAW of PERSON no . CARDINAL/CARDINAL , the ORG pays a DATE disability allowance ( assegno mensile ) to disabled ex - servicemen and civilians aged DATE who have been found to be CARDINAL disabled and who are destitute .

As this is a compulsory welfare benefit , disputes over the existence of a right to the allowance come within the magistrate ’s labour jurisdiction , and trial procedure is governed by the provisions laid down for labour proceedings ( Articles CARDINAL and CARDINAL of the Code of Civil Procedure ) .


CASE OF VASILKOSKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicants were born DATE and live in different cities in the former GPE .

They were toll collectors , controllers or senior staff ( инкасанти на наплатна рампа или раководители ) in a public roads enterprise .

The applicants were detained in several police stations in GPE , some on DATE and some on DATE on suspicion of abuse of office , namely that they had acted as an organised group and misappropriated over MONEY ( ORG ) from toll charges collected DATE . An individual report was drawn up for the detention of each applicant .

A group of applicants were brought before an investigating judge of ORG ( “ the trial court ” ) on DATE , and the remainder on DATE . By CARDINAL separate decisions of CARDINAL and CARDINAL DATE respectively , after having heard oral evidence from the applicants , the investigating judge started the investigation and remanded them in custody . The orders were based on all the grounds specified in section CARDINAL of LAW ( “ the LAW ” , see paragraph CARDINAL below ) , namely a risk of absconding and reoffending , and of interference with the investigation . The judge relied on the gravity of the charges and the potential penalty and the fact that the applicants had acted as a well organised group .

CARDINAL applicants and other co - accused appealed against the detention order , requesting its replacement by a more lenient measure . The appellants relied on their family situation in the respondent State , the absence of a previous criminal record , the fact that some of them had appeared voluntarily in police stations and the failure of the investigating judge to give concrete reasons justifying the detention of each of them separately . A CARDINAL - judge panel of the trial court ( “ the panel ” ) , set up under section QUANTITY of the LAW , dismissed appeals submitted by CARDINAL applicants . No evidence was produced that the panel decided the remaining appeals .

On DATE and DATE respectively , the panel extended the applicants ' detention for DATE on all CARDINAL counts specified under section CARDINAL of the LAW . The risk of absconding was justified by the gravity of the charges , the potential penalty and the fact that CARDINAL applicants had no possessions and no family in the respondent ORG . CARDINAL applicants appealed , alleging lack of reasons . Their requests for a more lenient measure were supported with evidence about their poor health , copies of their passports and certificates attesting to their possessions in the respondent ORG . Some of them also requested release on bail .

On DATE and DATE respectively , ORG dismissed the appeals and confirmed the orders . Only in respect of Mr PERSON , who produced the original copy of his employer 's decision dismissing him from work , did the court exclude “ the possibility of reoffending ” from the list of grounds for his detention . It did not admit in evidence the uncertified copies of the dismissal decisions submitted by the other appellants . As to the remainder , it stated inter alia :

“ ... circumstances related to the type and nature of the criminal offence for which the investigation has started against the accused , the potential penalty prescribed for the offence , as well as the personal circumstances of the accused , taken as a whole , suggest that there is a real risk of flight if they are released at this stage of the proceedings ... a reasonable risk that they may interfere with the investigation , as well as grounds to reoffend ... it is this court 's view that there are no statutory grounds at this stage of the proceedings to replace custody with a more lenient measure that would guarantee that the accused would appear for trial ... ”

NORP The investigation was subsequently extended and involved , in total , CARDINAL accused .

On DATE and DATE respectively , the panel extended the applicants ' pre - trial detention for DATE , relying on all the grounds specified in section CARDINAL of the Act , namely the risk of absconding and reoffending , and of interference with the investigation . CARDINAL applicants appealed against these orders , seeking release .

With decisions of DATE and DATE respectively , ORG ruled partly in favour of those applicants who appealed and presented originals or certified copies of the employer 's decisions dismissing them from work . “ The possibility of them reoffending ” was no longer relied on as a ground for their continued detention . Furthermore , of its own motion and relying on section CARDINAL of the LAW ( see paragraph CARDINAL below ) , the court excluded in respect of all the accused included in the panel 's decision of DATE , “ the possibility of them interfering with the investigation ” from the list of grounds for their detention . In so doing it reasoned that the accused could not interfere with the examination of protected witnesses and the viewing of a DVD , which were the only remaining investigative measures . The court confirmed the panel 's concern about the risk of flight , however , relying on the gravity of the charges and the potential penalty .

