CASE OF ASSOCIATION OF CITIZENS RADKO AND PAUNKOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 11;Non-pecuniary damage - award

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

The second applicant was born in DATE and lives in GPE , the former GPE .

On DATE CARDINAL NORP nationals , including the second applicant , founded ORG in the city of ORG . On DATE ORG registered the ORG in the register of associations of citizens and foundations under the following name : “ ORG PERSON ” .

LAW ( “ the NORP ” ) defined the ORG as an independent , non - political and public organisation , which studies and promotes ORG ( “ the Movement ” ) through commonly accepted democratic principles and standards .

LAW defined its objectives and tasks as follows :

“ The ORG has the following objectives and tasks :

it endeavours to raise and affirm the NORP cultural space ;

it endeavours to establish traditional ethical and human values ;

it endeavours to popularise the objectives , tasks and ideas of ORG through the publication of its own newspaper , publishing activity and library , and through its own electronic media , seminars , conferences , forums and other forms of cultural action . ”

Article CARDINAL set out that the ORG will attain these objectives and tasks through :

“ - the individual and collective activities of the members , bodies and structures of the ORG ,

- cooperation between the ORG and other similar associations and structures , inside the country and abroad ” .

Article CARDINAL provided that every citizen who accepted the ORG ’s Programme could become a member .

LAW provided :

“ Every citizen of GPE and citizens of a foreign state may become a member , if they have reached DATE , after signing a membership application ” .

The ORG ’s Programme of CARDINAL DATE consisted of CARDINAL paragraphs . It read as follows :

“ The ORG is founded as a non - governmental , non - party and non - political organisation with the purpose of raising and affirming the NORP cultural space , establishing traditional ethical and human values , affirmed in the ideas of ORG , through the publication of its own newspaper , publishing activity and library , and through its own electronic media , seminars , conferences , forums and other forms of cultural action .

For the above objectives , the ORG will organise public forums , with the participation of outstanding cultural and scientific scholars from inside the country and abroad , through its local committees . ”

On DATE the official launch of the ORG took place in a hotel in GPE , the capital of the former GPE . A promotional leaflet by the ORG ( which accompanied the letters of invitation for the opening ceremony ) was published at DATE . It provided information about the ORG ’s name , objectives and the ways in which these were to be achieved . It read :

“ a. Name of the Association

The founders of the ORG have taken as its name the most frequently used pseudonym of PERSON , PERSON .

PERSON , his name , his life , his revolutionary activity and especially his cultural and literary activity are deeply woven in the history of GPE . Praised , but also denounced by his ideological adversaries , he became and still remains a legend for his ideological companions , including the founders of this Association . Although his work is yet to be evaluated , it is undisputable that under his leadership ORG became an example of the human spirit ’s love of freedom . Thus , he placed an obligation on future generations to complete the holy liberation .

PERSON headed the Movement for an extremely long period ( DATE ) . He remained and worked as an intellectual and moral pillar of the revolutionary and cultural struggle of the NORP from GPE . This allows us to state that his publications are the most authentic and most reliable evidence of the ideological content of ORG . Due to their factual reliability they remain as historical evidence of unquestionable scientific value . His written legacy provides the present and coming generations with the most concrete evidence of the revolutionary and cultural struggle of the NORP from GPE . Of this legacy , the most important [ work ] is his CARDINAL - volume “ Memoirs ” , which are a national treasure of unchangeable value in the recent history of GPE . ”

b. The ORG aims to :

- raise and affirm the NORP cultural space , having as its priority the cultural and historical identity of the NORP from GPE who have appeared as NORP throughout DATE ;

- establish traditional ethic and human values ;

- affirm the ideas of ORG .

c. The ORG realises its objectives through :

- own book - publishing activity , publication of its own newspaper and its own electronic media ;

- the organisation of conferences , seminars and forums with outstanding scientific and cultural scholars from the country and abroad ;

- cooperation with scientific , cultural and educational institutions , and with similar associations and organisations from the country or abroad . ”

After the opening speech by the Chairman of the ORG and a solemn performance of the anthem of PERSON , CARDINAL young men threw smoke bombs inside the conference hall , which caused a temporary delay . Some of the participants started to beat and kick the young men . The latter managed to escape , but a retired journalist was injured . According to the DATE newspaper “ PERSON vesnik ” of DATE , he sustained a “ fracture of his left hand and blood on his face ” .

On DATE ORG convicted CARDINAL persons of causing grievous bodily injury and sentenced them to CARDINAL months’ imprisonment . It found that the perpetrators had pushed the journalist , who had sustained a fracture of the forearm . CARDINAL of the perpetrators was a member of the ORG .

There was a strong media campaign before and after the launch of the ORG , condemning its foundation and functioning as contrary to the NORP national identity . The ORG was described as “ fascist ” and as rehabilitating “ terrorism and fascism , which were the basic characteristics of PERSON ’s collaborator PERSON ” ( excerpts from the newspapers “ PERSON vesnik ” , mentioned above , and “ Dnevnik ” from DATE ) .

In or DATE CARDINAL practising lawyers from GPE , together with a political party and ORG from the Second World War filed petitions before ORG challenging the conformity of the ORG ’s Articles and ORG with LAW . They also challenged the lawfulness of the ORG court ’s decision to register the ORG .

The petitioners , inter alia , stressed that :

“ ... the aims of the ORG are the infiltration of NORP linguistic elements into the NORP language and alphabet ... ”

The petitioners noted that all the ORG ’s documents bore the flag of PERSON . They continued :

“ The ORG promotes ORG ( meaning PERSON ) ideology for a change in the national conscience of the NORP people in favour of another one , which destroys the NORP national texture and leads to the encouragement of and incitement to national hatred and intolerance . The ORG rehabilitates and legalises terrorism and fascism as crucial characteristics of the work of PERSON ’s collaborator PERSON , as an “ act of holy liberation ” and as a legacy that is left to someone to complete ... The NORP from GPE who appeared as NORP ( GPE ) throughout DATE ... are unknown in GPE . They do not exist as a nation , any nationality or legitimate entity whatsoever . There are only NORP in GPE , and there also might be NORP , NORP ... as affiliated to different people and nations . However , there are no “ NORP from NORP ” .

On DATE ORG sent the petitions for reply to the second applicant , as Chairman of the ORG . The ORG contested the ORG arguments as its ORG and ORG did not contain any elements that would incite to national , religious or racial hatred or intolerance or would advocate violent destruction of the constitutional order .

On DATE ORG declared the petition admissible . The court found , inter alia , that there existed :

“ well - founded doubts that the ORG ’s Articles and ORG were directed towards violent destruction of the constitutional order of GPE and incitement to national or religious hatred or intolerance , and that as such they are not in conformity with LAW .

It further declared itself incompetent to judge the constitutionality of the registration decision of ORG , because it was not vested with jurisdiction to decide on such decisions .

On DATE ORG declared the ORG ’s Articles and ORG null and void , on the ground that they were directed towards violent destruction of the constitutional order and incitement to national or religious hatred or intolerance .

ORG based its decision on the following reasoning :

“ According to PERSON teaching , NORP ethnicity never existed on this territory , but belonged to the NORP ( GPE ) from GPE and its recognition ( i.e. , that of NORP ethnicity ) was the biggest crime committed by the NORP headquarters during its existence . According to his teaching , the process of de - bulgarisation of GPE , which was violently carried out after the Second World War , was a [ form of ] slavery executed by the NORP - communist regime and such NORP - communist doctrine continued to be the official one of the ORG after it became independent in DATE .

In line with those arguments , the founders of the ORG “ Radko ” took the following as their main ORG objectives : ( CARDINAL ) to raise and affirm the NORP cultural space , having as a priority the cultural and historical identity of the NORP from GPE who have appeared as NORP throughout DATE ; ( CARDINAL ) to establish traditional ethic and human values ; ( CARDINAL ) not to forget the NORP ethnic origin of the NORP people , as that would mean a denunciation of its tradition and culture .

Affirmation of the ideas of ORG , according to the ORG , in fact means relief from “ Macedonianism ” , as a NORP - communist doctrine , and from the “ imagined NORP nation ” which was used as an open door for the accession of the whole of GPE to GPE .

Taking that into consideration , the court holds that the ORG and ORG Radko”- ORG are directed towards the violent destruction of the constitutional order of GPE and to incitement to national or religious hatred or intolerance , and finds that they are not in compliance with LAW . ”

As regards freedom of association , ORG argued as follows :

“ ... the court has taken into consideration that ORG freedom and right to association and activity , as part of the corpus of human rights and freedoms , are among the fundamental values for the existence and development of democratic relations in the functioning of government in GPE , oriented towards its citizens and their rights , freedoms , interests and aspirations . They are also the basis for the accomplishment of the constitutional determination of GPE as a democratic state . This being so , the above freedom and right are explicitly guaranteed in LAW and CARDINAL of the LAW of GPE .

However , the court finds that the freedom and right to association , organisation and activity can not be taken to indicate approval for all objectives and the choice of means to attain them .

The principles and safeguards for exercising freedom of association and activity are explicitly determined in LAW , which bans the ORG and activities of associations of citizens which are directed towards the violent destruction of the constitutional order of the LOC and to incitement to national or religious hatred or intolerance . Furthermore , ORG CARDINAL , CARDINAL and DATE of the LAW protect the sovereignty and territorial integrity of the Republic . ”

Applying these criteria to the present case , ORG held as follows :

“ The ORG and ORG , read in the light of the prohibitions set forth in LAW , must be interpreted as aims which directly and explicitly call for destruction of the constitutional order , i.e. they explicitly encourage an incitement to national hatred and intolerance , and as such they are to be treated as aims and activities that are objectively directed towards what is banned by LAW .

