Remainder inadmissible;Violation of Art. 5-3;Non-pecuniary damage - award

Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant is a doctor , specialising in cardiac surgery . He is CARDINAL of the few specialists in GPE qualified to perform heart transplants . At the relevant time he was the Director of ORG in ORG in GPE and an assistant professor at ORG in GPE .

Following information submitted by doctors employed in ORG , on DATE ORG instituted an investigation into cases of alleged medical negligence and several counts of harassment of hospital staff by the applicant . It appears that the applicant was also suspected of receiving bribes from his patients .

On DATE the applicant arrived at work at TIME and started preparing for an operation which was planned for TIME .

At TIME a CARDINAL masked and armed officers of ORG ( CAB ) stormed ORG . Some of the officers burst into the applicant ’s office pointing their firearms and shouting . The officers threw the applicant to the floor , pinned his head to the floor and then handcuffed his hands behind his back . They searched the applicant ’s office . Subsequently , they allowed him to change his clothes and handcuffed him again , this time with his hands in front .

NORP The applicant was taken , in handcuffs , out of his office to the hospital ’s outdoor car park . There were a large number of masked and armed officers in the car park and some were in plain clothes . The applicant ’s car was searched over a period of TIME . A sniffer dog was also used . During this time the applicant stood nearby with his hands visibly handcuffed . The events were viewed by CARDINAL of hospital staff , patients and visitors . The applicant ’s arrest was filmed continuously by CARDINAL of the officers .

Subsequently the applicant was taken to his flat in GPE . CARDINAL officers searched the flat over a period of TIME . They seized CARDINAL objects , including bottles of alcohol , watches , fountain pens , cutlery , porcelain , and so on which were to be used as evidence of the applicant ’s bribe - taking . The search of his flat was also filmed .

The applicant was then taken to a hospital for a medical check . At TIME on CARDINAL DATE the officers took the applicant to see Mr PERSON , the Head of the CAB , who shouted at him using offensive language . He said , among other things , that the applicant would not leave prison before turning DATE . The Government submitted that there was no information in the case file concerning the meeting between the Head of the ORG and the applicant .

The applicant was detained at ORG .

According to the Government , the applicant did not appeal against his arrest ( zażalenie na zatrzymanie ) or object to the way in which the ORG ’s officers executed the search of his flat .

On DATE at TIME ORG charged the applicant with CARDINAL offences , including exposing a patient to a direct danger to his life or health ( LAW ( “ LAW ) ) , homicide of a patient ( Article CARDINAL § CARDINAL of the ORG ) , harassing a member of staff , forgery of medical documentation , and CARDINAL counts of taking bribes from patients . The prosecutor based his decision on the evidence gathered in the case , including statements of victims and secret video - recordings of some cases of receiving bribes .

According to the applicant , on CARDINAL and CARDINAL DATE he was not given any food .

On DATE TIME , an assessor ( junior judge ) at FAC , remanded the applicant in custody until DATE . The order read as follows :

“ The evidence gathered in the case , in particular witnesses’ depositions and the ORG statements ( ... ) , expert reports ( ... ) and documentation from the secret files ( ... ) points to a strong likelihood that the suspect [ applicant ] committed the offences with which he is charged , and that is a basic evidentiary condition for the imposition of a preventive measure pursuant to LAW .

The investigation is in its early stage and it is necessary to undertake many further investigative measures to clarify fully the circumstances under investigation . Having regard to the nature of the charges and the surrounding circumstances , there is a reasonable risk that the suspect , if left at liberty , could engage in acts aimed at obstruction of the proceedings . Many persons who must necessarily be questioned in the course of the present proceedings are hierarchically subordinate to the suspect [ applicant ] , and that necessitates preventing the suspect [ applicant ] from contacting them in any manner . Moreover , as Director of ORG the suspect [ applicant ] has access to information which must be kept secure and is required by the authorities conducting the investigation to allow the circumstances which gave rise to the charges to be clarified in full .

Furthermore , in respect of CARDINAL of the offences with which the suspect is charged [ homicide ] he is liable to a sentence of CARDINAL years’ imprisonment or life imprisonment , while in respect of many other offences he is liable to a maximum sentence of CARDINAL years’ imprisonment . The real risk that a severe penalty might be imposed on him may thus induce the suspect to undertake illegal actions to obstruct the proceedings . ... ”

On DATE , following the pronouncement of ORG decision , the Minister of ORG General and the Head of the CAB held a press conference concerning the applicant ’s case .

NORP The applicant appealed against the detention order . He submitted that the evidence in the case was insufficient to charge him with homicide and that the prosecution had intentionally formulated the charge with a view to compelling the court to remand him in detention . Furthermore , the applicant contested the finding that he would obstruct the proceedings . He argued that ORG should have considered the imposition of other , more lenient , preventive measures having regard to the applicant ’s unblemished reputation and in view of the ORG ’s case - law . In addition , he submitted that remanding him in detention could expose his patients to death by preventing them from undergoing their planned cardiac operations . Lastly , referring to the ORG , the applicant raised the issue of the status of the assessor and averred that she did not enjoy the necessary guarantees of independence from the executive .

On DATE ORG dismissed the applicant ’s appeal . It found that the applicant was suspected of having committed a series of offences . The court noted :

“ even leaving aside the charge of homicide , other charges ( bribery ) attracted a statutory maximum sentence of DATE imprisonment ” .

Thus , the applicant ’s detention on remand was justified by the severity of the anticipated penalty , in view of the significant number of bribery charges .

As to the applicant ’s argument that the evidence in the case had been insufficient to charge him with homicide , ORG noted that that was not the only charge against the applicant . In connection with other charges ( including bribery ) there was enough evidence to substantiate a reasonable suspicion that the applicant had committed the offences . ORG further concurred with ORG view that there was a risk that the applicant would attempt to influence witnesses , and that only custodial measures would ensure the proper conduct of the proceedings . The court did not respond to the argument concerning the status of the assessor .

On DATE ORG , on an application from the prosecution , extended the applicant ’s detention until DATE but at the same time held that he would be released if he put up bail in the amount of PLN CARDINAL ( approximately EUR CARDINAL ) by CARDINAL DATE . It reasoned as follows :

“ The prosecutor justifies his application for the extension of detention on remand by the severity of the likely penalty and the risk of obstruction [ of the proceedings ] by the suspect .

The Code of Criminal Procedure requires the authorities conducting the proceedings to analyse , at every stage , whether the evidence gathered in the case sufficiently justifies the imposition of preventive measures . Thus , the court could not leave unaddressed the legal classification of the act allegedly committed by the suspect to the detriment of the victim PERSON under LAW , particularly as it appears from the grounds for the prosecutor ’s application that the likelihood of a severe sentence of imprisonment ( even life imprisonment ) for that act is one of the grounds for extending GPE detention . In the court ’s view , the prosecution ’s assessment can not be sustained in any way . It has to be noted that the [ prosecutor ’s ] application does not contain any reasons for giving such a legal classification to the suspect ’s act . It can not be maintained that the reports presented by experts GPE and PERSON point to a possibility of charging PERSON with homicide committed with conditional intent ( “ zamiar ewentualny ” ) . Moreover , the prosecutor assumes such legal classification of the charge in isolation from the established case - law ( ... ) Taking into account , as stated above that the charge [ of homicide ] is groundless , it evidently could not serve as a ground to grant the [ prosecutor ’s ] application .

However , the evidence gathered so far in the investigation , which , apart from witness statements , also includes evidence obtained by technical means as a result of covert measures ( czynności operacyjne ) , points to a strong likelihood that the suspect committed the corruption - related offences with which he has been charged . Those offences attract a severe sentence of imprisonment , and having regard to their significant number it is likely that the suspect will be sentenced to a lengthy term of imprisonment . The last issue to determine is whether remand in custody is the only preventive measure which could secure the proper conduct of the proceedings .

In the court ’s view , contrary to the prosecutor ’s position , there is no substantiated risk that the suspect would unlawfully obstruct the criminal proceedings , e.g. by inducing witnesses to give false testimonies . Such a risk is not in any way apparent from the statements or testimonies of persons indicated in the grounds for the [ prosecutor ’s ] application . While it can be accepted that the need to remand the suspect in custody existed at the beginning of the proceedings , where there was a risk that he would influence the testimonies of his subordinates , there is clearly no , many public persons are willing to provide a guarantee that PERSON will not obstruct the pending proceedings . ...

In those circumstances , in the court ’s view , if bail in the amount of ORG were paid within the fixed time - limit , that would be a sufficient preventive measure ensuring the proper conduct of the proceedings and the suspect ’s appearance in response to every summons of the authorities conducting the proceedings . ”

NORP The prosecution appealed against ORG decision . On CARDINAL DATE ORG partly amended the impugned decision by imposing further preventive measures in the event of the applicant ’s release . It ruled that guarantees given by PERSON , deputy president of ORG , and GPE , a member of the board of the NORP Transplantation Society , be produced . It also imposed a ban on the applicant ’s leaving the country and ordered the seizure of his passport . For the rest , ORG upheld ORG decision .