On DATE the public prosecutor lodged an indictment against all the accused , including the applicants . On DATE , the panel partly upheld the public prosecutor 's request and extended the applicants ' detention , but only on account of the risk of them absconding . In this connection it stated :

“ ... the detention in prison is justified given the fact that there is a real risk of flight in view of the gravity and nature of the offences with which the accused are charged , and the potential penalty ... ”

NORP That decision was challenged by CARDINAL accused , including CARDINAL applicants . They alleged that the panel had not given sufficient reasons to substantiate the risk of them absconding , given their family situation , their state of health , the absence of any previous criminal record and the fact that some of them had already had their passports seized .

On DATE ORG confirmed the panel 's decision , stating that the risk of flight was substantiated by the gravity of the charges , the potential penalty and the way in which the offence had been committed .

By individual decisions rendered DATE and DATE , PERSON and PERSON were released on bail . PERSON Jovanovska , and ORG , were also released on condition that they appeared in court on a regular basis . These decisions were given in response to separate requests from these applicants for the detention order to be replaced by a more lenient measure .

On DATE the panel ordered a DATE extension of the pre - trial detention of the remaining applicants . “ The risk of them absconding ” was once again based , in respect of all of them , on the gravity of the charges and the potential penalty . CARDINAL accused appealed against that decision , including CARDINAL applicants who argued that the panel had not given specific reasons to substantiate the risk of them absconding . They submitted that they had not gone into hiding ; their identity was known and they had appeared in court regularly . ORG dismissed those arguments , holding that the risk of flight lay in the nature of the offence , the gravity of the charges and the potential penalty .

On DATE the trial started . Given the high number of accused , the trial court decided to hold hearings outside the court building . After taking oral evidence from the applicants , on DATE the trial court accepted the proposal of the public prosecutor and replaced the order for prison custody with an order for house arrest in respect of all remaining applicants , except Mr PERSON , Mr PERSON , PERSON PERSON ORG , Mr PERSON and Mr PERSON , who remained in prison . In taking that decision the court relied on section CARDINAL ( CARDINAL ) of the LAW ( see paragraph CARDINAL below ) , under which prison custody should be as brief as possible . The police were also ordered to supervise compliance with the house arrest . For the same reasons as in earlier decisions , the detention in respect of the remaining applicants was ordered on account of the risk of them absconding .

It would appear that only Mr PERSON appealed against that decision . On DATE his appeal was dismissed with the explanation that the panel had given sufficient reasons for extending his detention , namely that the gravity of the charges and the potential penalty pointed to a risk of him absconding .

On CARDINAL DATE the panel extended the detention of the remaining applicants for the same reasons as before . On DATE , of its own motion , the panel substituted the order for detention in prison with an order for house arrest in respect of the CARDINAL applicants mentioned in paragraph CARDINAL above .

After DATE , the house arrest of the remaining applicants was extended on several occasions . The extension was grounded on their potential to abscond in view , once more , of the gravity of the charges and the potential penalty .

NORP In a decision of DATE , the panel extended the house arrest for the following reasons :

“ ... the criminal proceedings are about to end ... for the sake of expediency it is considered that the risk of flight still persists in view of the gravity of the charges , the potential penalty and the number of accused , suggesting the need to extend the house arrest as the most lenient means of securing attendance at the trial ... ”

In decisions of CARDINAL and DATE respectively , the panel gave the same reasons for extending the house arrest of the remaining applicants . For failure to comply with the house arrest order , Mr PERSON PERSON and Mr PERSON were ordered to be sent back to prison .

On DATE the trial court found the applicants guilty and imposed a prison sentence in respect of CARDINAL applicants and a suspended sentence in respect of the others . As the trial had ended and the applicants had a permanent residence and family in the respondent ORG , the court also ordered their release , considering that there was no risk of them absconding .

At a public hearing held on DATE and DATE , ORG quashed the trial court 's decision and referred the case for fresh consideration . It would appear that the proceedings are pending at the trial level .

During the proceedings , the applicants made numerous unsuccessful requests for their detention in prison to be replaced by a more lenient measure , or sought their release on bail .

Section CARDINAL § CARDINAL of LAW of DATE provides for a CARDINAL - judge panel of the trial court to rule , inter alia , on appeals against decisions of the investigating judge .

The Act specifies the measures which the court may issue in order to secure the attendance of an accused at a trial ( sections CARDINAL - CARDINAL ) .

