Violations of Art. 3;Violation of Art. 5-1;Violations of Art. 5-3;Failure to comply with obligations under Art. 34;Pecuniary damage - reserved;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

On CARDINAL DATE the applicant was arrested on suspicion of fraud by ORG ) .

At the time of his arrest he showed no apparent abnormality in his normal physical state . According to a medical file dating from DATE the applicant weighed QUANTITY .

According to the reports drawn up on CARDINAL DATE by the policemen who arrested him , he attempted to escape , verbally abused them and even attempted to resist by trying to reach for a pistol which he had on him and by throwing away the arrest order when presented with it . It does not appear from those reports that any force was applied to the applicant or that he was injured in any way during his arrest . The applicant denies having resisted arrest .

It appears from the police reports that the applicant was arrested at TIME According to the applicant , he was arrested at TIME

It is alleged on behalf of the applicant that after being brought to the LOC premises he was beaten up by the police officers , as a result of which he lost consciousness . The Government deny that .

According to a medical report drawn up at TIME on the same date by a doctor from the ORG , the applicant was unconscious . The doctor noted in the report that , according to the police officers , he had lost consciousness due to “ intense emotions ” , and recommended that the applicant be seen by a cardiologist . It does not appear from the report that the applicant had been injured in any way during arrest .

One of his lawyers saw the applicant at TIME at the ORG and noted in TIME of arrest ( proces verbal de reţinere ) , which was drawn up by the police officers in his presence , that the applicant was unconscious . At the request of the lawyer an ambulance was called at CARDINAL p.m. and at TIME on DATE the applicant was taken to ORG , still unconscious .

It appears from the medical records from ORG that the applicant regained consciousness after being brought there , but it is not clear when that happened . According to the medical records , he was suffering from arterial hypertension and a syndrome of confusion of unclear origin . The applicant would not respond to questions and would not react to anything . He also suffered headaches and nausea . There is no information in the medical file concerning his weight at the time of his hospitalisation . The doctors recommended inter alia that the applicant be given a brain scan in order to exclude the possibility of the applicant having had a cerebral stroke . The doctors concluded that a final diagnosis would be possible only after the latter tests had been carried out .

On CARDINAL DATE the applicant was transferred to a ORG . On DATE he was seen by a neurologist , who wrote in the medical file that on DATE he had suffered a head trauma followed by loss of consciousness . The neurologist recommended various forms of medical treatment but did not recommend a brain scan . On DATE a doctor noted in the medical file that the applicant had pain in his kidneys and red urine . On DATE the applicant was examined by a commission of senior doctors from the hospital , who established a final diagnosis of , inter alia , acute head trauma and concussion and recommended , inter alia , that the applicant undergo a psychiatric investigation . On DATE a doctor made a note in the medical file to the effect that the applicant urgently needed medication , but none was available .

The applicant was kept in ORG until DATE , when he was moved to a prison for DATE until his further transfer to ORG . According to the medical records , during his stay in FAC he never got out of bed . He had not fed himself and had been spoon - fed by the paramedical personnel with liquid food . He did not go to the toilet and had been kept in incontinence pads and smelt strongly of excrement . On rare occasions he would answer the ORG questions in a very low voice or using gestures indicating headaches and pain in his kidneys . His urine was red . Most of the time he would not react to any questions and kept his eyes closed . On CARDINAL occasions in DATE and DATE the medical personnel reported in writing to their superiors that , due to his state , the applicant was unable to swallow his medication . On CARDINAL occasions the doctors noted in the medical file that the applicant ’s condition was satisfactory . On several occasions the doctors speculated in the medical file that the applicant ’s condition was bogus .

On several occasions DATE one of the applicant ’s lawyers and his wife requested that an independent doctor be given access to the applicant , but they received no answer .

During the applicant ’s stay in ORG , his wife was able to visit him only once , on DATE , for TIME . His mother was not allowed to see him . On CARDINAL occasion she wrote to ORG and to ORG and asked inter alia for his picture ; however , she received no answer .

On DATE the Chief Doctor of ORG recommended a psychiatric examination of the applicant in order to “ confirm or exclude simulation ” . On DATE ORG ordered a forensic and a psychiatric examination of the applicant .

On DATE and CARDINAL and DATE one of the applicant ’s lawyers and his wife requested ORG and ORG to have the applicant transferred to ORG and to speed up the psychiatric investigation . They argued inter alia that due to the lack of a clear diagnosis , no appropriate medical care was possible at that moment . The applicant ’s wife also offered to cover all the costs of his transportation , examination and medical care . No answer to these requests was received .

Following the court order of CARDINAL DATE , the applicant underwent CARDINAL medical investigations . A forensic investigation was carried out on DATE and the ORG report stated inter alia :

“ ... On DATE [ the applicant ] suffered a head trauma with loss of consciousness .

At the time of hospitalisation he suffered headaches , dizziness , and noises in his head , nausea , and fatigue ... pain in his lower back ...

Diagnosis : acute head trauma , concussion of average severity ...

No visible injuries on the applicant ’s body have been found during his stay at either [ ORG or ORG ] ; however , it was established that he suffered a head trauma .

On DATE , the doctors from the ORG established a disorder of the central nervous system , the origin of which has not been determined due to the lack of modern clinical investigation ( magnetic resonance , brain scan ) , and consequently no adequate medical treatment was possible .

According to the medical records made by the doctors DATE and DATE it appears that during that period of time [ the applicant ] was incapable of actively participating in a criminal investigation ”

On DATE a psychiatric investigation was conducted . However , ORG considered the report incomplete and ordered a supplementary investigation , which took place on DATE . The reports of DATE and DATE stated inter alia :

“ ... The commission concludes that [ the applicant ] is not suffering from any chronic mental disease , but that he is suffering from the consequences of a head trauma , arterial hypertension ...

... As from DATE the [ applicant ] has stopped answering questions ; he never gets out of bed ; he is dirty and eats only liquid food .... He was brought to the hospital on a stretcher . He does not move , does not react to others ... he lies with his eyes closed and with his hands on his chest . He has a pale and anaemic face with moist skin ... He makes no resistance to medical investigations ... , he is indifferent , passive and does not cooperate with the doctors . He did not object when his mouth was opened but did not show his tongue . His arms and legs fall down lifeless when lifted . When the doctors attempted to check his pupils , he rolled his eyes up . His clothes are dirty ; he wears incontinence pads and has a strong smell of urine .... He does not take care of himself ... and is being taken care of ( fed , washed and changed ) by the medical personnel ...

... The stress ( the arrest , the criminal investigation ) triggered a reactive psychosis with a depressive and stupor syndrome [ mental sub - responsiveness not as severe as coma , in that the person can still be partially roused by some stimuli , such as pain ] which deprived him of the use of reason and he needs treatment in conditions of rigorous supervision . ”

On DATE the applicant was hospitalised in ORG , ORG , where he is held to date .

It appears from the medical file submitted by the Government in DATE that , by DATE , most of the time the applicant was in a state of stupor . He regained consciousness for DATE , CARDINAL and DATE , but then fell back into a state of stupor after being subjected to a body search in the cafeteria of the hospital . The ORG submitted copies of bills for medication for the applicant for DATE , DATE and DATE .

The ORG has no information as to whether the applicant has ever recovered from the state of stupor . It appears that on DATE ORG ordered that the applicant be held in ORG for treatment until full recovery .

According to a medical report issued at the request of CARDINAL of the applicant ’s lawyers on DATE by Dr. PERSON , Psychiatrist , untreated psychosis with a depressive and stupor syndrome triggered in traumatic conditions can have as a consequence the development of a chronic psychiatric disease .

According to a medical report issued at the request of CARDINAL of the applicant ’s lawyers on DATE by the applicant ’s family doctor , Dr T. Moraru , the applicant had , for a long period before his head trauma of DATE , suffered from diabetes and arterial hypertension . During his stay in ORG he suffered malnutrition and lost QUANTITY . Due to his state of stupor he could not be fed and therefore needed transfusions of glucose , amino acids , vitamins C and B and others . Due to this condition he ran a serious risk of developing a diabetic coma , a stroke or a heart attack . It appeared from the applicant ’s medical file from ORG that he was not provided with sufficient treatment and medical investigation . His stupor syndrome was discovered DATE .

On DATE the applicant ’s lawyer PERSON was received by the Deputy Doctor in Chief of ORG , Mr I. PERSON , who informed Mr PERSON inter alia that at the time of hospitalisation in ORG , the applicant weighed QUANTITY and that lately , after gaining some weight , he weighed QUANTITY . Mr PERSON also informed the lawyer that the applicant had been given a brain scan DATE . The Government have not disputed this .

NORP The applicant ’s complaint about ill - treatment

On DATE , when the applicant temporarily re - gained consciousness , he told CARDINAL of his lawyers , in the presence of a doctor , that he had been beaten up by the police and that he had severe headaches and pain in the region of his kidneys . The doctor informed the lawyer that the applicant had suffered a head trauma and some disorder in his kidneys .

On DATE CARDINAL of the applicant ’s lawyers lodged a complaint with ORG about the way the ORG representatives had ill - treated the applicant and requested the institution of criminal proceedings . He informed ORG about what he had been told by the applicant and the doctor .

Similar complaints were lodged by the applicant ’s wife on CARDINAL occasions DATE .

On DATE and DATE the applicant ’s lawyer asked ORG whether his complaint of CARDINAL DATE had been examined . He did not receive any reply .

Only on DATE , after repeated requests made during court hearings in the criminal proceedings against the applicant , the applicant ’s lawyer was handed a decision dated DATE , by which his complaint of CARDINAL DATE had been dismissed . The decision was signed by Mr PERSON , the same prosecutor who had lodged the charges against the applicant and applied to court for his remand in custody ( see paragraphs CARDINAL - CARDINAL below ) .

