The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . DATE he was a public prosecutor ( FAC ) , working under the authority of ORG ( PERSON ) of GPE ( GDR ) . He was represented before the ORG by PERSON , a lawyer practising in GPE .

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

In DATE the NORP dissident PERSON published a book inspired by the events of the GPE Spring of DATE entitled “ The Alternative – A Critique of Socialism as it Actually Exists ” ( Die Alternative – PERSON des real existierenden PERSON ) , in which he advocated a number of reforms with a view to setting up an ideal communist system and criticised the GPE ’s party apparatus . In DATE the book was published in GPE ( FRG ) .

In DATE he had written a thesis on “ Employment conditions of scientifically trained management staff in the industry of the GPE ” ( ORG wissenschaftlich ausgebildeter ORG in der ORG der DDR ) , for which he had collected comments from CARDINAL graduates on their conditions of employment in industry . In DATE the technical university he was attending rejected Mr PERSON ’s thesis and so he attempted to publish it in the FRG .

On DATE Mr PERSON was arrested and DATE he was remanded in custody .

On DATE the trial opened before ORG ( Stadtgericht ) , which had jurisdiction over political offences . In his submissions as prosecutor the applicant recommended , on behalf of ORG , that PERSON be sentenced to CARDINAL years’ imprisonment for “ repeated offences or attempted offences of intelligence gathering ” ( mehrfacher , teils versuchter PERSON ) , pursuant to LAW former GPE ’s FAC , and betrayal of secrets ( NORP ) , pursuant to LAW .

In a judgment of DATE ORG convicted PERSON of “ gathering , imparting and attempting to impart intelligence ” ( GPE , GPE versuchter ORG ) and “ betrayal of secrets ” ( PERSON ) and sentenced him to CARDINAL years’ imprisonment in accordance with Articles QUANTITY and CARDINAL § CARDINAL of the GPE ’s FAC ( see Relevant domestic law and practice below ) .

On DATE PERSON lawyer , PERSON , appealed against that judgment .

In his submissions , the applicant asked ORG ) to dismiss PERSON appeal .

In a decision of CARDINAL DATE ORG declared Mr PERSON ’s appeal manifestly ill - founded ( offensichtlich unbegründet ) and upheld the judgment at first instance .

PERSON was granted an amnesty on the occasion of the thirtieth anniversary of the founding of the GPE and released on DATE . The applicant had recommended that he should be released .

On DATE , in anticipation of the approaching reunification of the two GPE , ORG ( Präsidium ) of ORG set aside ORG judgment of DATE and ORG judgment of CARDINAL DATE and acquitted Mr PERSON because his conviction for “ intelligence gathering ” and “ betrayal of secrets ” had been unjustified .

On DATE ORG ( Landgericht ) sentenced the applicant to DATE and CARDINAL months’ imprisonment , suspended , for aiding and abetting a deliberate perversion of the course of justice ( Beihilfe PERSON ) , pursuant to LAW , taken together with LAW , and aiding and abetting a deprivation of liberty ( Beihilfe zur Freiheitsberaubung ) , pursuant to LAW , taken together with LAW . It also convicted CARDINAL of the judges of the GPE ’s ORG who had taken part in drawing up the decision of DATE .

ORG began by reiterating the general principles that are applicable to prosecutions of former members of the GPE ’s national legal service . Both judges and prosecutors are liable to prosecution since the offences of deliberate perversion of the course of justice ( GPE ) and deprivation of liberty ( GPE ) are expressly defined both by ORG and CARDINAL § CARDINAL of the FRG ’s Criminal Code and by Articles CARDINAL and CARDINAL § CARDINAL of the GPE ’s FAC ( see Relevant domestic law and practice below ) . In accordance with the principles on the application of criminal law in GPE after the reunification for offences committed in the GPE before the reunification ( see Relevant domestic law and practice below ) , ORG applied the relevant provisions of the GPE ’s FAC at the material time .

In respect of the first offence of which the applicant was accused , namely aiding and abetting a deliberate perversion of the course of justice , ORG , having regard to the principle that the criminal law is not to be applied retrospectively , pointed out that the only acts which were reprehensible were those which , while taking account of the relevant legal provisions applicable in the GPE and the values on which that ORG was based , were found to be manifestly arbitrary ( offensichtliche ORG ) and in breach of human rights . According to the case - law of ORG ( ORG ) , CARDINAL types of case might arise – those in which the elements constituting the offence ( PERSON ) were exaggerated ( überdehnt ) , those in which the sentence was intolerably disproportionate ( in einem unerträglichen Missverhältnis ) to the offence committed and finally those in which the proceedings had flagrantly infringed human rights .

In the instant case , ORG considered that , in the light of the methods of interpretation ( Auslegungsmethoden ) that had existed in the GPE , the offences of which Mr PERSON had been accused could just conceivably be regarded as “ intelligence gathering ” and “ betrayal of secrets ” as defined in ORG and CARDINAL of the GPE ’s FAC . On the other hand , it found that the sentence imposed on PERSON by ORG of the GPE had been totally at variance with the principle of proportionality which had also formed part of the GPE ’s law . Even though the sentence had still been formally within the limits set by statute ( innerhalb des gesetzlichen PERSON ) , the judgment of CARDINAL DATE flagrantly infringed the sentencing rules ( ORG ) laid down in LAW of the GPE ’s FAC ( see Relevant domestic law and practice below ) .

In its judgment ORG had found PERSON guilty of supporting those who had sought to overthrow the socialist system for over DATE through his offences , whereas it had previously found that Mr PERSON ’s conduct prior to DATE had not been criminal and it could not therefore legitimately argue that his conduct before that date had increased his guilt . ORG had also held that PERSON had taken advantage of his position and industrial workers’ trust in him to extort information from them . However , when taking evidence , ORG had failed to establish what kind of information Mr PERSON had extorted in this way .

ORG also pointed out , with reference to a commentary on the GPE ’s Criminal Code published by its ORG in DATE , that the consequences and adverse effects of the offence should be decisive for the fixing of the sentence . But ORG had declared that the book published by PERSON contained information that could be used with the assistance of enemy intelligence services to promote measures that would damage the economy ( ORG , die geeignet seien , wirtschaftschädigende LOC gegnerischen Nachtrichtendienste zu unterstützen ) and that the information contained in his thesis could have been used for “ ideological diversion ” ( ideologische Diversion ) , whereas it was not at all clear how PERSON book could have led to such consequences or that it had done so , and the same was true where so - called “ ideological diversion ” was concerned .

ORG also criticised ORG for having failed to take any account of the many extenuating circumstances which weighed in Mr PERSON ’s favour . It had taken absolutely no account of the fact that Mr PERSON had acknowledged the objective facts , that he had been acting in a noble cause , namely to propose reforms to the socialist system , not to support its enemies , that until that date his conduct in the GPE had been irreproachable and above all that he had never been prosecuted before .

ORG accordingly held that the sentence imposed on PERSON had been patently disproportionate and an intolerable arbitrary act ( unerträglicher Willkürakt ) . Its aim had not been to achieve justice ( Article CARDINAL of the LAW of the GPE ) but to silence a brave critic of the regime maintained by ORG ( PERSON “ the SED ” ) under the guise of a criminal trial . Consequently , Mr PERSON ’s imprisonment had also been a breach of the law because it had been based on a judgment obtained by a deliberate perversion of the course of justice .

As to the applicant ’s role , ORG pointed out in the first place that it was not the indictment ( ORG ) itself that was at issue , since the legal classification of the offences of which PERSON had been accused had still been just within the bounds of acceptability ; it was in fact the sentence recommended by the applicant ( PERSON ) in his submissions of DATE against PERSON during the hearing before ORG , which had amounted to the offences of aiding and abetting a deliberate perversion of the course of justice and deprivation of liberty . While acknowledging that it was not the applicant , via his submissions , who had given the judges the idea ( auf die Idee gebracht ) of convicting PERSON , ORG held that he had considerably assisted them in that task because the judges were bound to reply to his submissions under the relevant provisions of the GPE ’s Code of Criminal Procedure and their findings in the instant case had been largely based on those submissions .