Under section CARDINAL § CARDINAL of the Act detention in prison should be as brief as possible .

Under section CARDINAL § CARDINAL ( CARDINAL - CARDINAL ) of the LAW detention in prison may be ordered on reasonable suspicion that the person concerned has committed an offence if there is a risk of absconding , interference with the investigation or reoffending .

Under section QUANTITY an investigating judge has jurisdiction to order pre - trial detention . The person concerned may appeal before the panel .

Section CARDINAL § § CARDINAL and CARDINAL of the LAW provides for the panel set up under LAW § CARDINAL to extend the detention at the request of the investigating judge or the public prosecutor . The extension order may be challenged before the court above .

Under section CARDINAL of the LAW , if the second - instance court considers grounds for an appeal applicable to any co - accused who did not lodge a formal appeal , it may , of its own motion , proceed as if the appeal had been lodged by the co - accused concerned ( the beneficium cohaesionis rule ) .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in DATE and is serving a prison sentence in GPE .

On an unspecified date the applicant was charged with robbery and remanded in custody . During the period DATE and DATE he was detained on numerous occasions in a temporary detention centre in GPE , GPE .

According to the applicant , the criminal proceedings against him ended in his conviction for robbery . The final decision on the matter was taken on DATE .

According to the ORG , the applicant was detained in the temporary detention centre in GPE from CARDINAL to CARDINAL DATE , DATE to DATE , CARDINAL to CARDINAL November , CARDINAL to DATE , DATE to DATE , CARDINAL DATE to CARDINAL DATE , CARDINAL to DATE , CARDINAL to CARDINAL and DATE , DATE , CARDINAL DATE CARDINAL June , CARDINAL and , DATE to DATE and CARDINAL to CARDINAL DATE . During the relevant periods he was brought to the centre in order to participate in investigation activities and court hearings .

The Government were unable to indicate the exact cell numbers where the applicant had been detained . Nor was it possible for the Government to submit the information on the population of the temporary detention centre at the time of the applicant ’s detention . The Government provided the following overview of all the cells in the temporary detention centre :

There were no individual beds in the cells . The inmates had to share sleeping platforms . The number of inmates detained together with the applicant varied from CARDINAL . On the average , the number of the inmates detained DATE at the temporary detention centre was DATE . There was no ventilation system . There was only artificial lighting . The cells were lit by a CARDINAL electric bulb . The cells were not equipped with a toilet . Nor was there an outdoor exercise area .

According to the applicant , he was kept in a windowless cell measuring QUANTITY . m and housing from CARDINAL inmates . The cell was not equipped with a toilet . Instead , the inmates were to use a tank placed in the cell . The person using it could be seen by others present in the cell . The applicant had to stay indoors all the time . No daily exercise was provided for . Nor was he given any bedding or a mattress . He received CARDINAL meal per day and had to eat standing or sitting on a bed with a plate in the hands as there were no chairs or table in the cell .

NORP In response to the applicant ’s complaint about conditions of his detention in the temporary detention centre , the prosecutor ’s office carried out an inquiry which confirmed the applicant ’s allegations . The prosecutor asked the regional department of the interior to take measures necessary to bring the conditions of detention in the temporary detention centre in compliance with statutory standards . He also informed the Regional Governor of the situation suggesting an allocation of budgetary funds for reconstruction of the temporary detention centre . In particular , in his report to the Governor , the prosecutor stated as follows :

“ The inspection of the temporary detention centre of the GPE department of the interior conducted by the regional prosecutor ’s office on DATE in response to the complaints lodged by QUANTITY persons who had been detained there has disclosed a serious violation of all requirements of the law : [ toilets and sinks ] are not installed , there are no sanitary hygiene products in the stuffy cells ; the inmates are served CARDINAL meal a day , etc . As regards the medical assistance , ... the only medicine available is analgin and citramonum with the passed expiration date . ”

The Federal Law on Detention of Suspects and Defendants charged with ORG , in effect , as amended , since DATE , provides that suspects and defendants detained pending investigation and trial are held in remand prisons ( LAW . They may be transferred to temporary detention facilities if so required for the purposes of investigation or trial and if transportation between a remand prison and a police station or court - house is not feasible because of the distance between them . Such detention in a temporary detention facility may not exceed DATE a month ( LAW ) . Temporary detention facilities in police stations are designated for the detention of persons arrested on suspicion of a criminal offence ( LAW .