Mr PERSON argued inter alia in the above decision that since the lawyer ’s complaint of CARDINAL DATE did not contain any specific information concerning the circumstances of the alleged ill - treatment , and in order to clarify the situation , he had attempted to hear the applicant in person on DATE . However , the applicant had categorically refused to talk to him . Moreover , even the doctors had confirmed that the applicant would refuse to talk to investigators and prosecutors and would talk only to his lawyers and the doctors , and that he was faking his symptoms . Mr PERSON concluded that in any event the applicant was presumed to have been intending to use a gun during his arrest . In such circumstances , the police officers were entitled to use force and their use of force could be treated as legitimate defence .

On an unspecified date the applicant ’s lawyer lodged an appeal against the decision of ORG dated DATE .

On DATE Judge PERSON from ORG dismissed the appeal . He argued inter alia that the investigation had been carried out carefully and in an objective manner without any derogation from the law . He found that the applicant refused to talk to the prosecutor on CARDINAL and DATE . Moreover , the applicant had not complained to the prosecutor about being subjected to torture and physical violence . Nor had the doctors said anything to the prosecutor about ill - treatment , even though they were under an obligation to inform him of such matters . The medical file did not disclose any visible signs of violence on the applicant ’s body .

The complaints about lack of medical care

On DATE the applicant ’s wife complained to ORG Office inter alia that she was not allowed to see her husband and to provide him with medical care . The policemen and the doctors from ORG were keeping the applicant ’s medical condition secret in order to hide signs of torture . She also complained that her request to allow an independent doctor to consult the applicant had been rejected . ORG never replied to this letter .

On DATE CARDINAL of the applicant ’s lawyers complained to ORG that the psychiatric investigation ordered by it on DATE would not be carried out for unknown reasons . In order to ensure proper medical care to the applicant the court was asked to order the authorities to allow a private doctor to consult the applicant and to speed up the psychiatric investigation . ORG never examined this request .

On DATE the applicant ’s wife complained to ORG that the psychiatric investigation would not be carried out . She informed the court that she had found out that the applicant would not be moved to ORG due to the lack of facilities for transporting unconscious people . She argued that her husband ’s state of health would become worse and that due to the lack of a diagnosis no appropriate medical care would be possible . She offered to cover all the expenses related to the applicant ’s transportation , medical investigation and medical care . This complaint was never examined by ORG .

On DATE the applicant ’s mother wrote to ORG and asked it inter alia to order the speedy psychiatric evaluation of her son , to stop the inhuman treatment and to provide him with medical care appropriate for a human being . This complaint was never examined by ORG .

On DATE the applicant ’s wife wrote to ORG , ORG and to the Chief of ORG . She complained inter alia that the psychiatric evaluation of her husband would be postponed on purpose by the police and by the persons who had ordered the criminal investigation of her husband and that this made it impossible to provide him with appropriate medical care . The applicant ’s wife did not receive any answer to this complaint .

On DATE CARDINAL of the applicant ’s lawyers wrote to ORG that following the psychiatric investigation of DATE the applicant was diagnosed with a serious psychiatric condition . Since ORG , where the applicant was detained until DATE , did not treat psychiatric diseases no diagnosis and thus no appropriate treatment was possible there . Accordingly he was deprived of medical care needed by a human being and was subjected to inhuman suffering . ORG never replied to this letter .

On DATE the applicant ’s wife complained to the ORG inter alia that her husband was not provided with appropriate medical care while in FAC . The court did not react to this complaint either .

On DATE CARDINAL of the applicant ’s lawyers asked ORG for permission to have the applicant visited by a private doctor . He informed the court that for DATE the applicant had not regained consciousness and that the treatment provided to him by the ORG was not effective . He also informed the court that the delay in answering his request would amount to inhuman and degrading treatment of the applicant by hindering his recovery . He also informed the court that all the expenses would be covered by the applicant ’s family . The court has never examined this request .

NORP The proceedings concerning the applicant ’s detention on remand

On DATE , following a request by the Prosecutor PERSON , ORG issued a warrant for the applicant ’s detention for DATE . The reasons given by the court for issuing the warrant were that :

“ [ the applicant ] is suspected of having committed a very serious offence , for which the law provides imprisonment for DATE ; the evidence submitted to the court was obtained lawfully ; the isolation of the suspect from society is necessary ; he could abscond from law enforcement authorities or the court ; he could obstruct the finding of the truth in the criminal investigation or re - offend ” .

On DATE an accusation was officially brought to the applicant by Prosecutor PERSON .

On DATE the applicant appealed against the order of remand and argued inter alia that there was no evidence of a risk of his absconding , obstructing the investigation or re - offending . He argued that the criminal proceedings had been pending since DATE and that nothing in his behaviour since then could justify suspecting him of such intentions . Moreover , his medical condition was an important argument in favour of his release .

On DATE ORG dismissed the appeal lodged by the applicant ’s lawyers without giving any reasons .

The remand was prolonged by ORG on DATE and on DATE on the same grounds . The applicant ’s appeals against the prolongations were dismissed by ORG on DATE respectively .

On DATE the detention warrant expired , but the applicant was not released .

On DATE ORG submitted the criminal case - file to the competent court .

On DATE CARDINAL of the applicant ’s lawyers asked ORG to release the applicant from detention because , inter alia , the detention warrant had expired DATE . The request was dismissed on DATE .

The examination by private doctors of the applicant and of his medical file after his transfer to ORG

The facts presented under this heading are based on the submissions of the applicant and the documents submitted by him . The Government have not disputed them .

After DATE , a private doctor had access to the applicant on CARDINAL occasion , in DATE . According to the applicant , the purpose of the doctor ’s visit was to assess his medical condition and to evaluate the costs of future treatment .

After consulting the applicant , Doctor PERSON concluded that a number of investigations would be necessary in order for him to reach a conclusion . His written report was sent to ORG and to ORG and the applicant ’s wife offered to bear all the medical costs .

NORP In DATE Doctor PERSON attempted to visit the applicant again to examine him , but he was not allowed to do so .

On DATE the applicant ’s wife complained to ORG about the refusal of ORG authorities to allow a visit by Dr. PERSON , but it was dismissed by the court on DATE on the ground that the court had no right to interfere with the applicant ’s medical treatment by giving instructions to the doctors from the hospital . Similar repeated requests by the applicant ’s wife and lawyer were rejected on CARDINAL and DATE , the court adding that since the criminal proceedings against the applicant were suspended , it would be able to issue orders about him only once the proceedings had been resumed .

On an unspecified date the applicant ’s wife asked permission from ORG to have her husband examined by a private doctor . On DATE the Deputy Doctor in Chief of ORG wrote to the applicant ’s wife that the applicant did not need to be seen by Dr. PERSON since he was receiving all necessary medical treatment from the hospital doctors .

The applicant ’s wife made a similar unsuccessful request on DATE .

On DATE of the applicant ’s lawyers ( Mr Gribincea ) called ORG and asked PERSON for assistance in obtaining access to the applicant and to his medical file for him and a private doctor . His request was unsuccessful .

On DATE the applicant ’s lawyers lodged with the Doctor in Chief of ORG CARDINAL requests for access for Mr T. Moraru to the applicant and his medical file . They submitted in their requests that such access was needed in order to pursue the application before the ORG and relied inter alia on LAW .

On DATE the applicant ’s lawyer , PERSON , had a meeting with the Doctor in Chief of ORG , Mr I. PERSON , who verbally rejected his request and argued that no access to the applicant was possible without a court order .

On DATE Mr PERSON replied in writing to the letter of DATE by a letter containing nothing but the text of section CARDINAL of the Law on Psychiatric Assistance ( see paragraph CARDINAL below ) in CARDINAL languages , NORP and NORP .

DATE , insofar as relevant , states as follows :

“ ( CARDINAL ) Detention takes place on the basis of a warrant issued by a judge for a maximum period of DATE . The lawfulness of the warrant may be challenged , in accordance with the law , before a hierarchically superior court . The period of detention may be extended only by a court , in accordance with the law , to a maximum of DATE . ”

The relevant provisions of LAW ( ‘ the CCP’ ) read as follows :

Section CARDINAL

“ ( CARDINAL ) Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are serious grounds for believing that an accused ... will abscond , obstruct the establishment of the truth during the criminal proceedings or re - offend , or they can be applied by the court in order to ensure the enforcement of a sentence .

( CARDINAL ) Detention on remand and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding DATE . In cases concerning offences in respect of which the law provides for a custodial sentence of DATE , they may be applied if ... the accused has already committed the acts mentioned in § ( CARDINAL ) .

( CARDINAL ) In deciding on the necessity of applying preventive measures , the prosecuting authority and the court will take into consideration the following additional criteria :

CARDINAL ) NORP the character and degree of harm caused by the offence ,

CARDINAL ) NORP the character of the ... accused ,

CARDINAL ) NORP his / her age and state of health ,

CARDINAL ) NORP his / her occupation ,

CARDINAL ) his / her family status and existence of any dependants ,

CARDINAL ) his / her economic status ,

CARDINAL ) NORP the existence of a permanent place of abode ,

CARDINAL) other essential circumstances .

Section CARDINAL

( CARDINAL ) Detention on remand ... can be applied only on the basis of a court decision ...

Section CARDINAL . Detention on remand

( CARDINAL ) Detention on remand means the detention of the suspect , accused or indicted person in a state of arrest in places and in conditions provided for by law .

( CARDINAL ) Detention on remand may be applied to someone in the circumstances and in the conditions provided for in Article CARDINAL , as well as when :

CARDINAL ) NORP the suspect , the accused or the indicted person does not have a permanent place of residence on the territory of GPE ;

CARDINAL ) NORP the suspect , the accused or the indicted person is unknown ;

CARDINAL ) NORP the suspect , the accused or the indicted person has breached the conditions imposed on him / her concerning other preventive measures .