On DATE all the conditions specified by ORG were met and the applicant was released .

It appears , as revealed by the Gazeta Wyborcza daily , that the investigation in the applicant ’s case was code - named “ PERSON ” by the CAB . ORG considered the code name to be inappropriate and informed the Prosecutor General accordingly .

On CARDINAL DATE the applicant ’s employment contract with ORG came to an end .

On DATE the public prosecutor additionally charged the applicant with CARDINAL counts of violation of employees’ rights , harassment of his wife , subjecting a person to sexual intercourse several times while abusing a relationship of dependence , attempt to subject a person to sexual intercourse , and several counts of bribery . In total , the applicant was charged with CARDINAL counts of bribery .

On DATE ORG discontinued the investigation against the applicant in respect of the charges of exposing a patient to a direct danger to his life or health ( LAW of the ORG ) , homicide of a patient ( Article CARDINAL § CARDINAL of the ORG ) and forgery of medical documentation on the grounds that there was no evidence that the applicant had committed those offences . In respect of the first CARDINAL offences , the prosecutor based his decision on the expert evidence , in particular the report prepared by a NORP cardiology expert .

The bill of indictment against the applicant was filed with the GPE - FAC on an unspecified date .

It appears that the applicant ’s trial is pending .

On DATE the Minister of Justice – Prosecutor General and the Head of the CAB convened a press conference on the applicant ’s case for DATE . The press conference took place on DATE at TIME shortly after FAC had pronounced its decision ordering the applicant ’s detention on remand .

During the press conference the Minister of Justice – Prosecutor General and the Head of the CAB referred to the applicant as “ Doctor PERSON . However , at the outset they specified that the applicant was the Director of ORG in ORG at FAC in GPE , which enabled the media to quickly establish the applicant ’s identity .

According to the transcript of the press conference , the Head of the ORG stated in respect of the charges concerning bribe - taking :

“ The information gathered and the evidence obtained mean that DATE we can tell you clearly : Doctor PERSON , acting the part of a virtuoso of NORP cardiac surgery , is a ruthless and cynical bribe - taker . We have knowledge of CARDINAL bribes accepted by this doctor . ”

The Minister of Justice – Prosecutor General , PERSON , stated in respect of the charge of homicide :

“ Life often writes the most brutal scenarios . The facts which the service headed by Minister PERSON [ the CAB ] succeeded in unveiling are truly shocking . What we are seeing here was not limited to cynical abuse of human feelings , emotions and the affection of close relatives for their loved ones who were ill , and the exploitation of those feelings . Extorting money , robbing people not only of money but also of hopeoften , even when the hope was not really there , the money was still extorted . And not only that , the evidence shows that what could happen here is more than just massive corruption and gross negligence and medical malpractice . CARDINAL of the charges made by the prosecution is that of homicide in CARDINAL of the cases which the Minister PERSON referred to me . ...

Initially ( ... ) I did not believe it . I could not get it into my mind that in the health service , in a very well known clinic , a very well known and , at least until recently , universally respected cardiac surgeon and professor could perpetrate shameful acts of this sort . But when I began to find out what evidence had been gathered by the ORG , and later also by the prosecutors , I changed my mind . I have changed my mind and , unfortunately , I am more and more overcome with sadness , but we can see this unfortunately sad discovery of the truth as an important event in the true sense of that expression , in that no - one else will ever again be deprived of life by this man ( już nikt nigdy przez tego LOC nie będzie ) . Ladies and Gentlemen , at the present moment I have one substantiated case indicating with high probability a possible homicide , and in this connection a charge based on Article CARDINAL [ intentional homicide ] of LAW was made . Other cases where the circumstances of GPE deaths are unclear are obviously also being examined . We do n’t prejudge the character of those events . Ultimately , the court will decide the case ; nonetheless , what we have already established and gathered as evidence at the present moment is truly shocking ...

I would like to emphasise once again , that as ORG , the person who directly supervised this case from a certain moment , I regard very highly the professionalism of the ORG ’s officers , the professionalism of the prosecutors , thanks to which we succeeded in gathering strong evidence , which is rare and which definitely shows that we were dealing with a long - lasting criminal activity . ...

If you will permit me , in respect of the charge of homicide , the [ applicant ’s ] cynicism is demonstrated by the fact that where we can see from the evidence in our possession that a man [ patient ] was de facto sentenced to death , that did not prevent this gentleman [ the applicant ] from demanding a bribe from his close family , and as the family were poor , they had no possessions , they were farmers , he suggested that they sell their cow so as to have money purportedly to save their dear father . And how he went about saving [ that patient ] finds its expression in LAW , so I think that this example very [ well ] illustrates the attitude , the lofty morals of this virtuoso , as some media have called him . ...

I wanted to stress that the Director of the ORG [ the applicant ] in ORG has been charged with homicide ; according to the prosecutors , acting with the conditional intent ( “ zamiar ewentualny ” ) of depriving a patient of life , and anticipating and accepting the result of his death , he undertook a series of acts which , in short , led to that [ death ] . That is what is meant by depriving of life with conditional intent , conduct which emerges from well documented evidence , hence the charge . It is a very striking and cynical desire for profit and arrogance , incredible and striking arrogance in the conduct of the person charged with committing those offences , those crimes .... ”

During the press conference the ORG ’s recording of the applicant ’s arrest and the search of his apartment was shown . The recording emphasised the significant number of objects and money seized from the applicant ’s flat which were to be used as evidence of his corruption .

The main news programme broadcast on the public television station on DATE at TIME started with a news story about the applicant which was entitled “ Doctor Death ” . The news reader stated that “ He [ the applicant ] had murdered a patient because he did not get a bribe from him ” and informed viewers that the applicant had committed homicide and accepted bribes . News of the applicant ’s arrest and the press conference was widely reported in all the media .

The Minister of Justice – Prosecutor General ’s comments about the applicant prompted strong criticism from the former ORG , ORG , ORG and others . On DATE the President of ORG stated that the Minister of Justice – Prosecutor General had breached the LAW by making statements about doctor PERSON ’s [ the applicant ’s ] guilt and that he should be held to account before ORG ( PERSON ) .

NORP In response to that suggestion the Minister stated , as reported in the Rzeczpospolita daily of CARDINAL DATE :

“ A person who has just begun holding such office [ as President of ORG ] sometimes says a few words too many . I do n’t take back anything and I am ready to repeat it all . The judge [ the President of ORG ] should go further and demand that I be charged before ORG [ ORG for GPE ] . ”

On DATE the applicant brought a civil action against Mr PERSON for infringement of his personal rights under ORG and CARDINAL of LAW . He sought an order requiring the defendant to personally express the following apology on the main national radio and television stations and in CARDINAL major newspapers :

“ I , PERSON , apologise to PERSON for what I said about him , namely that ‘ no - one else will be deprived of life by this man’ , which tarnished the good name and reputation of PERSON . I express my regret and admit that these words were deceitful and insulting and should have never been spoken by me . ”

The plaintiff further sought an award of PLN CARDINAL,CARDINAL in compensation for non - pecuniary damage and an order enjoining the defendant to refrain from making any future statements which would suggest that the applicant had committed homicide .

On DATE the ORG gave judgment . It ordered the defendant to publish an apology directly after the main evening news programmes on the CARDINAL national television stations ( ORG , ORG and ORG ) . The apology read :

“ I , PERSON apologise to PERSON for having said about him that ‘ no - one else will ever again be deprived of life by this man’ , which tarnished the reputation of PERSON . ”

„ ( PERSON wypowiedzenie pod ORG adresem słów QUANTITY tego LOC nie będzie – które naruszyły cześć PERSON ) . ”

The court awarded the applicant compensation in the amount of ORG CARDINAL . It dismissed the remainder of the applicant ’s action .

When establishing the facts , the court based its findings on the transcript of the press conference held by the Head of the ORG and the Minister of Justice – Prosecutor General on DATE , various official and private documents , press releases and rectifications issued by ORG and press articles .

As regards the question whether there was an infringement of the applicant ’s personal rights , ORG held that the defendant had damaged the applicant ’s reputation ( cześć ) . In this respect it found , inter alia :

“ ... the statements included in the defendant ’s impugned announcement , including ... just the information about the prosecution ’s charges brought against the claimant ( whose identification was a simple matter since his first name , the first letter of his surname , his place of employment and the function held were given ) , without any need to refer to more categorical terms employed by the defendant such as ‘ no - one else will ever again be deprived of life by this man’ , or describing the claimant as a ruthless and cynical bribe - taker who de facto sentenced his patient to death and so on , objectively infringed the personal rights of the claimant ... ”

Once it was demonstrated that there was an infringement of the applicant ’s personal rights , LAW established a presumption that such infringement was unlawful . Accordingly , ORG examined next whether there had been any grounds to exclude the defendant ’s liability for unlawfully damaging the applicant ’s reputation . The court held that the defendant ’s actions had been unlawful , having regard to the nature of the allegations made against the claimant and the limitations stemming from the principle of the presumption of innocence . In this respect , ORG found inter alia :

“ ... it was or could have been within the powers of the Prosecutor General – the office held by the defendant at the material time DATE to inform the public about particular investigations and their progress , and also to disclose – within the boundaries set by the law – information regarding the suspect or the accused . ...