According to ORG , approved by ORG . CARDINAL of ORG of GPE on DATE , as amended ( in force at the time of the applicant ’s detention ) , the living space per detainee should be QUANTITY ( paragraph QUANTITY ) . It also made provision for cells in temporary detention facilities to be equipped with a table , toilet , water tap , shelf for toiletries , drinking water tank , radio and rubbish bin ( paragraph CARDINAL of the Regulations ) . Furthermore , the ORG made provision for detainees to have outdoor exercise for TIME a day in a designated exercise area ( paragraphs CARDINAL , CARDINAL , and CARDINAL of the Regulations ) .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Mr K. Bárd , a lawyer practising in GPE , and PERSON , Legal Director of ORG ( ORG ) , GPE . The respondent Government are represented by Mr PERSON , Deputy ORG - Secretary , ORG .

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

The applicant is a Member of ORG and delegate of ORG . ORG was in opposition DATE . At the material time , the applicant was deputy head of the parliamentary group of his party and member of ORG .

On DATE , at a parliamentary session concerning ‘ prompt questions and ORG , the applicant addressed a question to the Prime Minister about the existence of any relationship between the incumbent Minister of ORG ( PERSON ) and some foreign extreme right - wing groups . The Prime Minister answered that he was unaware of such a relationship and that he was sceptical about characterising certain groups as extreme right - wing .

Being dissatisfied with the answer , the applicant said :

“ I can not exclude the possibility that the lack of investigation into the system of connections I was referring to could be affected perhaps by the fact that your Minister ’s DATE your responsible Minister ’s DATE father is a member of the LOC movement that I mentioned . ”

( “ ORG tudom azt kizárni , hogy azért , PERSON még abban a kapcsolati rendszerben , amire én utaltam , esetleg közrejátszik GPE , hogy éppen PERSON , felelős miniszterének GPE édesapja PERSON a hungarista mozgalomnak a tagja , amelyre én utaltam . ” )

In his reply , the Prime Minister said :

“ Well , ladies and gentlemen , I am not sure if I have understood everything precisely , if that were the case , may PERSON Deputy excuse me , it must be my fault . Although I do not know the family of [ PERSON ] particularly well , which should perhaps not be a reproach against me , I believe Mr Minister ’s father died when Mr Minister was CARDINAL . It is therefore quite difficult to establish whether or not he was a LOC . ”

On DATE an article under the title The “ NORP ” have been encouraged by foreigners to support [ Minister PERSON ] was published in the national DATE newspaper ORG . In the article it was stated that ,

“ ... according to the [ applicant ] , the lack of investigation into a matter of national security could be related to the fact that the father of ORG , the Minister without portfolio supervising ORG , participated in the FAC movement . ”

The applicant states that ORG ’s father published articles in right - wing NORP periodicals affiliated with groups that had personal relations to the NORP movement abroad .

On DATE the applicant gave a detailed interview in the television programme ORG ( “ Facts ” ) . For the first time , he specified that the “ responsible Minister ” was indeed DATE rather than PERSON DATE and that the statement quoted above related to him and his father .

On DATE PERSON and his father brought a civil action against the applicant alleging that the incriminated statement had violated their ‘ personality PERSON ( személyhez fűződő jogok ) . PERSON contended that it amounted to accusing him of having abused his administrative authority , conduct potentially susceptible to prosecution . He also asserted that it was capable of influencing , in a negative way , the appraisal of his activity as Minister and that of his personality as a public figure . Therefore , he sought the declaration of a violation of his personality rights , MONEY ( ORG ) in compensation and an injunction obliging the applicant to apologise in public .

ORG held hearings on DATE and DATE . On DATE ORG separated PERSON ’s action from that of his father , and found that there had been a violation of ORG ’s personality rights . It held that the applicant had made a statement of fact regarding the absence of an investigation and the underlying reasons , together with a negative appraisal of the Minister ’s conduct , both of which could harm the Minister ’s reputation .

The court referred to the fact that the Minister was a well - known figure in public life , noting that allegations against such a person were bound to come to the public ’s knowledge and that therefore his reputation could be seriously affected . It also noted that the statement concerned had undermined the plaintiff ’s political credibility and – having special regard to the upcoming DATE elections DATE was capable of substantially reducing his reputation in the voters’ eyes .

The court found that the burden of proof was on the applicant , in whose interests it was to prove the truth of the alleged facts , namely , the absence of an investigation and the reasons for it . Notwithstanding the court ’s reminder to this effect , the applicant did not provide such evidence , since he stated that he ‘ was of a different legal GPE .