Consequently , ORG considered that in sentencing Mr PERSON to eight years’ imprisonment DATE a sentence that was flagrantly disproportionate to his guilt , as ORG judges knew – the judges had been guilty of a deliberate perversion of the course of justice and deprivation of liberty . Because of the harshness of the sentence he had asked the court to impose on PERSON , the applicant , who knew the law of the GPE very well by virtue of his function , had deliberately and knowingly assisted the judges in making the decision that had perverted the course of justice and resulted in the deprivation of Mr LOC ’s liberty . By recommending before ORG that Mr PERSON ’s appeal be dismissed , the applicant had also assisted the judges of ORG in their task .

Lastly , ORG found that the defendant ’s conviction was ruled out neither by the amnesties granted by the GPE at the material time nor because it was time - barred .

ORG applied Article CARDINAL of the GPE ’s FAC , which set a limitation period of DATE for a deliberate perversion of the course of justice since that offence carried a maximum penalty of CARDINAL years’ imprisonment ( under LAW , the extent of a person ’s criminal responsibility for aiding and abetting ( Beihilfe ) depends on the offence committed ) . It also applied LAW the GPE ’s FAC , under which there is a suspension ( Ruhen ) of the running of time where , “ for another legal reason ” ( aus einem anderen gesetzlichen GPE ) , criminal proceedings can not be brought ; in so doing , it referred to ORG established case - law on the subject ( see Relevant domestic law and practice below ) .

To determine the length of the sentence to be imposed on the applicant , ORG also applied the criminal law of the GPE that had been applicable at the material time ( because it was more lenient than that of the ORG ) and took account of a number of extenuating circumstances in the applicant ’s favour .

In a decision of CARDINAL DATE ORG ( ORG ) dismissed an appeal by the applicant .

On DATE , ORG ( PERSON ) , sitting as a CARDINAL - member panel , refused to examine an appeal by the applicant .

Under LAW to the FRG ’s LAW ( Einführungsgesetz ins Strafgesetzbuch ) , taken together with LAW itself , offences committed inside the territory of the GPE prior to the entry into force of LAW ( on DATE ) are in principle judged under the more lenient criminal law applicable at the material time if there were equivalent criminal provisions in the ORG and the GPE .

The relevant provisions of the GPE ’s FAC at the material time provided as follows .

LAW the GPE ’s Criminal Code provided , inter alia , that anyone who allowed himself to be recruited by a foreign power , secret services or a foreign organisation for the purposes of gathering , disclosing or imparting secret information prejudicial to the GPE ’s interests should also be convicted of espionage under LAW , which stated that the penalty for espionage was at least five years’ imprisonment .

Article CARDINAL § CARDINAL of the GPE ’s Criminal Code provided , inter alia , that anyone divulging secret documents or intelligence to unauthorised third parties was liable to a term of imprisonment of DATE .

Article CARDINAL of the GPE ’s LAW defined the offence of deliberate perversion of the course of justice ( GPE ) . It stated , inter alia , that judges or prosecutors who deliberately showed bias for or against a defendant during a trial or investigation were liable to a maximum of CARDINAL years’ imprisonment .

Article CARDINAL § CARDINAL of the GPE ’s LAW defined the offence of deprivation of liberty ( GPE ) .

In its judgment of DATE ORG also referred to LAW , which laid down the rules on sentencing ( NORP ) . LAW provided among other things , in paragraph CARDINAL , that when deciding on the severity of the sentence , regard should be had both to the objective and subjective circumstances of the offence and to its consequences . Account also had to be taken of the offender ’s character , his social conduct before and after the offence and the causes and circumstances of the offence . It was particularly important to ascertain whether the offender had learnt the lessons of any previous conviction . Lastly , courts were also under an obligation to have regard to any extenuating or aggravating circumstances for the offender .

The relevant provisions of LAW provided :

“ The generally recognised rules of international law intended to promote peace and peaceful cooperation between peoples are binding ( sind verbindlich ) on the ORG and every citizen . ”

“ Respect for and protection of the dignity and liberty of the person ( PERSON ) are required of all ORG bodies , all forces in society and every citizen . ”

The first chapter of the Special Part ( GPE PERSON ) of LAW , entitled “ Crimes against the national sovereignty of GPE , peace , humanity and human rights ” , included the following introduction :

“ The merciless punishment of crimes against the national sovereignty of GPE , peace , humanity and human rights , and of war crimes , is an indispensable prerequisite for stable peace in the world , for the restoration of faith in fundamental human rights ( Wiederherstellung des Glaubens an grundlegende Menschenrechte ) and the dignity and worth of human beings , and for the preservation of the rights of all . ”

Article CARDINAL of LAW was worded as follows :

“ Any person whose conduct violates human or fundamental rights , international obligations or the national sovereignty of GPE may not plead ( kann sich nicht berufen auf ) statute law , an order or written instructions in justification ; he shall be held criminally responsible . ”

LAW provided :

“ Crimes against peace , humanity or human rights , and war crimes shall not be subject to the rules on limitation set out in this law [ laying down the limitation periods for the various categories of offences ] . ”

Article CARDINAL of the GPE ’s FAC made provision for the suspension ( Ruhen ) of the running of time for the purposes of the limitation of prosecution in the following cases :

“ CARDINAL . as long as the offender remains outside the territory of the GPE ;

NORP as long as criminal proceedings can not be brought or continued because the offender is seriously ill or for another legal reason ( aus einem anderen gesetzlichen GPE ) ;

NORP as long as criminal proceedings can not be brought or continued pending the outcome of another set of proceedings ;

NORP once the court has decided to commence the trial . ”

In accordance with its settled case - law , ORG has held that the deliberate refusal of the GPE ’s authorities and its single party to prosecute where there had been deliberate perversions of the course of justice , even where those offences were punishable under the GPE ’s written law , constituted “ another legal reason ” entailing a suspension of the limitation period ( see ORG , criminal cases , Reports of decisions no . DATE , pp . CARDINAL et seq . and pp . CARDINAL et seq . , Reports of decisions no . CARDINAL , pp . CARDINAL et seq . , and the decision of DATE published in the ORG , pp . CARDINAL et seq . ) .

This case - law had existed since DATE in GPE , when it had been applied to the crimes committed under ORG rule ( see ORG decision of DATE , Reports of decisions no . CARDINAL , pp . CARDINAL et seq . , and ORG decisions in criminal cases of CARDINAL DATE and DATE , Reports of decisions no . CARDINAL , pp . CARDINAL et seq . and no . CARDINAL , pp . CARDINAL et seq . , respectively ) .

Section CARDINAL of the Law of DATE on the suspension ( NORP ) of limitation in respect of injustices committed under the ORG regime of ORG , known as LAW , ( PERSON über das Ruhen der Verjährung bei SED - ORG ) , which complements this case - law , provides as follows :

“ When calculating the limitation period for the prosecution of acts committed under the unjust regime of ORG ( SED - Unrechtsregime ) which , in accordance with the express or implicit wishes of the ORG authorities or the single party of the former GPE , were not prosecuted for political reasons or reasons contrary to the fundamental principles of a liberal constitutional system ( freiheitliche rechtsstaatliche PERSON ) , the period DATE and DATE shall not be taken into account . During this period limitation was suspended . ”

ORG was ratified by the GPE on DATE .

LAW provides :

“ All persons shall be equal before the courts and tribunals . In the determination of any criminal charge against him , ... everyone shall be entitled to a fair and public hearing by a competent , independent and impartial tribunal established by law . ... ”


The applicant [ Mr PERSON ] is a NORP national and was born in DATE . He is currently in prison . He was represented before the ORG by Mr L. Hintermann , a lawyer practising in LOC - les - PERSON ( GPE ) .

In a judgment of DATE , ORG found the applicant guilty of aggravated rape . It sentenced him to DATE imprisonment and suspended his civic , civil and family rights for DATE .

On DATE ORG dismissed an appeal by the applicant in a judgment in which it held :

“ No ground of appeal has been made out in support of the appeal , the procedure was correctly followed and the sentence lawfully imposed for what both the court and the jury had found were repeated acts . ”

The applicant maintained that it was the negligence of the lawyer representing him that was to blame for the failure to lodge grounds of appeal with ORG .

Relying on LAW , the applicant complained that the criminal proceedings instituted against him had been unfair . He complained in particular of the investigating judge 's refusal to order a second expert - witness report and to hear certain defence witnesses and of being hindered in the preparation of his defence by the fact that during the investigation the authorities claimed MONEY ( ORG ) per page from him for a copy of his case file .