However , those persons so authorised do not enjoy ‘ complete freedom of expression’ as asserted by the defendant if their actions are undertaken in the public interest . That principle , despite the defendant ’s assertion to the contrary , has not been accepted in the jurisprudence of the NORP courts ; in particular it is not reflected in the position set out ... in ORG judgment of DATE ( case no . II CKN CARDINAL ) . It was clearly indicated [ in this judgment ] that a negative assessment of a person ’s behaviour expressed by a ORG authority ( or official ) is not an unlawful assessment where , although it was not sufficiently verified or justified in the specific circumstances ( because , for example , of the erroneous assessment of certain facts or the lack of complete factual material ) , it was nonetheless made within the scope of statutory competences and within the boundaries of matter - of - fact necessity ( w ramach rzeczowej potrzeby ) .

Worth noting here is the judgment of ORG DATE , ... which states that freedom of expression , guaranteed by LAW , includes the freedom to receive and impart information . LAW can not therefore prevent the authorities from informing the public about criminal investigations in progress , but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected ( application no . CARDINAL/CARDINAL [ ORG v. GPE ] ; see also the judgment of the ORG of DATE , application no . CARDINAL [ Butkevičius v. GPE ] ) .

In the court ’s assessment , the critical statement of the defendant fell short of this obligation . Indeed , the defendant did not only state the charge of having committed an offence specified in LAW as brought against the claimant on the basis of the prosecution ’s decision and the circumstances justifying it , but in his emotional , exaggerated , unbalanced and judgmental statement emphasised this charge in a manner which excluded any doubts as to its correctness ( lecz swoją emocjonalną , egzaltowaną , niewyważoną i ocenną wypowiedzią wyeksponował ów zarzut w sposób wykluczający jakiekolwiek wątpliwości co do ORG słuszności ) . This effect was exacerbated by the statement that ‘ no - one else will ever again be deprived of life by this man’ ... For in situations where there is unintentional deprivation of life it is rather accepted to use such terms as an accident , error , coincidence , misfortune or incident . ...

It should be stated once more that at the press conference no accurate information was given about the results of the investigation , [ and ] almost no concrete information about the investigation at all .

It should be underlined that the defendant undoubtedly had the right to disclose information related to the charge brought against the claimant ; however due to the risk of misinterpretation of this information by the recipients he should have refrained from statements giving rise to belief in the claimant ’s guilt . The more so since as the Prosecutor General , responsible for safeguarding the rule of law ( section CARDINAL of LAW of DATE ) , [ he ] had the duty to comply with the important principle of the legal order imposing respect for the defendant ’s presumption of innocence as a legally protected interest . In this connection , the defendant should have presented the information concerning the investigation , in particular in respect of the charge of homicide , in a moderate form , without passing his own judgment , which would go significantly beyond reporting on the proceedings . It should thus be considered that the behaviour of the defendant was not factual and cautious , [ and ] that the opinions expressed exceeded what was strictly necessary , and the terms employed were exaggerated in form and content . ”

With regard to the redress for the damage to the applicant ’s reputation , ORG partly modified the text of the apology by having its second sentence deleted . In so doing it took into account the type of right infringed and the scope of the infringement . Concerning the enforcement of its judgment , it obliged the defendant to publish the apology at his expense rather than requiring him to express it personally . The court further considered that it would be appropriate to limit the number of places where the apology should be published to CARDINAL major television stations ( CARDINAL public and CARDINAL private ) . This decision was motivated by the need to achieve the compensatory and preventive rather than the repressive goal of the publication of an apology .

As regards compensation for non - pecuniary damage suffered on account of the infringement , ORG held that the defendant ’s fault , at least in the form of negligence , had been established . The use of words which clearly suggested that the claimant had undoubtedly committed homicide had breached the principle of the presumption of innocence , thereby infringing the claimant ’s personal rights . At the relevant time the defendant had held the office of Minister of Justice – Prosecutor General , so he had been under a particular duty to formulate his statements carefully . ORG awarded the applicant LAW which it considered adequate in the circumstances , having regard to a number of relevant factors , including the gravity of the infringement and the extent of the damage suffered . It took into account that the applicant had failed to demonstrate what precise impact the impugned statement had had on his private life and that , in respect of his professional life , the applicant had been employed in a private hospital since DATE .

Both parties appealed . The applicant contested , inter alia , the manner of publication of the apology and the modification of its text . He took issue with the deletion of the second sentence from the apology , which he considered important for the restoration of his reputation . He further objected to the low amount of compensation for non - pecuniary damage .

The defendant challenged ORG judgment in its entirety . He argued that he had not infringed the applicant ’s personal rights and , alternatively , that any such infringement had been in accordance with the law . The defendant alleged that the court had erroneously applied substantive and procedural law . He also submitted that the order to publish the apology had taken the appearance of a financial sanction .

On DATE ORG held a hearing and gave judgment . It amended the first - instance judgment only in respect of the compensation awarded to the applicant which it increased to ORG CARDINAL . ORG dismissed the remainder of the applicant ’s appeal and dismissed the defendant ’s appeal in its entirety .

ORG noted that the claimant had established , in accordance with the burden of proof lying on him , that his personal right to respect for his reputation had been infringed by the defendant ’s statement “ no - one else will ever again be deprived of life by this man ” . In that connection , it fully accepted the factual findings and legal assessment of ORG . The infringement of the claimant ’s personal right had been evident as the defendant had indicated that the charge of homicide had been made against the head of a specific department of a particular hospital . As regards the damage to the applicant ’s reputation , ORG found :

“ ... the first - instance court did not violate the provisions of substantive and procedural law referred to by the defendant in his appeal . Similarly the allegation of errors in respect of factual findings which were relevant for the determination of the issue could not stand . The facts weighing in favour of the infringement of the claimant ’s personal right to respect for his reputation on account of the defendant ’s impugned statement were so obvious ( contra factum nullum argumentum ) that no argument by the defendant can entail the intended legal consequences . It is not open to doubt that since the impugned statement was made by the Minister of Justice Prosecutor General the public reaction of persons who had no professional dealings with the law in respect of the claimant ... had to be negative , i.e. they would be convinced of his guilt . ”

With regard to the presumption of unlawfulness of the infringement , ORG held that the defendant had failed to rebut the presumption . It found inter alia :

“ The constitutional and criminal - law principle of the presumption of innocence implies that an accused person ( and even more so a suspect ) must be presumed innocent until his guilt is proved and confirmed by a final court decision . ...

The impugned statement [ of the defendant ] was inadmissible at that stage of the ongoing proceedings , and in particular because of the principle of the presumption of innocence . The defendant , even though he was the Minister of ORG , was not authorised to make such a statement in respect of the claimant since at that stage [ of the proceedings ] no final judgment convicting him of the alleged offence had been given . He [ the defendant ] had the unquestionable right to inform the public about the charges brought against the claimant ... but the manner in which he did it ... was not appropriate for the office which he held ...

Moreover , the degree of unlawfulness of the defendant ’s actions results from the fact that the prosecutor charged the claimant with homicide of a patient , and the court remanded the claimant in custody and his appeal was not allowed by the second - instance court . However , as it turned out later ... the evidence subsequently gathered in the investigation did not at all substantiate such accusations ...

The defendant ’s impugned statement in the light of the final result of the criminal proceedings against the applicant in respect of the offence specified in LAW ORG clearly underlines the essence and the purpose of the principle of the presumption of innocence .

In the circumstances of the present case the defendant can not exactly claim that he acted in accordance with the law or in defence of a justifiable public interest . It can not be accepted either that the impugned statement was made on the basis of information which was collected with due diligence . The principle of the presumption of innocence required that the defendant display exceptional care and diligence in formulating publicly any statements to the effect that the claimant , as a doctor , committed homicide on a patient , irrespective of the information and opinions given by the persons he requested to be heard as witnesses in the case . The defendant , being a lawyer holding a high public office , should in particular have consulted expert opinions . ... ”

ORG concurred with ORG judgment in respect of the text of the apology and the form in which it was to be made . With regard to compensation for non - pecuniary damage , ORG agreed that the defendant had been at fault through negligence , but held that it had been gross negligence . It found in this respect :

“ ... the defendant is a lawyer , and at the time of the infringement of the claimant ’s personal right he held the office of Minister of Justice – Prosecutor General , and as such he should have known what information from the investigation ... he could make public , as well as what he could say about a person who was charged and remanded in custody . On the other hand , as a politician he should have been aware of the media effect of such a categorical statement as ‘ no - one else will ever again be deprived of life by this man’ in the claimant ’s case and where the defendant divulged the necessary information to enable the claimant ’s identification . ... The impugned statement , having regard to the stage of the ongoing criminal proceedings against the claimant , violated the basic written rules of legal knowledge ( the presumption of innocence and in dubio pro reo ) . Moreover , in a case where a doctor – whose mission , vocation and task is to save human life and health DATE was charged with homicide of a patient in connection with a surgical operation ( it is difficult to imagine a more serious allegation against a doctor in relation to his profession ) he should have realised that to make publicly so categorical and definite a statement was highly unprofessional and irresponsible ... ”

ORG , having regard to all ’s statement attracted in the media and the moral suffering of the applicant , found that it would be appropriate to award ORG CARDINAL,CARDINAL for non - pecuniary damage .

