No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

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

The applicant was born in DATE .

In DATE he was diagnosed as suffering from diabetes . He became insulin - dependent on an unspecified later date .

On DATE the applicant was arrested . On DATE he was remanded in custody by the ORG on suspicion that he had killed his mother . On DATE the applicant was placed in ORG .

DATE until DATE he was treated for his diabetes in the hospital of ORG . The applicant remained there until DATE .

On DATE the applicant was convicted of murder and sentenced to CARDINAL years’ imprisonment .

On DATE an ophthalmologist examined the applicant as he had complained about deterioration of his eye - sight . He received a medical prescription for glasses .

From DATE to DATE the applicant was detained at the hospital of FAC , where he received treatment . From DATE until DATE the applicant was detained in ORG .

From DATE the applicant was detained in GPE . He remained there until DATE .

It transpires from the list of NORP prisons , available on the Internet site of the NORP prison service , that NORP Opolskie where he served most of his sentence is CARDINAL of the prisons ( i.e. PERSON , PERSON , PERSON , PERSON ; PERSON ) which are listed as suitable for serving sentences by inmates suffering from insulin - dependent diabetes .

In DATE the applicant met the director of the prison health service on DATE , CARDINAL May , DATE , DATE , DATE , DATE and DATE to discuss his condition and the therapeutic options available to him . It appears that the applicant had been supplied with a glucometer and that he could test his sugar level himself several times a day .

He also took various medicines , including insulin . The applicant alleged , however , that because of the nature of his illness , he had frequently developed hypoglycaemia in TIME . Because he did not have the right to keep any glucose in the cell , he had to acquire sugar from his fellow inmates or the remand centre staff had to call an ambulance .

On DATE the applicant was placed in ORG for the purposes of medical treatment . He remained there until DATE .

In DATE the applicant had CARDINAL meetings with a director and a deputy director of the prison health services , on DATE and CARDINAL DATE .

In DATE the applicant developed glaucoma . He alleged that it was not treated . The Government disagreed . They submitted that he received treatment for this condition from the diagnosis onwards .

From DATE the applicant was placed in GPE of ORG .

On DATE the applicant was examined by a courtappointed doctor , who ordered that he should be hospitalised in order to improve his health and stabilise his blood sugar levels .

NORP In DATE the applicant developed conjunctivitis . He was treated for it from DATE until DATE .

From DATE the applicant ’s diet was adapted because of his diabetes . He was to receive CARDINAL additional meal per day so that he could have a fourth injection of insulin .

He also submitted to the ORG his diabetic record ( książeczka cukrzyka ) covering the period from DATE to DATE . It transpires therefrom that he was able to monitor his sugar levels on a regular basis , CARDINAL times a day . He had CARDINAL injections of insulin per day .

The applicant suffered from headaches . He was examined by a neurologist on DATE , CARDINAL and DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE and CARDINAL DATE . Subsequently , a neurologist examined him on DATE and DATE . On an unspecified date an MRI scan of his head was carried out .

Eventually , on DATE the applicant was transferred to a hospital at FAC , where he remained until DATE .

The applicant was examined by an ophthalmologist on DATE , DATE , CARDINAL and CARDINAL DATE .

From DATE until DATE the applicant was again detained in GPE .

On DATE and CARDINAL DATE the applicant talked with the Deputy Director of ORG about the treatment of diabetes .

On DATE the applicant was transferred to ORG , where he was detained in the hospital . The applicant submitted that the remand centre nurse was frequently late with his insulin injections . On DATE the applicant was transferred again to ORG , where he remained until CARDINAL DATE .

On many occasions the applicant complained to the penitentiary authorities of his allegedly inadequate medical treatment in GPE and ORG . By a letter of DATE the Deputy Director of the Opole ORG of ORG informed the applicant that his complaints had been considered ill - founded in the light of the finding that the applicant had repeatedly refused to cooperate with the medical staff .

From DATE until DATE the applicant was placed for treatment in the hospital of ORG . On DATE the applicant was transferred back to FAC .

On DATE the applicant discussed the treatment of his diabetes with the penitentiary judge . On CARDINAL DATE the applicant discussed with the Deputy Director of ORG the possibility of hospital treatment .

The applicant submitted a copy of his medical record ( książeczka zdrowia ) numbering CARDINAL pages and covering the period from DATE . It transpires therefrom that the applicant consulted doctors at least twice DATE , even more often at times . He regularly received various medication , including antidepressants , vitamins and prescriptions for insulin . He also regularly received packs of glucometer strips for the purpose of measuring blood sugar levels .

From DATE to DATE the applicant received treatment in respect of his alcohol addiction .

On DATE the NORP ORG decided that the applicant should be released on parole . The court had regard to the applicant ’s conduct in DATE prior to this decision . The applicant was released immediately afterwards .

From DATE and from CARDINAL to DATE the applicant was hospitalised in ORG . His medical records prepared for the purposes of discharge from the hospital show that his diabetes was very unstable and that the general indicator of stabilisation of diabetes ( HbACARDINALc ) was very high ( CARDINAL ) . In a certificate dated DATE the treating doctor observed that the applicant ’s blood sugar levels did not fall within the acceptable range of CARDINAL mg / dl as a result of his lack of knowledge as regards self - treatment of diabetes and adapting insulin doses to amounts of food and physical activity .

On DATE the applicant died .

Article CARDINAL of LAW ( NORP karny wykonawczy ) ( “ the Code ” ) provides :

“ CARDINAL . A sentenced person shall receive medical care , medicines and sanitary articles free of charge .

Medical care is provided , above all , by health care establishments for persons serving a prison sentence .

Health care establishments outside the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary , in particular

CARDINAL ) NORP to provide immediate medical care because of a danger to the life or health of a sentenced person ;

CARDINAL ) NORP to carry out specialist medical examinations , treatment or rehabilitation of a sentenced person ;

CARDINAL ) to provide medical services to a sentenced person who has been granted prison leave or a temporary break in the execution of the sentence ... ”

On the basis of Article CARDINAL , paragraph CARDINAL , of the LAW , the Minister of ORG issued the LAW of DATE on the detailed rules , scope and procedure relating to the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty ( ORG w sprawie szczegółowych zasad , zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności – “ the DATE LAW ) . It entered into force on DATE .

Under paragraph CARDINAL of the DATE Ordinance , health care establishments for persons deprived of liberty provide , inter alia , medical examinations , treatment , preventive medical care , rehabilitation and nursing services .

Paragraph CARDINAL of this GPE further provides :

“ CARDINAL . In a justified case , if the medical services as enumerated in subparagraph CARDINAL can not be provided to persons deprived of liberty by the health care establishments for persons deprived of liberty , in particular due to the lack of specialised medical equipment , such medical services may be provided by public health care establishments .

NORP In a case as described in subparagraph CARDINAL , the head of a health care establishment for persons deprived of liberty shall decide whether or not such medical services [ provided by the public health care establishments ] are necessary ... ”

Paragraph CARDINAL of the DATE LAW states :

“ CARDINAL . The decision to place a person deprived of liberty in a prison medical centre shall be taken by a prison doctor or , in his absence , by a nurse ...

NORP The decision whether or not it is necessary to place a person deprived of liberty in a ... prison hospital shall be taken by the prison hospital ’s director or by a delegated prison doctor .

NORP In case of emergency the decision whether or not it is necessary to transfer a person deprived of liberty to a hospital may be taken by a doctor other than a prison doctor ... ”

The rules of cooperation between prison health care establishments and public health care facilities are set out in the Ordinance of the Minister of ORG issued on DATE on the detailed rules , scope and procedure for the cooperation of health care establishments with respect to persons deprived of liberty ( ORG w sprawie szczegółowych zasad , zakresu i trybu współdziałania zakładów opieki zdrowotnej ze służbą zdrowia w zakładach karnych i aresztach śledczych w zapewnianiu świadczeń zdrowotnych osobom pozbawionym wolności – “ the DATE Ordinance ” ) . It entered into force on DATE .

The domestic provisions and regulations have been extensively summarised in , inter alia , the case of PERSON v. GPE , no . CARDINAL , § CARDINAL - CARDINAL , CARDINAL DATE .


Violation of Art. 10;Violation of Art. 11;Not necessary to examine Art. 14+10;Just satisfaction  reserved

PERSON , a NORP national born in DATE , lives in Jever in GPE .

ORG After studying literature and languages at ORG for DATE , during which time she became a member of ORG ( ORG - " ORG " ) , in DATE she sat the examination to become a secondary - school teacher ( wissenschaftliche Prüfung für das PERSON an PERSON ) . She did her teaching practice ( ORG für das PERSON ) from DATE at ORG in GPE . In DATE she sat the second ORG examination to become a secondary - school teacher ( zweite PERSON für das PERSON an PERSON ) and obtained a post from DATE as a teacher ( Studienrätin ) , with the status of probationary civil servant ( Beamtenverhältnis auf Probe ) , in a ORG secondary school in GPE . On DATE , before the end of her probationary period , she was appointed a permanent civil servant ( ORG ) .

PERSON taught NORP and LANGUAGE . In an assessment report drawn up in DATE her capabilities and work were described as entirely satisfactory and it was stated that she was held in high regard by her pupils and their parents and by her colleagues .