( CARDINAL ) The decision by which detention on remand is ordered can be challenged by way of an appeal before the hierarchically superior court .

Section CARDINAL . The length of the remand and its prolongation

( CARDINAL ) The duration of a person ’s remand starts to run from the moment of his or her arrest , or , if the person was not arrested , from the moment of enforcement of the court decision ordering the remand . ...

( CARDINAL ) The remand during the investigation stage of the proceedings , before the case file is sent to the competent court [ by the prosecutor ] shall not be longer than DATE , except in cases provided for in the present code . The running of the duration of the remand during the investigation stage of the proceedings ceases on the date when the prosecutor sends the criminal case - file to a court and when the detention on remand is revoked or is replaced with another preventive measure which does not involve a deprivation of liberty .

( CARDINAL ) Any prolongation of the detention on remand may not be for a period longer than DATE .

( CARDINAL ) If it is necessary to prolong the duration of the detention on remand of an accused , the prosecutor shall , not DATE before the expiry of the remand order , make a request in that respect before the investigating judge .

( CARDINAL ) When deciding on the prosecutor ’s request about the prolongation of the remand , the investigating judge , or , as the case may be , the court , has the right to replace the detention on remand with home detention , release under judicial control or bail .

( CARDINAL) After the sending of the bill of indictment to a court all the requests concerning the detention on remand shall be examined by the court in charge of the criminal case .

( CARDINAL ) The prolongation of the duration of remand for DATE shall be decided upon by the investigating judge on the basis of a request of the district prosecutor . In case of a necessity to prolong the duration of the remand for DATE the request shall be lodged by the district prosecutor with the consent of ORG or his deputies .

( CARDINAL ) The decision concerning the prolongation of the detention on remand may be challenged by way of an appeal to the hierarchically superior court .

Section CARDINAL

A person detained on remand under the provisions of LAW may request , at any time during the criminal investigation , his provisional release under judicial control or on bail .

Section CARDINAL . The provisional release under judicial control of a remanded person

( CARDINAL ) ORG provisional release under judicial control of a remanded person , or of a person in respect of whom a request for detention on remand has been made , may be granted by the investigating judge or by a court only in case of offences committed through negligence or intentional offences punishable with DATE of imprisonment .

( CARDINAL ) NORP provisional release under judicial control may not be granted to an accused who has outstanding criminal convictions for serious , very serious or exceptionally serious offences or if there exists information that he or she will commit another offence , will try to influence the witnesses , will try to destroy evidence or will abscond .

( CARDINAL ) NORP provisional release under judicial control of a remanded person shall be accompanied by one or more of the following obligations :

CARDINAL ) not to leave the town of residence except in the conditions set by the investigating judge or by the court ;

CARDINAL ) NORP to inform the investigation organ or the court of any change of address ;

CARDINAL ) not to go to certain places ;

CARDINAL ) NORP to appear in front of the investigation organ or the court when summonsed ;

CARDINAL ) not to make contact with certain persons ;

CARDINAL ) not to commit acts capable of hindering the discovery of the truth ;

CARDINAL ) not to drive cars or not to exercise any profession of the kind used for committing of the offence .

Section CARDINAL

( CARDINAL ) A preventive measure applied may be replaced by a harsher CARDINAL , if the need for it is proved by evidence , or by a lighter one , if by applying it the proper behaviour of ... the accused is ensured , with the aim of ensuring the normal course of the criminal investigation and of enforcing the sentence imposed .

Section CARDINAL

( CARDINAL ) In examining a case the court , ex - officio or at the request of the parties and having heard their opinion , shall have the power to apply , revoke or discontinue the preventive measure applied to the accused . A new request for the application , replacement or revocation of a preventive measure may be submitted if there are grounds for such a request , but not DATE from the date of entry into force of the last decision in this respect or if new circumstances have appeared .

Section CARDINAL

( CARDINAL ) Within DATE from the date when the case was distributed for judgment , the judge or the bench , having examined the case - file , shall set a date for the preliminary hearing . The preliminary hearing in cases where the person is arrested shall be held urgently and with priority .

... ( CARDINAL ) At the preliminary hearing the following issues shall be examined :

... CARDINAL ) NORP preventive and protective measures .

Section CARDINAL

... ( CARDINAL ) In setting a date for the examination of the case , the court shall order the maintenance , revocation or discontinuation of preventive measures , in conformity with the present Code . ”

The explanatory judgment of ORG of DATE states inter alia that release under judicial control can be granted by the investigating judge or by the trial court only to persons charged with offences committed through negligence or intentional offences punishable with DATE of imprisonment .

The Commentary of LAW , edited in DATE , the authors of which are amongst others the President and several judges from ORG and several senior law professors , states the following in respect of CARDINAL :

“ The first paragraph of CARDINAL provides for the first condition of admissibility of release under judicial control which is determined by the gravity of the offence with which the accused is charged . This condition [ the gravity of the offence ] is determined in the documents issued by the investigation body or by the prosecutor , who establish the qualification of the offence ...

The investigating judge is not empowered with assessing whether the legal qualification of the offence is correct since he does not examine the evidence on which the qualification is made ...

At the trial stage , the trial court can give a new qualification to the offence with which the accused is charged ... ”

DATE . In GPE v. ORG and ORG ( final judgment of ORG of CARDINAL October CARDINAL ) , after being released , the applicant claimed and obtained compensation for having been held in inhuman and degrading conditions during his pre - trial detention , in the amount of MONEY ( ORG ) . The court based its award directly on LAW .

Article CARDINAL of the LAW reads as follows :

“ ( CARDINAL ) A person whose rights are violated by a public authority through an administrative act or through the failure to examine a request within the statutory period , is entitled to obtain the recognition of the right claimed , the annulment of the act and compensation for damage .

( CARDINAL ) The ORG bears pecuniary liability , according to the law , for harm caused through errors committed in criminal proceedings by the investigating authorities and courts . ”

The relevant provisions of LAW read as follows :

“ Section CARDINAL . Liability of the ORG for damage caused by the actions of the criminal investigation organs , prosecution and courts

( CARDINAL ) Damage caused to a natural person through illegal conviction , illegal prosecution , illegal application of preventive measures in the form of detention on remand or of a written undertaking not to leave the city , and illegal subjection to the administrative sanction of arrest or of non - remunerated community work , is to be fully compensated by the ORG , whether or not officers in the criminal investigation organs , the prosecution or judges were at fault . ... ”

The relevant provisions of the Law No . DATE on compensation for damage caused by the illegal acts of the criminal investigation organs , prosecution and courts read as follows :

“ Section CARDINAL

( CARDINAL ) In accordance with the present law , individuals and legal entities are entitled to compensation for the moral and pecuniary damage caused as a result of :

a ) illegal detention , illegal arrest , illegal indictment , illegal conviction ;

b ) illegal search carried out during the investigation phase or during trial , confiscation , levy of a distraint upon property , illegal dismissal from employment , as well as other procedural acts that limit the person ’s rights ;

c ) illegal administrative arrest or order to work for the community , illegal confiscation of the property , illegal fine ;

d ) carrying out of unlawful investigative measures ;

e ) illegal seizure of accounting documents , other documents , money or stamps as well as blocking of banking accounts .

( CARDINAL ) The damage caused shall be fully compensated , irrespective of the degree of fault of the criminal investigation organs , prosecution and courts .

Section CARDINAL

A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met :

a ) pronouncement of an acquittal judgment ;

b ) dropping of charges or discontinuation of investigation on the ground of rehabilitation ;

c ) adoption of a decision by which an administrative arrest is cancelled on the grounds of rehabilitation ;

d ) adoption by ORG or by ORG of a decision in respect of damages or in respect of a friendly settlement agreement between the victim and the representative of ORG before ORG . The friendly settlement agreement shall be approved by ORG ; ... ”

Section CARDINAL of the Law on Psychiatric Assistance reads as follows :

“ Any information about mental diseases suffered by a person , his or her requests for psychiatric medical assistance and treatment in a psychiatric hospital , as well as any other information about his or her mental health constitutes a medical secret . With a view to realising his or her rights and interests , a person suffering from a mental disease or his or her legal representative can obtain any information about his or her psychiatric health and about the psychiatric assistance received . ”


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE ( GPE ) . She was represented before ORG by PERSON , of ORG , who appeared on her behalf at the hearing on DATE . The respondent Government were represented at the hearing by their Agent , Mr PERSON , Deputy Attorney - General , assisted by PERSON , Deputy Attorney - General and coordinator of ORG of ORG .

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

On DATE the applicant brought an action for damages against CARDINAL private individuals and ORG ( “ the Fund ” ) in GPE after suffering a road accident . She also applied for legal aid .

On DATE the court summoned the defendants to appear .

The ORG filed pleadings in reply on DATE . CARDINAL of the other defendants filed his pleadings on DATE and also applied for legal aid .

In an order of CARDINAL DATE the court requested information from the police authorities about the financial and social circumstances of the applicant and the defendant who had applied for legal aid . ORG replied on CARDINAL DATE .

On DATE the court gave a preliminary decision ( despacho saneador ) setting out the facts that had already been established and the matters remaining to be clarified . It also awarded legal aid to the applicant and the defendant who had applied for it .

After the registry of the Caldas da Rainha District Court had realised that the applicant had not been notified either of the GPE pleadings in reply or of the preliminary decision , the court directed on DATE that those documents should be served on her .

On DATE the applicant submitted a list of the witnesses she wished to have examined . She also asked the court to order an insurance company and the PERSON medical centre to produce certain documents and requested an expert medical opinion . The court allowed her requests on DATE .