Mr PERSON lodged a cassation appeal against ORG judgment . On DATE ORG refused to entertain his cassation appeal . It found that there had been no significant legal issue in the case which would justify the examination of the cassation appeal on the merits .

On an unspecified date the defendant paid the applicant the compensation awarded by the court .

On DATE Mr PERSON ’s apology was broadcast .

On DATE ORG made a seizure order in respect of the applicant ’s property with a view to securing the payment of an anticipated fine in the amount of PLN MONEY ( EUR CARDINAL ) . The order extended to the applicant ’s movable property , including money found in his flat , his salary and his bank accounts . The applicant was also prohibited from selling his car .

On DATE the prosecutor made a second seizure order in respect of the money found during the search of the house of the applicant ’s parents . The prosecutor seized a total of MONEY CARDINAL,CARDINAL .

The applicant appealed against the seizure orders , arguing that they were ultra vires at that stage of the investigation and clearly excessive in view of the charges against the applicant .

On DATE the GPE - ORG dismissed the applicant ’s appeal . It found that the seizure orders had complied with the requirements specified in LAW , namely that he had been charged with offences in respect of which a fine or obligation to compensate damage might be imposed . The court noted that at this stage of the proceedings the prosecutor ’s decision could not be considered arbitrary , having regard to the evidence gathered in the case . Furthermore , the measure had been intended to effectively secure the payment of a significant fine which might be imposed on the applicant .

On DATE ORG issued a press release announcing that some of the objects found in the applicant ’s flat had been returned to him as they were his personal property and were irrelevant to the ongoing proceedings .

The relevant domestic law and practice concerning detention on remand ( tymczasowe aresztowanie ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , DATE .

Article CARDINAL CARDINAL of the LAW provides :

“ Everyone shall be presumed innocent until proved guilty in a final decision of a court of law . ”

A similar principle is laid down in LAW .

The Law of DATE ( as amended ) on ORG ( LAW ) ( ustawa o prokuraturze ) sets out general principles concerning the structure , functions and organisation of prosecution authorities .

Section CARDINAL of the LAW , in the version applicable at the material time , stipulated , in so far as relevant :

“ CARDINAL . The prosecuting authorities shall be ORG and , subordinate to him , prosecutors , military prosecutors and prosecutors of ORG ( ... ) .

The Prosecutor General shall be the highest prosecution authority ; his functions shall be carried out by the Minister of ORG . ”

Under section CARDINAL of the LAW , in carrying out his or her statutory duties , a prosecutor must abide by the principles of impartiality and equality of citizens before the law .

Pursuant to section CARDINAL of the LAW , a prosecutor is independent in carrying out his or her duties , within the limits set out in this section . A prosecutor is required to abide by the instructions , guidelines and orders of his superiors . However , if an order relates to the substance of any action to be taken in proceedings , a prosecutor may request [ his superior ] to issue the order concerned with reasons in writing , to alter the order , to relieve him from performing an act prescribed by that order , or to remove him from conducting the case in question . Requests to be removed from a case must be decided by a hierarchical superior of the prosecutor who issued the order .

On DATE the amendments to LAW entered into force . LAW provides for the separation of functions between the Minister of Justice and ORG .

The relevant domestic law and practice regarding the status of assessors , including the landmark judgment of ORG of DATE ( case no . SK CARDINAL/CARDINAL ) , are set out in the ORG ’s judgment in the case of ORG and GPE v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL , DATE .


Violation od Art. 5-3;Violation of Art. 5-4

The applicants were born in DATE , DATE and DATE respectively and live in GPE .

On DATE , a textile company in ORG filed a petition with the office of ORG , complaining about the fraudulent acts of PERSON , the first applicant .

On DATE ORG requested ORG to issue an arrest warrant , for all CARDINAL applicants , on suspicion of having committed fraud . On DATE the public prosecutor filed an indictment with the same court , charging the applicants and CARDINAL others with embezzlement under Articles CARDINAL of LAW .

On DATE the third applicant was arrested and placed in detention at FAC , by the judge at ORG . The judge did not take his statements , but merely informed the applicant of the charges against him and noted his personal data .

On DATE , considering the state of the evidence and the nature of the offence , ORG ordered the continuation of the third applicant 's detention on remand in his absence and demanded his presence for the following hearing .

In a letter dated DATE , addressed to ORG the third applicant requested to be released pending trial .

At the hearings of DATE and DATE the applicant was not brought before the court . The court ordered the third applicant 's continued detention on remand reiterating the same reasoning . It further requested his transfer from FAC to FAC in order to facilitate his presence before the court . In the meantime , ORG informed ORG that the first and second applicants had been arrested and detained on remand on DATE and CARDINAL DATE , respectively .

NORP In a letter dated DATE , addressed to ORG the first applicant confessed to his guilt .

On DATE the applicants ' lawyer , who was present before ORG for the first time , requested the applicants ' release pending trial . Taking into consideration the state of the evidence and the nature of the offence , ORG dismissed the lawyer 's request , and requested the applicants ' transfer to ORG .

At the same hearing the applicants ' lawyer requested the court not to transfer the third applicant from CARDINAL prison to another due to his health problems . Subsequently , the court sent a letter rogatory to ORG in order to take the third applicant 's statements .

At the hearings of CARDINAL DATE and DATE the court repeated its previous requests concerning the first and second applicants ' transfer to the court and ordered , once again , the continuation of all CARDINAL applicants ' detention on remand .

On DATE the applicants ' lawyer complained before the court that although the applicants had been detained on remand for quite some time their statements had still not been taken by the court . He argued that this situation was in breach of the applicants ' rights guaranteed under the Convention . Furthermore , in view of the length of their detention and the health problems of the third applicant , he requested the applicants ' release pending trial . The court dismissed the lawyer 's request in view of the state of the evidence and the nature of the offence . It also reiterated its order to transfer all CARDINAL applicants to ORG .

At the hearing of DATE the applicants ' lawyer maintained that the reason the prison authorities were not transferring the applicants to the PERSON prison was because fuel expenses were not covered by the budget . He maintained that if the applicants are released , he would personally ensure the applicants ' presence before the court . The court decided to send a letter rogatory to ORG to take the applicants ' statements and then to release them .

On DATE the applicants gave their statements before ORG . The first applicant confessed to his guilt , while the others refuted the allegations . The court ordered their release pending trial as requested by ORG , in its decision dated DATE .

NORP The textile company filed another complaint with the office of ORG , in relation to the first and the third applicants , regarding the same incident .

On DATE ORG filed an indictment against the first and the third applicants for embezzlement . On DATE the court decided that it lacked jurisdiction to examine the case and sent the case file to ORG .

On DATE the ORG of First Instance took the applicants ' statements by way of rogatory letter issued by ORG . The applicants alleged that they were not aware of the fact that a second case had been brought against them , at the time they gave these statements

At the hearing of DATE ORG acquitted the third applicant due to lack of evidence and found the first applicant guilty as charged and sentenced him to DATE and DATE imprisonment . Both the applicants and their lawyers were informed of the second case when the decision of DATE was notified to them .

On DATE the applicants appealed against the decision of ORG .

On DATE the first applicant was arrested and subsequently imprisoned in accordance with the decision dated DATE . On DATE ORG quashed the decision of the first instance court .

When the case was resumed before the first instance court , the applicants ' lawyer requested to join this case with the CARDINAL pending before ORG , as they concerned the same subject matter . Furthermore , he requested the first applicant 's release pending trial . ORG refused the lawyer 's request to release the applicant in view of the state of the evidence and the nature of the offence .

On DATE the CARDINAL cases were joined before ORG .

At the hearings held on DATE , DATE and CARDINAL DATE the court ordered the continuation of the first applicant 's detention on remand on account of the state of evidence and the seriousness of the charges , and taking into account the date of his arrest .

On DATE the court ordered his release pending trial .

On DATE ORG decided to acquit the second and third applicants and convicted the first applicant . It sentenced him to DATE and DATE imprisonment .

Following the first applicant 's appeal , the case is pending before ORG .


The applicant , born in DATE , is a NORP national and resident in Triel - sur - Seine . He is a technician by profession . In the proceedings before the ORG , he is represented by Me N. Creuzillet , a lawyer practising in GPE .

In DATE the applicant married a NORP national in GPE , and CARDINAL children were born in wedlock in DATE and DATE .