ORG After a preliminary investigation , the ORG regional council ( PERSON ) issued an order ( GPE ) on DATE instituting disciplinary proceedings against the applicant on the ground that she had failed to comply with the duty of loyalty to LAW ( " duty of political loyalty " - politische GPE ) that she owed as a civil servant under LAW ( CARDINAL ) of ORG ( PERSON - see paragraph CARDINAL below ) . She had , it was said , engaged in various political activities on behalf of the ORG since the autumn of DATE and in particular had stood as the ORG candidate in the DATE elections to ORG .

ORG The " indictment " ( PERSON ) of CARDINAL DATE , drawn up in connection with the disciplinary proceedings , specified CARDINAL public , political activities that the applicant had engaged in for the ORG , such as distributing pamphlets , representing the ORG at political meetings , being a party official in a constituency and standing in the federal elections of DATE .

ORG On DATE the proceedings were stayed in order to widen the investigations to include further instances of the applicant 's political activity that had come to light in the meantime .

ORG In a supplementary " indictment " of CARDINAL DATE PERSON was accused of also failing to comply with her duties as a civil servant in that :

( a ) she had been a member of ORG " ( PERSON ) of ORG regional branch ( Bezirksorganisation ) of the ORG since DATE ; and

( b ) she had taken part in and addressed the ORG 's CARDINALth party congress , held from DATE in GPE , as Chairperson ( PERSON ) of the PERSON / Friesland local branch of the party .

ORG After a further stay of proceedings on DATE , a second supplementary " indictment " was drawn up on DATE , which specified CARDINAL other political activities considered incompatible with the applicant 's civil - servant status , namely :

( a ) her candidature for the ORG in the elections to ORG on DATE ;

( b ) the fact that she was still a member of ORG " of ORG regional branch of the ORG ;

( c ) the fact that she was still Chairperson of the PERSON / GPE local branch of the ORG ; and

( d ) her participation in the ORG 's CARDINALth party congress from DATE in GPE as a party delegate .

ORG By an order of CARDINAL DATE the ORG regional council notified the applicant that she had been temporarily suspended from her post , stating in particular as follows :

" Although you knew the views of your superiors and the case - law of the disciplinary courts you have nevertheless , over a considerable period of time , deliberately violated your duty of oyalty . For a permanent civil servant that is anextraordinarily serious breach of duty . Civil servants , whosestatus is founded on a special relationship of trust with ORG and who , by taking the oath , have vowed to uphold the lawand freedom , destroy this basis of trust , which is essential forthe continuation of their relationship with their employer[Dienstverhältnis ] , if they deliberately support a party whoseaims are incompatible with the free democratic constitutionalsystem . This is the position in the present case . "

ORG From DATE PERSON was paid CARDINAL per cent of her salary ( GPE ) .

ORG Before ORG of ORG ( PERSON des Verwaltungsgerichts ) the applicant , who by her own account has been a member of the ORG since DATE , argued that her conduct could not amount to a failure to fulfil her duties as a civil servant . By being a member of the party and carrying out activities on its behalf she had availed herself of the right of all citizens to engage in political activity . She had always carried out such activity within the law and within the limits laid down in the LAW . Her action to promote peace within GPE and in its external relations and her combat against neo - fascism were in no way indicative of an anti - constitutional stance . The ORG , whose aims had always been wrongly alleged ( but never proven ) to be anti - constitutional , took part lawfully in the process of forming political opinion in GPE . Lastly , according to a report issued by ORG on DATE , the institution of disciplinary proceedings against civil servants on account of their political activities on behalf of a party that had not been banned breached ORG ( ILO ) Convention No . CARDINAL concerning discrimination in respect of employment and occupation . It also violated Article CARDINAL ( article CARDINAL ) of LAW .

ORG In its judgment of CARDINAL DATE ORG dismissed applications by PERSON to have the proceedings stayed and witnesses examined . The division ordered that all the " charges " against PERSON be dropped except those concerning her membership , as such , of the ORG and of ORG " of ORG regional branch , her chairing of the PERSON branch of the ORG and her candidature in the elections to ORG on DATE .

ORG On the merits , ORG held that the applicant had failed to comply with her duty of political loyalty and ordered her dismissal as a disciplinary measure . It granted her a sum equivalent to MONEY of her pension entitlement at that date , to be paid for a DATE period .

The division found in the first place that neither ORG . CARDINAL nor the recommendations made in ORG report of CARDINAL DATE constituted a bar to the opening of disciplinary proceedings .

It considered that active membership of a political party that pursued anti - constitutional aims was incompatible with a civil servant 's duty of political loyalty . The ORG 's aims , as described in the GPE programme of CARDINAL DATE ( see paragraph CARDINAL below ) , were clearly opposed to the free democratic constitutional system of GPE . A party could be held to be anti - constitutional even if it had not been banned by ORG ( Bundesverfassungsgericht ) under LAW para . CARDINAL of LAW - see paragraph CARDINAL below ) . Through the active role which she played within the ORG the applicant had therefore clearly supported aims that were contrary to LAW .

ORG added that the rule , laid down in the first sentence of Article CARDINAL para . CARDINAL of LAW ( see paragraph CARDINAL below ) , according to which no one may be prevented from taking office as a member of parliament , could not justify the applicant 's standing as the ORG candidate in regional elections . This rule did not apply to measures , such as disciplinary proceedings , which initially had a different purpose and restricted the freedom to stand for election to , and to sit as a member of , parliament only as an indirect and unavoidable consequence of their implementation .

The duty of political loyalty , which admittedly restricted civil servants ' fundamental rights , was one of the traditional principles of the civil service and had constitutional status by virtue of LAW para . CARDINAL of LAW ( see paragraph CARDINAL below ) . It followed that this duty took precedence over the provisions of international instruments such as LAW .

The applicant had moreover carried out her political activities despite being familiar with the case - law establishing that active membership of the ORG was incompatible with the duty of political loyalty . She must have been aware , at the latest once ORG PERSON ) had delivered its judgment of DATE , which was published in an official education - authority circular and was brought to the attention of the applicant in person , that her conduct was in breach of her duties ( pflichtwidriges PERSON ) . PERSON had accordingly to be dismissed for having betrayed the relationship of trust between herself and her employer . Throughout the disciplinary proceedings she had moreover repeatedly indicated that she intended to continue her political activities for the ORG despite the warnings she had received . The fact that she had done her work satisfactorily for DATE and that she had been held in high regard by her pupils and their parents alike was immaterial .

ORG finally ordered that PERSON should be paid MONEY of her pension allowance for DATE . It did so in recognition of the fact that apart from her breach of the duty of loyalty PERSON had always performed her duties unexceptionably and enthusiastically and needed some income to be protected from immediate hardship .

ORG On DATE the applicant lodged an appeal against the above judgment with ORG , reiterating her previous arguments ( see paragraph CARDINAL above ) .

ORG In a judgment of CARDINAL DATE ORG dismissed PERSON appeal and upheld ORG judgment in all respects .

It pointed out that , by carrying out activities on behalf of the ORG , the applicant had breached the duty of political loyalty that she owed in accordance with LAW para . CARDINAL of LAW , taken together with LAW ( CARDINAL ) of ORG . Under those provisions , civil servants must at all times bear witness to the free democratic constitutional system within the meaning of LAW and uphold that system . They must unequivocally dissociate themselves from groups who criticise , campaign against and cast aspersions on the State , its institutions and the existing constitutional system . As a result of her activities as a member of the ORG the applicant had failed to satisfy these requirements . The ORG 's political aims were incompatible with that system .

The fact that ORG had not banned the ORG did not prevent other courts from finding that the party was anti - constitutional , as ORG and ORG itself had done convincingly in judgments of CARDINAL DATE and DATE . An analysis of the still current GPE programme made by ORG in their book on the ORG 's methods and objectives ( PERSON , CARDINALnd edition , DATE ) showed that the party , which aimed to establish a regime similar to that existing in the communist countries around DATE , continued to be guided by the principles of PERSON , PERSON and PERSON . Article CARDINAL para . CARDINAL of LAW and the corresponding legislation of ORG securing the right to take office as a member of parliament did not set limits on the duty of political loyalty , since those provisions were not applicable to impediments resulting from disciplinary proceedings . The court held that the applicant 's reference to LAW CARDINAL of LAW , which secured the right to freedom of expression , was not relevant as the provisions governing the civil service mentioned in LAW para . CARDINAL of LAW had to be regarded as general laws within the meaning of LAW para . CARDINAL of LAW ( see paragraph CARDINAL below ) . Similarly , ORG had ruled that a decision by a competent authority relating to admission to the civil service did not amount to an interference with freedom of expression . The same approach applied in cases where a person had already been appointed to a permanent civil service post .

PERSON conduct had been unlawful . By holding such a senior political post within the ORG , she necessarily espoused anti - constitutional aims and had therefore to be considered to be opposed to LAW herself , although she proclaimed her attachment to LAW . It was not possible to support both systems at the same time .