In this context , the court takes into consideration the LAW to LAW , which takes as a historical fact that GPE is constituted as a national state of the NORP people and that every activity directed towards denunciation of its identity is in fact directed towards the violent destruction of the constitutional order of the LOC and towards encouragement of or incitement to national or religious hatred or intolerance and towards denunciation of the free expression of its national affiliation .

Bearing this in mind , the court found that the ORG and ORG Radko”- ORG are directed towards the violent destruction of the state order ; hindrance of free expression of the national affiliation of the NORP people , i.e. negation of its identity and incitement to national or religious hatred or intolerance . ”

On DATE the Constitutional Court ’s decision was published in the “ Official Gazette of GPE ” and became final and enforceable .

On DATE ORG ex officio decided to terminate the activities of the ORG ( се утврдува престанок на работа на PERSON ) .

On DATE the applicants appealed the latter decision . They complained that it had been given on the basis of ORG decision , which in their view had not been final , but that ORG holdings on their application should be awaited .

On DATE ORG dismissed the appeal as ill - founded . It found that an association of citizens would cease to exist ipso jure when ORG had declared its ORG and ORG unconstitutional . As ORG decision had been published in ORG and had accordingly entered into force , ORG upheld the lower court ’s decision .

The LAW to the LAW , as valid at the material time , read , inter alia :

“ ... the historical fact that GPE is established as a national state of the NORP people , in which full equality as citizens and permanent co - existence with the NORP people is provided for NORP , NORP , ORG , GPE and other nationalities living in GPE ... ”

LAW of DATE replacing the Preamble , reads , inter alia , as follows :

“ The citizens of GPE , the NORP people , as well as citizens living within its borders who are part of the NORP people , the NORP people , the ORG people , the NORP people , the NORP people , the Bosniak people and others ... ”

The relevant provisions of the LAW related to freedom of association and ORG read as follows :

Article CARDINAL

“ ORG are guaranteed freedom of association to exercise and protect their political , economic , social , cultural and other rights and convictions .

ORG may freely establish associations of citizens and political parties , join them or resign from them .

The programmes and activities of political parties and other associations of citizens may not be directed at the violent destruction of the constitutional order of the Republic , or at encouragement of or incitement to military aggression or ethnic , racial or religious hatred or intolerance .

Military or paramilitary associations which do not belong to ORG are prohibited . ”

Article CARDINAL

“ Every citizen may invoke protection of the freedoms and rights set forth in the LAW before the courts , including before ORG , in a procedure based upon the principles of priority and urgency .

Judicial protection of the legality of individual acts of the state administration , as well as of other institutions carrying out public mandates , is guaranteed .

A citizen has the right to be informed about human rights and fundamental freedoms and also actively to contribute , individually or jointly with others , to their promotion and protection .

LAW and CARDINAL

“ ORG :

- protects the freedoms and rights of the individual and citizen relating to freedom of conviction , conscience , thought and public expression of thought ; political association and activity ; and the prohibition of discrimination among citizens on the ground of sex , race , religion or national , social or political affiliation ;

- decides on the constitutionality of the programmes and statutes of political parties and associations of citizens ... ”

Article QUANTITY and CARDINAL

“ The Constitutional Court shall repeal or invalidate a collective agreement , other regulation or enactment , statute or programme of a political party or association , if it finds that they do not conform to the LAW or law .

The decisions of ORG are final and enforceable . ”

The relevant provisions of ORG provide :

Article CARDINAL

“ ORG may freely associate in associations of citizens and may establish foundations in order to accomplish and protect their economic , social , cultural , scientific , professional , technical , humanitarian , educational , sports and other rights , interests and beliefs in conformity with the LAW and laws .

Associations of citizens and foundations shall be non - profit organisations . ”

Article CARDINAL

“ The ORG and activities of associations of citizens and foundations shall not be directed towards :

- the violent destruction of the constitutional order of the Republic ;

- encouragement of or incitement to military aggression ; and

- encouragement of national , racial or religious hatred or intolerance . ”

Article CARDINAL

“ An association of citizens shall cease to exist :

... if ORG decides that the ORG and the ORG are not in conformity with the LAW ...

The person authorised to represent the association of citizens shall be obliged to notify the first - instance court of the circumstances as described in paragraph CARDINAL within DATE .

The first - instance court shall determine the cessation of the association of citizens by adopting a decision in non - contentious proceedings . “


The applicant [ Mr PERSON ] is a NORP national , born in DATE and currently in custody in FAC in GPE . He was represented before the ORG by Mr PERSON and Mr PERSON , both of ORG . The respondent Government were represented by their Agent , Mr PERSON , Director of ORG at ORG .

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

On DATE ORG found the applicant guilty of aiding and abetting crimes against humanity and sentenced him to CARDINAL years’ imprisonment . On DATE ORG ruled that he had forfeited his right to appeal on points of law because he had failed to surrender to custody . Those proceedings gave rise to application no . CARDINAL .

From DATE to CARDINAL DATE the applicant was held in ORG , initially in the prison hospital and then under normal conditions in a cell in the prison ’s solitary - confinement wing . On CARDINAL DATE , on an application by his lawyer , who considered the conditions in which the applicant was being held unacceptable ( particularly the very low temperature in his cell ) , the prison authorities decided to transfer him to FAC in GPE on the ground that he could be provided there with conditions of detention that were more suitable . Since then the applicant has been serving his sentence at FAC .

The applicant is currently DATE and had a triple heart bypass operation in DATE . During the investigation of his first application for a pardon on medical grounds ( see below ) , it was noted in a preliminary expert report of DATE prepared for ORG at ORG , that the applicant ’s heart condition had deteriorated and the recommendation was made that he be immediately transferred to a specialist cardiology unit where it could be decided whether he was in urgent need of a pacemaker . He was fitted with a pacemaker on DATE .

On DATE PERSON , the head of ORG at ORG prepared a medical certificate at the applicant ’s request that read as follows :

“ I , the undersigned , certify that I admitted Mr PERSON to hospital in ORG of which I am the head from DATE .

I will not go back over the patient ’s previous heart problems , for which he was hospitalised and provided with other medical certificates in DATE and DATE .

The patient is currently suffering from increasingly incapacitating angina . For DATE now he has found it difficult to climb the stairs ( CARDINAL floors ) leading up to the visiting room . This difficulty in getting up stairs , which amounts almost to disablement , has prompted him to stop taking walks , especially as he now has chest pains from time to time even when resting .

Clinical examination

The patient ’s general condition is good ; he is perfectly aware and lucid . His heart sounds are regular and his blood pressure reading is DATE . He has some oedema of the lower limbs , probably linked to the reduced intake of diuretics , which he does not tolerate well urologically or in terms of hydration . He gets extremely tired when he is dehydrated . His pacemaker is working well and is due to be checked in a few days’ time .

Laboratory test results

None of the tests reveals any renal , haematological , or electrolyte anomalies or any biochemical evidence of inflammation . The patient ’s anticoagulant treatment is well balanced .

Scanning results

X - rays of the lungs are normal . A cardiac ultrasound scan shows that the left ventricle is functioning normally without any pulmonary hypertension . A cardiac scintigram before and after injection of thallium after TIME shows that the CARDINAL low - uptake areas in the posterior and anterior regions are myocardially viable , meaning that the strain on the myocardium remains partly reversible . Neither an exercise test ( even mild ) nor a coronarography were carried out because of the attendant risks .

General conclusions

It is likely that the coronary arteries , which have undergone a triple bypass , have become less permeable ; this would explain the recurrence of angina during physical exertion .

Although there is no congestive heart failure , the patient ’s progressive coronary disease means that there is still a worrying risk of his suffering a fatal heart attack and the possibility of sudden death in prison can not be ruled out , even though it is entirely possible that his heart function , which is relatively well preserved in itself , may be compatible with living a good deal longer .

It appears obvious to us , however , that keeping this CARDINAL-year - old man with a vascular and coronary disease in prison is not likely to lessen the danger of his sudden death . ”

According to the information provided by the ORG , the applicant ’s health is monitored by doctors and nurses from the prison ’s Outpatient Consultation and Treatment Unit ( ORG ) , which was set up inside the prison under LAW of DATE ( it provides a doctor ’s surgery , twice - DATE ORG and DATE laboratory tests and electrocardiographic check - ups ) , and by specialists consulted in hospitals outside the prison ( cardiological consultations in ORG , a period spent in ORG for a cardiovascular check - up and fitting of a pacemaker , and regular checks on the pacemaker in the same hospital ) .

The applicant is being held in an individual cell in the prison ’s “ VIP ” wing . His cell is QUANTITY . m in area and is furnished with a bed , CARDINAL tables , CARDINAL cupboards , CARDINAL chairs , a television and , at the medical service ’s request , a medical chair and an automatic air humidifier . There is an alarm bell at the head of the applicant ’s bed linked to the control centre , which is permanently manned by a warder . In CARDINAL corner there is a lavatory and a washbasin ; the shower is not far away and has been equipped with a seat as it does not have any grab bars . The applicant himself is responsible for cleaning and tidying his cell , with the assistance of another inmate once a week if need be .

The applicant finds it difficult to reach the exercise yard because of the steps leading to it . He has been given permission to walk along the prison landings twice a day . He has regular visits from his family and his lawyers .

On DATE CARDINAL of the applicant ’s lawyers applied to the NORP President for a pardon on medical grounds . The application was refused on DATE after an expert medical report had been obtained .