Apparently in DATE , the applicant ’s wife separated from the applicant and returned to GPE with the CARDINAL children . She instituted divorce proceedings with ORG ( ORG ) . Moreover , divorce proceedings were instituted with the GPE tribunal de grande instance . In DATE the Memmingen ORG granted the applicant ’s claim under LAW on the Civil Aspects of International Child Abduction ( PERSON über die zivilrechtlichen GPE internationaler GPE ) that the children be returned to GPE . Upon appeals lodged by the competent ORG and the applicant ’s wife , his claims was dismissed by ORG ( Zivilsenate ) of ORG ( Oberlandesgericht ) in DATE . In DATE the Memmingen ORG granted the applicant ’s wife custody of the children pending the spouses’ separation . However , in DATE ORG decided that the children should live at the applicant ’s place of residence . In DATE the GPE tribunal de grande instance granted the applicant custody of the children .

In DATE the applicant applied with ORG for a right of access ( ORG ) to his children in DATE and during DATE , as well as a regular access during DATE periods , which he intended to spend with them in GPE . He also requested information about his children . He further applied for an interim injunction .

In these court proceedings , both spouses were represented by counsel .

On DATE ORG dismissed the applicant ’s request for an interim injunction . The defendant had accepted his right to information .

On DATE ORG dismissed the applicant ’s request for access . The court observed that the applicant wished to spend holidays with his children in GPE , while the defendant , suggesting supervised visits , objected to uncontrolled access . The court considered that , despite his assurances , there was a real risk that the applicant would not return the children at the end of the holidays and thereby create a danger for their well - being . In this respect , the court had regard to the course of the spouses’ separation and divorce proceedings . Having regard to an expert opinion prepared in the context of the custody proceedings , it noted that the children had a very good relationship with their mother and that they were fully integrated at their place of residence . Moreover , given the legal situation in GPE , the applicant ’s assurances that he would return the children at the end of the holidays were not sufficient . In this respect , the court noted that he was not prepared to accept that the children were living with the defendant and that she had custody .

On DATE ORG dismissed the applicant ’s appeal . The court , referring to section DATE of LAW ( Bürgerliches Gesetzbuch ) , confirmed that granting the applicant a right of access including the right to take the children to GPE was - for the time being - contrary to the children ’s well - being . The court noted that the applicant had expressly stated that he did not apply for access to his children in GPE ; and that this matter was not , therefore , at issue in the proceedings .

Under section DATE of LAW , the parent not holding custody is entitled to have access to the child . This right of access may be suspended if such a measure is necessary in the best interest of the child .

In this respect , ORG noted that the children , when questioned by a single judge in DATE , had indicated that they were only prepared to visit the applicant in GPE if accompanied by their mother . They feared to loose the security of their mother ’s presence . According to a psychological expert opinion of DATE , separating the children from their mother entailed a risk for their well - being .

On DATE ORG ( Bundesverfassungsgericht ) refused to entertain the applicant 's constitutional complaint ( ORG ) . ORG considered that the constitutional complaint raised no issue of fundamental importance . In particular , the impugned court decisions did not disclose any discrimination against the applicant , but was reasoned by the risk that the applicant might separate the children from their mother . Moreover , the applicant had not been generally refused a right of access , but only in the concrete circumstances and having regard to the children ’s well - being . The possibility to visit the children in GPE was not excluded . The decision was served upon the applicant ’s counsel on DATE .

Meanwhile , on DATE the GPE tribunal de grande instance , in a default judgment , had granted divorce . It had further decided that both parents had joint custody of the children and that the children should live with their mother . As regards access , it decided that , in case of disagreement between the parents , the applicant had a right of access to the children during all short school holidays and CARDINAL of the summer holidays .


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

The applicant was born in DATE and lives in GPE ( GPE ) .

The applicant is usufructuary of a flat owned by her husband ORG , which had been let to ORG

In a registered letter of CARDINAL DATE , the applicant ’s husband informed the tenant that he intended to terminate the lease on expiry of the term on DATE and asked him to vacate the LOC by DATE .

In a writ served on the tenant on DATE , the applicant ’s husband reiterated his intention to terminate the lease and summoned the tenant to appear before ORG .

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

On DATE , the applicant ’s husband served notice on the tenant requiring him to vacate the LOC .

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

Between DATE and CARDINAL DATE , the bailiff made CARDINAL attempts to recover possession .

Each attempt proved unsuccessful , as , under the statutory provisions providing for the suspension , the applicant ’s husband was not entitled to police assistance in enforcing the order for possession .

On DATE , the applicant ’s husband died and the applicant inherited the usufruct of the flat .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession .

Each attempt proved unsuccessful , as , under the statutory provisions providing for the suspension , the applicant was not entitled to police assistance in enforcing the order for possession .

On DATE , the applicant recovered possession of her flat .

NORP The relevant domestic law is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


The applicant is a NORP national , born in DATE and living in the GPE . He is represented before the ORG by Mr T. Adank and PERSON NORP GPE , both lawyers practising in GPE .

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

On DATE , the applicant arrived in the GPE where he applied for asylum or , alternatively , a residence permit for compelling humanitarian grounds . On DATE , the applicant was interviewed by immigration official on the reasons for his asylum request .

On DATE , the applicant ’s request were rejected by the ORG Secretary of ORG ( ORG ) . The applicant ’s objection ( bezwaar ) against this decision was rejected by the ORG Secretary on DATE . The applicant ’s subsequent appeal to ORG ( ORG ) sitting in GPE was dismissed on DATE .

ORG noted that , in support of his asylum request the applicant submitted that his father had been arrested in DATE for involvement in a trade union and that he had been released later , that his brother was detained since DATE for opposition activities and that in this connection his family had been arrested and questioned on CARDINAL occasions ; the last time in DATE . As to his personal situation , the applicant had submitted that , since DATE , he had been a member of the illegal organisation “ ORG NORP Citizen ” which association collects and provides information about detained persons and acts as a go - between between detainees and their families . He had stencilled and copied pamphlets for this association at his work . His immediate superior in the association was Y. , an internal security service officer . In DATE , he had been informed that a travel prohibition had been issued against him and in DATE the association decided that he and another person , PERSON , should leave the country . In DATE , the applicant and PERSON obtained a visa in their passport via FAC in GPE and , on DATE , they travelled by car to GPE from where they travelled by plane to GPE . They were refused entry to GPE and sent back to GPE . They subsequently travelled by plane to the GPE . After his departure from GPE , his brother had been arrested and released later .

ORG held that the general situation in GPE was not as such that asylum seekers from GPE automatically qualified for asylum . It should therefore be established whether , on the basis of his personal situation , the applicant had founded reasons to fear persecution within the meaning of the DATE LAW relating to ORG .

ORG did not find it established that the applicant had attracted the negative attention of the NORP authorities in connection with his alleged activities for the association indicated . Noting that the applicant had left GPE in a lawful and controlled manner , it did not find it established that the applicant had been subject to travel prohibition . It further did not find it established that the applicant had left the country in an illegal manner . ORG further noted that a link between the alleged travel prohibition and the applicant ’s activities had remained unsubstantiated . It further noted that , after having learned of the alleged travel prohibition in DATE , the applicant had remained at his permanent addresses and had encountered no problems from the side of the NORP authorities until his departure from GPE on DATE .

ORG further found it unlikely that an investigation against the applicant would have been conducted as from DATE . On this point it rejected as unlikely that Y. , a founder of the association and who allegedly held a high position in the NORP internal security service , would have held further meetings with the applicant and other members of the association whilst the applicant would have been under investigation and the chances of discovery thus being real . This alleged approach of the NORP authorities did not , in the court ’s view , match the situation described by ORG in its report of DATE , i.e. a ruthless suppression of any form of opposition .

As to applicant ’s argument that he belonged to a family considered suspect by the authorities , ORG noted that it had not appeared that , since DATE , the applicant ’s family had encountered any problems from the side of the authorities whereas , until his departure , the applicant had worked in the public service . Without any further substantiation , this finding could not be altered by the fact that the applicant ’s brother had been arrested after DATE and released later .

ORG also rejected as not having been established that the applicant had evaded his military obligations by failing to respond to a summons for military retraining . This claim had remained fully unsubstantiated despite the fact that the applicant had contacts with his family on various occasions and the fact that the applicant ’s brother had been in the GPE . Even assuming that the applicant would have in fact been summoned to report for military service , ORG considered that it could not be concluded from an official report of DATE of ORG nor from the ORG report that it would be likely that the applicant , on grounds of failing to report for military service , would risk a disproportionate or discriminatory sanction . According to ORG , the sanction for such a failure was imprisonment for a maximum of DATE and deprivation of civic rights for a maximum of DATE .

As to the applicant ’s claim that an absence from GPE for an extended period of time is sufficient to attract the negative attention from the NORP authorities , ORG noted that , according to ORG , it was not known whether NORP nationals required permission for a lengthy stay abroad but that it could be expected that NORP nationals , upon their return to GPE after a lengthy stay abroad , would be questioned by the security service . However , according to ORG , this was insufficient to conclude that the applicant had founded fears for persecution .