Relying on LAW No . CARDINAL , he complained also that he did not have a right of appeal on the facts since the only remedy against judgments of ORG was by way of an appeal on points of law .

NORP The applicant complained that the criminal proceedings instituted against him had been unfair . He complained in particular of the investigating judge 's refusal to order a second expert - witness report and to hear certain defence witnesses and of being hindered in the preparation of his defence by the fact that during the investigation the authorities claimed ORG CARDINAL per page from him for a copy of his case file . He relied on LAW , which provides :

“ CARDINAL . In the determination of ... any criminal charge against him , everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...

Everyone charged with a criminal offence has the following minimum rights :

( b ) to have adequate time and facilities for the preparation of his defence ;

( d ) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ;

The ORG notes that neither the case file nor the applicant 's submissions indicate that he appealed to ORG against the committal order on the ground that the investigation was unfair . The ORG further notes the ground on which ORG dismissed the applicant 's appeal against the judgment of ORG and reiterates that it is all the more difficult for the applicant to pray in aid the negligence of the lawyer who represented him before the domestic courts as he does not allege and there is nothing in the file to suggest that his counsel was appointed under the legal - aid scheme ( see GPE v. GPE , application no . CARDINAL , Commission decision of DATE , unreported ) . The ORG therefore finds that the applicant has not exhausted domestic remedies as he is required to do by LAW .

In addition , the ORG notes that the applicant does not assert that ultimately he did not receive satisfactory communication of the evidence in the file before the trial at ORG ; nor does the transcript of the trial indicate that ORG dismissed any application by the applicant to call witnesses .

Consequently , this part of the application must be dismissed pursuant to LAW , DATE and DATE of the Convention .

NORP The applicant also complained that he did not have a right of appeal on the facts since the only remedy against judgments of ORG was by way of an appeal on points of law . He relied on LAW no . CARDINAL , which reads as follows :

“ CARDINAL . Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal . The exercise of this right , including the grounds on which it may be exercised , shall be governed by law .

NORP This right may be subject to exceptions in regard to offences of a minor character , as prescribed by law , or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal . ”

The ORG notes that the applicant was found guilty of offences of aggravated rape and sentenced to DATE imprisonment by ORG in a judgment of DATE . It notes that he was unable to appeal against the “ merits ” of that judgment , since the only remedy available under NORP law against judgments of ORG is an appeal to ORG , which may only re - examine the case on issues of law .

The ORG reiterates , however , that under the wording of LAW No . CARDINAL the Contracting States retain the power to decide how the right to re - examine shall be exercised and may limit its extent . In a number of GPE , re - examination is thus restricted to questions of law ( see PERSON and PERSON v. GPE DATE . ) , ORG . CARDINAL and CARDINAL , PERSON ) . That was also the position taken by ORG ( see PERSON v. GPE , application no . CARDINAL , Commission decision of DATE , ORG and Reports CARDINAL , p. CARDINAL ; GPE v. GPE , application no . ORG decision of DATE , unreported ; ORG v. GPE , GPE and GPE , application no . CARDINAL/CARDINAL , Commission decision of CARDINAL DATE , unreported ; and GPE v. GPE , application no . ORG decision of CARDINAL DATE , unreported ) .

The ORG accordingly holds that the fact that the applicant was able to appeal on points of law against the judgment of DATE satisfied the requirements of LAW No . CARDINAL to the Convention .

Consequently , this part of the application is manifestly ill - founded and must be dismissed pursuant to LAW .

For these reasons , the ORG unanimously

Declares the application inadmissible .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

The applicant was born in DATE and lives in GPE .

He is the owner of a flat in GPE , which he had let to GPE

In a writ served on the tenant on CARDINAL DATE , the applicant informed the tenant of his intention to terminate the lease on expiry of the term on DATE and summoned him to appear before the Florence Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

In the meanwhile , the enforcement proceedings were suspended until DATE .

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

On DATE , he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .

NORP On DATE , the applicant recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , Law no . CARDINAL of DATE reformed the tenancies and liberalised the rents .

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages . ”

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre

On DATE ORG ( PERSON ) made a conditional grant of legal aid in respect of the proceedings before ORG . It is in the following terms :

“ The grant of legal aid is conditional . The [ ORG ] will not make any final grant of legal aid if it appears after the termination of legal asistance that [ the applicant ’s ] financial means are such that they exceed the limits set by and pursuant to [ LAW ( Wet op de rechtsbijstand ) ] or the cost of legal assistance is reimbursed by a third party . ”

Section CARDINAL of LAW , as relevant to the questions remaining before the ORG , provides :

No legal aid shall be provided if :

PERSON the legal interest at issue is placed before an international body entrusted with jurisdictional tasks by a treaty ( een bij verdrag met rechtspraak belast internationaal college ) or a comparable international body and that body itself provides a claim in respect of legal assistance ( in een aanspraak op vergoeding van rechtsbijstand voorziet ) ; ... ”


András Sajó;Elisabeth Steiner;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicant , PERSON , is a NORP national who was born in DATE . Currently , he is detained at FAC .

On DATE the NORP ORG finally convicted the applicant , a NORP citizen , of CARDINAL counts of aggravated murder and robbery for having strangled and robbed CARDINAL of his homosexual partners . It sentenced him to life imprisonment , with the earliest release on parole after DATE , and to a ban from NORP territory . The ban entailed that the applicant could involuntarily be transferred to GPE for the execution of his sentence .

On DATE the applicant was surrendered by the NORP authorities to their NORP counterpart .

On DATE the NORP GPE ORG established that the legal conditions for executing the sentence in a NORP prison were indeed met . On DATE it converted the applicant ’s sentence into life imprisonment under NORP law , with the earliest release on parole after DATE . On DATE ORG upheld this ruling ( service : DATE ) .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

NORP The applicant , ORG , is a company registered in GPE . It was represented before the ORG by Mr PERSON of “ Lawyers for Human Rights ” , a non - governmental organisation based in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

NORP The facts of the case , as submitted by the parties , may be summarised as follows . On DATE the applicant company concluded a contract with Comgaz - Plus ( “ C - P ” ) , a ORG - owned company . In accordance with the contract , the applicant company undertook to produce and install several natural gas heaters and thermal energy distribution systems for the GPE . Having fulfilled its part of the contract , the applicant company asked ORG to pay the equivalent of CARDINAL GPE ( ORG ) in accordance with the contract . C - P failed to pay .

NORP By further agreements the parties agreed that the applicant company would produce and install several additional natural gas heating systems . CP again failed to pay , but on DATE it concluded a new agreement with the applicant company , under which it undertook to pay the latter the outstanding amount ( USD CARDINAL,CARDINAL ) within DATE . The parties also agreed that if the amount remained unpaid for DATE , the applicant company would have the right to claim the entire debt plus the damages accrued under the previous agreements , that is , ORG CARDINAL .

Since C - P again failed to pay , on DATE the applicant company initiated court proceedings , claiming the equivalent of ORG CARDINAL . In its court action , the applicant company indicated that it was in a very poor financial situation , having no money in its bank account after the partial payment of the court fees , as borne out by the bank statement it submitted in the proceedings . It asked for an extension of the time - limit for paying the remainder .

On DATE ORG decided not to examine the court action on account of the applicant company 's failure to pay the court fees ( MONEY ( ORG ) ) in full . It gave the applicant company DATE to pay in full . On DATE the same court extended the time - limit for payment of the court fees until DATE .

The applicant company appealed , referring to its poor financial situation . It argued that LAW would be violated if the courts refused to examine its case because it had no means to pay the court fees .

On DATE ORG rejected the appeal , finding that the applicant company had failed to pay the court fees in full . In reply to the complaint under LAW , the court stated that the lower court “ had had the power to take into account the applicant company 's request to pay the court fee in instalments on the ground of its poor financial situation and to order an extension of the time - limit for paying the court fee which had been set on DATE ” . There was therefore no violation of the applicant company 's right of access to a court .

On DATE ORG returned the applicant company 's court action without examining it on account of its failure to pay the court fees in full . The applicant company did not challenge that decision before ORG .


Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG Mr PERSON , a NORP national , is a journalist and lives in GPE . He was at the time of the events giving rise to the present case , and still is , employed by ORG ( ORG , which broadcasts not only radio but also television programmes ) , assigned to its DATE ORG ( Søndagsavisen ) . The latter is known as a serious television programme intended for a well - informed audience , dealing with a wide range of social and political issues , including xenophobia , immigration and refugees .