On DATE the lawyer submitted a further application for a pardon on medical and humanitarian grounds , which was refused on DATE after a medical examination by CARDINAL experts on DATE . Neither of these expert reports was communicated to the applicant .

On DATE , DATE and DATE the applicant sent letters to the governor of ORG , in which he complained that the light was turned on several times a night at TIME ( letters of DATE and DATE ) and that a warder had refused to allow him to take a walk on the landings ( letter of DATE ) .

NORP law does not set an upper age - limit for pre - trial detention or the serving of prison sentences .

However , an offender ’s state of health ( in which age may be an aggravating factor ) may be taken into account when an application for a pardon from the NORP President is being considered ( Articles CARDINAL and CARDINAL of the LAW ) or when it is being decided whether to grant parole under LAW , which provides :

“ Parole is designed to encourage the rehabilitation of convicted prisoners and prevent them from reoffending . Convicted persons serving one or more prison sentences may be granted parole if they have made serious efforts to readjust to society , particularly if they can show that they have engaged in occupational activities or regularly attended an education or vocational training course or have taken part in a work experience scheme or had a temporary contract of employment with a view to their social integration , or that their presence is essential to the life of their family , or that they have to undergo treatment or that they have made efforts to compensate their victims .

Subject to LAW , parole may be granted if the length of the sentence already served by the prisoner is at least equal to that remaining to be served . However , recidivists covered by ORG CARDINAL - CARDINAL , CARDINAL - CARDINAL and CARDINAL of LAW may only be granted parole if the length of the sentence already served is at least double that remaining to be served . In the cases provided for in this paragraph , the qualifying period may not exceed DATE ... ”

In criminal law , advanced age is not a bar to prosecution , pre - trial detention or a prison sentence in ORG member GPE .

Age may , however , be taken into account , together with other factors such as state of physical or mental health , when sentences are being determined . In GPE , in particular , the courts may , in respect of offences punishable with a prison sentence of DATE , substitute another penalty for the custodial penalty in view of the character and the general circumstances of the accused . In CARDINAL countries a sentence of life imprisonment can not be imposed on a person above a certain age : CARDINAL in GPE and GPE and CARDINAL in GPE ; in GPE life imprisonment is reduced to DATE for people over DATE .

As far as the execution of sentences is concerned , age is rarely taken into account per se but in conjunction with state of health . In GPE , however , prison sentences for minor offences are not executed if the convict is over DATE ( in the case of serious offences , sentences are served in a semi - open prison ) . CARDINAL countries ( GPE and GPE ) make provision for courts to substitute house arrest for a prison sentence where the convicted person is partially disabled and over CARDINAL ( in GPE ) or DATE ( in GPE ) . NORP law also provides for the enforcement of a sentence to be deferred or suspended in the event of illness .

In a number of countries age is taken into account for DATE which is generally granted sooner once the prisoner has reached a given age , namely CARDINAL in GPE and GPE , and CARDINAL for men and CARDINAL for women in GPE DATE and for pardons .

There are also several countries in which prisoners are not required to work beyond a certain age .


Violation of Art. 3 (substantive aspect);Violation of Art. 8;Non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

The applicant is a habitual offender and has a criminal record . He was charged with robbery and detained on remand in ORG and later in FAC from DATE to CARDINAL DATE , when the final judgment was given in his case . At present he is serving prison sentences after conviction for various offences .

The applicant suffers from severe ophthalmological problems resulting from an eye injury sustained during a fight with a fellow inmate . In DATE , before he was detained , his right eye was removed . He is currently CARDINAL - eyed . His problems concern mainly the socket of his extracted eye .

In DATE an expert in ophthalmology , Prof . GPE . , found it necessary to operate on the applicant ’s right eye socket to have the remains of the extracted eye removed . The surgery should have been performed while the applicant was released from detention . However , it did not take place , for unknown reasons .

NORP In DATE different specialists from GPE and GPE examined the applicant . It was suggested that he undergo a reconstruction of his right eye socket at ORG , which was scheduled for DATE . In a decision of DATE ORG at FAC ordered a DATE suspension of the applicant ’s prison sentence . It appears that the operation was not performed as the applicant failed to appear for a preliminary examination .

On DATE , while the applicant was detained on remand , another specialist in ophthalmology discovered that there was a need to perform a reconstruction of his right eye socket . An operation was scheduled for DATE ; it was , however , postponed until DATE , since as stated in the applicant ’s medical certificate of DATE , the hospital refused to perform it “ under escort ” , which implied that he would be transported back to a detention centre ’s hospital immediately after the operation .

The surgery scheduled for DATE was not performed since the applicant was granted neither release from detention nor a suspension of his prison sentence for the necessary period . The Government observed that on CARDINAL DATE new criminal charges had been brought against the applicant and that for this reason he could not be released . In this connection , the judge in charge of the applicant ’s case asked the ORG hospital whether the applicant ’s operation could be postponed . This question was answered in the negative after an examination on DATE . Moreover , the applicant was found to be in need of a different operation on his left eye , namely a vitrectomy .

The applicant ’s vitrectomy on his left eye was scheduled to be performed at the ORG hospital on DATE . It was cancelled since the applicant refused to undergo this operation at the ORG hospital . He protested against the conditions in which it was to take place and insisted on being treated at ORG .

On DATE the applicant was examined in the ophthalmology ward of the ORG hospital . The doctors , however , decided not to operate on the applicant ’s right eye socket in the FAC hospital , since special facilities had to be in place . Therefore it was decided to have the operation performed at ORG on DATE . It was further requested that the applicant be released for the period of the operation and aftercare . The surgery did not take place since the applicant was not granted release , for unknown reasons .

In the meantime a doctor at ORG agreed to operate on the applicant ’s right eye socket “ under escort ” , which did not require the applicant to be released .

In a letter of DATE the hospital which had agreed to perform the operation “ under escort ” scheduled the operation for DATE . Furthermore , in a letter of CARDINAL DATE another hospital confirmed that an operation on the applicant could be carried out “ under escort ” .

An entry in the applicant ’s medical records dated DATE stated that the operation should be performed immediately . For unknown reasons , the surgery did not take place .

On DATE the FAC informed ORG that an operation had been scheduled for DATE and that any postponement of the planned treatment of the applicant might harm his health and endanger his life . Nevertheless , it transpires from the case file that the applicant was not treated on that date .

On DATE the partial reconstruction of the applicant ’s right eye socket was performed at ORG in GPE . Subsequently , during a check - up on DATE at the ORG hospital , the applicant was found to be in need of a supplementary operation on his right eye socket .

On DATE another specialist gave an opinion on the applicant ’s condition in which he stated that the operation had merely an aesthetic purpose and that it could be performed “ under escort ” in DATE .

In a letter of CARDINAL DATE a different hospital , which had been asked to perform the operation “ under escort ” , refused to do so .

In the applicant ’s medical records covering the period from DATE until DATE it was repeatedly stated that the operation should be performed immediately .

On DATE at the surgical ward of ORG in ORG a foreign body ( a metal bar ) was removed from the applicant ’s right eye socket . It was the result of a self - inflicted injury of an unspecified date .

On DATE the applicant was transported to a hospital to see a doctor . There , the applicant was diagnosed with an inflammation of his right eye socket . The specialist recommended waiting for an operation until the inflammation had healed .

In a letter of DATE the applicant informed the ORG that the operation had not yet been performed . He stressed that his state of health had seriously deteriorated and that he was suffering from an inflammation of his right eye socket .

During an examination of DATE at FAC , the specialist found that the applicant ’s right eye was infected with a virus and that his condition required urgent surgery .

In DATE the applicant was transported to FAC of ORG of ORG , as the operation to be performed was of a highly complicated character . A specialist examining the applicant found that a complex , multi - stage plastic operation on the applicant ’s right eye socket had to be performed . It was stressed , however , that such procedures were not covered by ORG . In a letter of DATE the applicant was informed that the operation could be performed , provided that he covered its costs .

On DATE , after the applicant had again been examined at FAC , it was found that his right eye socket had to be urgently operated on .

Medical certificates of DATE issued by ORG stated that there was no inflammation of the applicant ’s right eye socket and that his condition could be treated at the centre ’s hospital ward . It appears that the surgery was not performed .

After another refusal to have the operation performed , the applicant contacted ORG at the PERSON ORG , headed by Prof . PERSON , requesting help . In reply to the applicant ’s letter Prof . PERSON , after examining his medical records , stated that his condition required immediate surgery and scheduled the date of the consultation for DATE . The consultation did not take place , since it appears that the management of ORG did not grant the necessary leave .

On DATE and DATE the ORG hospital informed the applicant that its ophthalmology ward did not perform plastic surgery on eye sockets .

The applicant used various means in order to draw the attention of the authorities to his health problems .

On numerous occasions he requested to be released from detention on remand on account of his eye problems .

His requests were repeatedly refused ( decision of ORG and decisions of ORG of DATE and CARDINAL DATE ) . His appeal against the decision of DATE was dismissed ( ORG decision of DATE ) .

The applicant also tried to challenge his detention by lodging an appeal against an order of DATE prolonging his detention on remand . In a decision of CARDINAL DATE ORG dismissed his appeal against the detention order of DATE .

The applicant also lodged requests for a suspension in serving his prison sentence for the period of his treatment in hospital and aftercare . His requests were refused by ORG in decisions of DATE , CARDINAL DATE and DATE .

The courts repeatedly stated in their reasons for their decisions that the requested operation could be performed “ under escort ” , without leave being necessary , and that the delay in performing the operation would not result in any deterioration of the applicant ’s health . In its refusal of DATE the court also relied on the fact that the inflammation of the applicant ’s right eye socket was a medical contra - indication against the immediate performance of the operation . It considered that the operation should be delayed until the inflammation had healed .