In view of these findings , ORG concluded that the applicant did not qualify for the status of refugee and that it had not been established that , if expelled to GPE , he would run a real risk of treatment contrary to LAW . On the latter point , ORG further held that it had not been established that the applicant , on grounds of a recognition by any public official or informer of the NORP authorities in the GPE , had to fear treatment contrary to LAW upon his return to GPE . Insofar as the applicant argued that returned unsuccessful asylum seekers did run such a risk in GPE , ORG noted that , according to ORG , suspected opponents of the NORP authorities who had applied for asylum abroad did run the risk , when returned , to be tortured . However , ORG did not find it established that the applicant was considered as an opponent by the NORP authorities .

On DATE , the applicant was apprehended and placed in GPE detention ( vreemdelingenbewaring ) for the purposes of his expulsion . On DATE , the applicant filed a second asylum request . An immigration official interviewed him on DATE on the reason for this second asylum request .

On DATE , the applicant filed a request for release from aliens’ detention with ORG sitting in ‘ s - PERSON and to award him compensation for having been unlawfully detained .

On DATE , the ORG Secretary declared the applicant ’s second asylum request inadmissible in that no other substantial grounds had been submitted by the applicant than those already examined in the proceeding on his first asylum request . The ORG Secretary decided that the applicant would not be allowed to remain in the GPE pending the outcome of a possible appeal .

By decision of DATE , the President of ORG sitting in ‘ s - Hertogenbosch ordered the applicant ’s release from alien ’s detention , holding that this had been unlawful given the absence of any indication that the applicant had sought ways to prevent his expulsion . The President awarded the applicant an amount of ORG . CARDINAL in compensation for having been unlawfully detained .

On DATE , in violation of an agreement reached with him , the applicant failed to report himself to ORG ( ORG ) at FAC for his expulsion to GPE . It appeared that the applicant had left his known address for an unknown destination .

On DATE , the applicant filed an appeal with ORG sitting in ‘ s - Hertogenbosch against the decision of DATE .

On DATE , acting upon a complaint filed by neighbouring women that they had been bothered by men living in a certain house in GPE , the police visited this house . CARDINAL of the men found there was the applicant , who was subsequently placed in GPE detention .

On DATE the applicant filed a third request for asylum . After having been interviewed by an immigration officer on DATE , his third asylum request was rejected by the ORG Secretary on DATE .

The ORG Secretary noted that this third request was based on , inter alia , an article published in a NORP regional DATE newspaper on a protest action by the applicant ’s friends in front of the NORP police station where the applicant had been detained . In this article , the applicant ’s name is mentioned . The applicant claimed that he had obtained this article via a NORP friend in the GPE to whom this article had been sent by a person who had bought this newspaper at a newspaper stand in GPE . The applicant further claimed that the NORP intelligence authorities were aware of this article . As this claim had remained unsubstantiated , the ORG Secretary did not find this fact established . Insofar as the applicant relied on other documents , the ORG Secretary held that these did not constitute substantially new facts or circumstances , or were or could have been submitted during the proceedings on the applicant ’s previous asylum requests . The ORG Secretary finally did not find that the applicant would face a real risk of being subjected to treatment contrary to LAW if he would be returned to GPE .

The applicant ’s expulsion to GPE was scheduled for CARDINAL DATE . However , physically resisting his expulsion , the applicant was refused access to the plane and he remained in the GPE .

On DATE , the applicant filed a request for release from aliens’ detention with ORG sitting in GPE .

In the meantime a new date for the applicant ’s expulsion had planned , namely for DATE . This expulsion was cancelled as his passport could not be found . It was found again on DATE .

On DATE , ORG sitting in GPE rejected the applicant ’s request for release from GPE detention .

On DATE , ORG sitting in GPE rejected the applicant ’s appeal against the ORG Secretary ’s decision of DATE .

In its decision of CARDINAL DATE , the President of ORG sitting in GPE accepted the applicant ’s appeal against the ORG Secretary ’s decision of CARDINAL DATE on the applicant ’s third asylum request and quashed this decision on grounds of a failure to state sufficient reasons for holding that the new documents submitted by the applicant – i.e. an article from a NORP newspaper about the execution of CARDINAL NORP nationals , a judgment and arrest warrant from GPE in connection with the applicant ’s conviction of anti - government activities , the publicity around his case in the GPE , his conversion to NORP and the worsened situation in GPE – did not constitute substantially new facts or circumstances , or were or could have been submitted during the proceedings on the applicant ’s previous asylum requests .

However , as to the general situation in GPE , the President held that this point had already been examined in the proceedings having resulted in the decision of DATE and that , since then , this situation had not seriously worsened .

The President further has doubts as to the value of the NORP documents submitted by the applicant in DATE in the first place – it had remained unclear how the applicant had obtained these “ very secret ” documents and also in the course of the hearing before ORG the applicant was unable to give a satisfactory explanation on this point . Secondly , these documents were presented as a judgment and arrest warrant against the applicant whereas it appeared from the translation that in fact it concerned an “ information form ” not disclosing the existence of a conviction . Finally , even assuming the veracity of the applicant ’s claim that it dates back to DATE but that he did not think that this would be needed for his asylum request , the President concluded that on that ground it could not be regarded as a new fact .

The President further consider rather incredible the applicant ’s account that the NORP regional newspaper article would have been found at a petrol station in GPE . The applicant ’s subsequent account that this newspaper would have been bought at a newspaper stand in GPE was even more incredible . The President concluded that , in any event , it had not appeared that the NORP authorities would have become aware of the contents of the article . The President further rejected as speculative , the applicant ’s argument that he had become known to NORP security officials who were in the GPE in connection with the GPE trial . On this point , the President further considered that it had not appeared that the applicant had continued the activities undertaken in this country of origin . The President added that it would be unacceptable when an alien , whose personal history in itself did not give rise to an assumption of a founded fear for persecution , would be able to make a valid claim to asylum on the basis of subsequent activities that would have attracted attention . A risk thus created remains in principle to be borne by the person concerned .

As regards the applicant ’s conversion to NORP , the President noted that this had taken place DATE and that therefore this argument could have been raised in the proceedings on the applicant ’s first asylum request . As regards the NORP newspaper article , the President held that this article did not concern the applicant and that there was no indication that his personal situation was comparable to that of the QUANTITY persons referred to in this article .

The President , therefore , concluded that the applicant did not meet the requirements for granting him refugee status and that there was no real risk of that he would be subjected to treatment contrary to LAW if he would be expelled to GPE . For these reasons , the President decided that , although the decision of CARDINAL DATE was quashed , its legal consequences were to remain entirely intact .


The applicant , PERSON , is an NORP national who was born in DATE and lives in GPE . She is represented before the ORG by Mr I. GPE , a lawyer practising in GPE . The respondent Government was represented by PERSON , Agent of GPE before the ORG .

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

The applicant worked as a chief editor at ORG pursuant to a temporary employment contract . On DATE the head of the company ’s human resources department informed the applicant that her employment contract had already expired on DATE , that the company had no intention to renew it and that the applicant had been dismissed from her job as of DATE .

The applicant filed a lawsuit , alleging wrongful dismissal and asking for reinstatement in the job and compensation for material damages . She claimed that she had not been timely notified of the employer ’s wish to terminate the contract and that , in the absence of such notification , the contract was subject to automatic renewal for another term . In addition , she claimed that she had signed a new contract on DATE . The trial was held in FAC .

At the end of the trial , on DATE , the GPE Judge publicly pronounced the “ conclusive ” part of the judgment , according to which the applicant ’s claim was partially satisfied and she was reinstated in her job . According to the applicant , there were TIME persons ( including the parties , their lawyers and the public ) present in the courtroom when the judgment was pronounced .

However , DATE , when the written copy of the judgment was made available to the applicant , she discovered that this written version was contrary to the one orally pronounced by the judge at the closure of the trial . The written judgment was against the applicant , dismissing her claim in full . According to this version of the judgment , ORG found that the decision not to renew the applicant ’s contract had been taken by her employer on DATE and that the copy of this decision had been posted at the applicant ’s workplace . The court further held that the applicant had been lawfully dismissed due to the expiry of the term of her temporary employment contract . As for the applicant ’s allegation that she had signed a new contract on DATE , the court found that no new contract had been signed by the employer .

The applicant appealed , claiming , inter alia , that the first - instance judge had unlawfully changed the initially pronounced judgment . She also claimed that the judge had violated the procedural rules requiring him to put the orally pronounced part of the judgment in writing , sign it and attach it to the case file on DATE when the judgment was partially pronounced .

During the proceedings in ORG , the judge twice asked the parties if they wished to file a motion concerning any aspect of the examination of the case ( such as admission of new witness testimony , etc . ) . The applicant did not file any motions . On DATE ORG upheld the district court ’s judgment , finding that the lower court had properly decided the case on the merits . The decision of ORG was silent as to the alleged contradiction between the oral and written versions of the first - instance court ’s judgment .