The PERSON medical centre produced the requisite documents on DATE . The insurance company did so on DATE , after the court had fined it for failing to comply with its order in good time .

In an order of CARDINAL DATE the court announced that the appointment of the experts would take place on DATE . The experts carried out the examination on DATE and submitted their report on DATE .

On DATE the court set the case down for hearing on CARDINAL DATE . However , the hearing could not take place on that date because counsel for one of the defendants was absent . It was postponed until DATE but could not take place on that date either , as ORG was occupied with the taking of evidence from witnesses in a criminal case . The hearing finally took place on DATE .

In a judgment of DATE ORG allowed the applicant ’s claims in part .

LAW of LAW enshrines the right to a “ judicial decision within a reasonable time ” .

Article CARDINAL also defines the civil liability of the ORG and its authorities and agents in the following terms :

“ The ORG and other public bodies shall be jointly and severally liable in civil law with the members of their agencies , their officials or their agents for actions or omissions in the performance of their duties , or caused by such performance , which result in violations of rights , freedoms or safeguards or in prejudice to another party . ”

Legislative Decree no . CARDINAL governs the ORG ’s non - contractual civil liability . It contains the following provisions of relevance to the instant case :

LAW

“ The ORG and other public bodies shall be liable to third parties in civil law for such breaches of their rights or of legal provisions designed to protect the interests of such parties as are caused by unlawful acts committed with negligence ( culpa ) by their agencies or officials in the performance of their duties or as a consequence thereof . ”

Article CARDINAL

“ For the purposes of this Decree , legal transactions which infringe statutory provisions and regulations or generally applicable general principles , and physical acts which infringe such provisions and principles or the technical rules and rules of general prudence that must be observed , shall be deemed unlawful . ”

Article CARDINAL

“ The obligation on the ORG and other public bodies and on members of their agencies and their officials to pay compensation shall not be contingent on the ORG use of their right of appeal against the measures that gave rise to the damage ; however , the right to compensation shall be available only if the damage is not attributable to the failure to lodge an appeal or to negligence in the conduct of proceedings after an appeal has been lodged . ”

In accordance with the case - law concerning the ORG ’s non - contractual liability , the ORG is required to pay compensation only if an unlawful act has been committed with negligence and there is a causal link between the act and the alleged damage .

Article CARDINAL of the Civil Code provides that the right to compensation is time - barred after the expiry of a period of DATE from the date on which the victim becomes , or should have become , aware of the possibility of exercising that right .

ORG decision of DATE in the case of PERSON , PERSON was for a long time the only example of the application of Legislative Decree no . DATE to the length of proceedings . Referring to the judgments of ORG in the cases of GPE v. GPE ( DATE , Series A no . CARDINAL ) , PERSON v. GPE ( DATE , Series A no . CARDINAL ) and PERSON v. GPE ( DATE , Series A no . CARDINAL ) , ORG considered that the excessive length of proceedings was to be regarded as an unlawful act meriting compensation . The main period in issue in LOC , GPE case was DATE it took for the GPE industrial tribunal to deliver a judgment that should have been given within a statutory period of DATE .

Subsequently , on DATE , ORG gave a ruling in the case of PERSON , concerning civil proceedings that had lasted DATE for CARDINAL level of jurisdiction . The appellants in that case had also lodged an application with ORG complaining of the length of those proceedings . Their application had resulted in the adoption by ORG of a resolution awarding them CARDINAL NORP escudos ( PTE ) by way of just satisfaction . ORG allowed their claims in part and ordered the ORG to pay them PTE CARDINAL in compensation , less the above - mentioned sum of PTE CARDINAL . Referring to ORG case - law , it considered , in particular , that the ORG incurred non - contractual civil liability for the non - pecuniary and pecuniary damage resulting from the unlawful and negligent administration of justice in breach of LAW CARDINAL § CARDINAL of the Convention . The judgment was published and commented on in the legal journal ORG ( no . CARDINAL , DATE ) .

ORG gave a similar decision on DATE in the case of ORG , GPE , concerning the delay with which a court ’s instructions had been carried out in enforcement proceedings . The court pointed out that failure to comply with procedural deadlines was not in itself an unlawful act but that it became unlawful if LAW was breached at the same time .

Lastly , ORG , in a judgment of DATE that was not contested by the ORG , likewise allowed a claim for damages on the basis of the ORG ’s non - contractual liability for the excessive length of proceedings concerning an objection to an enforcement measure that had already been carried out .

According to a statistical table produced by the ORG , CARDINAL actions to establish non - contractual liability on the part of the State for the excessive length of proceedings had been brought before the administrative courts . In CARDINAL of them the courts had found against the ORG , and in CARDINAL others the ORG claims had been dismissed . The proceedings are still pending in CARDINAL cases ; in CARDINAL of them , the first - instance court has found against the ORG , which has subsequently appealed to ORG .

In DATE the ORG tabled PERSON . CARDINAL in ORG , concerning the ORG ’s non - contractual civil liability and repealing Legislative Decree no . DATE .

The explanatory memorandum on the bill stated , inter alia , that “ for the first time in LANGUAGE law ” , there was a statute dealing comprehensively with the ORG ’s non - contractual liability for damage resulting from the performance of political , legislative , administrative and , “ for the first time in GPE ” , judicial duties . It pointed out that it had been “ thought helpful to incorporate into law various conclusions reached by the courts over the course of time ” .

Clauses CARDINAL of the bill governed the ORG ’s liability for damage caused in the performance of its administrative duties . Clause CARDINAL ( CARDINAL ) and ( CARDINAL ) explicitly introduced the concept of “ administrative fault ” or “ official error ” .

Clause CARDINAL of the bill provided , inter alia :

“ ... the rules on liability for unlawful acts committed in the performance of administrative duties shall apply to damage caused by the unlawful administration of justice , particularly in the case of a violation of the right to a judicial decision within a reasonable time . ”

The bill lapsed as a result of the dissolution of ORG .

On DATE , however , the new ORG passed on its first reading PERSON no . CARDINAL/IX , tabled by members of ORG , which reproduced in full the explanatory memorandum to and the text of PERSON no . CARDINAL .

The bill still has to be approved on its second reading .

On DATE the Attorney - General issued a circular to all officials and members of his department . He instructed them not to challenge the administrative courts’ jurisdiction ratione materiae to deal with actions to establish non - contractual liability on the part of the ORG for the excessive length of proceedings .

By DATE Regulations on the Attorney - General ’s Department , all officials and members of the department are required to abide by the circular .


PERSON ( the first applicant ) was born in DATE . PERSON ( the second applicant ) was born in DATE . Both applicants are former teachers at a local school and live in the town of Rozdilna , LOC .

On DATE ORG ( ORG районний суд ORG області ) awarded the first and the second applicants , respectively , ORG CARDINAL and ORG MONEY against ORG ( hereafter “ the GPE ” ) for arrears in some payments additional to their salaries ( see , in this respect , PERSON v. GPE , no . CARDINAL , § § DATE , DATE ) .

On DATE the court issued writs of execution , which were submitted to ORG ( hereafter “ the Bailiffs ” ) .

NORP In letters of DATE , the Bailiffs informed the applicants that the judgments in their favour had not been executed because the DATE ORG did not preview the expenditure for teachers ' social benefits . In the DATE State Budget teaching programmes were funded PERCENT of actual needs . The DATE ORG likewise did not provide funds for this purpose . ORG further stated that such payments could only be made after the adoption of relevant legislation by ORG .

On DATE the ORG of Justice notified the first applicant that the judgment of DATE could not be immediately enforced due to the ORG 's lack of property that could be attached .

On DATE ORG rejected the applicants ' complaints against the alleged Bailiffs ' inactivity .

On DATE the NORP ORG , following the second applicant 's appeal , upheld this decision . The applicant was present at this hearing . She did not appeal in cassation .

On DATE ORG left without consideration the first applicant 's appeal against the decision of DATE for failure to comply with the formalities as to its content and to pay the court fee and allowed her time until DATE to rectify the mistakes . On DATE the court returned the appeal without consideration for failure to rectify it .

On DATE the first applicant was paid ORG CARDINAL .

On DATE the Bailiffs returned the execution writs of DATE to the applicants , stating that the judgments could not be enforced as ORG provided no funds for such payments .

The judgments of DATE remain unenforced until present .

The relevant domestic law is summarised in the judgments of ORG v. GPE ( no . CARDINAL , § § DATE ) and PERSON v. GPE ( cited above , § § DATE ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy

The applicant was born in DATE and lives in GPE .

On DATE criminal proceedings were instituted into an alleged abuse of authority by officers of the ORG coal mine on account of acquisition of portable telephones for the mine despite the fact that it was badly in arrears with the payment of salaries to its employees .

On DATE the applicant , the director of the above - mentioned mine at the material time , was officially charged with abuse of authority in connection with the above - mentioned proceedings .

On DATE the applicant was placed under an undertaking not to abscond . Subsequently the applicant was also suspended from his duties as director of the PERSON mine pending the pre - trial criminal investigation of the charges against him .

On DATE NORP , the mine ’s accountant , was also charged with the abuse of authority within the same proceedings .

On DATE the pre - trial investigation was completed and on DATE the case was transferred to ORG for trial .

On DATE new criminal proceedings concerning charges of tax evasion by way of alienation of the mine ’s promissory notes by the applicant and NORP were joined to the previous proceedings .

On DATE new criminal proceedings concerning charges of another episode of tax evasion ( alienation of the mine ’s machinery as scrap metal without the consent of the ORG tax authorities ) were instituted against the applicant and NORP On the same date these proceedings were joined to the first criminal proceedings against them .

On DATE the bill of indictment in respect of the tax evasion charges was transferred to ORG for trial .