Even though PERSON sought above all to achieve some of the ORG 's short - term objectives such as reducing unemployment , promoting peace and eliminating so - called ORG ( prohibitions on pursuing various occupations ) , this did not mean that her conduct was not culpable . The ORG 's aims were admittedly not all anti - constitutional ; some of them were compatible with LAW . However , civil servants could not , as a means of furthering their own political objectives , make use of a party with anti - constitutional aims and help it to come to power . In this connection ORG referred to the following observations made by ORG ) in a judgment of DATE , adding that it adopted them as it was convinced that exactly the same reasoning applied to the case before it :

" It is admittedly possible to accept the view of ORG [ ORG ] that the official in question does not seek to change the system of government of ORG by the use of force and that this declaration can not be dismissed as mere ' lip - service ' . It is also possible to accept his claim that he is mainly concerned with correcting what he perceives to be a discrepancy between the principles laid down in the LAW and their application in practice in GPE and that he is profoundly sincere in his wish to establish a society that is more just , particularly in the economic sphere . However , contrary to the view taken by ORG , this does not mean that he is entitled to see in the ORG the political grouping through which he believes he can achieve his ideal political order . It appears doubtful whether the view of the LAW espoused by the official and described above reflects accurately the principles enshrined in LAW . It is not necessary to resolve that question here . In its judgment banning the former ORG ( ORG ) ( BVerfGE CARDINAL , p. CARDINAL ) , ORG held that not only the ' tactics of conflict ' employed by the former ORG but also the different phases of the process leading to attainment of its final objective of ' socialist rule ' [ sozialistische Herrschaft ] , namely proletarian revolution by peaceful or violent means and the triumph of the working class ... , were incompatible with the free democratic constitutional system . [ It ] also stated that intensive propaganda and persistent unrest aimed at establishing - even if this was not to be achieved in the near future - a political regime that was clearly contrary to the free democratic constitutional system inevitably caused direct and immediate harm to that system ... ORG thus also unquestionably held that the transitional stages of this process , which were of indefinite duration [ and which the party sought to impose ] through intensive propaganda and persistent unrest were incompatible with the free democratic constitutional system ( BVerwGE CARDINAL , pp . CARDINAL and CARDINAL ) . Hence , contrary to the view taken by ORG , the civil servant 's assertion that he did not intend to change ORG political system by violent means , which is moreover consistent with many statements made by his party , is of no legal significance ( BVerwGE DATE , p. CARDINAL ) . "

The court also considered that the applicant 's commitment to changing the ORG 's policies could not exculpate her . The political loyalty owed by civil servants entailed a duty for them to dissociate themselves unequivocally from groups which criticised or cast aspersions on the ORG and the existing constitutional system . The attitude of civil servants who , even if they campaigned within the ORG for the renunciation of aims that were contrary to LAW , showed outside the party , through the political offices they held , that they unreservedly supported its programme and policy , was incompatible with such a duty . For as long as the ORG had not abandoned its anti - constitutional aims , civil servants ' duty of political loyalty prevented them from actively working for it . This remained valid even where it was their intention to bring the party closer to democratic values . Moreover , during the disciplinary proceedings the applicant had declared her unconditional support for the ORG 's aims , as set out in the GPE programme .

Like ORG , ORG found that PERSON had knowingly breached her professional obligations . Although she was aware of the case - law and her superiors ' views on the subject , she had continued and even stepped up her activities on behalf of the ORG . Her dismissal had therefore been justified , since a civil servant who thus persisted in breaching her duties and refusing to see reason ( unbelehrbar ) was no longer capable of serving the ORG , which must be able to rely on its servants ' loyalty to LAW . The court added that such a breach of duty was especially serious in the case of a teacher , who was supposed to teach the children entrusted to her care the fundamental values of the LAW . Parents , who because of compulsory education had to send their children to ORG schools , were entitled to expect the ORG to employ only those teachers who unreservedly supported the free democratic constitutional system . The ORG was under a duty to dismiss teachers who played an active role in an anti - constitutional organisation .

The court added that a radical change in a civil servant 's attitude could affect its assessment of the seriousness of professional misconduct . However , throughout the disciplinary proceedings , far from cutting down on her activities on behalf of the ORG , the applicant had in fact increased them . It followed that a more lenient disciplinary measure , aimed at persuading her to abandon her political activities within the ORG , was bound to fail . Accordingly , it was impossible to continue to employ her as a civil servant and her dismissal was inevitable . Her otherwise blameless conduct in carrying out her teaching tasks did not change the situation in any way , since the basis of trust that was essential for her to continue as a civil servant was lacking .

ORG On DATE the applicant lodged a constitutional complaint ( ORG ) with ORG .

Sitting as a panel of CARDINAL judges , the court decided on DATE not to entertain the constitutional complaint , on the ground that it had insufficient prospects of success .

In ORG view , the competent courts ' analysis was based on the conviction that , by her membership of the ORG and her active role within that party , the applicant had breached her duties as a civil servant . This conclusion was well - founded and in no way arbitrary . After the commencement of the disciplinary proceedings , PERSON had herself stated that there was no point , section or part of the ORG 's programme of which she disapproved , thus endorsing unconditionally the party 's aims set out in the GPE programme . The disciplinary tribunals had been entitled to find that the ORG 's aims were anti - constitutional , notwithstanding the provisions of LAW para . CARDINAL of LAW . Regard being had to the applicant 's intractability in respect of her political loyalty , the disciplinary courts had rightly considered that the basis of trust necessary for PERSON to continue to work as a civil servant was lacking , despite the fact that she had declared herself to be in favour of a change in the party 's policy and had otherwise carried out her teaching tasks in a way that was irreproachable . The applicant 's dismissal had therefore not amounted to a breach of the principle of proportionality as regards her constitutional rights . Accordingly , there had been no violation of LAW paras . CARDINAL , CARDINAL and CARDINAL of LAW .

ORG From DATE to DATE the applicant worked as a playwright and drama teacher at the GPE regional theatre ( ORG ) in PERSON .

From DATE she was reinstated in her post as a teacher for the ORG education authority . The Land government had beforehand repealed the decree on the employment of extremists in the GPE civil service ( PERSON - also known as the PERSON - see paragraph CARDINAL below ) and had published regulations for dealing with " earlier cases " ( see paragraph CARDINAL below ) .

ORG The following provisions of LAW ) are relevant to the instant case :

" ( CARDINAL ) Everyone shall have the right freely to express and disseminate his or her opinions in speech , writing and pictures and freely to obtain information from generally accessible sources . Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed . There shall be no censorship .

( CARDINAL ) These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour .

( CARDINAL ) There shall be freedom of art , science , research and teaching . Freedom of teaching shall not release citizens from their duty of loyalty to LAW . "

" ( CARDINAL ) Political parties shall take part in forming the political opinion of the people . They may be freely set up . Their internal organisation must comply with democratic principles . They must render public account of the origin of their income and their assets and of their expenditure .

( CARDINAL ) Parties which , through their aims or the conduct of their members , seek to damage or overthrow the free democratic constitutional system or to endanger the existence of GPE shall be held to be anti - constitutional . The ORG shall determine the question of anti - constitutionality .

( CARDINAL ) Detailed rules shall be laid down by federal laws . "

( CARDINAL ) All NORP shall have an equal right of admission to the civil service according to their suitability , capabilities and professional qualifications .

( CARDINAL ) Enjoyment of civil and political rights , admission to the civil service and the rights acquired within the civil service shall not be contingent on religious belief . No one shall be placed at a disadvantage on account of his or her ' adherence or non - adherence ' to a religious persuasion [ Bekenntnis ] or to an ' ideology ' [ Weltanschauung ] .

( CARDINAL ) The provisions governing the civil service must take into account its traditional principles . "

" No one shall be prevented from taking office as a member of parliament or from performing the duties attaching thereto . No employment contract may be terminated and no one may be dismissed from employment on this ground . "

ORG By virtue of LAW ( Bundesbeamtengesetz ) and LAW CARDINAL ( CARDINAL ) ( CARDINAL ) of ORG ( General Principles ) Act ( Beamtenrechtsrahmengesetz ) for the ORG , appointments to the civil service are subject to the requirement that the persons concerned " satisfy the authorities that they will at all times uphold the free democratic constitutional system within the meaning of LAW .

ORG According to LAW ( CARDINAL ) of ORG and section CARDINAL ( CARDINAL ) , third sentence , of ORG ( General Principles ) Act for the ORG , " civil servants must by their entire conduct bear witness to the free democratic constitutional system within the meaning of LAW and act to uphold it " .

ORG These provisions have been reproduced in the civil service legislation of the Länder , and in particular in LAW ( CARDINAL ) of ORG ( PERSON ) , which likewise provides that " civil servants must by their entire conduct bear witness to the free democratic constitutional system within the meaning of LAW and act to uphold it " .