The applicant also lodged numerous complaints with the authorities in charge of detention centres , as well as with supervisory institutions , about his lack of proper medical care . All his complaints were found to be unsubstantiated . The authorities repeatedly stated that the applicant had been seen by doctors on numerous occasions , that he had been given all medicines prescribed for him and that there were no medical arguments against the operation being carried out “ under escort ” ( letters of ORG of DATE and ORG of DATE ) . It was also emphasised that the applicant had not proved that he had used the suspensions of his prison sentence which he had previously been granted in compliance with their purpose ( undergoing medical treatment ) .

The applicant contested the finding that he had not undergone any medical treatment during the periods when he had been granted suspensions of his prison sentence . He instituted criminal proceedings against the health - care institution of the detention centre on a charge of making a false statement . In the course of these proceedings it was established that the applicant had undergone some medical treatment during the contested periods ( he had had his eye removed ) .

The applicant submitted an envelope sent to him from the ORG , bearing the logo of ORG . It bears stamps marked “ censored ” and “ a judge ” and a stamp of ORG with the date DATE and an illegible signature . It also bears a stamp of ORG with DATE . It appears from the case file that the applicant was not present when the correspondence was censored . Furthermore , the applicant claimed that his correspondence had been stopped and that he had received it with a delay of DATE .

Rules on access to medical assistance for convicted prisoners are set out in LAW DATE ( ORG karny wykonawczy – “ the DATE Code ” ) , which entered into force on DATE .

NORP The relevant part of LAW provides as follows :

“ A convicted person shall have access to free health care ... ”

Article CARDINAL was substantially amended in DATE and on subsequent occasions , the amendments extensively covering the range of medical assistance available to convicted persons and rules for its application . The provision referred to above remained unchanged in substance .

As regards access to medical assistance for persons detained on remand , LAW provides as follows :

“ Unless exceptions are provided for in the present LAW , a person detained on remand shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison . No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings , to maintain order and security in a remand centre and to prevent demoralisation of remand prisoners . ”

The relevant domestic law concerning the censorship of ORG correspondence is set out in the ORG ’s judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .


The applicant , PERSON , is a NORP national , who was born in DATE and resides in the village of GPE , GPE , GPE .

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

In DATE , the applicant instituted proceedings in ORG of GPE against the “ ORG - a ORG - owned enterprise - to recover unpaid salary for DATE .

On DATE , ORG found in favour of the applicant ( ORG городского суда PERSON области ) . The decision became effective on DATE and was sent for execution to ORG ( Отдел Государственной исполнительной службы Новогродовского городского управления юстиции ) . However , the decision was not executed , allegedly due to the failure of ORG to act , in not selling the property of ORG .

The applicant instituted proceedings in ORG of GPE against ORG for failure to execute the court decision in his favour . On DATE , ORG rejected the applicant ’s claim , finding no fault had been committed by ORG . The court stated that ORG had presented the decision of ORG of GPE of DATE to the respondent company , but was prohibited from enforcing the decision by selling the property of the mine , due to the bankruptcy proceedings which had been initiated against it .

On DATE , ORG dismissed the applicant ’s appeal . On DATE , the panel of CARDINAL judges of ORG of ORG of GPE rejected the applicant ’s request for leave to appeal .

On DATE , the ban on the forced sale of assets belonging to undertakings in which the ORG holds PERCENT of the share capital , was entrenched in the PERSON on the Introduction of a Moratorium on the Forced Sale of Property .

Under LAW of the LAW on bankruptcy ( ORG відновлення платоспроможності боржника або визнання його банкрутом ORG ) , a commercial court is entitled to order a moratorium on debt recovery from a company subject to bankruptcy proceedings . The moratorium implies a prohibition on ORG to execute judgements against such a company .

The PERSON on the Introduction of a Moratorium on the Forced Sale of Property ( ORG Про введення мораторiю на примусову реалiзацiю TIME ” ) aims at protecting ORG interests on the sale of assets belonging to undertakings in which the ORG holds PERCENT of the share capital .

A moratorium on the enforcement of judgment debts has been introduced until such time as the mechanism for the forced sale of the property of such undertakings has been improved . No time - limit has been set .

Section CARDINAL of that PERSON provides that the prohibition on the forced sale of property includes the execution of writs by ORG over property belonging to such companies .

The PERSON therefore stays the execution of all writs by ORG against the assets of undertakings in which the ORG holds PERCENT of the share capital .


Violation of Art. 6-1;Just satisfaction reserved

ORG The applicant is a NORP citizen born in DATE . He lives in GPE and is a sales manager .

ORG On DATE , he was arrested by the police at his home and taken to NORP where he was questioned in connection with a car theft .

Warrants of arrest for forgery and uttering forged documents were issued against the applicant on DATE , on DATE and on DATE . The first warrant - notice no . CARDINAL.CARDINAL/CARDINAL - was issued by Mr. PERSON , an investigating judge at the NORP criminal court ( tribunal correctionnel ) , and the second and third - notices nos . ORG and CARDINAL - by Mr. PERSON , the other investigating judge at the same court .

ORG Prior to that , in the capacity of judge ( juge assesseur ) of the same court sitting either on appeal ( judgment of CARDINAL DATE ) or at first instance ( judgments of DATE , DATE and CARDINAL DATE ) , Mr. PERSON had already dealt with criminal proceedings brought against Mr. PERSON in connection with a number of offences ; those proceedings had led variously to an unconditional or conditional discharge ( relaxe ) ( DATE and DATE , respectively ) or to conviction .

More recently , Mr. PERSON had had to examine , in his capacity of investigating judge , a criminal complaint filed by Mr. PERSON ( DATE ) and , in his capacity of judge dealing with the attachment of property ( juge des saisies ) , certain civil cases concerning him ( DATE ) . In regard to each of these cases , the applicant had applied to ORG to have the case removed , on the ground of bias ( suspicion légitime ; Article CARDINAL of the Judicial Code ) , from Mr. PERSON or from the NORP court as a whole ; each of these requests had been held inadmissible or unfounded .

ORG At the outset Mr. PERSON dealt with cases nos . CARDINAL and CARDINAL but he was on several occasions prevented by illness from attending his chambers . He was replaced , initially on an occasional and temporary basis and , as from DATE , on a permanent basis , by Mr. PERSON , who retained responsibility for case no . CARDINAL.CARDINAL/CARDINAL .

ORG In case no . CARDINAL , a single - judge chamber of the NORP court ( Mr. PERSON ) sentenced Mr. PERSON on DATE to DATE imprisonment and a fine of CARDINAL BF . He did not appeal against this decision .

ORG After preliminary investigations lasting DATE , a chamber of the court ( the chambre du conseil ) ordered the joinder of cases nos . CARDINAL.CARDINAL/CARDINAL and ORG and on CARDINAL DATE committed Mr. PERSON for trial . These cases related to CARDINAL alleged offences committed by CARDINAL accused , headed by the applicant ; there were CARDINAL persons intervening to claim damages ( parties civiles ) .

For the purpose of the trial , the court , which over DATE had CARDINAL or CARDINAL titular judges , sat as a chamber composed of a president and CARDINAL judges , including Mr. PERSON . Mr. PERSON stated that he protested orally against the latter ’s presence , but he did not have recourse to any of the legal remedies open to him for this purpose , such as a formal challenge ( procédure de récusation ; LAW ) .

After a hearing which lasted DATE on CARDINAL and DATE , the court gave judgment on DATE . Mr. PERSON was acquitted on CARDINAL counts and convicted on the remainder , note being taken of the fact that he was a recidivist . He was accordingly sentenced , in respect of CARDINAL matter , to CARDINAL years’ imprisonment and a fine of CARDINAL BF and , in respect of another , to DATE imprisonment and a fine of CARDINAL BF ; his immediate arrest was ordered .

ORG Both the applicant and the public prosecutor ’s department appealed . On DATE , ORG reduced the first sentence to CARDINAL GPE imprisonment and a fine of CARDINAL BF and upheld the second . In addition , it unanimously imposed a third sentence , namely DATE imprisonment and a fiscal fine ( amende fiscale ) , for offences which the NORP court had - wrongly , in ORG view - treated as being linked with others by reason of a single criminal intent .

ORG Mr. PERSON appealed to ORG , raising some CARDINAL different points of law . CARDINAL of his grounds , based on LAW ( see paragraph CARDINAL below ) and Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , was that Mr. PERSON had been both judge and party in the case since after conducting the preliminary investigation he had acted as CARDINAL of the trial judges .

ORG gave judgment on DATE ( Pasicrisie DATE , I , pp . CARDINAL - CARDINAL ) . It held that this combination of functions violated neither LAW nor any other legal provision - such as LAW para . CARDINAL ( article CARDINAL ) of the Convention - nor the rights of the defence . On the other hand , ORG upheld a plea concerning the confiscation of certain items of evidence and , to this extent , referred the case back to ORG ; the latter court has in the meantime ( on DATE ) directed that the items in question be returned . ORG also quashed , of its own motion and without referring the case back , the decision under appeal in so far as the appellant had been sentenced to a fiscal fine . The remainder of the appeal was dismissed .