On DATE ORG acquitted the applicant and NORP of the charges of abuse of position in connection with the acquisition of the portable telephones , finding that this action had been taken in the mine ’s interest . It convicted them of abuse of authority with respect to the other facts of the case . The court further sentenced the applicant to four years’ suspended imprisonment and a term of probation of DATE .

On DATE ORG ( “ the Court of Appeal ” ) upheld that judgment .

On DATE ORG of GPE examined the cassation appeals lodged against the above judgments and remitted the case for a fresh appellate review . It found , in particular , that ORG had provided insufficient reasoning for rejecting the applicant ’s arguments that his actions had been lawful .

On DATE ORG quashed the judgment of DATE with respect to the episodes on the basis of which the applicant had been convicted , and remitted the case to the prosecutor ’s office for further investigation .

On DATE the ORG office dropped the charges in respect of the alienation of scrap metal .

On DATE the case in respect of the alienation of promissory notes was referred to ORG for a re - trial .

On DATE ORG remitted the case to the prosecutor ’s office for further investigation . It found , in particular , that the charges were insufficiently substantiated , as it was not evident whether the applicant had pursued criminal motives in selling the promissory notes or what damage to public or private interests had been caused by his actions .

On DATE ORG upheld that decision .

On DATE , following additional inquiries , the case was transmitted to ORG for a re - trial .

On DATE ORG remitted the case to the prosecutor ’s office for additional investigation .

On DATE ORG upheld that decision .

On DATE new criminal proceedings were instituted against the applicant on suspicion of forgery of official documents ( that is , the falsification of documents concerning his participation in a fire - prevention training course ) . On the same date these proceedings were joined to the previous proceedings against him .

Also on DATE , the prosecutor ’s office dropped the charges of tax evasion in respect of the sale of the promissory notes and terminated the criminal proceedings against the applicant in this regard .

On DATE the applicant was charged with forgery .

On DATE the case was remitted to ORG for trial .

On DATE , after several hearings , the court remitted the case to the prosecutor ’s office for additional investigation , referring to numerous shortcomings in the previous investigation and lack of reasoning in the indictment .

On DATE the prosecutor ’s office terminated the criminal proceedings concerning forgery for want of evidence that the applicant had forged the documents rather than having duly taken part in the training programme . On the same date the applicant was released from the undertaking not to abscond .

On DATE the ORG revoked the ruling of DATE by which criminal proceedings had been instituted against the applicant on suspicion of forgery , having found that it had been made without a sufficient legal basis . According to the case - file materials that ruling was not appealed against .

By order of ORG of DATE the applicant was suspended from the performance of his duties as director of the PERSON mine pending the pre - trial investigation of the criminal charges against him .

On DATE he instituted civil proceedings in the NORP ORG challenging the validity of the above - mentioned suspension order .

On DATE the court decided to leave the applicant ’s claim without consideration on account of his failure to appear at the hearing .

On DATE the applicant appealed against that decision , requesting the restoration of the time - limit for lodging this appeal alleging procedural irregularities in the consideration of his case .

On DATE ORG restored the time - limit for lodging the appeal .

On DATE ORG of Appeal quashed the decision of DATE and remitted the case to ORG for consideration on the merits .

On DATE the court invalidated the disputed suspension order as unlawful .

According to the case - file materials , that decision was not appealed against .

On DATE the applicant was dismissed from his post as director of the Melnikova mine by order of ORG .

On DATE ORG ordered the applicant ’s reinstatement , to be executed immediately , irrespective of the fact that the judgment was still subject to appeal . On DATE ORG upheld that judgment .

On DATE the reinstatement order was issued in respect of the applicant , following which the applicant was obliged to take part in a ORG - run fire - prevention training course and obtain the relevant certification as a pre - requisite for execution of his functions as director .

On DATE the applicant was dismissed from his post as the director of the mine with reference to his failure to comply with the above requirement . The applicant appealed in court , alleging that the new dismissal had been unlawful and that the previous reinstatement judgment had in fact never been enforced . He further claimed CARDINAL hryvnias ( ORG ) in unpaid salary and ORG CARDINAL in non - pecuniary damage .

On DATE ORG allowed the applicant ’s claims in part . In particular , it found that the applicant had not been properly reinstated and that his second dismissal had been unlawful . The court again ordered the applicant ’s reinstatement and awarded him UAH CARDINAL in unpaid salary for the period from DATE until DATE and UAH CARDINAL for non - pecuniary damage . In addition , the court issued a separate ruling ( окрема ухвала ) drawing the attention of ORG to the unlawful conduct of the ORG officials in obstructing execution of the judgment of DATE . The applicant did not appeal against that judgment .

On DATE ORG upheld the judgment of DATE following the defendant ’s appeal .

On DATE ORG of GPE rejected the defendant ’s request for leave to appeal in cassation .

On an unspecified date the applicant complained to the court about the non - enforcement of the judgment of DATE and claimed an unspecified amount in unpaid salary and ORG CARDINAL for moral damage .

DATE . On DATE ORG allowed the applicant ’s claim in part . It found that the applicant had not been properly reinstated and awarded him ORG CARDINAL in unpaid salary and UAH CARDINAL for non - pecuniary damage . The defendant ’s appeal having been dismissed on procedural grounds , this judgment became final .

On DATE the ORG bailiffs’ service terminated enforcement proceedings , finding that the judgment had been enforced in full .

On DATE the applicant was issued with an employee identification number and a power of attorney to act on the mine ’s behalf as its director , and was introduced to the mine ’s staff . On DATE he was issued with an order to attend a fire - prevention training course and obtain the necessary certification for performing his duties .

On DATE the applicant was suspended from performing his duties as the mine ’s director on account of his failure to obtain the above certification .

On an unspecified date the applicant challenged the lawfulness of his suspension in ORG and complained that he had still not been properly reinstated to his director ’s duties and claimed ORG CARDINAL in non - pecuniary damage .

On DATE ORG found that the applicant had failed to substantiate his arguments concerning the non - enforcement of the reinstatement order , in particular since on DATE he had been assigned an employee identification number . At the same time , the court annulled the suspension order of DATE , finding that the company had failed to organise the applicant ’s training properly , and awarded the applicant ORG CARDINAL for non - pecuniary damage . According to the case - file materials this judgment was not appealed against and became final .

In DATE the applicant instituted civil proceedings in the ORG challenging the failure of the prosecutor ’s office to notify ORG in good time of the termination of the pre - trial investigation in his case . On DATE the court allowed his complaint . On DATE ORG quashed that decision and terminated the proceedings , finding that such complaint should have been lodged within the framework of criminal rather than civil proceedings . On DATE ORG upheld the ruling of ORG .

The applicant also tried to institute criminal proceedings against the former and acting directors of the company on account of the non - enforcement of his reinstatement order and other allegedly unlawful acts in respect of him . However , his efforts were to no avail .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in GPE .

Until DATE he lived in GPE , where he completed part of his schooling . He subsequently moved to GPE , where he continued his education , eventually going on to university .

In DATE he became an active member of ORG ( PERSON – “ the SKD ” ) , founded in DATE . Until DATE he represented the SKD at various international conferences in different countries . After the SKD was dissolved in DATE ORG ( FAC – “ the ISKD ” ) was founded and the applicant served as its chairman from DATE .

NORP In DATE the applicant was called up . Invoking his pacifist convictions , he refused to perform military service and publicly burned his call - up papers at a press conference in GPE on DATE .

On DATE he was arrested . On DATE he was indicted by the military prosecutor attached to ORG of the General Staff ( “ the ORG ” ) , LAW and LAW , on a charge of inciting conscripts to evade military service .

In a judgment of DATE ORG sentenced the applicant , on the basis of the indictment of DATE , to CARDINAL months’ imprisonment and to a fine . The court also found that the applicant was a deserter and made an order requesting the military prosecutor attached to that court to enlist him .

On DATE the applicant lodged an appeal on points of law . In his grounds of appeal he relied on , among other provisions , Articles CARDINAL and CARDINAL of the Convention , claiming that he was a conscientious objector .

In a judgment of DATE ORG upheld the first - instance judgment .

In the meantime , on DATE , the applicant was transferred to ORG , attached to the PERSON gendarmerie command . He refused to wear military uniform or carry out the orders of the regiment ’s commanding officer . He was detained in the regimental prison , where he refused to wear prison uniform .

On DATE the military prosecutor at ORG ( “ the ORG ” ) indicted the applicant on a charge of “ persistent disobedience ” and sought his conviction under LAW .

Ruling on the applicant ’s refusal to wear prison uniform , ORG , in a judgment of DATE after urgent proceedings , restricted his right to receive visitors for DATE , as a disciplinary measure .

Ultimately , in a judgment of DATE , ORG sentenced him to CARDINAL months’ imprisonment for persistent disobedience .

On DATE ORG upheld the judgment of DATE .

In the meantime , the applicant had failed to rejoin his regiment after being released on DATE . He was arrested and remanded in custody .

He was indicted on DATE by the military prosecutor at ORG , on charges of desertion and “ persistent disobedience ” .

NORP In a judgment of DATE ORG sentenced the applicant to CARDINAL months’ imprisonment and to a fine .

In the meantime , on DATE , he had been released on the condition that he rejoined his regiment on DATE to perform his military service . As he failed to do so he was arrested on DATE and transferred to PERSON prison to serve the sentence imposed by ORG on DATE .

In an indictment of DATE the military prosecutor at ORG called for the applicant ’s conviction for desertion DATE and DATE .

In a judgment of CARDINAL DATE ORG sentenced the applicant to CARDINAL months’ imprisonment on the basis of the charges in the bill of indictment .

In a judgment of CARDINAL DATE ORG upheld the judgment of CARDINAL DATE .

On DATE the applicant was escorted to his regiment at GPE . He was arrested for refusing to wear military uniform .