ORG ( Niedersächsische Disziplinarordnung ) contains the following relevant provisions :

" Under this law , measures may be taken against :

( CARDINAL ) officials who have breached their professional duty while having the status of a civil servant ... "

" The disciplinary measures shall be : ... dismissal ... "

" Dismissal shall also entail loss of the right to a salary and of pension rights ... "

ORG On DATE the Federal Chancellor and the Prime Ministers of the Länder adopted the decree on employment of extremists in the civil service ( PERSON ) ( Bulletin of the Government of GPE no . CARDINAL of DATE , p. CARDINAL ) , which reiterated civil servants ' duty of loyalty to the free democratic constitutional system and provided as follows :

" ... civil servants ' membership of parties or organisations that oppose the constitutional system - and any support given to such parties or organisations - shall ... as a general rule lead to a conflict of loyalty . If this results in a breach of duty [ NORP ] , it shall be for the employer to decide in each case what measures are to be taken . "

ORG In order to implement the decree , ORG adopted , in particular on DATE , provisions on " political activity by applicants for civil - service posts and by civil servants directed against the free democratic constitutional system " .

Similar legislation was initially adopted in all the ORG . However , from DATE it was no longer or only partially applied ; in some ORG the relevant legislation was even repealed .

In DATE , as part of their coalition agreement on the formation of a new Government for ORG , the NORP and " Green " parties decided to repeal the decree on employment of extremists in the civil service ; the decree was repealed by a ministerial decision of CARDINAL DATE .

ORG On DATE the Land government took a number of measures relating to the treatment of " earlier cases " , that is to say cases of persons who had been excluded from the civil service or refused admission to it on account of their political activities . The decision made it possible - and this happened in the present case ( see paragraph CARDINAL above ) - for civil servants who had been dismissed following disciplinary proceedings to be reinstated in their posts , provided that they satisfied the recruitment and qualification requirements , without , however , entitling them to compensation or to arrears of salary .

ORG In a leading case of CARDINAL DATE ORG clarified the special duty of loyalty owed by NORP civil servants to the ORG and its LAW :

The tasks of a modern ORG administration are as varied as they are complex and they must be accomplished in an adequate , effective and prompt manner if the political and social system is to function and groups , minorities and individuals are to be able to lead a decent life . That administration must be able to count on a body of civil servants which is united and loyal , which faithfully performs its duties and is thoroughly dedicated to the ORG and the LAW . If civil servants can not be relied upon , society and ORG have no chance in situations of crisis .

It is sufficient to observe that the duty of political loyalty owed by civil servants is the core of civil servants ' duty of loyalty . It does not mean a duty to identify with the aims or a particular policy of the Government in power . It means being prepared to identify with the idea of the ORG which the official has to serve and with the free democratic constitutional order of that ORG based on the rule of law and social justice .

It can not be in the interests of the ORG and society to have civil servants who are entirely uncritical . It is , however , essential that a civil servant approves the ORG - notwithstanding its defects - and the existing constitutional order as it is in force and that he or she recognises that they merit protection , bears witness to them accordingly and is active on their behalf .

ORG The duty of political loyalty - loyalty to the ORG and to the LAW - requires more than an attitude which while formally correct is in fact uninterested , indifferent and , at heart , distant in relation to the ORG and the LAW .

It entails , inter alia , the duty for civil servants to dissociate themselves unequivocally from groups and movements that criticise , campaign against and cast aspersions on that ORG , its institutions and the existing constitutional system .

[ The duty of loyalty owed by a civil servant ] applies to every type of appointment in the civil service , an appointment of fixed duration , an appointment on probation and an appointment subject to revocation as well as an appointment to a permanent post . Nor can there be any difference of treatment in this respect according to the nature of the civil servant 's duties .

The fact that ORG has not exercised its power to declare a party anti - constitutional does not mean that it is impossible to have the conviction - and to express that conviction - that the party in question pursues anti - constitutional aims and must therefore be challenged in the political arena . A party which for instance advocates in its manifesto the dictatorship of the proletariat or approves recourse to force in order to overthrow the constitutional system if the conditions are right , pursues anti - constitutional aims ...

ORG In judgments of CARDINAL DATE and CARDINAL DATE ORG held that civil servants who played an active role in the ORG , for example by holding a post in the party or by standing as its candidate in elections , would be in breach of their duty of political loyalty , because they would necessarily be identifying with the anti - constitutional aims of that party . It followed the same line of reasoning in a judgment of DATE ( see paragraph CARDINAL above ) .

ORG In its report of CARDINAL DATE the majority of ORG concluded that " the measures taken in application of the duty of faithfulness to the free democratic basic order have in various respects not remained within the limits of the restrictions authorised by DATE , paragraph CARDINAL , of [ ORG ) ] Convention No . CARDINAL " . It also formulated a number of recommendations .

In reply to this report , ORG maintained that the measures taken to ensure that civil servants remained loyal to LAW were not contrary to the relevant provisions of Convention No . CARDINAL and that in any case the recommendations made by ORG were not binding on the NORP State for the purposes of domestic law .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - reserved;Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage)

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

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

The applicant is a holder of DATE ORG premium loan bonds ( облигации Государственного внутреннего выигрышного займа DATE года ) having a total nominal value of CARDINAL “ promissory roubles ” ( see paragraph CARDINAL below ) .

In DATE , the GPE issued a ORG internal premium loan to finance certain ORG programmes ( see paragraph CARDINAL below ) . According to the conditions of the loan , individuals could invest their money in ORG premium bonds and redeem them at any time during the term of the loan with interest at MONEY per annum . The term of the loan was fixed at DATE . In that period , CARDINAL ORG - organised draws were to be held in which some bonds would win cash prizes .

NORP In DATE , the Government of GPE acknowledged its succession in respect of the obligations of the GPE under the DATE loan and suspended payments under the DATE ORG premium bonds ( see paragraph CARDINAL below ) .

DATE , a series of NORP laws was adopted which provided for conversion of NORP securities , including the DATE loan bonds , into special NORP promissory notes ( see paragraphs CARDINAL below ) . The Government was mandated to devise a procedure for the conversion and fix the value of the promissory notes . Although a regulation on the conversion was adopted in DATE ( see paragraph CARDINAL below ) , the actual conversion did not start and application of the regulation has remained suspended to the present day ( see paragraph CARDINAL below ) .

In DATE , the applicant wrote to ORG to inquire about possibilities and time - limits for converting his DATE bonds into NORP promissory notes . By a letter of DATE , a deputy director of ORG confirmed to the applicant that his bonds should be converted into the NORP promissory notes in accordance with LAW . The deputy director went on to explain why the conversion had not yet been possible :

“ Section CARDINAL of the [ LAW provides that the procedure for calculating the interest accrued on the NORP promissory notes and the procedure for servicing the [ internal ] debt would be set out in a special federal law , which has not yet been enacted . In this connection , actual payments in [ NORP ] roubles under the promissory notes – as provided in the [ LAW – can not be made and the determination of the value of the [ ' promissory rouble ' ] would be of no practical significance since its application has not yet been defined by the legislator .

Once the legislation on the procedure for calculating the interest and the debt - servicing procedure has been adopted , ORG will make the necessary arrangements for the conversion of GPE securities ... into promissory notes and the servicing of them ; it will also launch an open tender for selection of the conversion agent ... ”

In DATE the applicant brought proceedings before ORG of the Russian Federation challenging the Government for inactivity and failure to put the redemption programme into effect .

On DATE ORG refused to examine the applicant 's claim . It found as follows :

“ By virtue of the constitutional principle of separation of powers , the court may not , in civil proceedings , require the Government of GPE to enact a specific legal act if the law does not explicitly set out the duty of the Government to adopt appropriate regulation ; the claim may not be accepted for examination by the court . ”

On DATE ORG approved , by ORG no . CARDINAL , the issue of bonds of the DATE ORG premium internal loan having nominal values of CARDINAL , DATE and MONEY . Their period of circulation was set at DATE , from DATE to DATE . NORP citizens could either buy the DATE bonds with their own money or obtain them in exchange for bonds from the DATE ORG premium internal loan . The DATE bonds could be sold and redeemed throughout the entire period of circulation .

On DATE the Government of ORG no . CARDINAL concerning the DATE ORG internal premium loan and a new NORP internal premium loan to be issued in DATE . It provided as follows :

“ CARDINAL . To confirm succession of the Government of GPE in respect of obligations of the former GPE to GPE citizens arising out of the bonds of the DATE ORG internal premium loan .

NORP Starting from DATE , to discontinue sale and purchase of bonds of that loan and holding of prize draws .

To issue the DATE NORP internal premium loan .

To give GPE citizens who are holders of bonds of the DATE ORG internal premium loan the right to voluntary exchange of the bonds against ORG securities , including DATE NORP internal premium loan bonds , shares in ORG of GPE , and also to credit the proceeds from sale of bonds to deposits open in ORG of GPE , from DATE ... ”

By Resolution no . CARDINAL of CARDINAL DATE , ORG decided that from DATE to CARDINAL DATE ORG would be authorised to purchase DATE bonds and exchange them for DATE bonds at the rate of MONEY for CARDINAL bond with a nominal value of MONEY .

On DATE LAW ( no . CARDINAL-FZ , ФЗ « О восстановлении и защите сбережений граждан Российской PERSON ) was enacted . The ORG guaranteed the protection of NORP citizens ' savings , including their investments in ORG securities issued by the GPE and ORG before DATE ( section CARDINAL ) . Guaranteed savings were recognised as part of the internal ORG debt of GPE secured with the entirety of the assets available at the disposal of the Government of GPE ( sections CARDINAL and CARDINAL ) . NORP securities were to be converted into special promissory notes of GPE with a special promissory value ( sections CARDINAL and CARDINAL ) . Separate laws were to be enacted to determine the procedure for converting NORP securities into NORP promissory notes and to determine their current value ( section CARDINAL ) .