ORG Investigating judges , who are appointed by the Crown " from among the judges of the court of first instance " ( LAW ) , conduct the preparatory judicial investigation ( Articles CARDINAL et seq . of LAW ) . The object of this procedure is to assemble the evidence and to establish any proof against the accused as well as any circumstances that may tell in his favour , so as to provide the chambre du conseil or the chambre des mises en accusation , as the case may be , with the material which it needs to decide whether the accused should be committed for trial . The procedure is secret ; it is not conducted in the presence of both parties ( non contradictoire ) nor is there any legal representation .

The investigating judge also has the status of officer of the criminal investigation police ( police judiciaire ) . In this capacity , he is empowered to inquire into serious and lesser offences ( crimes et délits ) , to assemble evidence and to receive complaints from any person claiming to have been prejudiced by such offences ( Articles CARDINAL , CARDINAL in fine and CARDINAL of LAW ) . When so acting , he is placed under the " supervision of the procureur général ( ORG prosecutor ) " ( LAW CARDINAL of the Judicial Code ) , although this does not include a power to give directions . " In all cases where the suspected offender is deemed to have been caught in the act " , the investigating judge may take " directly " and in person " any action which the procureur du Roi ( public prosecutor ) is empowered to take " ( Article CARDINAL of LAW ) .

Save in the latter category of case , the investigating judge can take action only after the matter has been referred to him either by means of a formal request from the procureur du Roi for the opening of an inquiry ( Articles DATE , DATE , DATE , DATE , DATE and CARDINAL of the Code of Criminal Procedure ) or by means of a criminal complaint coupled with a claim for damages ( constitution de partie civile ; Articles CARDINAL and CARDINAL ) .

If a court includes several investigating judges , it is for the presiding judge to allocate cases amongst them . In principle , cases are assigned to them in turn , from DATE ; however , this is not an inflexible rule and the presiding judge may depart therefrom , for example if the matter is urgent or if a new case has some connection with one that has already been allocated .

ORG In order to facilitate the ascertainment of the truth , the investigating judge is invested with wide powers ; according to the case - law of ORG , he may " take any steps which are not forbidden by law or incompatible with the standing of his office " ( judgment of CARDINAL DATE , Pasicrisie DATE , I , p. CARDINAL ) . He can , inter alia , summon the accused to appear or issue a warrant for his detention , production before a court or arrest ( Articles CARDINAL et seq . of LAW ) ; question the accused , hear witnesses ( Articles DATE and CARDINAL of the same Code ) , confront witnesses with each other ( Article CARDINAL of the Judicial Code ) , visit the scene of the crime ( Article CARDINAL of LAW ) , visit and search LOC ( Articles CARDINAL and CARDINAL of the same Code ) , take possession of evidence ( LAW ) , and so on . The investigating judge has to report to the chambre du conseil on the cases with which he is dealing ( LAW ) ; he takes , by means of an order , decisions on the expediency of measures requested by the public prosecutor ’s department , such orders being subject to an appeal to the chambre des mises en accusation of ORG .

When the investigation is completed , the investigating judge transmits the case - file to the procureur du Roi , who will return it to him with his submissions ( LAW , first paragraph ) .

It is then for the chambre du conseil , which is composed of a single judge belonging to the court of first instance ( Acts of DATE , CARDINAL DATE and CARDINAL DATE ) , to decide - unless it considers it should order further inquiries - whether to discharge the accused ( non - lieu ; LAW ) , to commit him for trial before a district court ( tribunal de police ; Article CARDINAL ) or a criminal court ( tribunal correctionnel ; Article CARDINAL ) or to send the papers to the procureur général attached to ORG ( Article CARDINAL ) , depending upon the circumstances .

Unlike his NORP counterpart , the NORP investigating judge is thus never empowered to refer a case to the trial court himself . Before taking its decision , the chambre du conseil - which sits in camera - will hear the investigating judge ’s report . This report will take the form of an oral account of the state of the investigations ; the investigating judge will express no opinion therein as to the accused ’s guilt , it being for the public prosecutor ’s department to deliver concluding submissions calling for CARDINAL decision or another .

ORG Article CARDINAL of the DATE LAW prohibits " the concurrent exercise of different judicial functions ... except where otherwise provided by law " ; it lays down that " any decision given by a judge who has previously dealt with the case in the exercise of some other judicial function " shall be null and void .

This rule applies to investigating judges , amongst others . Article CARDINAL specifies that " proceedings before an assize court shall be null and void if the presiding judge or another judge sitting is a judicial officer who has acted in the case as investigating judge ... " .

Neither can an investigating judge sit as an appeal - court judge , for otherwise he would have " to review on appeal , and thus as last - instance trial judge , the legality of investigation measures ... which [ he ] had taken or ordered at first instance " ( Court of Cassation , DATE , Pasicrisie DATE , I , p. CARDINAL , and Revue de droit pénal et de criminologie , DATE , pp . CARDINAL - CARDINAL ) .

ORG On the other hand , under the third paragraph of LAW , as amended by LAW of DATE , " investigating judges may continue to sit , in accordance with their seniority , to try cases brought before a court of first instance " . According to the drafting history and decided case - law on this provision , it is immaterial that the cases are ones previously investigated by the judges in question : they would in that event be exercising , not " some other judicial function " within the meaning of Article CARDINAL , but rather the same function of judge on the court of first instance ; it would be only their assignment that had changed ( Parliamentary Documents , ORG , no . CARDINAL of DATE ; ORG , DATE , Pasicrisie DATE , I , p. CARDINAL - CARDINAL ; ORG judgment of DATE in the present case , see paragraph CARDINAL above ) .

In the case of PERSON , ORG confirmed this line of authority in its judgment of DATE , which followed the submissions presented by the public prosecutor ’s department . After dismissing various arguments grounded on general principles of law , ORG rejected the argument put forward by the appellant on the basis of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention :

" However , as regards the application of LAW para . CARDINAL ( article CARDINAL ) ... , when a case requires a determination of civil rights and obligations or of a criminal charge , the authority hearing the case at first instance and the procedure followed by that authority do not necessarily have to satisfy the conditions laid down by the above - mentioned provision , provided that the party concerned or the accused is able to lodge an appeal against the decision affecting him taken by that authority with a court which does offer all the guarantees stipulated by LAW CARDINAL ( article CARDINAL ) and has competence to review all questions of fact and of law . In the present case , the appellant does not maintain that the court of appeal which convicted him did not offer those guarantees ...

In any event , the principles and the rule relied on in the ground of appeal do not have the scope therein suggested ;

From the sole fact that a trial judge inquired into the case as an investigating judge it can not be inferred that the accused ’s right to an impartial court has been violated . It can not legitimately be feared that the said judge does not offer the guarantees of impartiality to which every accused is entitled .

The investigating judge is not a party adverse to the accused , but a judge of the court of first instance with the responsibility of assembling in an impartial manner evidence in favour of as well as against the accused .


The applicant lives in GPE , GPE .

On DATE and DATE and DATE , the CARDINAL main evening newspapers in GPE , PERSON and PERSON , published a series of articles in which various criminal offences were ascribed to the applicant , including an assertion that he had murdered PERSON , the NORP Prime Minister , in DATE . As part of the publication of this information , the newspapers also reported statements of individuals who rejected the allegations made against the applicant . Moreover , on DATE , PERSON published an interview with the applicant , in which he denied any involvement in the alleged offences .

On DATE the applicant brought a private prosecution against the newspapers through their legally responsible editors ( ansvariga utgivare ) . He claimed that the editors were responsible for gross defamation , or alternatively defamation of a normal degree , under chapter CARDINAL , section CARDINAL , subsection CARDINAL of the Freedom of LAW ( Tryckfrihets - förordningen ) , and chapter CARDINAL , section CARDINAL ( or section CARDINAL ) of LAW ( ORG ) . He also joined an action for damages to the private prosecution and sought compensation for mental suffering and pecuniary damage .

ORG ( tingsrätten ) of GPE held an oral preparation of the case on DATE and an oral hearing on DATE and CARDINAL DATE . It heard several witnesses . In accordance with the normal procedure in cases concerning criminal liability under LAW , the court sat with CARDINAL professional judges and a jury of CARDINAL members .

ORG put to the jury CARDINAL questions relating to the articles published in PERSON and CARDINAL questions relating to the articles published in Aftonbladet . Each question referred to CARDINAL or more statements or pictures published in the various articles , and the jury had to answer whether the publication of the statements or pictures constituted gross defamation or defamation of a normal degree . The jury answered all but CARDINAL questions in the negative . In accordance with the applicable rules , the jury ’s finding of “ no guilt ” was final . As regards the remaining CARDINAL questions , however , the jury found that certain published statements or pictures amounted to defamation of a normal degree . The court then had to make a re - assessment of liability . The contravening statements or pictures were the following :

NORP The heading on the front page stating “ He is pointed out as PERSON ’S MURDERER ” [ “ NORP pekas ut som FAC ” ] together with a picture of the applicant . [ PERSON , DATE ]

The text on page CARDINAL reporting a statement made by an unnamed source within the NORP intelligence service : “ He is the type of person that you do not cheat unpunished . He kills without a second ’s hesitation . ” [ “ LOC typen av person som man inte lurar ostraffat . NORP dödar utan en sekunds tvekan . ” ] [ Aftonbladet , DATE ]

The text on page CARDINAL : “ In addition to Long reach , PERSON and ORG had several companies together , some with links to the ORG . Among others , ORG in the GPE which was used for laundering money from illegal activities . When Long reach was wound up , White is supposed to have started a sawmill in GPE in GPE . A perfect cover for other activities . Weapons and drugs are CARDINAL products that have been mentioned . ” [ “ Vid sidan av Long reach hade PERSON och FAC andra företag ihop , en del med kopplingar till maffian . Bland annat GMR Group på ORG som användes för att tvätta pengar från illegal verksamhet . PERSON reach avvecklades ska White ha startat ett sågverk i ORG . En perfekt täckmantel för annan verksamhet . PERSON och droger är två produkter som nämnts . ” ] [ Aftonbladet , DATE ]