ORG On DATE the newspaper Information published an article describing the racist attitudes of members of a group of young people , calling themselves " the ORG " ( " grønjakkerne " ) , at ORG in GPE . In the light of this article , the editors of ORG decided to produce a documentary on the ORG . Subsequently the applicant contacted representatives of the group , inviting CARDINAL of them together with Mr Per Axholt , a social worker employed at the local youth centre , to take part in a television interview . During the interview , which was conducted by the applicant , the CARDINAL ORG made abusive and derogatory remarks about immigrants and ethnic groups in GPE . It lasted DATE , of which CARDINAL were video - recorded . ORG paid the interviewees fees in accordance with its usual practice .

ORG The applicant subsequently edited and cut the film of the interview down to TIME . On DATE this was broadcast by ORG as a part of ORG . The programme consisted of a variety of items , for instance on the martial law in GPE , on the debate on profit - sharing in GPE and on the late NORP writer PERSON . The transcript of the ORG item reads as follows [ ( I ) : TV presenter ; ( A ) : the applicant ; ( G ) : CARDINAL or other of the ORG ] :

( I ) ORG " In DATE , a great deal has been said about racism in GPE . The papers are currently publishing stories about distrust and resentment directed against minorities . Who are the people who hate the minorities ? Where do they come from ? What is their mentality like ? Mr PERSON has visited a group of extremist youths at ORG .

( A ) ORG The flag on the wall is the flag of GPE from ORG , but DATE it is also the symbol of racism , the symbol of the NORP movement , ORG , and it shows what PERSON , PERSON and ORG are .

Are you a racist ?

( G ) ORG Yes , that ’s what I regard myself as . It ’s good being a racist . We believe GPE is for the NORP .

( A ) PERSON , ORG and all the others are members of a group of young people who live in GPE , called FAC , in ORG . It is public housing , a lot of the inhabitants are unemployed and on social security ; the crime rate is high . Some of the young people in this neighbourhood have already been involved in criminal activities and have already been convicted .

( G ) It was an ordinary armed robbery at a petrol station .

( A ) ORG What did you do ?

( G ) ORG . I just ran into a petrol station with a ... gun and made them give me some money . Then I ran out again . That ’s all .

( A ) ORG What about you , what happened ?

( G ) ORG I do n’t wish to discuss that further .

( A ) ORG But , was it violence ?

( G ) ORG Yes .

( A ) ORG You have just come out of ... you have been arrested , what were you arrested for ?

( G ) Street violence .

( A ) ORG What happened ?

( G ) ORG I had a little fight with the police together with some friends .

( A ) ORG Does that happen often ?

( G ) ORG Yes , out here it does .

( A ) ORG All in all , there are CARDINAL young people from STUDSEN in the same group .

They meet not far away from the public housing area near some old houses which are to be torn down . They meet here to reaffirm among other things their racism , their hatred of immigrants and their support for ORG .

( G ) ORG , that ’s something that comes from GPE in DATE during - you know - the civil war and things like that , because GPE wanted that the niggers should be free human beings , man , they are not human beings , they are animals , right , it ’s completely wrong , man , the things that happened . People should be allowed to keep slaves , I think so anyway .

( A ) ORG Because blacks are not human beings ?

( G ) No , you can also see that from their body structure , man , big flat noses , with cauliflower ears etc . , man . Broad heads and very broad bodies , man , hairy , you are looking at a gorilla and compare it with an ape , man , then it is the same [ behaviour ] , man , it ’s the same movements , long arms , man , long fingers etc . , long feet .

( A ) ORG A lot of people are saying something different . There are a lot of people who say , but ...

( G ) ORG Just take a picture of a gorilla , man , and then look at a nigger , it ’s the same body structure and everything , man , flat forehead and all kinds of things .

( A ) ORG There are many blacks , for example in the GPE , who have important jobs .

( G ) ORG Of course , there is always someone who wants to show off , as if they are better than the white man , but in the long run , it ’s the white man who is better .

( A ) ORG What does ORG mean to you ?

( G ) ORG It means a great deal , because I think what they do is right . A nigger is not a human being , it ’s an animal , that goes for all the other foreign workers as well , NORP , PERSON and whatever they are called .

( A ) PERSON is DATE and on welfare . He lives in a rented room in GPE . PERSON is CARDINAL of the strongest supporters of the Klan , and he hates the foreign workers , ‘ Perkere’ [ a very derogatory word in NORP for immigrant workers ] .

( G ) ORG They come up here , man , and sponge on our society . But we , we have enough problems in getting our social benefits , man , they just get it . Fuck , we can argue with those idiots up there at the social benefit office to get our money , man , they just get it , man , they are the first on the housing list , they get better flats than us , man , and some of our friends who have children , man , they are living in the worst slum , man , they ca n’t even get a shower in their flat , man , then those ‘ Perkere’-families , man , go up there with CARDINAL kids , man , and they just get an expensive flat , right there and then . They get everything paid , and things like that , that ca n’t be right , man , GPE is for the NORP , right ?

It is the fact that they are ‘ Perkere’ , that ’s what we do n’t like , right , and we do n’t like their mentality - I mean they can damn well , I mean ... what ’s it called ... I mean if they feel like speaking NORP in their homes , right , then it ’s okay , but what we do n’t like is when they walk around in those GPE - clothes and then speak this hula - hula language in the street , and if you ask them something or if you get into one of their taxis then they say : I do n’t know where it is , you give directions right .

( A ) ORG Is it not so that perhaps you are a bit envious that some of the ‘ Perkere’ as you call them have their own shops , and cars , they can make ends ...

( G ) It ’s drugs they are selling , man , CARDINAL of the prison population in ‘ Vestre’ are in there because of drugs , man , CARDINAL of those in GPE prison anyway , they are the people who are serving time for dealing drugs or something similar .

They are in there , all the ‘ Perkere’ , because of drugs , right . [ That ] must be enough , what ’s it called , there should not be drugs here in this country , but if it really has to be smuggled in , I think we should do it ourselves , I mean , I think it ’s unfair that those foreigners come up here to ... what ’s it called ... make GPE more drug dependent and things like that .

We have painted their doors and hoped that they would get fed up with it , so that they would soon leave , and jumped on their cars and thrown paint in their faces when they were lying in bed sleeping .

( A ) ORG What was it you did with that paint - why paint ?

( G ) ORG Because it was white paint , I think that suited them well , that was the intended effect .

( A ) ORG You threw paint through the windows of an immigrant family ?

( G ) ORG Yes .

( A ) ORG What happened ?

( G ) ORG He just got it in his face , that ’s all . Well , I think he woke up , and then he came out and shouted something in his hula - hula language .

( A ) ORG Did he report it to the police ?

( G ) ORG I do n’t know if he did , I mean , he wo n’t get anywhere by doing that .

( A ) ORG Why not ?

( G ) ORG I do n’t know , it ’s just kid ’s stuff , like other people throwing water in people ’s faces , he got paint in his . They ca n’t make anything out of that .

( A ) ORG Per Axholt , known as ‘ Pax’ [ ( P ) ] , is employed in the youth centre in LANGUAGE . He has worked there for DATE , but many give up a lot sooner because of the tough environment . Per PERSON feels that the reasons why the young people are persecuting the immigrants is that they are themselves powerless and disappointed .

What do you think they would say that they want , if you asked them ?

( P ) ORG Just what you and I want . Some control over their lives , work which may be considered decent and which they like , a reasonable economic situation , a reasonably functioning family , a wife or a husband and some children , a reasonable middle - class life such as you and I have .

( A ) ORG They do many things which are sure to prevent them from getting it .

( P ) ORG That is correct .

( A ) ORG Why do you think they do this ?

( P ) ORG Because they have nothing better to do . They have been told over DATE that the means by which to achieve success is money . They wo n’t be able to get money legitimately , so often they try to obtain it through criminal activity . Sometimes they succeed , sometimes not , and that ’s why we see a lot of young people in that situation go to prison , because it does n’t work .

( A ) ORG How old were you when you started your criminal activities ?

( G ) ORG I do n’t know , about CARDINAL I guess .

( A ) ORG What did you do ?

( G ) ORG The first time , I ca n’t remember , I do n’t know , burglary .

( A ) ORG Do you have what one might call a criminal career ?

( G ) ORG I do n’t know if you can call it that .