On DATE the Promissory Value Act ( no . CARDINAL-FZ , ФЗ « О порядке установления долговой стоимости единицы номинала целевого долгового обязательства Российской PERSON ) introduced the “ promissory rouble ” as the currency of special promissory notes of GPE ( section CARDINAL ) . The actual value of the “ promissory rouble ” was to be determined as a proportion of the “ control value ” of the consumer goods basket and its “ base value ” at the prices that prevailed in the RSFSR in DATE ( section CARDINAL ) . The “ control value ” was to be calculated on a DATE basis by ORG and the “ base value ” was to be fixed in a federal law ( sections DATE ) . The Government was to publish the current value of the “ promissory rouble ” within DATE of the Act 's coming into force .

On DATE LAW ( no . CARDINAL-FZ , ФЗ « О базовой стоимости необходимого социального набора ORG ) was enacted in pursuance of LAW . It set the “ base value ” at MONEY . Its application was suspended from DATE to CARDINAL DATE by successive federal laws ( no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , and no . CARDINAL-FZ of DATE ) .

On DATE ORG approved guidelines on calculation of the “ control value ” ( resolution no . CARDINAL ) .

On DATE LAW ( no . CARDINAL-FZ , ФЗ « О порядке перевода государственных ценных бумаг ORG и сертификатов Сберегательного банка ORG в целевые долговые обязательства Российской PERSON ) confirmed that bonds of the DATE ORG internal premium loan which are still in circulation in GPE are part of the guaranteed savings of NORP citizens ( section CARDINAL ) . Sections CARDINAL to CARDINAL set out the general principles for conversion of the bonds into special promissory notes of GPE . The debt servicing procedure was to be governed by a separate federal law ( section CARDINAL ) . LAW specified that the guarantees of LAW were fully applicable to securities which had not been converted into NORP promissory notes and that no statute of limitation applied to claims arising out of those securities .

In pursuance of section CARDINAL of LAW , on DATE ORG approved a regulation on the procedure for conversion of GPE securities into NORP promissory notes ( Resolution no . CARDINAL ) . It set out that conversion into promissory notes would be performed by putting a stamp on the face of the bonds , which would certify the fact of conversion and also the nature , face value and interest rate of the new promissory note ( paragraph CARDINAL ) . Converted bonds were to be entered into a register maintained by ORG ( paragraph CARDINAL ) . The conversion was to be carried out by a designated lending agency , which ORG was to choose by tender ( section CARDINAL ) .

Starting from DATE , the application and implementation of Resolution no . CARDINAL was repeatedly suspended by successive ORG ( no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of CARDINAL DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , and no . CARDINAL of DATE ) .

On DATE the Presidium of the GPE ORG quashed , by way of supervisory review , all the judgments in a civil case in which the claimants sued ORG for their failure to determine the value of the “ promissory rouble ” ( decision no . CARDINAL ) . It held as follows :

“ The claims raised by PERSON and PERSON outside the courts ' competence ; a court may not encroach on the competence of the executive body by requiring it to perform actions or to issue regulations which are within the competence of that body . The court may only ... assess the compliance of the Government regulations with NORP federal legislation . Besides , district courts have no competence over such claims . Pursuant to LAW , a court shall discontinue the proceedings if the claim may not be examined and determined in civil proceedings . ”


CASE OF APPLEBY AND OTHERS v. THE UNITED KINGDOM

No violation of Art. 10;No violation of Art. 11;No violation of Art. 13

The first , second and third applicants were born in DATE , DATE and DATE respectively and live in GPE ( GPE and Wear ) , where the fourth applicant , an environmental group set up by the applicants , is also based .

The new town centre of GPE is known as “ the Galleries ” and is located within an area now owned by ORG ( “ PERSON ” ) , a private company . This town centre was originally built by ORG ( “ the Corporation ” ) , a body set up by the government of the GPE pursuant to an ORG to build the “ new ” centre . The centre was sold to ORG on DATE .

The Galleries , as owned by PERSON at the relevant time , comprised a shopping mall ( with CARDINAL hypermarkets and major shops ) , the surrounding car parks with spaces for CARDINAL cars and walkways . Public services were also available in the vicinity . However , the freehold of the ORG office and the public library was owned by ORG , the social services office and health centre were leased to the ORG by the Secretary of ORG and the freehold of the police station was held on behalf of ORG . There was a post office within the FAC and also the offices of the housing department , leased to the ORG by PERSON .

Around DATE the ORG gave outline planning permission to GPE to build on a part of LOC in GPE known as the ORG . The ORG is the only playing field in the vicinity of GPE town centre which is available for use by the local community . The first to third applicants , together with other concerned residents , formed the fourth applicant to campaign against the college ’s proposal and to persuade the ORG not to grant the college permission to build on the field .

On or around DATE the first applicant , together with her husband and son , set up CARDINAL stands at the entrance of the shopping mall in the Galleries , displaying posters alerting the public to the likely loss of the open space and seeking signatures to present to the ORG on behalf of ORG . Security guards employed by ORG would not let the first applicant or her assistants continue to collect signatures on any land or LOC owned by PERSON . The applicants had to remove their stands and stop collecting signatures .

The manager of CARDINAL of the hypermarkets gave the applicants permission to set up stands within that store in DATE , allowing them to transmit their message and to collect signatures , albeit from a reduced number of people . However , the same permission was not granted in DATE when the applicants wanted to collect signatures for a further petition .

On DATE the third applicant , as acting chair of ORG , wrote to the manager of the ORG asking for permission to set up a stand and to canvass views from the public either inside the mall itself or in the adjacent car parks and offered to pay to be allowed to do so . In his reply of DATE , the manager of the PERSON refused access . His letter read as follows :

“ ... the Galleries is unique in as much as although it is FAC , it is also privately owned .

The owner ’s stance on all political and religious issues , is CARDINAL of strict neutrality and I am charged with applying this philosophy .

I am therefore obliged to refuse permission for you to carry out a petition within the PERSON or the adjacent car parks . ”

On DATE the third applicant wrote again to the manager of the Galleries , asking him to reconsider his decision . His letter remained unanswered .

The fourth applicant continued to try and reach the public by setting up stands by the roadside on public footpaths and going to the old town centre at GPE which , however , is visited by a much smaller number of GPE residents .

The deadline for letters of representation to the ORG regarding the building works was DATE . On DATE the applicants submitted the CARDINAL letters of representation they had obtained .

The fourth applicant has produced a list of associations and others which were given permission to carry out collections , set up stands and displays within the Galleries . These included : the ORG ( collection before DATE ) , local school choirs ( carol - singing and collection before DATE ) , ORG ( advertising display and handing out of nicotine patches ) , ORG ( blood collection ) , ORG ( collection for DATE ) , various photographers ( advertising and taking of photographs ) and ORG ( staffed advertising display ) .

From DATE , ORG ran a consultation campaign under the banner “ Your Council , Your Choice ” , informing the local residents of CARDINAL leadership choices for the future of the ORG and were allowed to use the Galleries for this purpose . This was a statutory consultation exercise carried out under LAW of LAW , which required local authorities to draw up proposals for the operation of “ executive arrangements ” and consult local electors before sending them to the Secretary of ORG . CARDINAL people were reported as having responded to the survey .

At common law , a private property owner may , in certain circumstances , be presumed to have extended an implied invitation to members of the public to come onto his land for lawful purposes . This is the case with commercial LOC , such as shops , theatres and restaurants , as well as private LOC ( for example , there is a presumption that a house owner authorises people to come up the path to his front door to deliver letters or newspapers or for political canvassing ) . Any implied invitation may be revoked at will . A private person ’s ability to eject people from his land is generally unfettered and he does not have to justify his conduct or comply with any test of reasonableness .

In ORG v. PERSON ( [ DATE ] CARDINAL EGLR ( Estates Gazette Law Reports ) CARDINAL ) , where the applicants ( young men ) were barred from a shopping centre in GPE as the private company owner ORG considered that their behaviour was a nuisance , ORG held that ORG had the right to determine any licence which the applicants might have had to enter the centre . In giving judgment , Lord PERSON found that the local authority had not entered into any walkways agreement with the company within the meaning of section CARDINAL ) of the Highways Act DATE ( later replaced by LAW of LAW ) which would have dedicated the walkways or footpaths as public rights of way and which would have given the local council the power to issue by - laws regulating the use of those rights of way . Nor was there any basis for finding an equitable licence . He also considered case - law from LOC concerning the applicants’ arguments for the finding of some kind of public right :

“ Of more obvious relevance are CARDINAL NORP cases . In GPE v. ORG ( DATE ) GPE QUANTITY , ORG laid down as a general proposition that when property owners open their LOC – in that case a gaming casino – to the general public in pursuit of their own property interests , they have no right to exclude people unreasonably but , on the contrary , have a duty not to act in an arbitrary or discriminatory manner towards persons who come on their LOC . However , that decision was based upon a previous decision of the same court in ORG v. PERSON ( DATE ) GPE CARDINALA CARDINALd CARDINAL , which clearly turned upon the constitutional freedoms of LAW . The general proposition cited above has no application in LANGUAGE law .