Relying on sections CARDINAL and GPE ) of LAW , ORG declared that ORG ’s personality rights had been violated and ordered the applicant to pay ORG CARDINAL in compensation for non - pecuniary damage , ORG CARDINAL in legal costs and ORG CARDINAL in stamp duty . Moreover , the applicant was ordered to have the decision published in the DATE newspaper ORG within DATE , and to make its contents public in the television programme ORG , all at his expense . Finally , the court ordered him to refrain from any further infringement of ORG ’s personality rights .

The applicant appealed . He argued , inter alia , that he could not be reproached for having knowingly made untrue statements since the plaintiff himself had declared not to have been under any obligation to initiate the investigation in question . Moreover , the incriminated statement , in so far as it concerned the plaintiff ’s father , was in his view not susceptible to proof in the instant proceedings , since that issue had been disjoined and was being dealt with in separate proceedings .

After a hearing on DATE , the Pest County Regional Court partly amended the ORG decision on DATE . It held as follows :

“ The findings of fact of the first - instance court were correct .

Contrary to the defendant ’s view , the court was not wrong when it considered the defendant ’s liability for the publications in ORG and what had been said in GPE ... , notwithstanding that , either in the article or the television programme , the impugned statements had not been made by the defendant himself .

The plaintiff did not base his [ claims ] on the fact that the defendant had been interviewed in ORG and [ Tények ] which violated [ ORG ’s ] reputation , in breach of section CARDINAL of LAW . The [ subject matter ] of the action was the statement made by the defendant in ORG , having regard to the fact that it had been published in ORG , and that the defendant had explained in [ Tények ] that it concerned the plaintiff ’s father and that the responsible Minister was the plaintiff . In ORG view , the action may not be interpreted narrowly , namely as if it had been aimed at obtaining legal protection only for what had been published in the media . ...

The defendant made the impugned statement in ORG , in his capacity as an MP . He can not successfully argue that , since he did not agree to its ... publication , he is not liable for the contents of the statement which appeared in the media , because , given the circumstances of the statement and having regard to the obvious role the press plays in informing the general public of the activities of ORG , he could expect that his statement would appear in the press .

The report , broadcast in ORG , as a whole – rather than just what the defendant had said himself DATE amounted to the reiteration of the impugned statement , since the defendant ’s utterance in the programme – ‘ When I am speaking of ORG , I think the Minister responsible for the investigation may be E.D.’ – was aimed at clarifying his reference in ORG to the ‘ responsible ORG and identifying the person unambiguously .

In these circumstances , the statement ... in ORG was an authentic and more precise reiteration of what the defendant had said in ORG . ”

ORG agreed with ORG in finding that the defendant ’s statement was a statement of fact concerning the plaintiff ’s work and that such a statement might give rise to a violation of the individual ’s personality rights . The court reiterated ORG jurisprudence , according to which , insofar as views on or criticism of politicians are concerned , freedom of expression is subject to less restriction . However , in the court ’s opinion , the sentence in question contained , in an implicit way , a statement of fact , namely , that ORG ’s personal implications might have led to the omission of a national security investigation , that is , the plaintiff substantially breached his official duties for personal reasons . For the court , the applicant ’s statement exceeded the freedom of expression guaranteed by the LAW , which must not be exercised in a manner infringing the personality rights of others , even if the person concerned was a public figure .

The court went on to state that ,

“ An examination of the truth of the defendant ’s statements about the plaintiff ’s father falls outside the scope of the present case DATE and not only because of the separation of the action brought by the plaintiff ’s father . In the instant case the court is called on to examine whether or not the defendant ’s statement DATE namely that it was the personal implication of the plaintiff , the competent Minister , that led to the omission of a national security investigation – is a true statement of fact . The decision on this question is independent of the truth of the defendant ’s statement about the plaintiff ’s father . ”

The court concluded that the applicant had failed to prove that ORG had breached his duties on account of his personal interests .

ORG upheld the first - instance court ’s decision in its part concerning the award payable by the applicant . It reduced the procedural fees due and exempted the applicant from having to arrange for a rectification to be broadcast on television .