In a judgment of CARDINAL DATE ORG sentenced him to DATE and CARDINAL days’ imprisonment on account of incidents that had occurred on DATE .

After being escorted back to his regiment on DATE , the applicant was arrested on CARDINAL DATE for refusing to wear his military uniform .

In a judgment of CARDINAL DATE the ORG sentenced him to DATE and CARDINAL days’ imprisonment for “ persistent disobedience ” on DATE .

In the meantime , on CARDINAL DATE , the applicant was sent back to his regiment , where he refused to wear military uniform .

In a judgment of CARDINAL DATE ORG sentenced him to DATE and CARDINAL days’ imprisonment on account of the incidents of CARDINAL DATE .

In a judgment of CARDINAL DATE ORG upheld the first - instance judgment of DATE .

The applicant was released on DATE and transferred to his regiment , but once again refused to wear military uniform .

He was prosecuted and arrested on account of the incidents of CARDINAL DATE , and on DATE the ORG sentenced him to DATE and CARDINAL days’ imprisonment .

NORP In a judgment of CARDINAL DATE the military ORG upheld the judgment of CARDINAL DATE .

The applicant served a total of DATE in prison as a result of the above sentences , with the exception of the prison sentence imposed after his last conviction . He is wanted by the security forces for the execution of his sentence and is currently in hiding . He is no longer active in the association or in any other political activity . He has no official address and has broken off all contact with the authorities . He has been accommodated by his fiancée ’s family . He has been unable to marry her legally or to recognise the son born to them .

DATE LAW provides :

“ Patriotic service is a right and a duty for every NORP citizen . The conditions in which that service shall be performed or deemed to have been performed in the armed forces or civil service shall be laid down by law . ”

The legal provisions currently in force govern only the performance of national service in the armed forces . No alternative civil service is provided for by law .

Section CARDINAL of LAW ( Law no . ORG of DATE ) reads :

“ ... every man of NORP nationality shall be obliged to perform military service . ”

Under section ORG ) of LAW , when the number of conscripts exceeds the requirements of the armed forces , they may be allowed , after carrying out basic military training , to perform military service for a shorter period in return for the payment of a tax , or to finish their service in the public sector .

The Military Penal Code stipulates that once they have been placed on the muster rolls for military service , conscripts are required to report to the designated military unit , failing which they will be regarded as unlawfully absent and liable to a criminal penalty under LAW . Any additional act of disobedience is regarded as “ persistent disobedience ” and falls LAW CARDINAL of LAW .

The relevant passage from LAW reads as follows :

“ ... Incitement to evade military service .

It shall be an offence punishable by imprisonment of DATE and a fine ... – except in the cases provided for in the preceding Articles – to incite ... conscripts to evade military service ... ”


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

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;John Hedigan;Lucius Caflisch;Luzius Wildhaber

The applicant was born in DATE and lives in GPE .

He is a journalist with ORG . At the material time he was responsible for the current affairs programme PERSON présent ( “ Present tense ” ) .

On DATE , as part of that programme , ORG broadcast on its channel for LANGUAGE - speaking GPE ( TSR – Télévision GPE romande ) a report by the applicant entitled “ GPE ’s lost honour ” , concerning GPE ’s position during the Second World War .

The report began by discussing the history of GPE during the Second World War , as supposedly experienced by the people at the time and taught for DATE in schools . GPE had been portrayed as a brave country which , despite its neutrality , had been on the side of democracy and thus of the Allies . After this recounting of the “ myth ” , the journalist stated : “ There has been a somewhat rude awakening . ” The programme continued with severe criticism of GPE ’s position by prominent figures and with contrasting opinions of NORP citizens who had lived through the war . The journalist said that historians had made efforts to uncover a significant part of the truth . The programme then described the attitude of GPE and its leaders , emphasising their alleged affinity with the far right and their inclination towards rapprochement with GPE . This was followed by an analysis of the question of NORP in GPE and of the country ’s economic relations with GPE , focusing on the laundering of NORP money by GPE and on the role of NORP banks and insurance companies in the matter of unclaimed NORP assets .

NORP The programme provoked objections from groups of citizens , who filed complaints under LAW ( see paragraph CARDINAL below ) with ORG ( “ the ORG ” ) .

In the course of its investigation into the complaints , ORG interviewed CARDINAL historians . It subsequently upheld the complaints on DATE and asked ORG to inform it , within DATE of being notified of its decision , of the measures taken to redress the breach it had found , in accordance with section GPE ) of ORG ( see paragraph CARDINAL below ) .

ORG appealed against the decision .

On DATE ORG allowed the appeal , holding that there had been a breach of the right to a hearing , quashed the decision appealed against and referred the case back to ORG for a fresh decision .

On DATE ORG , after holding a hearing with the parties in private , again upheld the ORG complaints .

It observed that “ where the events in issue are part of history , their presentation by journalists is bound to involve difficulties . Witnesses are increasingly rare . Certain aspects of the social context that might have explained the conduct of the time become blurred ... ”

ORG held that the programme had breached the broadcasting regulations deriving from CARDINAL of ORG , by which current affairs programmes were bound by a duty to report objectively in such a way as to reflect the plurality and diversity of opinion . It pointed out that the second subsection of section CARDINAL also provided that personal views should be identifiable as such . ORG accordingly found against ORG , requesting it to indicate the measures taken to redress the breach , in accordance with CARDINAL of ORG .

On DATE ORG , the applicant and a historian who had been involved in the report applied to ORG to have the decision of CARDINAL DATE set aside .

In a judgment of DATE ( served on DATE ) , ORG declared the application inadmissible in respect of the applicant on the ground that , although he had produced the report , he was not entitled to take part in the proceedings since he was not personally a victim of the decision of CARDINAL DATE .

In respect of ORG , ORG considered the application on the merits . It held that , although politically committed journalism was not prohibited in itself , it should be identifiable as such . In the present case the journalist had conveyed his support for CARDINAL particular viewpoint through harsh criticism . In short , ORG did not object to the programme ’s content but rather to the fact that the method used , namely politically committed journalism , had not been identified as such . It pointed out that journalism of that nature was subject to particularly stringent rules of diligence , which the programme had not observed . The journalist should have informed viewers that the report was not presenting an indisputable truth but rather CARDINAL possible interpretation of relations between GPE and GPE . ORG accordingly dismissed ORG application . The relevant parts of the judgment read as follows :

“ CARDINAL . ( b ) ...

The impugned programme concerns a historical subject – GPE ’s position during the Second World War – which has returned to prominence on account of the issue of unclaimed assets . By broadcasting a programme on a matter of public debate , ORG was performing the role assigned to it , and it has rightly not been criticised on that account . Because of its historical aspect , the programme in issue was faced with a problem regarding sources : witnesses to the events recounted are becoming increasingly rare and certain elements that might have explained the conduct of the time are becoming blurred , as was noted in the decisions complained of . Accordingly , the explanation of historical facts relies on hypotheses that may serve as a basis for the construction of theories . In such circumstances , journalists must test their hypotheses and , where appropriate , adjust them , even if they are not expected to reveal an absolute truth . They must abide by the rules of journalistic diligence . Accordingly , in this context they must , in particular , indicate any persisting doubts , point out contradictions between witness accounts and mention the differing interpretations supported by some historians . On account of its topical nature , the programme in issue contributes to a debate and may be described as politically committed journalism in the sense referred to above . It has to satisfy particularly stringent requirements of journalistic diligence since it expresses criticism that may be especially painful . It is necessary to assess whether the rules of diligence applicable in the present case have been complied with , bearing in mind that such an assessment must take into account the situation obtaining at the time when the impugned programme was broadcast .

( a ) The impugned programme , entitled ‘ GPE ’s lost GPE , begins by discussing the history of GPE during the Second World War , as supposedly experienced by the people at the time and taught for DATE in schools . GPE had been depicted as a small , brave country which had resisted the demoniac forces of NORP . Despite being neutral , in their hearts the NORP had been on the side of democracy , in other words the Allies . They had deterred the NORP from attacking them through their determination to resist , if necessary with the help of the PERSON , a kind of impregnable fortress in the LOC . They had displayed generosity by welcoming CARDINAL people who had fled the extermination camps and by temporarily receiving child war victims . GPE had introduced banking secrecy so that NORP could store their savings safely in the country . After this recounting of the ‘ ORG , the journalist states : ‘ There has been a somewhat rude awakening.’ The programme continues with severe criticism of GPE ’s position during the Second World War by prominent figures – most of them NORP – and with contrasting opinions of NORP citizens who lived through the period and young people who know about it only through the ‘ ORG . The journalist then asserts that in DATE , historians studying the period have uncovered a significant part of the truth . Next , the programme describes the attitude of GPE , and in particular its political and military leaders , during the Second World War , emphasising their alleged affinity with the far right and their inclination towards rapprochement with GPE . The question of NORP anti - Semitism is then examined , along with the economic and financial relations between GPE and GPE . The programme alleges that the PERSON served GPE ’s economic interests and focuses on the laundering of NORP money by GPE and on the role of NORP banks and insurance companies in the matter of unclaimed NORP assets . The journalist concludes by saying : ‘ The experts of ORG and the historians of ORG will no doubt confirm that the NORP political and economic elite in this difficult period adapted to the circumstances rather too well . Their biggest mistake was probably their failure to acknowledge and come to terms with that attitude after the war ; to acknowledge that the NORP were not heroes but normal people caught up in events , who succeeded in taking advantage , for themselves and their descendants , of the most appalling global crisis of the twentieth century.’

( b ) ORG , which did not criticise the content of the programme in issue , found that ORG had breached CARDINAL of ORG by using a method , described as politically committed journalism in the decisions under review , which had not allowed viewers to form their own opinion . The company had not observed the principles of journalistic diligence since it had never suggested that there were differing views among the historians who had distanced themselves from the ‘ ORG that had built up with regard to GPE ’s position during the Second World War .