In the meantime , while the proceedings were underway , the applicant wrote letters to the President of ORG , ORG , the Minister of ORG and the President of GPE , in which she complained about the actions of the first - instance judge . According to the applicant , she did not receive any answers .

The applicant then filed a cassation appeal where , apart from the arguments relating to the merits of the case , she briefly stated , without specific details , that ORG had committed procedural mistakes . On DATE ORG upheld ORG judgment .

“ CARDINAL . After deciding upon and signing the judgment , the judge shall return into the courtroom and pronounce the judgment ...

With respect to complicated cases , the judge may pronounce only the conclusive part of the judgment .

NORP The orally pronounced conclusive part of the judgment must be drawn up in writing , signed by the judge(s ) and attached to the case file . After the pronouncement of the conclusive part of the judgment , the presiding judge shall notify the parties and their representatives of the time when the full text of the judgment will be available to them . ”

“ CARDINAL . The judgment shall consist of the introductory , descriptive , justificatory and conclusive parts . ...

The conclusive part of the judgment shall contain the court ’s conclusion as to the full or partial satisfaction or dismissal of the claim , the manner of distribution of the judicial expenses , the period and procedure for filing an appeal ... ”

“ CARDINAL . The judgment must be drawn up after the examination of the case has been completed .

Exceptionally , with respect to highly complicated cases , the drawing up of the full judgment shall be completed within DATE after the pronouncement of the conclusive part of the judgment . The presiding judge shall also notify the parties of the time when they can obtain the full judgment .

The [ full ] judgment shall be sent or handed over to the parties within DATE after it has been drawn up . ”

“ Trial transcripts shall be drawn up during the court hearings as well as with respect to any separate procedural action performed outside the court . ”

“ Parties to the case and their representatives have a right to consult the trial transcripts and to make , within DATE from the date of signing the transcripts , any written remarks concerning any deficiencies or omissions therein . ”


The applicant , Mr D. Fernie , is a GPE national who was born in DATE and lives in ORG . He is represented before the ORG by ORG , practising in GPE .

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

The applicant was a second - hand car dealer in ORG . In DATE he became a self - employed trade buyer for Deans of GPE , a specialist dealer in high performance cars .

On DATE the applicant was arrested on suspicion of theft of money from Deans of GPE and he was later charged with false accounting . The prosecution ’s case was that the applicant had created fictitious invoices which showed purchases of non - existent cars for which he paid himself with cheques drawn on ORG bank account , and pocketed the proceeds . When the applicant was first arrested , he was bailed but not charged . He had not denied that the invoices were false but claimed that everything had been done with the knowledge of PERSON . On DATE , the applicant was interviewed again . On DATE the applicant was again bailed . On DATE he had further interviews with the police but he was still not charged . On DATE he was interviewed .

On DATE the applicant was finally formally charged with CARDINAL counts of false accounting and CARDINAL of theft of £ MONEY .

On DATE the applicant appeared at the GPE court . The matter was adjourned for the defence to consider advance disclosure .

On DATE , the prosecution applied for a DATE adjournment to prepare the committal bundles . On CARDINAL and DATE , they requested further adjournments . The court directed that the papers should be served by DATE . They were in fact served at TIME the day before a court hearing on DATE . The defence applied for DATE to consider the papers .

On DATE , the applicant was committed for trial .

On DATE , the applicant was arrested and charged inter alia with fraudulent dealings with Mr PERSON , a local farmer who gave the applicant CARDINAL cheques to purchase some shares in a named company .

On DATE the committals were joined .

In DATE , the applicant stood trial charged with CARDINAL offences . At the outset of the trial , the trial judge informed counsel that although he had never met PERSON some DATE before he had been acquainted with a former partner of PERSON but had not seen him since . He also informed counsel that he lived in the neighbouring village to PERSON ; he had not met him or spoken to him but was aware that the farmer had property interests in his own village . Counsel made no objection to his continuing the trial .

The trial judge started his summing up late in TIME DATE . TIME , trial counsel and the judge went out for dinner together . The applicant alleges that they all drank ‘ copious amounts of red wine and port’ and as a result in court DATE both the judge and the barristers appeared to be unable to function adequately . The judge made CARDINAL inaccuracies during his summing up as well as making CARDINAL misnaming errors , where he confused the names of the various witnesses and the defendant . During the same summing up , the applicant ’s leading counsel wrote ‘ ORG on a piece of paper which he held up to show one of the courtroom ushers , causing her to laugh so uncontrollably that she had to leave the courtroom . This disturbed CARDINAL member of the jury who during a short adjournment complained about the barrister ’s conduct , describing it as a ‘ mockery.’ The barrister concerned apologised to the court and jury after the judge drew it to his attention . Later , following the applicant ’s complaints about his defence counsel , on DATE , ORG of ORG decided to bring charges against leading and junior counsel representing the applicant at trial .

On DATE , the applicant was convicted on all counts ( CARDINAL counts of false accounting , CARDINAL counts of theft and CARDINAL count of obtaining a money transfer by deception ) and was sentenced to DATE imprisonment .

On DATE , the applicant lodged a preliminary appeal against his conviction inter alia on grounds of the errors , misnaming and misstatements of evidence contained within the summing up . He also appealed against his sentence considering it to be manifestly excessive .

The applicant disposed of the services of his defence counsel and submitted the final grounds of appeal himself on DATE .

On DATE , the single judge gave leave to appeal against sentence but refused leave to appeal against conviction .

On DATE the applicant submitted new grounds of appeal against his conviction concerning a missing personal organiser and tapes of telephone conversations .

On DATE , ORG allowed the applicant ’s appeal against sentence , reducing the total prison term to DATE as more appropriate to the offences . It referred to the delay of DATE between arrest and trial but noted that although some of the delay was not his fault he could have avoided a substantial part by pleading guilty . It did not make any reduction for delay .

On DATE , ORG considered the applicant ’s renewed application for permission to appeal against conviction . They granted leave to appeal concerning the defects in the summing up and on the unused banking documents and jury bundle .

On DATE , ORG held a hearing on the above grounds . The applicant appeared in person . In its judgment of DATE , the court rejected the grounds concerning the jury bundle and unused banking documents . As concerned the defects in the summing , it held :

“ In a well - prepared and carefully delivered summing up mis - statements of the evidence and mis - naming errors should not occur . We all know , however , particularly those of us who are getting older , how easy it is to transpose names . That said , however , this summing up contained far too many errors . But what we have to consider is whether the cumulative effect of these errors casts doubt on the safety of the appellant ’s conviction . The question is : are the errors such as to make it reasonably probable that the jury would not have returned their verdicts of guilty if there had been no errors ... So far as mis - statements of the evidence are concerned none of them go to the central issues in the case . Had they done so , we would expect alert defence counsel to have asked the judge to correct them . No such application was made . This was , after all , not a long trial and the issues which the jury had to decide were not complicated . So far as mis - naming is concerned , in almost every case the context makes it clear that the judge has transposed the names . It is not as if this was a case in which there was a cast of CARDINAL . Most of the transpositions are between Mr. PERSON and Mr. PERSON who were the CARDINAL principal witnesses on counts CARDINAL to CARDINAL . It can not be said that the jury were confused . They asked no questions and returned swift verdicts . For these reasons , unfortunate though the judge ’s errors were , we do not think that they affected or might have affected the outcome of this trial . ”

On DATE , the applicant , acting in person , applied to ORG for leave to appeal to ORG . On DATE the court refused leave or to certify a point of law of general public importance . A notification was sent to the applicant on DATE .

The applicant then applied to ORG . By letter dated DATE , ORG to ORG acknowledged receipt of his undated letter and pointed out that as his appeal was a criminal matter and ORG had not certified that it raised a point of law of general public importance ORG could not entertain any appeal . The clerk concluded :

“ In these circumstances there is nothing further you need to do to satisfy the requirement , laid down by LAW ORG , that all domestic remedies must be exhausted before an appeal can by made to the ORG . This letter will be accepted by the ORG as establishing your compliance with the domestic remedies rule in respect of the jurisdiction of ORG in this litigation . ”

In subsequent correspondence with ORG , the applicant complained that the trial judge had been acquainted with Mr PERSON , who was a considerable landowner in the village where the judge lived and that they had both attended certain social functions . He also complained that the judge had been acquainted with another complainant , Mr PERSON , as he had shown knowledge of Mr PERSON and his partner ’s business in GPE where he had practised in chambers . He further repeated his allegations concerning the consumption of alcohol by the judge and counsel . An inquiry appears to have been carried out . The trial judge wrote a letter dated DATE to the GPE setting out his response . He pointed out that through an abundance of caution he himself had drawn attention of counsel to his knowledge of CARDINAL prosecution witnesses and that they had not made any representations concerning his continued involvement in the case . He also stated that TIME the summing - up he had drunk CARDINAL glasses of wine during dinner with counsel and retired at TIME : he denied being the worse for drink then or DATE .

By letter dated DATE , the ORG replied to the applicant , inter alia referring to ORG assessment of the case and noting that the applicant ’s counsel had confirmed that the judge had not been under the influence of alcohol . They concluded that there was no issue of the judge ’s personal conduct that required further investigation .