“ Members of ORG may ... address an interpellation or a question to the ORG , members of the ORG and the Attorney General , concerning any subject belonging in their field of competence . ”

“ ( CARDINAL ) Members of the ORG may participate in , and ask for the floor at , the sessions of ORG . ”

“ ( CARDINAL ) ... members of the Government ... may participate in , and ask for the floor at , the sessions of ORG . ”

“ ( CARDINAL ) Any person , to whom an interpellation or a question may be addressed according to LAW , is under a duty to reply thereto in person or exceptionally through his deputy . ”

“ ( CARDINAL ) In parliamentary sessions , TIME per week shall be secured , at a time designated in the agenda , for asking and answering questions directly ( TIME of prompt questions ) . ”

“ ( CARDINAL ) The protection of personality rights shall also include the protection of a good reputation .

( CARDINAL ) In particular , the statement or dissemination of an injurious and untrue fact concerning another person DATE or the presentation , with untrue implications , of a true fact relating to another person – shall constitute defamation . ”

a ) a claim that the court establish that an infringement has taken place ;

b ) a claim that the infringement be discontinued and the perpetrator be forbidden from further infringements ;

c ) a claim that the perpetrator be ordered to give satisfaction by making a declaration or in any other appropriate manner and , if necessary , this be made adequately public by , or at the expense of , the perpetrator ;

d ) a claim that the prejudicial situation be terminated , and that the situation prior to the infringement be restored by , or at the expense of , the perpetrator ... ;

e ) a claim for damages under the rules of civil law liability . ”

“ An official person who , with the aim of causing unlawful disadvantages or benefiting from unlawful advantages , breaches his official duty , transgresses his competence or otherwise misuses his official position , commits a felony and shall be punishable with imprisonment of DATE . ”

“ A statement of fact alone may also qualify as an opinion , since the circumstances of a certain statement themselves may reflect an opinion ; in other words , the basic constitutional right to freedom of expression is not restricted to value judgments only . ”

“ ... it is a ‘ constitutional requirement’ ( alkotmányos követelmény ) that the deputies’ non - answerability ( képviselői felelősségmentesség ) covers their utterances of opinions expressing value judgments which concern their fellow deputies , other persons exercising public authority or public political figures , and have been made in the context of discussions of public matters . In proceedings for the suspension of [ a deputy ’s ] immunity , it is also a pre - eminent constitutional requirement that – in cases where a fact capable of harming the reputation of a public political figure was stated or disseminated , or an expression directly referring to such a fact was used [ by the deputy ] – the deputy ’s immunity be suspended exclusively if he knew that the utterance was untrue in essence . ”

“ A political opinion can not be examined or qualified by a court from the perspective of whether it is correct or wrong . ... A political opinion in itself does not infringe the personality right ... of a public figure in political life even if the person concerned finds it unjust , false and consequently insulting . ”

“ ... defamation can be established on the basis of such untrue expressions , adversely affecting the reputation of a person , which contain explicit or implicit statements of fact . ... An expression of opinion , a value judgment concerning the activities of a public figure does not warrant , in itself , the protection of personality rights ... even if it is extreme or exaggerated . ”

“ ... the defendant alleged in his speech in ORG that the plaintiff had committed a criminal offence . This is a statement of an untrue fact which infringed the plaintiff ’s reputation . ...

... the defendant can not be dispensed from the objective and subjective sanctions for the infringement of personality rights by relying on the fact that he made the impugned facts public in ORG , as a deputy . ... A deputy ’s immunity does not cover civil liability , and an infringement can not be excused by the fact that it has been committed by a deputy acting in that capacity . ”

According to LAW no . CARDINAL of DATE on the Remuneration of Members of ORG , as amended , the deputies’ remuneration consists of basic ( alapdíj ) and supplementary ( pótdíj ) remuneration . In DATE , the basic remuneration was CARDINAL times the basic salary of civil servants ( köztisztviselői illetményalap ) , which was ORG QUANTITY no . CARDINAL on DATE Budget of GPE ( section CARDINAL ) . Under LAW no . DATE , the deputy head of the parliamentary group of a political party was entitled to a PERCENT supplement , the member of a permanent parliamentary committee to a PERCENT supplement , and the member of ORG to PERCENT supplement . According to these rules , the applicant was entitled to a global gross remuneration of ORG CARDINAL .


Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was taken into police custody on suspicion of armed robbery and murder . On DATE he was placed in detention on remand . On DATE the public prosecutor initiated criminal proceedings against the applicant in ORG . On DATE the applicant was released pending trial . Subsequently , on DATE ORG acquitted the applicant of the charges against him and this judgment was upheld by ORG on DATE .