( c ) ORG disputes that the programme in issue can be regarded as politically committed journalism , which is subject to particularly stringent rules of diligence . It argues that , in any event , the programme complied with such rules . The company also complains of a misuse of discretionary power . It accuses the relevant authority of having reaffirmed the conclusions of its decisions of DATE despite the fact that the additional investigation had virtually demolished the reasoning on which they were based , and of having acted arbitrarily by assuming the role of the ultimate authority on historical science .

( a ) As ORG noted , the programme in issue sets the ‘ ORG against the ‘ ORG which historians have brought to light , without indicating the disagreements existing between them . In various spheres , such as the basis of GPE ’s economic relations with NORP GPE , the purpose of the PERSON or the explanation of GPE ’s independence , it makes no reference to differing views , despite the fact that opinion on these matters is far from unanimous , as ORG showed . Similarly , the decisions under review observe that the programme in issue merely provides one explanation for the conduct of a prominent figure such as General PERSON , without mentioning that there are other explanations that are just as valid , if not more so .

While accusing the NORP authorities , at least implicitly , of having deceived the population for DATE with a ‘ ORG , the impugned programme , without admitting as much , also gives its own interpretation which is no less categorical . This impression is , moreover , reinforced by interviews , in which ordinary men and women who lived through the events under discussion defend the ‘ ORG , expressing their emotions with varying degrees of articulacy , while historians , who are expected to have a rigorous grasp of their subject , provide the ‘ ORG . As ORG rightly pointed out , the programme in issue ridicules the wartime generation by showing recollections that are incorrect or exaggerated or convey a misplaced sense of self - satisfaction , contrasting with the cold logic of the historians . This leaves the impression that the interpretation put forward in the programme is corroborated by all specialists and thus reflects the sole historical truth . There is therefore a risk that CARDINAL myth might be replaced by another , and only the observance of strict rules of journalistic diligence can prevent such a lapse . Furthermore , the programme does not always place the events it describes in their historical context as precisely as is desirable . It takes insufficient account of certain important aspects ( for example , the threats GPE faced as a result of being surrounded by the ORG powers , and the position of other neutral or even ORG powers ) for viewers to be able to form an opinion , or plays down their significance . Lastly , it does not always enable facts to be distinguished from comment ( see the speech given on DATE by PERSON ) .

( b ) ORG wrongly asserts that ORG should have had regard to its programmes as a whole in assessing whether the diversity of opinions among historians had been reflected . It refers in that connection to the special programme of DATE on General PERSON , ‘ GPE in torment’ , and the debate broadcast on DATE , ‘ GPE – neutral or cowardly’ ; in addition , it announces that the programme in issue will be followed up in the light of the findings of the commissions set up by ORG . It must be noted , however , that the impugned programme appears to be self - contained . It does not refer to the previous programme of DATE or to the subsequent CARDINAL of CARDINAL DATE . Furthermore , these CARDINAL programmes were not advertised by ORG as forming a coherent whole , and viewers of the programme in issue could not have suspected that it was part of a series , if indeed it was .

( c ) The impugned programme adopts an extremely critical approach towards GPE ’s position during the Second World War , as is legitimate . However , it neglects to mention that it is not revealing ‘ the ORG but CARDINAL of several different interpretations of relations between GPE and GPE during that period . Accordingly , viewers are not provided with all the material enabling them to form their own opinion . Furthermore , the programme in issue lacks objectivity and transparency in that it never mentions either the existence or the essence of other interpretations of GPE ’s position during the Second World War , whereas the version it presents is not unanimously supported by historians .

ORG emphasised the cultural role assigned to ORG , the autonomy it enjoys and the conflicts that may arise between these QUANTITY aspects . On that basis , it reached the conclusion that the programme in issue had not breached section CARDINAL(d ) of ORG . ORG then referred to the principles applicable to the provision of information , laying particular emphasis on the principle of journalistic diligence . It pointed out the difficulties inherent in programmes dealing with historical subjects . It also gave a precise definition of its power of review . Having thus delimited the scope of its intervention , ORG undertook an analysis of the impugned programme . It examined the programme ’s structure and the method used to present the subject . In addition , it conducted research into whether the diversity of views had been reflected with sufficient accuracy . Following a thorough examination , ORG found that the programme in issue had breached section CARDINAL of ORG . ORG did not exceed or misuse its discretionary power . Indeed , it remained within the scope of the powers conferred on it , being precluded , as it emphasised itself , from stating a position on historical events and their interpretation or on the validity of the views expressed by the historians appearing on the programme in question . Its criticisms of ORG , moreover , do not concern the content of the programme but solely the manner in which it presented GPE ’s position during the Second World War to viewers . In the final analysis , ORG can not be criticised for finding , in accordance with federal law , that the programme in issue breached section CARDINAL of ORG , by which LAW , paragraph CARDINAL , of the former LAW is given statutory expression .

Moreover , it is not surprising that ORG should have reached the same conclusions as in its previous decisions of DATE . The additional investigations made it possible to clarify some points regarding the content of the impugned programme , without having any bearing on its form or style .

( d ) ORG is also wrong to complain that its independence has been undermined ( freedom of opinion , of the media and of science ) . It overlooks the fact that the freedom it enjoys is not absolute but is limited by section CARDINAL of ORG , which ORG is required to apply . ORG review of compliance with that provision can not therefore in itself undermine the company ’s independence .

( a ) ORG alleges that the decisions complained of infringe LAW ) . This provision guarantees freedom of expression , which includes freedom to hold opinions and to receive and impart information and ideas ( LAW ) . This freedom is not absolute ( LAW ) .

( b ) According to the case - law , restrictions on the freedom of expression enshrined in this provision are acceptable if they are prescribed by law , based on a legitimate aim under LAW ECHR and necessary in a NORP society to achieve that aim ( see the unreported judgment of DATE in the case of NORP v. Direction générale de l’Entreprise des PTT suisses , point CARDINAL ( b ) ) .

Furthermore , with regard to freedom of expression , Article CARDINAL ORG does not guarantee any greater protection than unwritten constitutional law ( ORG [ Judgments of ORG ] CARDINAL GPE DATE , point CARDINAL , p. CARDINAL , CARDINAL , point CARDINAL , p. CARDINAL ; CARDINAL Ia CARDINAL , point CARDINAL , p. CARDINAL ) . ORG has also pointed out that LAW does not afford more extensive protection than section CARDINAL of ORG to broadcasters – in so far as they are entitled to rely on it . The freedom it affords to receive and impart information and ideas without interference by public authority includes the freedom of radio and television broadcasting , but this freedom is not unlimited ( ORG CARDINAL II CARDINAL , point CARDINAL , p. CARDINAL ) .

( c ) ORG complaint must be dismissed . ORG criticisms of the company pursue a legitimate aim under LAW , since they seek to protect the right of viewers to receive objective and transparent information .

In the light of the foregoing , the applications must be refused in so far as they are admissible . ”

In a letter of DATE , ORG informed ORG of the measures taken in accordance with section CARDINAL ) of ORG as a result of ORG decision of CARDINAL DATE , upheld by ORG in its judgment of DATE .

“ ... Further to this procedure , CARDINAL preliminary remarks must be made . As a result of the procedure conducted in DATE by ORG following ORG judgment of DATE , ORG had the opportunity to put forward its point of view and no factual errors could be identified in the programme in question ( see also ORG judgment of DATE , p. CARDINAL ) , since the criticisms no longer related to the content of the programme ... In addition ... ORG emphasised the critical function that broadcasters , by their very nature , are also required to perform ( as ORG also confirmed in its judgment of DATE , p. CARDINAL ) and the difficulty inherent in the genre of programmes on historical subjects ...

Further to the decisions by your authority , as upheld by ORG , we hereby give you formal notice of the following measures taken in accordance with CARDINAL , subsection ( CARDINAL ) , of ORG , as instructed in your decisions ... :

NORP The decisions have been communicated to ORG , which has taken note of them .

The Conference has drawn attention to the manner in which sensitive subjects of a highly emotive nature are to be dealt with and to the need to take into account the public impact , using as an example the procedure and decisions in question here .

It has also been specifically agreed that in the coverage of sensitive subjects , as in the programme in question , where there are ‘ differing views’ among historians or other participants ( see ORG judgment of DATE , pp . CARDINAL - CARDINAL , and the ORG ’s decisions , paragraphs CARDINAL and CARDINAL ) , such differences are to be appropriately indicated , although , as the ORG itself states in its decisions ( paragraph CARDINAL ) , this does not require the ‘ tiniest nuances ... to be taken into account’ .

Lastly , the decisions have been incorporated into all ORG training courses ... ”

In its reply of DATE , ORG stated that it found the measures taken to be adequate and would no longer propose taking the measures referred to in section ORG ) of ORG . It thereby declared the procedure closed .

On DATE the competent bailiff of the city of GPE drew up an official report attesting that the broadcast had been “ placed under a legal embargo and that as a result it [ was ] not possible to obtain a copy of it from the ORG sales department or from any NORP or foreign television channel ” .

Article CARDINAL of LAW provides :

“ CARDINAL . Legislation on radio and television and on other forms of transmission of productions and information via public telecommunications services shall fall within the jurisdiction of the ORG .

Radio and television shall contribute to education and cultural development , to the free formation of opinion and to entertainment . They shall take into account the particularities of the country and the requirements of the cantons . They shall portray events accurately and provide a fair reflection of the diversity of opinions .

NORP The independence of radio and television and autonomy in programming shall be guaranteed .

NORP The position and role of other media , in particular the press , shall be taken into account .