( A ) ORG You committed your first crime when you were DATE .

( G ) ORG Well , you can put it that way , I mean , if that is a criminal career . If you have been involved in crime since DATE , then I guess you can say I ’ve had a criminal career .

( A ) ORG Will you tell me about some of the things you have done ?

( G ) No , not really . It ’s been the same over and over again . There has been pinching of videos , where the ‘ Perkere’ have been our customers , so they have money . If people want to be out here and have a nice time and be racists and drink beer , and have fun , then it ’s quite obvious you do n’t want to sit in the slammer .

( A ) ORG But is the threat of imprisonment something that really deters people from doing something illegal ?

( G ) No , it ’s not prison , that does n’t frighten people .

( A ) ORG Is that why you hear stories about people from out here fighting with knives etc . , TIME . Is the reason for this the fact that they are not afraid of the police getting hold of them ?

( G ) ORG Yes , nothing really comes of it , I mean , there are no bad consequences , so probably that ’s why . For instance fights and stabbings and smashing up things ... If you really get into the joint it would be such a ridiculously small sentence , so it would be , I mean ... usually we are released DATE . Last time we caused some trouble over at the pub , they let us out TIME . Nothing really comes of it . It does n’t discourage us , but there were CARDINAL of us , who just came out and then we had a celebration for the last guy , who came out DATE , they probably do n’t want to go in again for some time so they probably wo n’t commit big crimes again .

( A ) ORG You would like to move back to Studsgårdsgade where you grew up , but we know for sure that it ’s an environment with a high crime rate . Would you like your child to grow up like you ?

( G ) No , and I do n’t think she will . Firstly , because she is a girl , statistics show that the risk is not that high , I mean they probably do n’t do it , but you do n’t have to be a criminal because you live in an environment with a high crime rate . I just would n’t accept it , if she was mugging old women and stealing their handbags .

( A ) ORG What if she was among those beating up the immigrants etc . What then ?

( G ) ORG That would be okay . I would n’t have anything against that .

( I ) We will have to see if the mentality of this family changes in the next generation . Finally , we would like to say that groups of young people like this one in STUDSEN at Østerbro , have been formed elsewhere in GPE . "

ORG Following the programme no complaints were made to ORG , which had competence in such matters , or to ORG but the Bishop of PERSON complained to the Minister of ORG . After undertaking investigations ORG instituted criminal proceedings in ORG ( PERSON ) against the CARDINAL youths interviewed by the applicant , charging them with a violation of Article CARDINAL ( b ) of LAW ( straffeloven ) ( see paragraph CARDINAL below ) for having made the statements cited below :

" ... GPE wanted that the niggers should be free human beings , man , they are not human beings , they are animals . "

" Just take a picture of a gorilla , man , and then look at a nigger , it ’s the same body structure and everything , man , flat forehead and all kinds of things . "

" A nigger is not a human being , it ’s an animal , that goes for all the other foreign workers as well , NORP , PERSON and whatever they are called . "

" It is the fact that they are ‘ Perkere’ , that ’s what we do n’t like , right , and we do n’t like their mentality ... what we do n’t like is when they walk around in those GPE - clothes and then speak this hula - hula language in the street ... "

" It ’s drugs they are selling , man , CARDINAL of the prison population in ‘ Vestre’ are in there because of drugs ... they are the people who are serving time for dealing drugs ... "

" They are in there , all the ‘ Perkere’ , because of drugs ... "

The applicant was charged , under LAW ( b ) in conjunction with LAW ( see paragraph CARDINAL below ) , with aiding and abetting the CARDINAL youths ; the same charge was brought against the head of the news section of ORG , Mr PERSON .

ORG In the ORG counsel for the applicant and Mr PERSON called for their acquittal . He argued that the conduct of the applicant and PERSON could in no way be compared to that of the other CARDINAL defendants , with whose views they did not sympathise . They sought merely to provide a realistic picture of a social problem ; in fact the programme only provoked resentment and aroused pity in respect of the CARDINAL other defendants , who had exposed themselves to ridicule on their own terms . Accordingly , it was by no means the intention of ORG to persuade others to subscribe to the same views as the ORG , rather the contrary . Under the relevant law a distinction had to be drawn between the persons who made the statements and the programme editors , the latter enjoying a special freedom of expression . Having at that time a broadcasting monopoly , ORG was under a duty to impart all opinions of public interest in a manner that reflected the speaker ’s way of expressing himself . The public also had an interest in being informed of notoriously bad social attitudes , even those which were unpleasant . The programme was broadcast in the context of a public debate which had resulted in press comments , for instance in ORG , and was simply an honest report on the realities of the youths in question . Counsel , referring inter alia to the above - mentioned article in ORG , also pointed to the fact that no consistent prosecution policy had been followed in cases of this nature .

ORG On DATE ORG convicted the CARDINAL youths , CARDINAL of them for having stated that " niggers " and " foreign workers " were " animals " , and CARDINAL of them for their assertions in relation to drugs and " Perkere " . The applicant was convicted of aiding and abetting them , as was PERSON , in his capacity as programme controller ; they were sentenced to pay day - fines ( dagsbøder ) totalling CARDINAL and MONEY , respectively , or alternatively to CARDINAL days’ imprisonment ( hæfte ) .

As regards the applicant , ORG found that , following the article in Information of DATE , he had visited the ORG and after a conversation with PERSON , amongst others , agreed that the CARDINAL youths should participate in a television programme . The object of the programme had been to demonstrate the attitude of the ORG to the racism at ORG , previously mentioned in the article in Information , and to show their social background . Accordingly , so ORG held , the applicant had himself taken the initiative of making the television programme and , further , he had been well aware in advance that discriminatory statements of a racist nature were likely to be made during the interview . The interview had lasted TIME , during which beer , partly paid for by ORG , was consumed . In this connection the applicant had encouraged the ORG to express their racist views , which , in so far as they were broadcast on television , in itself constituted a breach of LAW ( b ) of LAW . The statements were broadcast without any counterbalancing comments , after the recordings had been edited by the applicant . He was accordingly guilty of aiding and abetting the violation of LAW ( b ) .

ORG The applicant and PERSON , but not the CARDINAL ORG , appealed against ORG judgment to ORG of Eastern GPE ( PERSON ) . They essentially reiterated the submissions made before ORG and , in addition , the applicant explained that , although he had suspected that the ORG statements were punishable , he had refrained from omitting these from the programme , considering it crucial to show their actual attitude . He assumed that they were aware that they might incur criminal liability by making the statements and had therefore not warned them of this fact .

ORG By judgment of DATE ORG , by CARDINAL votes to one , dismissed the appeal .

The dissenting member was of the view that , although the statements by the ORG constituted offences under LAW ( b ) of LAW , the applicant and PERSON had not transgressed the bounds of the freedom of speech to be enjoyed by television and other media , since the object of the programme was to inform about and animate public discussion on the particular racist attitudes and social background of the youth group in question .

ORG With leave the applicant and PERSON appealed from the High Court judgment to ORG ( Højesteret ) , which by CARDINAL votes to CARDINAL dismissed the appeal in a judgment of CARDINAL DATE . The majority held :

" The defendants have caused the publication of the racist statements made by a narrow circle of persons and thereby made those persons liable to punishment and have thus , as held by ORG and ORG , violated LAW b ) in conjunction with LAW . [ We ] do not find that an acquittal of the defendants could be justified on the ground of freedom of expression in matters of public interest as opposed to the interest in the protection against racial discrimination . [ We ] therefore vote in favour of confirming the judgment [ appealed from ] . "

Justice PERSON stated in his dissent :

" The object of the programme was to contribute to information on an issue - the attitude towards foreigners - which was the subject of extensive and sometimes emotional public debate . The programme must be presumed to have given a clear picture of the ORG views , of which the public was thus given an opportunity to be informed and form its own opinion . In view of the nature of these views , any counterbalancing during or immediately before or after would not have served a useful purpose . Although it concerned a relatively small group of people holding extreme views , the programme had a fair degree of news and information value . The fact that the defendants took the initiative to disseminate such views is not of paramount importance for the assessment of their conduct . In these circumstances and irrespective of the fact that the statements rightly have been found to be in violation of LAW ( b ) , I question the advisability of finding the defendants guilty of aiding and abetting the violation of this provision . I therefore vote in favour of the defendants’ acquittal . "

ORG When ORG has rendered judgment in a case raising important issues of principle it is customary that a member of the majority publishes a detailed and authoritative statement of the reasons for the judgment . In keeping with this custom , Justice PERSON on DATE published such a statement in ORG ( ORG , DATE , p. CARDINAL ) .