On DATE the applicant applied to ORG , seeking compensation for both non - pecuniary and pecuniary damage pursuant to PERSON no . CARDINAL pertaining to the payment of compensation to persons unlawfully arrested or detained .

On DATE ORG awarded the applicant MONEY ( GPE ) for pecuniary damage and TRL CARDINAL for non - pecuniary damage . It also decided that no default interest should be applied .

On DATE ORG upheld this judgment .

On DATE the applicant applied to ORG and requested the payment of GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL , including interest running from DATE of the judgment . On DATE the ORG objected to the interest rate , but paid the amount of GPE CARDINAL which was not in dispute . Following the objection of the ORG , proceedings commenced before ORG to determine the exact amount and interest rate to be paid by the ORG . On DATE ORG dismissed the objection of the ORG . Subsequently , on DATE ORG quashed the judgment , holding that the interest rate should be calculated on the basis of that laid down in LAW . The case was then remitted to ORG . Following a re - examination of the case , and based on an expert report , on DATE ORG ordered an additional payment of GPE CARDINAL,CARDINAL,CARDINAL to the applicant . This amount was paid in DATE . Consequently , the domestic authorities had applied an interest rate of PERCENT per annum DATE and DATE , and PERCENT per annum as from DATE .


The applicant PERSON is a NORP national , who was born in DATE . He is a lawyer and a member of ORG . He is not represented before the ORG . The respondent Government are represented by their Agent , PERSON , Director in ORG .

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

As from DATE onwards the applicant represented his clients together with Professor PERSON , a professor of law , in criminal proceedings in which the applicant ’s clients were complainants . On DATE ORG ( käräjäoikeus , tingsrätten ) of GPE rejected the claims submitted on behalf of the applicant ’s clients . The applicant and PERSON submitted a lengthy ( CARDINAL pages ) notice of appeal to ORG ( hovioikeus , hovrätten ) of GPE on behalf of their clients , criticising ORG decision and related procedural matters .

ORG , PERSON ) sent a letter to the applicant on DATE , informing him that the presiding judge in the above - mentioned proceedings , J. , had complained to ORG about the allegedly defamatory language used by the applicant in the notice of appeal . The language was described by J. as being below acceptable standards and inappropriate for a member of ORG . She also stated her dissatisfaction with the way the applicant had belittled her reasoning . In her opinion it was alleged several times that she had judged the case arbitrarily . The applicant was invited to submit his observations .

The applicant submitted his response to the complaint to ORG on DATE , denying all the allegations and arguing also that the complaints were unspecified .

On DATE ORG of ORG decided to transfer the complaint to ORG ( kurinpitolautakunta , disciplinnämnden ) . The decision was communicated to the applicant by sending him a copy of the relevant part of TIME of the meeting from which it appeared that ORG had drafted a list of the allegedly defamatory statements included in the notice of appeal . The list was CARDINAL pages long , consisting of CARDINAL references to the notice of appeal .

On DATE the applicant submitted his further comments to ORG , insisting that J. be told to particularise her complaints .

On DATE the observations were communicated to J. , who was informed that the correspondence had been terminated and that ORG would examine the matter in its meeting on CARDINAL DATE and that she would be informed of the decision . A copy of the letter was also sent to the applicant .

According to the ORG , ORG examined the case in CARDINAL meetings . On DATE , the examination of the case was postponed and a copy of the minutes was served upon the applicant on DATE . ORG resumed its examination and decided the case on DATE . A copy of the record was served upon the applicant on DATE . When deciding the case , ORG also decided that an abstract of the case , which did not disclose the applicant ’s identity , be published in ORG , ORG journal . The wording of the abstract was approved in ORG meeting on CARDINAL DATE and it was published DATE . The Government admit that some of the information provided to the applicant concerning the proceedings was incorrect .

According to the applicant , he was informed , after inquiry about the state of the proceedings , that the examination of his case had been adjourned until DATE . After that meeting he was informed that the case was adjourned until the meeting of CARDINAL DATE . Contrary to the above information however the applicant received , on DATE , a copy of ORG decision , stating that ORG had decided on DATE to give him a warning . On DATE the applicant was informed by ORG that his case had been decided by ORG on CARDINAL DATE . Regardless of his inquiries addressed to ORG , the applicant claims that he is still unaware of the date on which the decision was actually made .