The text on page CARDINAL : “ White has been dealing with most things . – He is CARDINAL of southern LOC ’s biggest poachers , tells a source . It is to a large degree his fault that the elephants in GPE are all but extinct . Together with PERSON , PERSON appropriated the ivory . ” [ “ White har sysslat med det mesta . – NORP är en av södra LOC största tjuvskyttar , berättar en källa . PERSON till stor del hans skuld att elefanterna i PERSON gott som utrotade . PERSON tog tillsammans med PERSON hand om elfenbenen . ” ] [ Aftonbladet , CARDINAL DATE ]

The subheading on page CARDINAL “ ... but earns more on smuggling and poaching ” [ “ ... men tjänar mest på smuggling och tjuvjakt ” ] together with the ensuing text stating “ But according to several statements , the main part of his income derives from smuggling and poaching . ” [ “ Men enligt flera uppgifter kommer största delen av hans inkomster från smuggling och tjuvjakt . ” ] [ Aftonbladet , DATE ]

The caption on page CARDINAL “ TODAY – SMUGGLER IN GPE ” [ “ I DAG – SMUGGLARE I MOCAMBIQUE ” ] under a picture of the applicant . [ Aftonbladet , DATE ]

By a judgment of DATE , ORG acquitted the editors in all respects and rejected the applicant ’s claims for damages . It found that all CARDINAL passages in issue depicted the applicant as a criminal or a person with a reprehensible lifestyle . However , given , inter alia , the great general interest in these statements in GPE , the court found that it had been justifiable to publish the relevant statements and pictures . It further considered that the newspapers had had a reasonable basis for the published information . In the latter respect , the court had regard to how and from whom the information had been obtained and to the fact that , due to the nature of the information in question and the constraints of a fast news service , the possibility of checking the veracity of the statements had been limited .

The applicant appealed to ORG ( PERSON hovrätt ) . The appellate court held an oral hearing and heard essentially the same witnesses as ORG .

On DATE ORG upheld ORG judgment . It gave the following reasoning :

“ ORG finds , like ORG , that the relevant information in PERSON and PERSON depicts Anthony White as a criminal and as having a reprehensible lifestyle . The information has been liable to expose him to the contempt of others and consequently , as such , constitutes defamation .

The question then is whether there are grounds for excluding liability . Pursuant to chapter CARDINAL , section CARDINAL , subsection CARDINAL of the Freedom of LAW , and chapter CARDINAL , section CARDINAL , subsection CARDINAL of LAW , liability for defamation by means of printed matter is excluded if CARDINAL conditions are met : CARDINAL ) it would be justifiable to communicate the information , and CARDINAL ) the information should be correct or the communicator should have had a reasonable basis for the assertion .

If the information is correct it may as a rule be communicated even if it is deprecatory , if this is justifiable with reference to the public news interest . However , there is no general right always to speak the truth if the statements are offensive . A balance has to be struck between the protection against offensive statements and the demands of freedom of speech . In certain situations the interest of protecting someone against offensive statements has to yield to the public interest .

PERSON has claimed that , on account of the public interest – the murder of the country ’s prime minister – , it was justifiable to name and show a photograph of PERSON in the newspaper . Aftonbladet , for its part , has asserted that , in the circumstances , it was justifiable to describe PERSON personality and conduct .

The question of who killed PERSON attracted at the relevant time and still attracts considerable public interest . As regards the question of whether in the circumstances it was justifiable to communicate the information , ORG agrees with ORG assessment that it was obviously legitimate to write about the so - called “ GPE trail ” and to present information in this regard . However , the question is whether it was justified to identify the plaintiff by name and picture in the manner employed and to publish statements to the effect that he was supposed to be guilty of large scale , serious criminality .

[ The responsible editors ] have asserted that the publications in question were not remarkable in view of the fact that it was commonly known who PERSON was and of which crimes he was guilty . It emerges from the information that has come to hand in the case that , within certain groups in southern LOC and LOC , it was known that PERSON had engaged in the alleged activities . It has also been shown that books have been published in which PERSON has been named and his service as an elite soldier in the army unit PERSON , which has a dubious reputation , has been described . The information in the case reveals that PERSON has been much better known than he has wished to admit in southern LOC and among representatives of various organisations for the protection of animals and the conservation of nature in southern LOC as well as in LOC . PERSON does not therefore appear as an ordinary private person with regard to whom there is a particular interest of protection .

In view of the above , and for the reasons given by ORG in this respect , ORG finds that it was justifiable in the circumstances to publish PERSON name and picture in PERSON and to publish information about the person PERSON in GPE . In so finding , ORG has also taken into account that PERSON had declined to comment on information presented by the journalists of Aftonbladet .

With respect to the question of whether the information is correct , it is word against word . PERSON has asserted that he is innocent of all the accusations , that the information given about him was based on pure invention , that it is unverified or given by untrustworthy persons and that it was based on third or fourth generation hearsay , while [ the responsible editors ] appear still to assert that it can not be excluded that PERSON could be the person who murdered PERSON . ORG concludes , however , that [ the responsible editors ] , who have the burden of proof for their claims , have not shown that the disseminated information was correct .

As regards the question of whether there has been a reasonable basis for the assertions , ORG takes account of the following considerations .

In defence of the publications in question , [ the responsible editors ] have asserted , among other things , that PERSON name and picture have been published in international news media and on NORP television .

In response to what has been stated in this respect , ORG would point out that each newspaper is responsible for its own publication . Consequently , the fact that the name and picture of the plaintiff had already been published by other news services has not relieved PERSON and Aftonbladet of the obligation to make their own assessment of the credibility of the information . The fact that the information had already been published by other media shows , however , that these news services might have considered that there was a reasonable basis for the information .

In their defence , [ the responsible editors ] have also pointed out that , despite time constraints , they had careful checks made which gave an unequivocal picture of PERSON .

It has been established that the main basis for the assertions in issue in the case was the statements made by [ the former senior official of the NORP security police ] PERSON and that the newspapers checked that information mainly by having the journalists who wrote the articles contact journalist colleagues , public servants [ and ] representatives of various organisations for the protection of animals and the conservation of nature . However , with a few exceptions , the persons contacted have not been named .

The contents of the testimony given by [ the CARDINAL journalist witnesses ] before ORG show that each of them separately has had high ambitions to find out the degree of truth of PERSON statements and to check with reliable sources who the person PERSON was . What has come to hand in the case reveals that the witnesses , each one through their own work , have received concordant information . Checks have been made with several informants in different countries and in different capacities . ...

Having regard to the above , in particular the checks made , and to the fact that the informant PERSON also here [ before ORG ] has given the impression of being a credible person , ORG considers that the communication of the identifying information does not appear unjustified . In ORG view , there has been a reasonable basis for the assertion and the reproduction of the picture in PERSON . ORG further considers that PERSON , in the circumstances , must be considered to have performed the checks that were called for . Having regard to this and the reasons given with respect to the publication in PERSON , ORG finds that there was also a reasonable basis for the assertions in Aftonbladet . ”

NORP On DATE ORG ( Högsta domstolen ) refused the applicant leave to appeal .

NORP In order for an act committed by means of printed matter to constitute a criminal offence it must be punishable under both the Freedom of the Press Act and general criminal law .

LAW , section CARDINAL of the Freedom of Press Act provides :

“ With due regard to the purpose of freedom of the press for all , specified in chapter CARDINAL , the following acts shall be deemed to be offences against the freedom of the press if committed by means of printed matter and if they are punishable by law : ...

NORP defamation , whereby a person designates someone as a criminal or as having a reprehensible lifestyle , or otherwise communicates information liable to expose that person to the contempt of others , and , if the person defamed is deceased , the act causes offence to his survivors , or might otherwise be considered to violate the sanctity of the grave except , however , in cases in which it is justifiable to communicate the information , having regard to the circumstances , and proof is presented that the information was correct or there were reasonable grounds for the assertion ; ... ”

LAW , section CARDINAL of the Criminal Code reads :

“ A person who designates someone as being a criminal or as having a reprehensible lifestyle or otherwise communicates information liable to expose that person to the contempt of others , shall be sentenced for defamation to a fine .

If he was duty - bound to make a statement or if , in the circumstances , it was otherwise justifiable to communicate information in the matter , and proof is presented that the information was correct or there were reasonable grounds for the assertion , liability shall be excluded . ”

LAW , section CARDINAL of LAW provides :

“ If the offence defined in section CARDINAL is regarded as gross , the person shall be sentenced for gross defamation to a fine or to imprisonment of DATE .

In assessing whether the offence is gross , particular regard should be had to whether the information , because of its content , the scope of its dissemination or otherwise , was liable to cause serious damage . ”


Violation of Art. 2 (substantive asoect);Violation of Art. 2 (procedural aspect)

The first applicant is the brother and the second applicant is the wife of Mr PERSON , who was born in DATE and killed by members of the security forces on DATE . The third to eighth applicants are the children of Mr PERSON .

The ninth applicant was the father and the tenth applicant is the mother of PERSON , who was born in DATE and also killed by members of the security forces on DATE . The eleventh and twelfth applicants are the brothers of PERSON .

The facts of the case as presented by the applicants and the Government are based on a number of documents drawn up in the course of the domestic investigation . The following information appears from the parties ' submissions as well as from the documents submitted by them .