As regards the conviction of the applicant and PERSON , the majority had attached importance to the fact that they had caused the racist statements to be made public . The applicant ’s item had not been a direct report on a meeting . He had himself contacted the CARDINAL youths and caused them to make assertions such as those previously made in ORG , which he knew of and probably expected them to repeat . He had himself cut the recording of the interview , lasting TIME , down to TIME containing the crude comments . The statements , which would hardly have been punishable under LAW ( b ) of LAW had they not been made to a wide circle ( " videre kreds " ) of people , became clearly punishable as they were broadcast on television on the applicant ’s initiative and with PERSON approval . It was therefore beyond doubt that they had aided and abetted the dissemination of the statements .

Acquitting the applicant and PERSON could only be justified by reasons clearly outweighing the wrongfulness of their actions . In this connection , the interest in protecting those grossly insulted by the statements had to be weighed up against that of informing the public of the statements . Whilst it is desirable to allow the press the best possible conditions for reporting on society , press freedom can not be unlimited since freedom of expression is coupled with responsibilities .

In striking a balance between the various interests involved , the majority had regard to the fact that the statements , which were brought to a wide circle of people , consisted of series of inarticulate , defamatory remarks and insults spoken by members of an insignificant group whose opinions could hardly be of interest to many people . Their news or information value was not such as to justify their dissemination and therefore did not warrant acquitting the defendants . This did not mean that extremist views could not be reported in the press , but such reports must be carried out in a more balanced and comprehensive manner than was the case in the television programme in question . Direct reports from meetings which were a matter of public interest should also be permitted .

The minority , on the other hand , considered that the right to information overrode the interests protected by LAW b ) of LAW .

Finally , Justice PERSON noted that the compatibility of the impugned measures with LAW ) of the Convention was not raised during the trial .

ORG At the relevant time LAW b ) of the LAW provided :

" Any person who , publicly or with the intention of disseminating it to a wide circle ( " videre kreds " ) of people , makes a statement , or other communication , threatening , insulting or degrading a group of persons on account of their race , colour , national or ethnic origin or belief shall be liable to a fine or to simple detention or to imprisonment for a term not exceeding DATE . "

DATE , paragraph CARDINAL , reads :

" A provision establishing a criminal offence shall apply to any person who has assisted the commission of the offence by instigation , advice or action . The punishment may be reduced if the person in question only intended to give assistance of minor importance or to strengthen an intent already resolved or if the offence has not been completed or an intended assistance failed . "

ORG The DATE LAW ( GPE , CARDINAL ) , which entered into force on DATE , that is after the events giving rise to the present case , lays down rules inter alia on criminal liability in respect of television broadcasts . Section CARDINAL provides :

" A person making a statement during a non - direct broadcast ( forskudt udsendelse ) shall be responsible for the statement under general statutory provisions , unless :

( CARDINAL ) the identity of the person concerned does not appear from the broadcast ; or

( CARDINAL ) [ that person ] has not consented to the statement being broadcast ; or

( CARDINAL ) [ he or she ] has been promised that [ he or she ] may take part [ in the broadcast ] without [ his or her ] identity being disclosed and reasonable precautions have been taken to this effect .

In the situations described in paragraph CARDINAL , sub - paragraphs ( CARDINAL ) to ( CARDINAL ) above , the editor is responsible for the contents of the statements even where a violation of the law has occurred without intent or negligence on his part ... "

Pursuant to section CARDINAL :

" A person who reads out or in any other manner conveys a text or statement , is not responsible for the contents of that text or statement . "

ORG Provisions relating to the prohibition of racial discrimination and the prevention of propaganda of racist views and ideas are to be found in a number of international instruments , for example the DATE United Nations Charter ( paragraph CARDINAL of the LAW , ORG CARDINAL para . CARDINAL , CARDINAL para . CARDINAL ( b ) , DATE ( c ) and DATE ( c ) ) , the DATE LAW , CARDINAL and DATE ) and the DATE LAW ( Articles CARDINAL para . CARDINAL , CARDINAL para . CARDINAL and CARDINAL ) . The most directly relevant treaty is the DATE International Convention on the Elimination of All Forms of Racial Discrimination ( " LAW " ) , which has been ratified by a large majority of GPE to ORG , including GPE ( DATE ) . Articles CARDINAL and CARDINAL of that ORG provide :

" GPE Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of CARDINAL race or group of persons of CARDINAL colour or ethnic origin , or which attempt to justify or promote racial hatred and discrimination in any form , and undertake to adopt immediate and positive measures designed to eradicate all incitement to , or acts of , such discrimination and , to this end , with due regard to the principles embodied in LAW and the rights expressly set forth in LAW , inter alia :

( a ) shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred , incitement to racial discrimination , as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin , and also the provision of any assistance to racist activities , including the financing thereof ;

" In compliance with the fundamental obligation laid down in ... LAW undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone , without distinction as to race , colour , or national or ethnic origin , to equality before the law , notably in the enjoyment of the following rights :

( d ) ...

viii . the right to freedom of opinion and expression ;

The effects of the " due regard " clause in DATE has given rise to differing interpretations and ORG on ORG ( " ORG " - set up to supervise the implementation of LAW ) was divided in its comments on the applicant ’s conviction . The present case had been presented by ORG in a report to ORG . Whilst some members welcomed it as " the clearest statement yet , in any country , that the right to protection against racial discrimination took precedence over the right to freedom of expression " , other members considered that " in such cases the facts needed to be considered in relation to both rights " ( Report of ORG , ORG , ORG Supplement No . DATE ( A/CARDINAL/CARDINAL ) , p. CARDINAL , para . CARDINAL ) .


Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in PERSON .

The applicant is a member of the Haber - Sen , a trade union formed by public employees . He is also a member of ORG ( ORG – “ KESK ” ) .

On DATE the applicant was arrested in PERSON and taken to ORG of ORG on charges of having insulted a police officer . He had allegedly attempted to resist arrest . During his detention in police custody , the applicant was allegedly beaten up , slapped and threatened with death by the police officers .

On DATE , the applicant was taken to ORG , where he was examined by a doctor . In his report , the doctor indicated the presence of hyperaemia on the applicant ’s cheeks and another red mark measuring QUANTITY on his back . The doctor concluded that the injuries in question ( hyperaemia ) would heal in DATE and would not render the applicant unfit for work .

On DATE the applicant was brought before ORG and the ORG respectively , where he complained that he had been beaten up and threatened with death during his detention in police custody . He was subsequently placed in pre - trial detention .

On DATE the applicant underwent a new medical examination at ORG by a surgeon , who stated in her report that there were healing wounds and haematoma caused by a blunt object on the applicant ’s shoulder blades .

On DATE another doctor at ORG examined the applicant and stated in his medical report that there was no sign of physical violence on his body .

On DATE the applicant filed a complaint against the police officers who had allegedly ill - treated and insulted him .

According to a photo identification report dated DATE , the applicant was shown photos of CARDINAL police officers from the AntiTerrorism Branch of ORG and identified the QUANTITY police officers who had ill - treated and threatened him .

DATE senior police officers , who had been appointed as investigators , took statements from the QUANTITY police officers who had allegedly ill - treated the applicant . The police officers all denied the applicant ’s allegations of ill - treatment . They claimed that the applicant had made slanderous allegations in an attempt to waste their time and to demean the police force . The applicant also made statements to the senior police officers and claimed that he had been slapped , insulted and threatened with death by QUANTITY police officers .

On DATE ORG delivered a decision of non - prosecution in respect of the applicant ’s allegations that he had been insulted and threatened while in police custody . On DATE , the public prosecutor filed an indictment with ORG against CARDINAL police officers , accusing them of ill - treatment under LAW .

On DATE , ORG decided to stay the proceedings against the accused police officers and transferred the case file to ORG to obtain authorisation to bring criminal proceedings against the officers pursuant to the provisions of the PERSON on the prosecution of civil servants .

On DATE ORG decided not to authorise prosecution on the ground that there was insufficient evidence to indicate that the police officers had inflicted illtreatment on the applicant .