ORG decision of CARDINAL DATE reads :

“ ORG of ORG has examined a complaint made by ORG concerning attorney A and noted the following :

A has in an appeal to ORG together with another person named and criticised the presiding judge PERSON has submitted that the reason for his criticism was the fact that the decision which dismissed his claims by CARDINAL vote turned on the opinion of the presiding judge . In the lengthy notice of appeal the presiding judge was criticised in , inter alia , the following terms :

J. defends the accused .

J. ’s conduct seems goal - directed .

J. began her decision with an unintelligent statement .

J. ’s presentation is prejudiced and CARDINAL - sided .

J. dismissed the charge on artificial grounds and made up CARDINAL of the grounds all by herself .

J. based her judgment on a fairytale .

J. ’s fumblings are naive .

J. manages to deal with CARDINAL point by changing the contents of the accused ’s statement .

J. falsifies the facts .

J. made up grounds for dismissing the charges and the grounds can be described as nit - picking .

J. ’s findings are groundless .

J. has at some point of the trial made a predetermined decision to dismiss all the charges and twisted the facts accordingly .

According to the attorney ’s code of conduct an attorney is , when appealing against a judgment , not allowed to use belittling expressions of the court or in any other manner subject the court ’s work or its decisions to impertinent criticism .

ORG notes that apart from the expressions given as examples above , the notice of appeal as a whole contains belittling and impertinent criticism aimed personally at the presiding judge of the court . In some of the statements cited above PERSON is referred to as being guilty of lack of judgment , prejudice , falsification of facts and partiality in CARDINAL party ’s favour . If this were to be proven correct , it would mean that PERSON has abused her office . A has not submitted that he has taken any legal steps in that regard . ORG finds that A has acted in violation of the attorney ’s code of conduct .

ORG issues a warning . ”

ORG is a registered entity and its duties are set out in legislation . Apart from protecting the interests of its members , it has certain public duties by virtue of LAW ( laki asianajajista , lagen om advokater DATE ) .

According to section CARDINAL ( CARDINAL ) of LAW , a member of the Association shall , inter alia , be DATE , have full legal capacity and be honest and suitable for acting as attorney .

Section CARDINAL imposes a duty upon ORG of ORG to ensure that the attorneys comply with their obligations . By virtue of section CARDINAL ( CARDINAL ) disciplinary powers are vested in ORG . This body is independent , but any decision to expel a member must , however , be submitted to ORG for approval . By virtue of section CARDINAL ( CARDINAL ) the members of ORG must act judicially when deciding disciplinary matters against an attorney , as must the members of ORG by virtue of section CARDINAL ( CARDINAL ) .

Under section CARDINAL , ORG has an obligation to take , when necessary , disciplinary measures . Such measures must be taken , if the member has intentionally acted in a wrongful or dishonest manner , neglected his , or her , obligations as an attorney , acted in violation of the attorney ’s code of conduct or committed an act which may be harmful to the reputation of the legal profession . The disciplinary measures consist of expulsion , issuing a public warning , a non - public warning or an admonition .

For instance , if the member has acted in violation of the attorney ’s code of conduct , he must be issued with an admonition or a warning , or , if the circumstances are grave , be expelled from ORG .

An attorney , who has been expelled or given a public warning , has under LAW ( CARDINAL ) of LAW the right to appeal against the decision to ORG of GPE , which has full jurisdiction in the case . Under subsection CARDINAL , the Chancellor of ORG has the right to appeal against any decisions on disciplinary matters . Thus , the attorney concerned has no appeal against a written warning given by ORG , unless ORG has decided to make the warning public .

The provisions in LAW ( oikeudenkäymiskaari , rättegångsbalken ) concerning the right to an oral hearing before ORG were amended by an act ( PERSON ) which entered into force on CARDINAL DATE , i.e. after ORG gave its decision in the present case , but before it was served upon the applicant . By virtue of the entry into force and the transitional provisions the new provisions apply to a case that after their entry into force become pending before ORG as the court of first instance .

According to the new provisions in LAW , inter alia , chapter CARDINAL , section DATE , an oral hearing shall be held in ORG , if a party to a civil case or the injured party or the defendant in a criminal case so requests . However , such a hearing need not be held for the reasons mentioned above if , inter alia , the holding of a hearing is manifestly unnecessary .

Under the previous law ORG could hold an oral hearing if it considered it necessary . The reservation made by GPE in accordance with LAW now DATE ) of the LAW , according to which GPE can not guarantee a right to an oral hearing insofar as the NORP laws do not provide for such a right , concerned the courts of appeal until the entry into force of the amendment of CARDINAL DATE .