By letter dated DATE , ORG of ORG informed the applicant that it had decided that his complaints about ORG conduct at his trial should form the subject of an investigation . After a summary procedure hearing on DATE , the disciplinary proceedings were dismissed .


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE CARDINAL police officers went to the Beşiktaş district of GPE following a complaint by a woman , and imposed an administrative fine on a taxi driver . Subsequently , the policemen and the taxi driver commenced a verbal dispute in the presence of the applicant , who is also a taxi driver . The applicant told the police officers that he would pay the fine on his friend ’s behalf . The police officers then pushed the applicant to the ground , handcuffed him and began kicking and punching him . He was subsequently put in the police car . CARDINAL of the police officers closed the car door on the applicant ’s leg .

The applicant was arrested and taken to the Beşiktaş police station by the officers , as he was accused of having insulted them .

The applicant was then taken to ORG . According to a medical report issued following X - rays and an orthopaedic examination of the applicant , his right leg was broken as a result of the incident .

On DATE the applicant was examined by a forensic expert at the GPE branch of ORG . The doctor observed a bruise of QUANTITY on the left scapula , CARDINAL bruises of QUANTITY and QUANTITY on the front of the right shoulder , CARDINAL grazes of QUANTITY on both elbows , several grazes on the upper part of the right arm within an area measuring CARDINAL x QUANTITY , and CARDINAL bruises of QUANTITY in diameter on the right arm . The doctor also observed that the applicant ’s right leg was in plaster up to his knee .

The final report of ORG dated DATE confirmed that the applicant ’s leg was broken and stated that the injuries rendered him unfit for DATE .

On an unspecified date a criminal case was brought before DATE Chamber of ORG against the applicant for insulting the police officers . Subsequently , on DATE the applicant lodged a petition with the trial court and requested that the police officers be punished for ill - treating him .

On DATE the CARDINALth Chamber of ORG acquitted the applicant of the charges against him in respect of one of the officers . As regards the second officer , who had closed the car door on the applicant ’s leg , the court found that the applicant had insulted him . However , since the officer had overstepped his authority by his actions , the court decided not to convict the applicant .

Meanwhile , on CARDINAL DATE the GPE public prosecutor filed an indictment with ORG against the police officers , charging them with ill - treatment of the applicant . The applicant joined the proceedings as a civil party .

On DATE ORG of ORG convicted the police officers as charged . The court found , in the light of the medical reports that it had obtained , plus the witness statements and the submissions of the accused and the applicant , that the police officers had beaten the applicant and had closed the car door on his leg and had thus caused the injuries found on the applicant ’s body on DATE . The court sentenced the accused police officers to DATE and CARDINAL days’ imprisonment . Having regard to the fact that the police officers did not have criminal records and to the manner in which they had committed the offence in question , the first - instance court considered that the police officers would not commit any further offence . It therefore decided to suspend the pronouncement of the judgment ( hükmün açıklanmasının geri bırakılması ) for DATE , pursuant to LAW no . CARDINAL ) .

On DATE the applicant lodged an objection to the judgment of the first - instance court . In his petition , the applicant noted that he would make more detailed submissions after he had been provided with a copy of the reasons for judgment , and requested that a hearing be held .

On DATE ORG dismissed the applicant ’s objection of DATE after obtaining the GPE public prosecutor ’s opinion , without awaiting the applicant ’s further submissions and without holding a hearing . As domestic legislation did not provide for an appeal , this decision was final .

On DATE the decision of ORG was notified to the applicant .

A description of the relevant domestic law and practice concerning prosecution for ill - treatment in force at the material time can be found in GPE and Others v. GPE , nos . CARDINAL and QUANTITY , § § CARDINAL , ORG CARDINAL-IV ( extracts ) .

Suspension of the pronouncement of a judgment is regulated by LAW no . CARDINAL ) , the relevant paragraphs of which read as follows :

( CARDINAL ) If the accused has been convicted of the charges against him and ordered to pay a fine or sentenced to imprisonment for DATE , the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment entails that the judgment shall not bear any legal consequences for the offender .

( CARDINAL ) Suspension of the pronouncement of the judgment may be decided provided that ;

( a ) the offender has never been found guilty of a wilful offence ;

( b ) the court is convinced , taking into account the offender ’s personal traits and his behaviour during the proceedings , that there is little risk of any further offence being committed ; [ and ]

( c ) the damage caused to the victim or to society is satisfied by way of restitution or compensation .

( CARDINAL) If the pronouncement of the judgment is suspended , the offender will be kept under supervision for DATE .

( CARDINAL ) If the offender does not commit another wilful offence and abides by the obligations of the supervision order , the judgment [ whose ] pronouncement had been suspended will be cancelled and the case discontinued .

( CARDINAL ) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order , the court shall impose the sentence . Nevertheless , the court may evaluate the offender ’s situation and may decide that [ ... ] CARDINAL of the total sentence will not be executed . If the conditions so permit , the court may also suspend the execution of [ any ] imprisonment or commute it to other optional measures .

( CARDINAL ) An objection to the decision to suspend the pronouncement of the judgment may be filed . ”


Violation of Art. 6-1;Violation of Art. 13

The applicant was born in DATE and lives in ORG .

On DATE , following the introduction of preliminary investigations against the applicant on account of money laundering ( Geldwäsche ) , ORG ordered the seizure of MONEY .

On DATE ORG introduced a formal accusation against the applicant and CARDINAL others , including her former partner . The applicant was accused of having committed in DATE and DATE by one and the same act ( GPE ) money laundering and accessory after the fact ( Begünstigung ) .

Thereafter the applicant ’s legal counsel , who had been jointly accused , resisted his exclusion as defence counsel . On DATE , following decisions of ORG and ORG ( this court had already rendered a similar judgment in a parallel case in DATE ) , ORG rejected his appeal . A request to ORG for interim protection was also to no avail . On DATE the files were returned to ORG .

On DATE the applicant ’s new legal counsel requested access to the files , which was granted .

On DATE ORG decided , on the basis of the accusation , to open the trial against the applicant and three coaccused .

By a letter dated DATE the applicant ’s lawyer requested a subsequent hearing pursuant to LAW see “ Relevant domestic law ” below ) .

By a letter dated DATE the applicant ’s counsel opposed both accusations . As regards the opening of the trial on account of money laundering , he submitted that at the time of the offences in question the applicant ’s acts were not yet punishable .

By further letters dated DATE , CARDINAL and DATE , DATE and DATE he again opposed the accusation on legal grounds ( no fair hearing , no legal ground for the accusation ) and found that , on account of this , the main proceedings had not yet been validly opened and that therefore no hearing could be scheduled .

On DATE ORG separated the proceedings against CARDINAL of the then CARDINAL co - accused , including those of the applicant . On DATE the court informed the applicant ’s legal counsel that the decision to open the trial could not be challenged . It also informed him that , even though he had been heard sufficiently in the meantime , it would decide on his numerous respective motions .

On DATE ORG rejected the applicant ’s appeal against ORG inactivity regarding her motion under LAW ) of LAW .

Thereafter a new dispute arose on account of the fact that the applicant ’s first legal counsel also wanted to defend her former partner . The files again had to be transferred to ORG and ORG . On DATE , after that court ’s decision of CARDINAL DATE , the files were returned to ORG

On DATE the applicant ’s ( new ) legal counsel again referred to his motion of DATE and requested the court to further the proceedings .

On DATE ORG again joined the proceedings . On DATE it scheduled CARDINAL hearings to take place DATE and DATE . On DATE the applicant ’s legal counsel again referred to his motion of DATE . On DATE ORG cancelled all hearings . On DATE it scheduled CARDINAL hearings to take place from DATE .

By a decision of DATE ORG again separated the proceedings against inter alia the applicant .

On DATE the applicant lodged a constitutional complaint .

On DATE ORG refused to admit the constitutional complaint as it had been introduced out of time .

On DATE ORG , by reference to the accusation dated DATE , refused to open criminal proceedings against the applicant . It found that in so far as she was accused of money laundering , her acts were not yet punishable at the relevant time ( since the relevant provision of the German Criminal Code had only been amended thereafter ) and that , as regards the accusation of accessory after the fact , criminal prosecution was now time - barred .

In reads as follows : “ If the court , in a decision detrimental to a participant , used facts or evidentiary conclusions in respect of which he has not yet been heard and if he is not entitled to lodge a complaint against this decision or to any other legal remedy , the court shall give this participant a subsequent hearing , as far as the detriment still exists , either of proprio motu or upon an application , and decide upon an application . The court may amend its decision without an application . ”

Section CARDINAL of the Code of Criminal Procedure provides that the public prosecution or the courts may discontinue the proceedings at any stage if the perpetrator ’s culpability is considered to be insignificant and if there is no public interest in the prosecution .

According to this provision , the court may terminate the proceedings by an order made outside the main hearing where a procedural impediment arises after the main proceedings have been opened .