PERSON and PERSON ( hereinafter “ the CARDINAL village guards ” ) had been living in the GPE village and employed by the ORG as provisional village guards . Their duties included providing guidance to the armed forces about a particular area near their village where there was intense ORG activity .

NORP The area in question was situated to the south of an asphalt road which ran between the city of GPE and the town of GPE . The CARDINAL village guards and a team of soldiers from the nearby ORG gendarmerie station would take up positions on PERSON , a hill from where they could maintain the security of the road . The distance between the top of PERSON and the road was QUANTITY and a footpath connected the CARDINAL . From their positions , the soldiers and the CARDINAL village guards would also observe another footpath which ran in a river bed between PERSON and the NORP hills . This footpath was frequently used by ORG terrorists on their way to and from LOC . Ömerağa was QUANTITY to the south - east of GPE . QUANTITY to the north - east of PERSON was DATE , from where soldiers would monitor the area at night with the help of thermal cameras .

In TIME the CARDINAL village guards would walk the short distance of QUANTITY from their village to the gendarmerie station where they would report their arrival at TIME From the gendarmerie station they would walk , together with the soldiers , to PERSON , a distance of QUANTITY . At the end of their shift they would return to the gendarmerie station together with the soldiers . If it was dark , they would be driven to their village from the gendarmerie station in military vehicles , otherwise they would walk . For security reasons , no civilians or even village guards would be allowed to remain or enter the area in question or use the asphalt road during TIME of darkness . Any civilians who needed to use the road at TIME time in case of an emergency would inform the local gendarmerie station beforehand and they would be observed by TIME vision binoculars and thermal cameras until they were out of the area .

On DATE sub - Lieutenant PERSON submitted in his statement taken by the PERSON prosecutor that he had been in charge of the soldiers and the CARDINAL village guards , who had taken up positions on PERSON on DATE . At TIME he had grouped his men and , upon the arrival of a team of soldiers at TIME who were to take over the command of the hill from him , his men had started walking down the hill . He had stayed behind to ensure that no one was left . In accordance with usual practice , the CARDINAL village guards had been walking ahead of the soldiers . He had been able to see the soldiers reach the main road and thereafter continue to walk towards the station . However , he thought that the CARDINAL village guards must have turned off the footpath before reaching the main road ; it was not his duty to check whether the CARDINAL village guards had safely reached their village .

It appears from a post - incident report drawn up on DATE that , at TIME on DATE , the soldiers positioned on Elmalı had observed CARDINAL persons on the slopes of PERSON . Having established that no one had been given authorisation to be in that area , a number of military units were deployed to the vicinity of PERSON . By TIME on DATE the QUANTITY persons had been surrounded by soldiers , some of whom had taken up positions on PERSON .

NORP CARDINAL groups of soldiers fired a number of QUANTITY mortars in the direction of the CARDINAL persons . Flares were also fired and the QUANTITY were ordered to surrender . However , they started running towards PERSON , and the distance between them and the soldiers on PERSON was down to QUANTITY when the soldiers fired in the air to warn them . When the CARDINAL failed to stop , the soldiers fired directly at them . The time by then was TIME , according to the report .

At dawn the soldiers approached the bodies and established that they were the CARDINAL village guards . In the opinion of the authors of this report – the military officers in charge of the operation – the CARDINAL village guards had left the group of soldiers on their way down from PERSON in order to help ORG members enter northern GPE or plant land mines in the area .

According to the on - site report prepared by the soldiers on DATE , the CARDINAL village guards had been shot in the head and chest . Their bodies had been found on the slopes of GPE , QUANTITY from the top of the hill . CARDINAL hand grenades had exploded QUANTITY away from the bodies . The pins belonging to these hand grenades had been found QUANTITY away from the bodies , further up the hill .

According to the same report , there was no ammunition on the body of PERSON , but there were CARDINAL loaded bullet cartridges belonging to a PERSON rifle and a hand grenade in a military style vest worn by the deceased PERSON . The rifles belonging to the CARDINAL village guards were found QUANTITY away from their bodies , next to a rock , at the side of the main road . The barrels of the rifles smelt and bore traces of gun powder , indicating that they had been fired . Next to the CARDINAL rifles was PERSON military style vest with CARDINAL loaded bullet cartridges belonging to a PERSON rifle and a hand grenade in one of its pockets . Also , QUANTITY away from the bodies were a number of spent bullet cases discharged from GCARDINAL and BKC rifles . A sketch , detailing the features of the area and showing the position of the bodies together with the discharged ammunition , was drawn up and appended to this report and forwarded to the public prosecutor 's office in Şırnak .

On DATE the Şırnak public prosecutor and a doctor visited the area to examine the bodies . According to the report drawn up by the prosecutor and the doctor , there were extensive injuries to the heads , chests and various other parts of the bodies . It concluded that “ as the cause of death was so obvious , there was no reason to carry out classical autopsies ” .

The prosecutor took a number of statements in the course of his investigation . These statements , insofar as they are relevant to the ORG 's examination of the case , are summarised below .

Captain PERSON was the commander of the soldiers positioned on TIME DATE of the incident . He recounted in his statement of CARDINAL DATE that , at TIME on DATE , with the use of thermal cameras , he had seen CARDINAL persons in the area and informed the battalion commander . The battalion commander had ordered him to continue to observe and record the QUANTITY people by thermal camera . As the QUANTITY persons had been behaving suspiciously , he and the soldiers under his command had thought that they were terrorists .

The military unit on Elmalı had then been deployed to ambush the CARDINAL people . He had been able to see that mortars and flares were fired . He had also heard Lieutenant PERSON asking the CARDINAL to surrender and to lie on the asphalt road . At that moment the QUANTITY persons , who were standing next to the road , had attempted to escape and the soldiers from his military unit had fired towards them . He thought that CARDINAL of the QUANTITY persons had been shot and , in his opinion , there were blood stains on an adjacent rock . The QUANTITY people had then escaped towards the hill and “ were exterminated there ” .

Lieutenant PERSON recounted in his statement of CARDINAL DATE that , on DATE of the events , he had been in charge of the soldiers on LOC . Upon receiving information that there were CARDINAL persons in the area who were acting suspiciously , he had been ordered by the battalion commander to apprehend the QUANTITY persons . He had then taken his team to PERSON . As it was dark , he had been unable to see the CARDINAL people but Captain PERSON , who was watching the area with a thermal camera , had provided him with information over the radio about their positions and their distance from his military team . The CARDINAL persons had first attempted to escape in an easterly direction , but had turned around when a mortar was fired towards them . When the westerly direction was also shelled with mortar fire , the CARDINAL men had started running towards the river bed down the side of PERSON .

He had ordered the QUANTITY persons to stop and lie on the asphalt road ; had they complied with his orders , they could have been caught alive . However , it was possible that they had not heard him as they were QUANTITY away at the time . The CARDINAL people had then started running towards PERSON where he and his soldiers were positioned . When the distance was QUANTITY he had fired in the air . He had also seen , using TIME vision binoculars , that the CARDINAL were not armed . Nevertheless , CARDINAL of them was wearing a military style vest in which ammunition could be carried and the other was wearing thick clothing . It was possible that they had strapped their bodies with bombs . The QUANTITY persons continued to approach the soldiers and , when at a distance of QUANTITY , he had radioed the battalion commander for permission to open fire . After receiving authorisation from his commander , he had asked the QUANTITY men , both in NORP and NORP , to surrender . After having fired at the men he had thrown CARDINAL hand grenades at them in order to destroy any explosives which might have been strapped to their bodies . It was not until TIME that they had realised that the CARDINAL people were in fact the CARDINAL village guards .

PERSON , an expert - sergeant who took part in the operation , recounted in his statement of CARDINAL DATE that , when the distance between the QUANTITY persons and the soldiers was QUANTITY , he and a number of soldiers had ordered the CARDINAL people to stop . He had been unable to see the QUANTITY persons but could hear them . He and the soldiers next to him had then fired warning shots , after which they had fired directly at the QUANTITY men . Noting that the CARDINAL were still alive , they had thrown hand grenades in order to “ neutralise them ” .

On DATE PERSON , another expert - sergeant who had also participated in the incident , gave a similar statement to that of Mr ORG and added that he had been able to see , using TIME vision binoculars , that the CARDINAL persons were not armed but were wearing thick clothing . Lieutenant PERSON , who was in charge of the soldiers , had then asked and obtained permission from the battalion commander to open fire on the CARDINAL men . They had then been warned that they would be shot at . After the firing had ceased , CARDINAL grenades had been thrown at them when they fell to the ground . He had not heard or seen whether the CARDINAL people had opened fire on the soldiers .

On DATE of the events PERSON had been serving as a private soldier under the command of Lieutenant PERSON and was positioned on PERSON . Private Altay recounted in his statement of CARDINAL DATE that he had been using TIME vision binoculars and had thus been able to see that the CARDINAL persons were not armed . CARDINAL of them was wearing thick clothing and a military style vest . After having unsuccessfully ordered the CARDINAL men – both in NORP and LANGUAGE – to stop and surrender , the soldiers had fired at them . He had also heard a hand grenade explosion ; he did not know the distance from which the hand grenade had been thrown or whether or not the QUANTITY persons had been alive when the hand grenade was thrown .

PERSON had also been serving as a private soldier under the command of Lieutenant PERSON and was positioned on PERSON at the relevant time . Private PERSON recounted in his statement of CARDINAL DATE that CARDINAL of the CARDINAL people had been wearing thick clothing . The soldiers , thinking that the QUANTITY men might be suicide bombers , had not wanted them to approach . When the distance between the QUANTITY persons and the soldiers was QUANTITY , the soldiers had started firing . A bomb had also been thrown at the CARDINAL men . The CARDINAL had not fired at the soldiers .