Complaints about programmes may be submitted to an independent authority . ”

Section CARDINAL of ORG of DATE provides :

“ ( CARDINAL ) ORG shall portray events accurately . They shall fairly reflect the plurality of events and the diversity of opinions .

( CARDINAL ) Personal views and comments must be identifiable as such . ”

Sections CARDINAL of the Act govern ORG . They provide , in so far as relevant :

“ ( CARDINAL ) ORG shall appoint an authority responsible for examining complaints ... , composed of CARDINAL members discharging their duties as a secondary activity ...

( CARDINAL ) The Complaints Authority shall rule on complaints concerning radio and television programmes transmitted by NORP broadcasters .

( CARDINAL ) In performing its duties , the ORG shall not be bound by any instructions from ORG , ORG or the federal administration .

“ ( CARDINAL ) Within DATE from the submission of the written opinion ... , a complaint about the programme in question may be submitted in writing to ORG . The opinion of the mediation body must be attached to the complaint .

( CARDINAL ) The complaint must give a brief indication of the nature of the alleged breach of the regulations on broadcasting as set out in this LAW , in the provisions on its implementation or in the licence . ”

“ ( CARDINAL ) If the supervisory authority finds a breach of the regulations , it may :

( a ) NORP order the licence - holder to redress the breach or to take measures to prevent any further recurrence ; the licence - holder shall inform the authority of the measures taken ;

( b ) require the licence - holder to forfeit any unlawful financial benefit to the ORG ;

( c ) propose that the GPE restrict , suspend or revoke the licence or subject it to further conditions .

( CARDINAL ) NORP If ORG finds a breach of the regulations , it shall inform the broadcaster . Within an appropriate period , the broadcaster shall take measures to redress the breach and to prevent any further recurrence . It shall inform ORG of the arrangements made .

( CARDINAL ) If the broadcaster has not made sufficient arrangements within an appropriate period , ORG may propose that the ORG take the measures provided for in subsection ( CARDINAL ) above . ”

Sections CARDINAL concern punitive measures . Section CARDINAL provides , in so far as relevant to the present case :

“ ( CARDINAL ) A fine of MONEY shall be imposed on anyone who :

( c ) seriously or repeatedly breaches the regulations on broadcasting as laid down in international agreements , in this LAW or the provisions on its implementation , or in the licence , provided that the ORG seeks such a penalty .

( CARDINAL ) In less serious cases , the offender may be exempted from the penalty referred to in subsection ( CARDINAL ) above . ”


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . He is currently serving a prison sentence in FAC . He is represented before the ORG by Mr Z. GPE , a lawyer practising in 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 .

On DATE criminal proceedings were instituted against the applicant . He was charged with having murdered a CARDINAL-year - old girl by cutting her throat . In the ensuing proceedings he was assisted by a defence counsel of his choice .

On DATE ORG preferred a bill of indictment .

On DATE the ORG convicted the applicant of murder and sentenced him to DATE imprisonment . ORG relied on , inter alia , evidence given by the applicant at trial .

On appeal , on DATE ORG held a hearing . It held that the first - instance judgment was ill - founded within the meaning of subparagraphs ( a ) , ( b ) and ( c ) of section CARDINAL ) of LAW ; consequently , it had to be quashed under sections DATE ) and CARDINAL ) of that Code and remitted to the first - instance court . It ordered ORG to analyse the contradictions contained in the various statements made by the applicant during the investigations and at trial .

In the resumed proceedings , on DATE ORG convicted the applicant of murder and sentenced him to CARDINAL years’ imprisonment and barred him from participating in public affairs for DATE . ORG relied on the fact that , during the investigations , the applicant had admitted the murder , on the testimonies of CARDINAL witnesses , the opinion of CARDINAL experts , documentary evidence , the inspection of the crime scene and forensic analyses . The defendant did not wish to testify ; instead , he maintained the statements he had made during the investigations along with those which he had made before ORG during the first trial . His previous statements were read out in court .

In the appeal proceedings , on DATE ORG refused the request of the applicant ’s lawyer to obtain copies of the video recordings made during the investigation . ORG pointed out that he was entitled to obtain copies of any written TIME prepared on the basis of the recordings .

On DATE ORG , pursuant to section CARDINAL(CARDINAL ) of LAW and in response to the submission by the defence of the opinion of a private expert , instructed the expert chemist who had given an opinion during the first - instance trial to complete his report concerning the alleged mishandling of the material evidence in the case . The expert submitted his supplementary opinion on DATE .

On DATE ORG held a hearing . The court heard the expert chemist and both the defence and prosecution put questions to him . The court refused to appoint an additional expert in physics , as was proposed by the defence , and declared the taking of evidence closed .

A further hearing took place on DATE . ORG rejected the defence ’s further proposals to obtain the opinions of an expert physicist and an expert in graphological lie - detection , as well as to hear the applicant .

At the hearing of DATE , ORG again refused to hear the applicant , despite insistence by the defence . It was pointed out that during the first - instance proceedings the defendant could have , at any time , pleaded his case , but he had deliberately chosen not to . At the appeal stage , the hearing of the applicant ’s testimony would only be permitted if necessary to complete the findings of fact . In any event , he had the right to address the court last .

At the hearings of CARDINAL and DATE the applicant addressed the court last .

On DATE ORG adjudicated on the applicant ’s appeal . It made a preliminary review of the judgment which it found well - founded as a whole . It made several corrections to the text and then considered that it was of a sufficient standard to be considered on the merits rather than quashed ( érdemi felülbírálatra alkalmas ) . In the light of the evidence which it had completed itself , it was able to make a rectification to the relevant part of the first - instance decision by way of an order ( végzés ) rather than a judgment . Thereafter it upheld the conviction and sentence .

In particular , ORG noted that ORG had respected its instructions on to how to repeat the first - instance proceedings . It observed that , since the applicant had refused to give evidence in the resumed proceedings before ORG , all his utterances previously made in the case had been read out before ORG and the applicant had been free to comment on them . Moreover , the video tapes available to ORG were played at the hearings and all the persons involved in the case were heard . Furthermore , additional expert opinion was obtained .

ORG emphasised that , the taking of evidence having been closed in the first - instance proceedings , the provisions of LAW did not allow for a repetition of that evidence before the second - instance court , which was only called on to review , under LAW ( CARDINAL ) , the disputed judgment and the earlier proceedings . Insofar as the opinion of the defence ’s private expert was concerned , ORG specified that it was admitted to the file as documentary evidence , although largely irrelevant .

Act no . DATE on the [ Old ] Code of Criminal Procedure ( as in force at the material time ) provided as follows :

“ ( CARDINAL ) Evidence is constituted in particular by ... the testimony given by the accused . ”

“ ( CARDINAL ) The authority is obliged to interrogate the accused in detail . ...

( CARDINAL ) At the beginning of the interrogation , the accused shall be warned that he is under no obligation to give evidence , that at any time during the interrogation he is free to refuse to give evidence and that what he says may be used as evidence . ... ”

“ ( CARDINAL ) The court shall determine the case by a judgment ( ítélet ) if it convicts or acquits the defendant . ”

( CARDINAL ) Unless the law provides otherwise , the appellate court shall review the judgment , together with the entirety of the preceding court proceedings , irrespective of who has appealed and for what reason .

The second - instance court shall ... uphold , modify or quash the first - instance court ’s judgment , or dismiss the appeal .

“ ( CARDINAL ) The appellate court shall base its decision on the facts as established by the first instance court unless the first instance judgment is ill - founded .

( CARDINAL ) The first instance judgment is ill - founded if :

a ) the facts have not been explored ;

b ) the court has failed to establish the facts or the findings of fact are deficient ;

c ) the findings of fact are in contradiction with the contents of the documents ;

d ) the court has drawn incorrect conclusions from the findings of fact in regard to a further fact . ”

“ Evidence may be taken in order to remedy the ill - foundedness of the first instance judgment if the facts are deficient or have been partially unexplored . Evidence shall be taken at hearings . ”

“ ( CARDINAL ) Prior to the hearing , the appellate court may , at its preliminary deliberations in camera , order the taking of evidence , if necessary . ”

“ ( CARDINAL ) If the appellate court modifies the first instance judgment , it shall determine the case by a judgment ( ítélet ) ; otherwise , it shall do so by an order ( végzés ) . ”

“ ( CARDINAL ) In the event of ill - foundedness ( section CARDINAL ) ) , the appellate court :

a ) shall complete or correct the facts if the facts can be established fully and properly from the documents , or through induction , or from the evidence taken ; and shall review the first instance judgment on the basis of the facts thus established ;

b ) may establish the facts differently from those established by the first instance court if , on the basis of the evidence taken , the defendant may be acquitted or the proceedings discontinued .

( CARDINAL ) The appellate court ’s assessment , under ( CARDINAL ) above , of the evidence may be different from that of the first instance court only in respect of those facts in relation to which the appellate court has taken evidence . ”

“ ( CARDINAL ) The appellate court shall uphold the first - instance court ’s judgment , if the appeal is ill - founded , the judgment need not be quashed or modified , or because it is not entitled to increase the penalty . ”

“ If the first - instance court applied the law erroneously and its judgment need not be quashed , the second - instance court shall modify the judgment and decide according to the law . ”

( CARDINAL ) The second - instance court shall quash the first - instance judgment and remit the case to the first - instance court , if such a violation , other than those listed in section CARDINAL(II ) , of the procedural rules took place , so that the judgment was substantially affected ... [ in particular , if ] the first - instance court did not meet the requirement of reasoning .

“ ( CARDINAL ) The second - instance court shall quash the first - instance judgment and remit the case to the first - instance court , if the ill - foundedness , which would be impossible to remedy under LAW , substantially affected the finding of guilt or the imposition of the sentence . ”