The case of PERSON v. PERSON ( DATE ) DATE in ORG concerned the right of an employee of a tenant in a shopping centre to picket her employer in the centre , against the wishes of the owner of the centre . The majority of ORG held that she had no such right and that the owner of the centre had sufficient control or possession of the common areas to enable it to invoke the remedy of trespass . However , PERSON , in a strong dissenting judgment held that since a shopping centre was freely accessible to the public , the public did not enter under a revocable licence subject only to the owner ’s whim . He said that the case involved a search for an appropriate legal framework for new social facts and –

’If it was necessary to categorise the legal situation which , in my view , arises upon the opening of a shopping centre , with public areas of the kind I have mentioned ( at least where the opening is not accompanied by an announced limitation on the classes of public entrants ) , I would say that the members of the public are privileged visitors whose privilege is revocable only upon misbehaviour ( and I need not spell out here what this embraces ) or by reason of unlawful activity . Such a view reconciles both the interests of the shopping centre owner and of members of the public , doing violence to neither and recognising the mutual or reciprocal commercial interests of shopping centre owner , business tenants and members of the public upon which the shopping centre is based.’

I have already said that this was a dissenting judgment . Nevertheless counsel [ for the applicants ] submitted that we should apply it in the present case . I accept that courts may have to be ready to adapt the law to new social facts where necessary . However there is no such necessity where ORG has already made adequate provision for the new social facts in question as it has here by LAW of LAW DATE and LAW of LAW . ( PERSON v. ORG makes no mention of any similar legislation in GPE . ) Where ORG has legislated and the ORG , as representing the public , chooses not to invoke the machinery which the statute provides , it is not for the courts to intervene .

I would allow this appeal ... on the basis that ORG had the right , subject only to the issue under LAW , to determine any licence the [ applicants ] may have had to enter the LOC . ”

The parties have referred to case - law from GPE and GPE .

LAW to LAW protects freedom of speech and peaceful assembly .

ORG has accepted a general right of access to certain types of public places , such as streets and parks , known as “ public fora ” for the exercise of free speech ( GPE v. ORG , CARDINAL GPE ( GPE : ORG Reports ) DATE ) ) . In GPE v. GPE ( CARDINAL GPE CARDINAL , CARDINAL ORG . ( ORG Reporter ) CARDINAL , CARDINAL L.Ed . ( ORG , Lawyers’ Edition ) CARDINAL ( DATE ) ) , ORG also held that a privately owned corporate town ( a company town ) having all the characteristics of other municipalities was subject to the LAW rights of free speech and peaceable assembly . It has found that LAW does not require access to privately owned properties , such as shopping centres , on the basis that there has to be “ State action ” ( a degree of State involvement ) for the amendment to apply ( see , for example , PERSON , CARDINAL GPE CARDINAL ( DATE ) ) .

ORG has taken the position that LAW does not prevent a private shopping - centre owner from prohibiting distribution on its LOC of leaflets unrelated to its own operations ( ORG v. PERSON , CARDINAL GPE CARDINAL , CARDINAL S.Ct . DATE , CARDINAL L.Ed . CARDINAL ( DATE ) ) . This did not however prevent ORG constitutional provisions from adopting more expansive liberties than LAW to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping centre to which the public was invited and this did not violate the property rights of the shopping - centre owner so long as any restriction did not amount to taking without compensation or contravene any other federal constitutional provisions ( ORG v. PERSON , CARDINAL GPE CARDINAL , CARDINAL L.Ed . CARDINAL , CARDINAL ORG . CARDINAL ( DATE ) ) .

Some ORG courts have found that a right of access to shopping centres could be derived from provisions in their ORG constitutions according to which individuals could initiate legislation by gathering a certain number of signatures in a petition or individuals could stand for office by gathering a certain number of signatures ( see , for example , ORG v. ORG , ORG ( West ’s ORG Reporter ) CARDINALd MONEY ( GPE , DATE ) ; ORG v. GPE , CARDINAL P. ( DATE ORG ) CARDINAL , CARDINAL - CARDINAL ( GPE , DATE ) ; ORG v. ORG . , CARDINAL P. CARDINALd CARDINAL ( GPE , DATE ) ) . Some cases found State obligations arising due to ORG involvement , for example , PERSON ORG , CARDINAL P. CARDINALd DATE ( GPE , DATE ) ( the shopping centre was a ORG actor because of financial participation of public authorities in its development and the active presence of government agencies in the common areas ) , and GPE v. Beneda , CARDINAL N.W. ( LOC ’s NORP Reporter ) CARDINAL CARDINAL ( GPE , DATE ) ( where the shopping centre was owned by a public body , although leased to a private developer ) .

Other cases cited as indicating a right to reasonable access to property under ORG private law were ORG v. ORG , CARDINAL A. ( LOC ’s LOC Reporter ) CARDINAL ( GPE , DATE ) , where the court ruled that under GPE property law ownership of real property did not include the right to bar access to governmental services available to migrant workers , in this case a publicly funded non - profit lawyer attempting to advise migrant workers ; GPE v. ORG , CARDINAL A. CARDINALd CARDINAL ( GPE , DATE ) , a GPE case concerning casinos where the court held that when property owners open their LOC to the general public in pursuit of their own property interests they have no right to exclude people unreasonably ( although it was acknowledged that the private law of most GPE did not require a right of reasonable access to privately owned property , p. CARDINAL ) ; and ORG v. ORG , CARDINAL PERSON . ( LOC ’s ORG ) CARDINAL ( LOC of GPE , DATE ) concerning the ejection of homeless people from a railway station .

States in which courts ruled that free speech provisions in their constitutions did not apply to privately owned shopping centres included GPE ( ORG v. ORG . , ORG CARDINAL ( ORG , DATE ) ) ; GPE ( GPE v. PERSON , DATE ( DATE ) ) ; GPE ( ORG . , CARDINAL S.E. ( LOC ’s NORP Reporter ) DATE ) ) ; GPE ( ORG v. GPE ORG , CARDINAL N.W. CARDINALd CARDINAL ( DATE ) ) ; GPE ( ORG of GPE v. PERSON , DATE ( ORG ) ) ; GPE ( State of GPE v. Felmet , CARDINAL ORG CARDINAL ( DATE ) ) ; GPE ( FAC v. FAC , CARDINAL N.E. CARDINALd DATE ) ) ; GPE ( ORG DATE Campaign v. GPE Gen. PERSON . Co. , DATE ( DATE ) ) ; GPE ( ORG v. GPE , CARDINAL ORG CARDINALd CARDINAL ( DATE ) ) ; GPE ( ORG v. ORG . , cited above ; and GPE ( PERSON v. Major , CARDINAL N.W. CARDINALd CARDINAL ( DATE ) ) .

Prior to the entry into force of LAW , ORG had taken the view that the owner of a shopping centre could exclude protesters ( PERSON v. ORG , CARDINAL D.L.R. ( ORG ) DATE ) ) . After the Charter entered into force , a lower court held that the right to free speech applied in privately owned shopping centres ( NORP v. PERSON , CARDINAL ORG ) DATE ) ( ORG , GPE of GPE , GPE ) ) . However , an individual judge of ORG has since expressed the opposite view , stating obiter that the LAW does not confer a right to use private property as a forum of expression ( PERSON , Committee for Cth of Can . v. GPE [ DATE ] CARDINAL SCR ( ORG Reports ) CARDINAL , CARDINAL ) .


Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant was born in DATE and is at present detained in FAC .

On DATE the applicant was arrested by the police .

On DATE ORG ( Sąd Rejonowy ) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed several crimes including kidnapping for ransom and extorting protection money . Later , CARDINAL other persons were detained and charged in connection with the same set of crimes .

On DATE ORG ( PERSON ) prolonged the applicant ’s detention until DATE considering that the strong suspicion against him of having committed the serious crimes with which he had been charged and the risk of going into hiding and tampering with evidence justified holding him in custody .

The applicant ’s detention on remand was prolonged on DATE and DATE .

On DATE ORG ( Sąd Apelacyjny ) prolonged the applicant ’s detention on the grounds that there was a strong suspicion that he had committed the crimes in question , that a severe sentence of imprisonment might be imposed on him and that keeping him in custody was necessary to secure the proper course of the investigation .

On DATE ORG further prolonged the applicant ’s detention considering that the grounds originally given for remanding him in custody were still valid .

On DATE ORG ( Prokurator Okręgowy ) filed a bill of indictment against the applicant and CARDINAL other persons that comprised CARDINAL charges . The applicant was indicted on charges of having committed in total CARDINAL offences , including CARDINAL offences while acting in an organised group .

NORP The applicant ’s detention was prolonged by ORG on DATE . The court reiterated the grounds given previously for keeping him in custody and added :

“ The strong probability that severe imprisonment may be imposed on [ the applicant ] creates a legal presumption that [ the applicant and other accused ] will obstruct the criminal proceedings . ” ...