On DATE the applicant appealed against ORG decision . He argued that the conclusion that there was no evidence proving ill - treatment was ill - founded and unjust in view of the medical reports , which clearly indicated that he had been beaten up during his detention in police custody .

Meanwhile , a disciplinary investigation was also conducted against the QUANTITY police officers in question . However , on DATE , relying on the conclusion reached by ORG , ORG of the Muğla Governorship decided to terminate the investigation against the accused police officers .

On DATE a law ( Law no . DATE ) on conditional release was enacted . This law provided for the suspension of proceedings or execution of sentences in respect of crimes committed before DATE and for which the maximum penalty did not exceed CARDINAL years’ imprisonment .

On DATE ORG decided to suspend the criminal proceedings against the accused police officers pursuant to LAW no . DATE . The applicant appealed against this decision .

On DATE ORG upheld ORG decision .

A description of the relevant domestic law at the material time can be found in GPE and Others v. GPE ( nos . CARDINAL and QUANTITY , § § CARDINAL , DATE ) .


CASE OF FORMINSTER ENTERPRISES LIMITED v. THE CZECH REPUBLIC

Violation of P1-1;Just satisfaction reserved

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

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

On DATE the applicant company entered into a purchase agreement with Královéhradecká brokerská a.s . , a joint stock company incorporated under NORP law ( “ KHB ” ) . Under the agreement it bought CARDINAL book - entry shares representing PERCENT of the registered capital of QUANTITY . , a joint stock company incorporated under NORP law . The shares were registered with GPE ORG ( NORP cenných papírů ) , which acted as a central securities depository .

In DATE criminal proceedings were instituted against PERSON , a member of ORG ’s board of directors , for illegal disposal of shares and other securities to the detriment of CARDINAL NORP investments funds , TREND a.s . and MERCIA a.s . , which joined the criminal proceedings as civil parties seeking damages .

On DATE the PERSON Deputy Regional Prosecutor ( náměstek krajského státního zástupce ) , within the framework of the criminal proceedings , ordered ORG to register the suspension of the applicant company ’s right to dispose of all shares deposited in its account ( příkaz k registraci pozastavení výkonu práv majitele veškerých cenných papírů ) until the end of the criminal proceedings . The order was based on a suspicion that the shares had been acquired illegally and that it was necessary to freeze them in order to secure claims from the victims of the transaction . The prosecutor relied on section DATE ) of LAW ( no . DATE ) , which entitled ORG authorities to order such suspension where empowered to do so by a specific law , and on LAW ( “ the ORG ” ) , which gave the prosecuting authorities the right to seize items of importance for criminal proceedings .

In a letter of DATE addressed to ORG , ORG stated as follows :

“ In order to clarify the criminal activities of [ H. and others ] and establish facts important for the criminal proceedings , and in an effort to prevent illegal transfers of securities , I decided to apply section CARDINAL ) of LAW ( no . DATE ) ... However , this procedural step which , I discovered , was based on Articles DATE and CARDINAL of the ORG , is very problematic and untenable in the case of bookentry shares . Under these circumstances , ORG will be ordered , by DATE at the latest , to cancel the registration of the suspension of disposal rights over the book - entry shares held by the following companies : ... ( f ) ORG .

Securities owned by persons who are not facing criminal charges , which are in the portfolio of the aforesaid companies and are not relevant to the criminal activities , can no longer be impounded under criminal law because the existing criminal procedural regulations provide only for the seizure of tangible items of importance for the criminal proceedings under LAW ORG ] which can be surrendered or , pursuant to LAW , seized . [ In addition , ] the application of Article CARDINALa of the [ ORG ] in respect of securities is excluded . To proceed under LAW ) of LAW is possible only when a specific law so provides . [ However , ] the [ ORG ] does not provide for such a procedural step ... ”

On DATE the Deputy Regional Prosecutor informed ORG that his order of DATE was cancelled . Relying on section CARDINAL ) of LAW read in conjunction with LAW of the ORG , he again ordered the suspension of the applicant company ’s right to dispose of its CARDINAL FAC shares pending the criminal proceedings . He considered , inter alia :

“ In the field of financial and commercial law , book - entry shares are not considered to be items , unlike in criminal law , where they are considered as rei sui generis , and are clearly regarded as ‘ ORG , as the use of the term ‘ item’ in LAW of LAW shows . With regard to the specific characteristics of such items and the manner in which they are dealt with on the capital markets , it is necessary to apply ... LAW ORG ] by analogy and impound the securities in question ... under LAW ) of Act no . DATE . ”

On CARDINAL DATE ORG implemented the order .

On DATE the applicant company challenged this measure before ORG ( vrchní státní zástupce ) who , on DATE , held that the Deputy Regional Prosecutor had proceeded in accordance with the law .

On DATE the applicant company lodged a constitutional appeal ( ústavní stížnost ) alleging , inter alia , that its property rights guaranteed by LAW základních práv a svobod ) had been violated by the Deputy ORG decision of CARDINAL DATE .

On DATE the applicant company lodged an application with ORG seeking the restoration of its FAC shares under LAW ORG . On DATE it was told by the prosecutor ’s office that on DATE and others had been officially indicted before the ORG Králové ORG ( krajský soud ) which was , therefore , competent to deal with the company ’s application . The indictment contained CARDINAL pages .

On DATE ORG ( GPE soud ) rejected the applicant company ’s constitutional appeal , contesting the seizure , as having been introduced outside the DATE statutory time - limit provided for by LAW . According to the court , the time - limit had already been triggered by the adoption of the Deputy ORG decision to seize the shares , as the company ’s complaints to ORG and ORG had not constituted effective remedies within the meaning of LAW .

On DATE ORG remitted the criminal case against PERSON and others to ORG for further consideration .

On DATE the applicant company renewed its application for restoration of its rights to the FAC shares under LAW ORG , this time before ORG ; the latter was , however , no longer competent to consider it , as the criminal case had been returned to ORG .

On DATE the applicant company urged ORG to decide on its application of DATE for restoration of its rights to the LOC shares . On DATE it was informed that the case was currently under the supervision of ORG and it was therefore open to the applicant company to challenge the impoundment before that authority .

On DATE the applicant company requested ORG to annul the impoundment of the FAC shares under LAW ORG . On DATE the prosecutor refused the request , finding it unsubstantiated .

On DATE ORG ( vrchní soud ) rejected the applicant ’s complaint of DATE in which it was argued that the impounding had been ordered sine lege and was no longer necessary in the light of the objectives of the criminal proceedings . The court ruled that the impounding had been justified by the reasonable suspicion that the shares had represented the profit obtained by PERSON from his illegal transactions . According to the court , that suspicion had not yet been dispelled .

On DATE the applicant company challenged this decision before ORG . Referring to LAW No . CARDINAL , it contended that the seizure of its shares had been ordered sine lege , that its property rights were restricted for DATE and that the seizure had been unlawful and was no longer necessary to achieve the aims of the criminal proceedings .

On DATE ORG declared the appeal inadmissible as manifestly ill - founded , stating , inter alia :

“ ... ORG proceeded in accordance with the national law then in force . While at the relevant time the criminal law included neither LAW ORG ] , which expressly provides for the impoundment of book - entry shares ( this provision was introduced by Act no . CARDINAL/CARDINAL which entered into force on DATE ) , nor LAW of LAW which subsumes securities under the notion of ‘ item’ ... [ introduced by Act no . CARDINAL which entered into force on DATE ] , there is no doubt that the criminal law ... , in respect of serious economic crime cases , considered book - entry shares as items within the meaning of the criminal law even before DATE . ORG order of CARDINAL DATE ... was issued under section DATE ) of Act no . CARDINAL as amended and under LAW of the [ ORG ] . At the relevant time , the criminal law did not require any particular form for such an order . No appeal against it was therefore available ... However , any order suspending the right to dispose of securities was subject to supervision by the competent ORG offices . ”

H. and CARDINAL others accused of various economic crimes were reindicted on DATE . In DATE their case was subsequently remitted once again by ORG to ORG for further consideration .

On DATE the indictment was filed by ORG for the third time .

On DATE ORG decided under LAW of the ORG to extend the seizure until the end of the criminal proceedings , as the reasonable suspicion that the shares had constituted the profit obtained by ORG as a result of his illegal transaction had not yet been dispelled . It further decided to suspend the voting rights connected with the seized shares .

On DATE ORG , on a complaint by the applicant company , upheld this decision .