Both the first applicant PERSON and the ninth applicant PERSON were questioned by the prosecutor on DATE . They asked the prosecutor to find and prosecute those responsible for the deaths of their relatives .

On DATE the prosecutor decided that he lacked jurisdiction to investigate the killings and forwarded his decision and the above mentioned statements to the military prosecutor 's office at ORG in ORG . In his decision the prosecutor summed up the information he had been given by the above mentioned members of the military and concluded that the CARDINAL village guards had been mistaken for terrorists and had thus been killed . According to the prosecutor , the killings had been carried out in the performance of military duties and , as such , had to be investigated by a military prosecutor .

In this decision the battalion commander ORG , Lieutenant PERSON , sub - Lieutenant PERSON and expert - sergeants PERSON and PERSON were named as defendants in respect of the offence of “ causing death by negligence and carelessness ” . The first and the ninth applicants , i.e. PERSON and PERSON , were referred to in the decision as the complainants .

On DATE the applicants ' lawyer asked the military prosecutor for information about the investigation and asked to be contacted if his presence was required .

On DATE the military prosecutor asked the commander of the gendarmerie in the city of GPE to appoint CARDINAL high ranking officers as experts to assist him in the investigation . The military prosecutor specified that those CARDINAL officers should not be chosen from among members of the military teams to which the defendants belonged .

On DATE the military prosecutor visited the area where the CARDINAL village guards had been killed . CARDINAL majors and a lieutenant - colonel who had been appointed as experts , the defendants and other eye - witnesses were also present during the military prosecutor 's visit .

The military prosecutor observed that , at the time of the shooting , the distance between the CARDINAL village guards and the soldiers was QUANTITY . Furthermore , the place where the CARDINAL village guards were killed was QUANTITY away from the river bed which was often used by terrorists as an escape route .

During his visit , the military prosecutor also questioned Lieutenant PERSON , expert - sergeant PERSON and the battalion commander Captain PERSON , i.e. CARDINAL of the CARDINAL defendants .

Lieutenant PERSON stated that the CARDINAL village guards had been trying to reach the river bed to escape . When fire was opened , the CARDINAL village guards had been QUANTITY away from the river bed ; had they been able to proceed any further , it would have been impossible to find them again . He had not known at the time that the CARDINAL persons were in fact the village guards . He had been informed at the time that the QUANTITY men had been crouching frequently , thereby giving the impression that they were planting land mines . Lieutenant PERSON added that the CARDINAL people had been “ exterminated ” by the soldiers after having obtained permission from the battalion commander . Although the CARDINAL village guards had been unarmed , they were wearing thick clothing , thereby giving the impression that they had explosives on them . Thus , the reason for the soldiers to continue firing even after the CARDINAL men had fallen to the ground was to destroy any explosives . It had been his duty to stop terrorists from using the area as an escape route and to exterminate them ; on DATE of the events he had carried out that duty .

Expert - sergeant PERSON repeated the contents of his previous statement ( see paragraph CARDINAL above ) and added that the reason for the presence of the military in that area at the time had been to prevent terrorists from using the area as a transport route . On DATE of the events , they had exterminated CARDINAL terrorists . He had not thought at the time that they could be village guards . Their priority was to catch terrorists alive so that they could obtain information from them , but that had not been possible on this particular occasion because the QUANTITY persons had refused to surrender .

Battalion commander Captain PERSON stated that he had been informed in a fax message , sent to him from the regimental headquarters some time before the incident took place , that a group of CARDINAL terrorists had used the area DATE previously . He had been warned to be on high alert in case more terrorists tried to use the area . He knew that the locals helped terrorists by providing guidance around the area . Furthermore , land mines were being planted thereabouts . He confirmed that PERSON had kept him informed about the movements of the CARDINAL persons and about the operation . He added that Lieutenant PERSON had told him that the CARDINAL men were escaping and that it would have been impossible to find them again if they were allowed to do so . Furthermore , Lieutenant PERSON had also said that the QUANTITY persons might have explosives on them and that it would be dangerous for the soldiers if they came close . He had thus authorised the firing . In his opinion the CARDINAL village guards had been in the area in order to plant land mines or to help a group of terrorists .

On DATE the first applicant PERSON and the ninth applicant PERSON applied to the military prosecutor for permission to intervene in the proceedings . In their statements taken by the military prosecutor DATE , the CARDINAL applicants stated that their relatives had been killed intentionally or negligently . They asked the military prosecutor to establish the circumstances surrounding the killings and prosecute those responsible .

On DATE the CARDINAL experts submitted their opinions to the military prosecutor . They stated that , in reaching their conclusion , they had taken note of the above mentioned statements taken from members of the military and had watched the video footage of the operation recorded by Captain PERSON using the thermal camera ( see paragraph CARDINAL above ) . According to the experts , during TIME of darkness the area in question was out of bounds for all persons , with the exception of members of the military , because it was a transport route for terrorists to reach LOC . The village guards knew this well and their presence in that area could only be explained by their having ulterior motives . In fact , one and a half months before the killing of the CARDINAL village guards , a military vehicle had been damaged by a land mine . On account of the heavy military presence in the area , it could not have been possible for terrorists to plant land mines themselves . In the experts ' opinion , the deceased village guards had been responsible for planting the mines . Furthermore , they had intelligence suggesting that the deceased village guards had been assisting terrorists by providing guidance around the area .

According to the CARDINAL experts , although the CARDINAL village guards had been unarmed , their heavy clothing could reasonably have been mistaken for explosives . In fact , it was possible to see in the footage recorded by thermal cameras that the soldiers had continued to fire at the QUANTITY persons after they had fallen to the ground . This was done in order to destroy any explosives . The military units which had taken part in this incident had been deployed in that particular area to ambush terrorists . It was “ completely natural ” , therefore , that the “ village guards were exterminated on the assumption that they were terrorists ” . The experts concluded by stating their opinion that “ none of the defendants had been at fault ; in fact , they had carried out their duties effectively and successfully ” .

On DATE the military prosecutor took a statement from PERSON . PERSON had performed his military service in the area in question at the relevant time but had since completed his service and been discharged from the army . He had taken part in the operation under PERSON command . PERSON stated that on the night in question he had been using TIME vision binoculars and had thus been able to see the CARDINAL persons . The soldiers had then started firing to the left and right of the QUANTITY men , upon which the CARDINAL had started running towards the river bed . When the soldiers opened fire in that direction , the CARDINAL people had put their hands up and said “ Stop firing ; we surrender ” . Lieutenant PERSON had then ordered the CARDINAL men to lie on the road but they refused to do so , instead advancing towards the soldiers on PERSON . CARDINAL of the CARDINAL persons had one hand up in the air , but the other hand was behind his back as if he was reaching for something . Although Mr GPE had been able to see that because he was wearing night vision binoculars , some of the soldiers who were closer to the CARDINAL persons had also been able to see it with the naked eye . When the QUANTITY persons continued advancing towards the soldiers , Lieutenant PERSON had ordered the soldiers to open fire . The firing had continued after the CARDINAL had fallen to the ground in order to eliminate the risk of a booby - trap .

On DATE the military prosecutor questioned ORG and PERSON who , like Mr GPE , had been performing their military services and had taken part in the operation under the command of Lieutenant PERSON . Mr PERSON stated that he had been the sniper of the military team . Mr Dilmen and PERSON both stated that the QUANTITY persons had been given ample opportunity to surrender but had failed to do so . When the distance between the QUANTITY persons and the soldiers was down to QUANTITY , the soldiers had opened fire . They had not seen any weapons on the QUANTITY people , but the clothes they were wearing had been very thick , which had led the soldiers to think that they were laden with explosives .

On DATE the military prosecutor decided not to prosecute the defendants for the offence of “ causing death by negligence and carelessness ” . The military prosecutor concluded in his decision that the soldiers had “ shown more than necessary sensitivity in apprehending the CARDINAL persons alive , but had been unable to do so because of the QUANTITY person 's refusal to surrender ” . According to the military prosecutor , “ following the CARDINAL person 's refusal to surrender , killing them had become a duty for the soldiers ” and that the soldiers had carried out that duty .

The decision not to prosecute was communicated to the applicants ' lawyer on DATE . The lawyer contacted the military prosecutor DATE and asked to be provided with the documents from the investigation file . The military prosecutor authorised the release of the statements taken from the applicants only .

On DATE the applicants lodged an objection against the decision not to prosecute . In their petition submitted to ORG , the applicants argued that , due to the secret nature of the investigation , they had not been given access to the documents in the investigation file . Neither had they been able to participate in the investigation , notwithstanding their submission of petitions to intervene in the proceedings ( see paragraph CARDINAL above ) . The applicants argued , in particular , that their CARDINAL deceased relatives had been unarmed and that it thus should have been possible to apprehend them alive . They submitted that everyone had the right to life ; the killing of their CARDINAL relatives and the military prosecutor 's decision to discontinue the proceedings was a violation of their relatives ' right to life , which was protected by the LAW and by international conventions .

The applicants ' objection was rejected on DATE by ORG , which concluded that the decision not to prosecute was compatible with the legislation in force and the applicable procedure , and that there was no need to widen the scope of the investigation . The decision rejecting the objection was communicated to the applicants ' lawyer on DATE .

The relevant domestic law and practice , applicable at the time of the events giving rise to the present application , are set out in the judgments in the cases of ORG and Others v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) , and PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV , § § CARDINAL - CARDINAL ) .