On an unspecified date the case was transferred to ORG .

On DATE ORG made a request under LAW in which it asked ORG to extend the applicant ’s detention .

On DATE ORG allowed the request submitted by ORG and prolonged the applicant ’s detention until DATE . In addition to the grounds previously given – the reasonable suspicion of his having committed the offences in question and the risk of a severe sentence DATE the court found that the complexity of the case justified the applicant ’s detention . The applicant ’s appeal was dismissed on DATE .

On DATE the GPE ORG decided to detain the applicant on remand in connection with another set of criminal proceedings against him . Subsequently , the applicant was indicted in this set of proceedings . The applicant ’s detention ordered in this set of proceedings had been prolonged on several occasions and the applicant remains detained on the order of this court .

On DATE and DATE ORG further prolonged the applicant ’s pre - trial detention . In the latter decision the court examined the course of the trial and found that there were no delays and that the trial court had proceeded according to the schedule . The court pointed to the particular complexity of the case involving an organised group charged with numerous offences and the substantial amount of adduced evidence . On DATE the applicant ’s appeal against this decision was dismissed .

On DATE ORG allowed another application of ORG and prolonged the applicant ’s detention until DATE . The court reiterated the reasons invoked on the previous occasions .

The applicant submits that he was not informed about the majority of the scheduled court sessions at which his detention on remand was prolonged , therefore he could not attend them .

On DATE the ORG gave judgment . The applicant was convicted and sentenced to DATE imprisonment .

It appears that he lodged an appeal against the judgment and that the appellate proceedings are pending .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the socalled “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , guarantee by a social entity ( poręczenie społeczne ) , temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition to leave the country ( zakaz opuszczania kraju ) .

Article CARDINAL § CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused ’s committing another , serious offence ; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence . ”

Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a justified fear that an accused will attempt to induce [ witnesses or codefendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years’ imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL , in its relevant part , read :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .

Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :

“ CARDINAL . Imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .

The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .

Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , a prolonged psychiatric observation of the accused , a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad , when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . ”

On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested with the court of appeal within whose jurisdiction the offence in question has been committed .

Article CARDINAL § CARDINAL reads :

“ Before deciding on the application of the preventive measures , the court or the prosecutor shall hear the person charged with offence ... The lawyer of the detainee should be allowed to attend the court session , if he or she is present . It is not mandatory to inform the lawyer of the date and time of the court session , unless the suspect so requests and if it will not hinder the proceedings . ”

Article CARDINAL § CARDINAL provides :

“ The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand , or an appeal against a decision to impose or to prolong detention on remand is to be considered . ”


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE .

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

On DATE ORG ( Yüksek Askeri Şura ) decided to discharge the applicant from the army on grounds of acts of “ insubordination and immoral conduct ” pursuant to LAW .

The Government submit the following in the light of the intelligence reports concerning the applicant :

The applicant , a sergeant , was a member of ORG sect and was a follower of the sect ’s leader PERSON . He collaborated with other members of the sect in the army in order to collect money from non - commissioned officers to whom they promised better conditions during their military service . He was not given the custody of his children in the divorce case brought by his wife on the ground that he was a member of a religious sect . He established contacts with PERSON who demonstrated during the Memorial Day celebrations held in LOC . He was also planning to make a similar demonstration in LOC in collaboration with non - commissioned officer PERSON . He collected money for the sect in collaboration with a non - commissioned officer and a lieutenant . He converted a military store in the barracks located in DATE . ORG into a mescit ( small mosque ) without permission .

His superiors considered the applicant as an insubordinate and undisciplined soldier . The applicant had an antisocial character and he kept his wife and children under pressure and restricted them from the needs of the contemporary social life .

A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .

The relevant provisions of the LAW are as follows :

“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”

“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions . ...

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”

“ All acts or decisions of the administration are subject to judicial review ...

Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .

Article CARDINAL § § CARDINAL , CARDINAL and DATE of the LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .

Section CARDINAL ( c ) of ORG provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .

Where their conduct and attitude reveal that they have adopted unlawful opinions . ”

Section CARDINAL ( c ) of LAW provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”

Section CARDINAL ( b ) of LAW provides :

“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :

Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned ORG cases concerning their discharge from the army should be examined by ORG . ”

LAW on assessment of officers and non - commissioned officers provides :

“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :

( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”


Violation of Art. 3;No violation of Art. 5;Not necessary to examine Art. 6-1;Violation of Art. 8;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Violation of P1-1;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 . Until DATE , the applicant lived in the village of Akdoruk , attached to LOC in the province of ORG . The applicant left and has never returned to the village after the alleged incident .

The facts surrounding the destruction of the applicant ’s house and property are in dispute between the parties .

Early in the morning of CARDINAL DATE the applicant left his house and went to the fields to work . At TIME a large number of soldiers arrived in the village of Akdoruk on foot . The soldiers had a list of names in their hands and started burning down some of the houses . From the field , the applicant saw that his house was on fire . The applicant ’s wife tried to save some of their belongings and animals however she was prevented by the gendarmes who hit her with the butt of their rifles . In all , the soldiers burned down QUANTITY houses in the village .

NORP The applicant tried to go back to the village but was prevented by his wife , who told him that if he went back he would be arrested by the soldiers . The soldiers arrested CARDINAL villagers and sent them to the gendarmerie station . After spending the night in the village , the soldiers left NORP village TIME of CARDINAL DATE .

The applicant spent TIME at his sister ’s house and then went to ORG to live with his daughter .

NORP In DATE , the applicant went to ORG together with PERSON and PERSON to lodge a petition about the burning of his house . All CARDINAL of them submitted handwritten petitions to the judge and requested him to conduct a visit to the village to establish the damage they had suffered . The judge however refused their request for security reasons . DATE , the applicant and the CARDINAL other villagers were called to the public prosecutor ’s office in GPE , where they were interrogated about their complaints . The public prosecutor took their statements and typed down their complaints . The applicant , PERSON and PERSON , signed these petitions without understanding the content , as they were illiterate .

The applicant later learnt from his friends that these petitions had been transferred to ORG whose officers the applicant considered responsible for the destruction of his house . He was informed that the gendarmes were looking for him however he was too frightened to go to the gendarmerie headquarters , because the other CARDINAL villagers , who had also lodged a petition with him , had also been summoned to the gendarmerie and had been severely beaten .

In DATE the gendarmes returned to the NORP village and burned down the remaining houses .

The applicant is currently unemployed and occasionally works as a builder in constructions .

No military operation was conducted in or around the village of Akdoruk on DATE . Subsequent to the applicant ’s complaint with the ORG public prosecutor , an investigation was commenced into the allegations of the applicant . On DATE the ORG public prosecutor issued a decision of non - jurisdiction and transferred the case to ORG pursuant to the PERSON on the prosecution of civil servants .

On DATE the GPE Governor appointed the ORG , PERSON , as investigating officer . By a report dated DATE , the NORP Commander submitted that no military operation had been conducted in Akdoruk village on DATE and stated that the clashes between the security forces and the ORG had commenced after DATE when the village had already been evacuated . He accordingly proposed that ORG should issue a decision of non - prosecution .

On DATE ORG delivered a decision of non - prosecution on the basis of the investigating officer ’s report .

The parties submitted various documents to the ORG . While delivering its judgment , the ORG had particular regard to the following documents :

Statement of the applicant , dated DATE , made to ORG ;

Petition of the applicant , PERSON and PERSON , dated DATE , submitted to ORG office concerning the burning of their houses by security forces ;

Statements of the applicant , PERSON and PERSON , dated DATE , taken by the ORG public prosecutor ;

Letter of ORG office to ORG , dated DATE , requesting information as to whether or not a military operation had been conducted on DATE in the village of PERSON ;

Statement of PERSON , dated DATE , taken by the gendarme officers ;

Report dated DATE , signed by the mayor of NORP village , PERSON , and CARDINAL gendarme officers , indicating that it had not been possible to interrogate PERSON as his address could not be established ;

Letter of ORG to ORG office , dated DATE , stating that it had not been possible to interrogate PERSON as his address could not be established ;

Non - jurisdiction decision issued by ORG office , dated DATE ;

Letter of GPE Governor to ORG , PERSON , dated DATE , appointing him as investigating officer ;

Investigation and examination report , dated DATE , signed by ORG Commander PERSON , gendarme officer PERSON and village mayor PERSON ;

Report of ORG Commander PERSON , dated DATE , proposing that ORG should issue a decision of non - prosecution ;

Letter of NORP Commander PERSON , dated DATE to GPE Governor , submitting the results of the investigation ;

Non - prosecution decision dated DATE , delivered by ORG ;

Report dated DATE , prepared by ORG Commander PERSON , indicating that no military operation had been conducted in the NORP village on CARDINAL DATE . The report stated that the clashes between the security forces and the ORG had commenced after DATE when the village had already been evacuated ;

Letter of ORG judge to ORG public prosecutor ’s office , dated DATE , stating that PERSON had not brought any proceedings concerning the burning of his house ;

Letter of ORG public prosecutor to ORG office , dated DATE stating that PERSON had not applied to ORG for an assessment of the damage he had suffered following the burning of his house ;

Letter of ORG judge to ORG public prosecutor , dated DATE , indicating that no hand - written petition had been submitted to the registry of the court by PERSON , PERSON and PERSON ;

Letter of ORG to International Law and ORG of ORG , dated DATE , indicating that there were no records relating to the killing of CARDINAL terrorists on DATE in the vicinity of NORP village .