In DATE the joint stock companies K - T - V Invest a.s . and Česká investiční a správcovská a.s . merged . Following that merger , CARDINAL seized ORG book - entry shares with a nominal value of CARDINAL NORP korunas ( CZK ) ( MONEY ( ORG ) ) , held by the applicant company , were converted into the same number of share certificates issued by the company Česká investiční a správcovská a.s . , with a nominal value of CZK CARDINAL ( ORG MONEY ) .

On DATE the share certificates for ORG investiční a správcovská a.s . were deposited with ORG pursuant to section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL ) and on a request made under LAW ORG .

The applicant company ’s constitutional appeal challenging these decisions is pending before ORG .

The criminal proceedings are still pending and the applicant company ’s securities remain seized . CARDINAL hearings , each lasting DATE , were held by the court , during which a large volume of evidence was taken . The case file contains CARDINAL pages . ORG heard or is still due to hear CARDINAL of witnesses , some of them abroad . Moreover , several experts were heard and expert reports commissioned . The damage caused according to the indictment amounts to CZK CARDINAL,CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL )

MERCIA and ORG challenged the acquisition of the ORG shares by the applicant company , not only as civil parties seeking damages in the criminal proceedings but also through their respective civil actions disputing the transfer of the shares to the applicant company .

On DATE ORG ( krajský obchodní soud ) , before which ORG had contested the title to CARDINAL ORG shares ( out of a total of CARDINAL ORG shares ) in civil proceedings brought against the applicant company , approved a friendly settlement concluded between the applicant company and ORG .

On DATE the applicant company and ORG concluded a friendly settlement of their civil dispute concerning the ownership of the CARDINAL FAC shares . This settlement was contested by an action for nullity filed on an unspecified date by minority shareholders of TREND seeking the return of the LOC shares to TREND .

On DATE ORG ( Komise pro cenné papíry ) , a ORG regulatory authority , approved the settlements . As a consequence , all civil proceedings concerning ORG shares brought by ORG and/or TREND against the applicant company were discontinued . Moreover , these joint stock companies waived their status as civil parties in the criminal proceedings . They informed the ORG authorities acting in the criminal case of their respective settlements and stated that , as the instigators of the impoundment of the shares , they no longer insisted on seizure .

Under Section CARDINAL(CARDINAL)(a ) an individual alleging an impairment of his or her rights guaranteed by constitutional law may lodge a constitutional appeal with ORG .

Until DATE , LAW read as follows :

“ Controllable natural resources , too , shall be regarded as items . ”

Another sentence was inserted into that provision on DATE . It provided as follows :

“ The provisions governing items shall also apply to securities . ”

After Act no . PERSON entered into force on DATE , this provision became LAW .

Article CARDINAL governs the obligation to hand over items of importance for criminal proceedings . Under paragraph CARDINAL , persons possessing such items are required to submit them to a court , prosecutor or police authority at the latter ’s request . If the item is being seized for the purposes of the criminal proceedings , the person concerned must surrender it to the prosecuting authorities at their request .

Pursuant to LAW , if the person concerned does not surrender the item of importance for the criminal proceedings , it must be taken from him / her and seized on an order from the president of a chamber during the trial or by the prosecutor , investigator or police authority at the pre - trial stage of the proceedings . The investigator or police authority may do so only with the authorisation of a prosecutor .

Article CARDINAL § CARDINAL provides , inter alia , that items which are no longer needed for the criminal proceedings and whose confiscation or seizure can be ruled out should be returned to the person concerned . Under LAW § CARDINAL a decision on this matter at the pre - trial stage of the criminal proceedings is adopted by a prosecutor . Such a decision may be challenged by means of a complaint .

According to LAW rulings of prosecutor , investigator and police have the form of decision .

Article CARDINAL § CARDINAL states that a complaint is a remedy against a decision .

Under LAW a first - instance decision adopted by a court or a prosecutor may be challenged by means of a complaint only where the law explicitly so provides .

Article DATE provides for the seizure of financial assets deposited in a bank account . Under paragraph CARDINAL , if the facts indicate that the financial assets in a bank account are destined for the commission of a crime , or have already been used for such purposes , or constitute the proceeds of criminal activities , the president of a chamber or a prosecutor , or the police authority at the pre - trial stage of the criminal proceedings , are empowered to impound them . Paragraph CARDINAL provides that such seizure may be challenged by means of a complaint .

The newly introduced Article CARDINALc governs the seizure of book - entry shares . Under paragraph CARDINAL , should the president of the chamber , or the prosecutor at the pre - trial stage of the criminal proceedings , decide on a seizure of book - entry shares , ORG , a legal person empowered to keep records and exercise other activities of ORG under a specific law , or ORG must open a special bank account in which the seized securities are deposited . Paragraph CARDINAL provides , inter alia , that the authorities mentioned in paragraph CARDINAL may suspend the rights connected with seized shares . According to paragraph CARDINAL , Article CARDINAL applies mutatis mutandis to the procedure governing decisions to seize book - entry shares and to reduce the terms of or lift such seizures .

Article CARDINALa , which provided for a review by a court of seizures of property by a prosecutor , was substantially amended , bringing within its ambit , inter alia , decisions on seizures of book - entry shares under LAW , financial assets , real estate and other assets . However , seizures of items under LAW do not fall within its scope .

Section DATE ( CARDINAL ) provides that a decision adopted by a prosecutor may be reviewed by a superior prosecutor unless the LAW or another law provides otherwise .

Under section CARDINAL(CARDINAL ) a share certificate may be substituted by a bookentry share , that is , by entry in a record of shares as provided for by law .

Section CARDINAL provided for suspension of the right to dispose of bookentry shares . Under paragraph CARDINAL , a suspension order was to be issued by the competent ORG authority , under a specific law ( for instance , section CARDINAL of LAW ) . The provision was repealed by Act no . CARDINAL , which entered into force on DATE .

Section CARDINAL provides for suspension of the owner ’s disposal rights over book - entry investment instruments . Under paragraph CARDINAL(b ) , an order registering the suspension of the owner ’s disposal rights is granted by the competent court or administrative authority , if it is necessary in connection with the issuing of a preliminary measure , for the purposes of judicial or administrative proceedings , or if a specific law so provides .

The Prosecutor General directed that book - entry shares were to be considered as items within the meaning of criminal law and could therefore be seized on the basis of ORG DATE and CARDINAL of the ORG . This was according to him possible even before the enactment of Act no . CARDINAL , which entered into force on DATE .

LAW A Commentary by Šámal , P. , GPE , F. and GPE , PERSON , CARDINALrd edition , DATE , PERSON , p. CARDINAL , reads as follows :

“ According to the majority opinion in [ domestic ] practice , ... [ as of ] ... DATE ... it is also possible to seize book - entry securities as items ... on the basis of Articles CARDINAL et seq . of LAW governing the seizure of items . What continues to cause problems is the inadequate and inappropriate nature of Articles CARDINAL and CARDINAL of the [ ORG ] in respect of [ such seizures ] , as the seizure of bookentry shares does not constitute the seizure or taking of an ‘ item’ within the proper meaning of that term . ”

LAW A Commentary by Šámal , P. , GPE , F. and GPE , PERSON , CARDINALth edition , DATE , PERSON , pp . CARDINAL and CARDINAL , reads :

“ An order to seize an item [ under LAW ] is a decision sui generis ... No complaint can be lodged against it , as it is not a decision [ within the meaning of LAW . ] . ”

“ A prosecutor supervising the pre - trial stage of criminal proceedings is in principle empowered to decide on complaints challenging decisions adopted therein by [ the prosecuting authorities ] . The exception to this principle is a situation where the prosecutor assented to or initiated the decision and is thus not in a position to review the complaint impartially . ”

The Code of Criminal Procedure – A Commentary by Růžička , PERSON and others , ORG , DATE , in a chapter entitled “ The seizure of book securities – Article CARDINAL ” , reads as follows :

„ Until DATE , [ domestic ] practice relied on the idea that even book - entry securities constituted items within the meaning of criminal law . The provisions of LAW of LAW ( inserted by amendment no . CARDINAL ) extended the scope of application of the term ‘ item’ to include , inter alia , all types of securities . Nevertheless , it had been possible to arrive at the same conclusion even before that amendment entered into force ... It was therefore possible to seize [ book - entry shares ] ( LAW of the [ ORG ] ) ... ”