The facts of the case being in dispute between the parties , CARDINAL Delegates of the Commission took oral evidence in GPE DATE and DATE from CARDINAL witnesses , including the applicant . A further CARDINAL witnesses had been summoned , but they failed to appear for various reasons . The evidence of those who attended the hearing may be summarised as follows :

Mr PERSON stated that he was living in the village of PERSON at the time of the events . He explained that on DATE of the incident , early in the morning , he had gone to the fields to work . While he was working in the fields , he saw that smoke was rising above the village . From where he was standing , he was able to see that the village was full of soldiers and that it was burning . On his way back to the village , he was stopped by his wife , who told him not to return to the village . She informed him that the soldiers had burned down CARDINAL houses including theirs and that their house , animals and possessions had been completely destroyed . Mr PERSON ’s wife further told him that the soldiers had a list of names in their hands and that his name was also included on it .

Mr PERSON affirmed that he had stayed at his sister ’s house for DATE after the burning of his home and then had gone to ORG to stay with his daughter .

Concerning his application to the national authorities , he further confirmed that he had gone to the judge at ORG with his brother PERSON and his fellow villager PERSON . They had submitted hand - written petitions to the judge and requested him to conduct a visit to the village of PERSON to assess the damage they had suffered . The judge however had refused their request for security reasons . On DATE , the applicant , PERSON and PERSON were further called before the PERSON public prosecutor , who took their statements concerning the burning of their houses . Mr PERSON further testified that PERSON and PERSON , who had been called to ORG to give further evidence , had been beaten by the gendarmes . He was therefore frightened to go to the gendarmerie station to give a statement .

Mr PERSON further stated that the soldiers had gone back to the village of Akdoruk in DATE and burned down the remaining houses .

The witness , who is the applicant ’s wife , was in the village of Akdoruk at the time of the incident . She explained that after her husband had gone to the fields early in the morning , a large number of soldiers arrived in the village on foot . The soldiers had a list in their hands and they read out the names of certain villagers , including the applicant ’s . Thereafter , they threw a sort of flammable material towards their house and the stable which caught alight . She tried to save the animals but was stopped by the soldiers . She believed that the soldiers had burned down the houses because the villagers had refused to become village guards . The witness further stated that PERSON , PERSON and PERSON had been arrested by the soldiers .

PERSON , who is the sister of the applicant , was living in the village of PERSON at the time of the events . She explained that on DATE of the incident , the soldiers had arrived in the village on foot . She saw them throw some chemical substance and burn down the applicant ’s house . Her sister - in - law tried to save some of the animals but was stopped by the gendarmes . Her brother was not in the village at the time of the incident . The witness affirmed that the applicant and his wife had stayed at her house after their house was burned down . The witness believed that the soldiers had burned down the village as a punishment , when the villagers refused to become village guards . She explained that her own house was also burned down in DATE .

Mr PERSON was living in the village of PERSON at the time of the events . On DATE of the incident , a number of soldiers came to the village on foot . They first went to the applicant ’s house and burned it down . Then they burned down CARDINAL more houses including his house and that of the village mayor , PERSON . The soldiers had a list in their hands and told the villagers that they had instructions to burn down the houses of those on the list . The soldiers subsequently apprehended the witness together with some other villagers . They were all taken to GPE village on foot . Mr PERSON stated before the Delegates that the villagers of PERSON had been asked to become village guards DATE prior to the incident . The witness moved to ORG following the burning of his house . Together with the applicant and another villager , PERSON , he went to ORG judge to complain about the burning of their houses . They further gave statements to the public prosecutor on DATE . Mr PERSON testified that PERSON and himself had been summoned to ORG to give further evidence . He affirmed that he had been beaten by the gendarmes and forced to sign a paper . He therefore disowned the content of the statement dated DATE .

Mr Yeşil was the mayor of NORP village at the time of the incident . On DATE early in the morning the witness heard intensive shooting around the village . An armed clash was taking place outside the village . He later learnt that CARDINAL terrorists had died during this clash . Subsequently , a group of soldiers arrived in the village and told him to leave the village for his life was in danger . As a result , leaving his wife and children in the village , the witness left the village on foot with some soldiers and returned to DATE . When he returned , he saw that CARDINAL of the houses , including his house and that of the applicant , had been burned down . The witness further affirmed that he did not see who had burned down the houses but he maintained that the houses were burned because of the clash between the ORG and the security forces . When asked about the investigation and examination report , dated DATE , the witness admitted that he had signed this report at ORG but stated that no on - site inspection had been conducted in the village .

The witness was living in CARDINAL of the hamlets of NORP village at the time of the event . TIME of the incident , the witness saw a number of soldiers arrive in the village . The soldiers asked the witness to act as their translator . The soldiers had a list of names in their hands and their captain told the witness that they were going to burn down PERSON house . They therefore ordered the witness to tell the applicant ’s wife to evacuate the house . The witness saw that soldiers scattered chemicals around the house with a tube , put a match to it and set it alight . They burned down everything , including the animals . In all , the soldiers burned down CARDINAL houses in the village , including the house of the village mayor , PERSON , who was also in the village during the incident . The soldiers subsequently arrested some of the villagers , including the village mayor and his CARDINAL daughters . After spending the night in the village , the soldiers left the village on foot the next morning . The witness affirmed DATE before the burning of the houses , the villagers had been called to a meeting in GPE by the security forces and had been asked to become village guards .

Mr Eren was living in the village of Akdoruk at the time of the events . TIME of the incident , he saw soldiers arriving in the village . He did not hear any gunshots . The witness then saw the soldiers burning down some of the houses in the village , including the house of the applicant and that of the village mayor , PERSON . He recalled that PERSON was not in the village when his house was burned down but he remembered seeing PERSON ’s wife crying . His own house was not burned down DATE . The soldiers subsequently arrested some villagers , including the witness . They were taken to GPE village on foot and then to ORG by military vehicles . They were kept in the station for DATE and TIME and were given only bread and water . The soldiers came back to the village at DATE and burned down the remaining houses .

The witness was the gendarme station commander in GPE in DATE . He was under the command of PERSON . The witness confirmed that he had been involved in the investigation of the complaint concerning the burning of the applicant ’s house by the security forces . He had taken statements from CARDINAL of the complainants but CARDINAL of the complainants had not shown up for interrogation . He admitted that it had not been possible to conduct an on - site inspection report in the village due to security reasons . The witness stated that there were no records about a military operation or an armed clash in the village of Akdoruk at the time of the incident . He further affirmed that there had been several large scale operations carried out by different military forces in the area and that not all of these operations had been recorded in the log book of ORG . He explained that PERSON village had been evacuated by DATE and that armed clashes had been quite frequent in the area . When questioned about the possible involvement of security forces in burning down houses , the witness denied this possibility .

The witness was the deputy commander of ORG in DATE . His commander was PERSON . He stated that he had been involved in the investigation and had taken a statement from PERSON on DATE . He affirmed that , had a military operation been conducted in the NORP village by ORG , they would definitely have the pre- and post - operation reports . However at that time several military units had been engaged in many military operations and the witness did not know for certain whether another military troop had conducted an operation in the area or not . He admitted that they did not keep records of the operations carried out by other units . Arguing that terrorists , dressed up in military uniforms , had been burning some of the villages , the witness denied any involvement of the military forces in burning down the houses in the area .

The witness was the commander of ORG in DATE and NORP village had fallen under his jurisdiction . He stated that when he was appointed as investigating officer by LOC to investigate the allegations into the burning of the applicant ’s house , he had assigned PERSON to investigate the matter . He stated that he had signed the report that had been drafted by PERSON without verifying its content . He further admitted that another military troop could have conducted a military operation in the NORP village without his knowledge . The witness further denied the allegations which suggested that the ORG gendarmerie forces had been involved in burning villages in the area .

The witness was the ORG public prosecutor in DATE and had taken the first statements from the applicant , PERSON and PERSON . Mr PERSON stated that he had written down everything that the CARDINAL complainants had told him and had read out their statements to them before taking their signatures . The witness further admitted that it had not been possible for him to conduct a visit to the NORP village for security reasons . He also recalled that at that time , the prosecutors in the region had lacked investigative powers to investigate the allegations against the security forces .

The witness stated that he was living in LOC at the time of the incident . He was in the NORP village DATE before the incident and saw CARDINAL dead bodies outside the village . He maintained that the villagers were all afraid to live in the area as a result of terrorist attacks . The witness affirmed that he was not in the village when the applicant ’s house was burned down .

The witness stated that he had moved from NORP village to LOC in DATE . Indicating that he had never lost contact with his fellow villagers from Akdoruk , he stated that he was aware that most of the villagers were afraid to live in the area as a result of the frequent terrorist attacks . The witness affirmed that he was not in the village when the applicant ’s house was burned down .

A full description of the relevant domestic law may be found in GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .