Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

On DATE the applicant was arrested and detained on suspicion of committing an offence . On DATE he was charged with CARDINAL counts of theft , CARDINAL count of attempted theft and CARDINAL count of robbery . Most of the charges concerned offences committed jointly with others . He remained in custody until DATE , when he was released on bail .

NORP In DATE ORG indicted the applicant , Mr NORP and Mr D.D. in relation to CARDINAL thefts and CARDINAL robbery . On an unspecified date CARDINAL of the victims of the offences joined the proceedings as a civil claimant .

After a trial , in a judgment of DATE the ORG found the applicant guilty as charged , sentenced him to CARDINAL GPE imprisonment , and ordered him to pay damages to the civil claimant . The court did not make an order for the applicant ’s detention pending appeal . It did not immediately give the reasons for its judgment ; they were made available in DATE .

On DATE the applicant ’s counsel appealed to ORG . Since at that point she did not yet have the reasons for GPE ORG judgment , she submitted in general that the applicant ’s conviction was unlawful and unfounded and asked it to be quashed . She also argued that his sentence was excessive and requested that it be revoked or suspended . She said that she would provide further particulars and indicate the evidence to be gathered as soon as the reasons for the GPE ORG judgment became available . As required under LAW of LAW , the appeal was lodged through GPE .

On DATE the ORG briefly noted that the appeal did not meet the requirements of LAW and , without indicating the specific deficiencies , directed the applicant to submit a rectified appeal within DATE . The applicant was notified of the court ’s ruling on DATE , but did not react . Accordingly , in a decision of CARDINAL DATE the ORG dismissed the appeal . Neither the applicant , nor his counsel was notified of this and did not seek to appeal against this decision .

In line with LAW ( CARDINAL ) of the LAW ( see paragraph CARDINAL below ) , upon the expiry of the DATE time - limit for appealing against the decision of CARDINAL DATE the applicant ’s conviction and sentence were considered final and therefore enforceable . On DATE he was detained in FAC for the purpose of serving his sentence .

On DATE the applicant ’s counsel appealed to ORG against GPE decision of DATE . She argued that the appeal against the applicant ’s conviction and sentence had been in line with all legal requirements . She stressed that the applicant had not been required to give detailed grounds of appeal , as ORG had not made available the reasons for its judgment within the timelimit for lodging an appeal . Finally , she asked the court to rule rapidly , as the applicant was in custody serving his sentence .

On DATE the ORG sent this appeal to ORG .

CARDINAL hearings listed by ORG on DATE and CARDINAL DATE respectively were adjourned : the first because the applicant had not been properly summoned and , although legally represented , did not appear in person , and the second because his co - accused and the civil claimant , despite being duly summoned , failed to attend .

At a hearing which took place on DATE the ORG found that there was no need to involve the applicant ’s coaccused and the civil claimant in the proceedings relating to the propriety of the GPE ORG decision to dismiss his appeal against conviction and sentence . It further held that this appeal had been in line with legal requirements and that ORG had erred by dismissing it . Moreover , its decision to do so did not indicate in what respects the appeal had been deficient . The court therefore quashed this decision and referred the case back to GPE for further consideration of the appeal against the conviction and sentence . With that the criminal proceedings against the applicant were restored and his conviction and sentence were no longer considered final .

According to the applicant , at the same hearing his counsel asked ORG to consider whether he should remain in custody or be released . The court declined to do so , saying that it was for GPE to decide on this matter .

After DATE the applicant ’s counsel filed with ORG and GPE ORG several requests for release , none of which was examined .

The applicant ’s counsel also met CARDINAL times with the president of ORG , who explained that the judge to whom the case had been assigned was absent . On DATE the applicant ’s counsel filed a complaint with ORG , but received no reply .

On DATE the ORG sent the case file to ORG .

On DATE the ORG set the applicant ’s appeal down for examination . Apparently , at this point the president of the panel to which the case had been assigned noticed that the applicant was still in custody . For this reason , on DATE , DATE , she alerted ORG that , following the decision of DATE ( see paragraph CARDINAL above ) , the applicant ’s conviction and sentence were no longer considered final , and that he could not be kept in custody pursuant to them . On DATE the Sofia ORG ordered the applicant ’s release , citing the same reasons .

On DATE this order was received by FAC and the applicant was set free . It appears that until DATE of the criminal proceedings against him the applicant was not further remanded in custody .

In a judgment of DATE the ORG acquitted the applicant of the charges concerning CARDINAL of the thefts and upheld the remainder of the GPE ORG judgment . It imposed a global sentence of CARDINAL and a half years’ imprisonment . In determining the length of the applicant ’s period of imprisonment in pursuance of this sentence it deducted , by reference to LAW ( see paragraph CARDINAL below ) , the time he had already spent in custody DATE and DATE , saying that during this period the applicant had been serving a sentence which had not yet been made final .

The applicant lodged an appeal on points of law .

After holding a hearing on DATE , in a final judgment of CARDINAL DATE ORG upheld the Sofia ORG judgment .

Article CARDINAL § CARDINAL of the DATE Code of Criminal Procedure ( presently superseded by LAW ) , as in force at the material time , provided that criminal convictions and sentences became enforceable after they had been made final . This occurred when , inter alia , no ( valid ) appeal had been lodged against them ( LAW ( CARDINAL ) , read in conjunction with LAW ( CARDINAL ) and CARDINAL of the DATE Code , presently superseded by LAW ( CARDINAL ) , read in conjunction with LAW ) .

The authorities supervising the lawful execution of criminal sentences are the competent public prosecutors ( LAW ( presently superseded by LAW ) , section CARDINAL(CARDINAL ) ( DATE section CARDINAL(CARDINAL ) ) of the DATE LAW ( presently superseded by section DATE ) of the DATE LAW ) and section CARDINAL(CARDINAL ) of the DATE LAW ) . They are under a duty to order the release of any detainee who has been unlawfully deprived of his or her liberty ( section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW , presently superseded by section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW ) .

Section CARDINAL of the LAW originally called the DATE ORG to Citizens Act ( ORG за отговорността на държавата за вреди , причинени на граждани DATE “ the ORG ” ) , renamed on DATE the DATE State and ORG ( ORG за отговорността на държавата и общините за вреди ) , as in force at the material time , read , in so far as relevant :

“ The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for unlawful :

NORP pretrial detention , including when imposed as a preventive measure , when it has been set aside for lack of lawful grounds ;

NORP criminal charges , if the person concerned has been acquitted , or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence ... ”

According to the NORP courts’ caselaw , the ORG is liable for all damage caused by pre - trial detention where the accused has been acquitted ( реш. № CARDINAL/CARDINAL г. от DATE г. по PERSON № CARDINAL/CARDINAL г. на ORG ) or the criminal proceedings discontinued on grounds that the charges have not been proven , or where the perpetrated act is not an offence ( реш. № DATE г. от DATE г. PERSON № DATE г. на ВКС ) .

In a binding interpretative decision ( тълк. реш. № CARDINAL от CARDINAL април DATE г. на ORG по PERSON № CARDINAL/CARDINAL г. , ORG ) , made on DATE pursuant to the proposal of the President of ORG , the Plenary Meeting of ORG of that court resolved a number of contentious issues relating to the construction of various provisions of the ORG . CARDINAL of the decision it held that the compensation awarded in respect of the nonpecuniary damage arising under section CARDINAL(CARDINAL ) or ( CARDINAL ) of the LAW should cover also the nonpecuniary damage stemming from unlawful pre - trial detention imposed during the proceedings , whereas compensation for the pecuniary damage flowing from such detention should be awarded separately . The reasons it gave for this decision were as follows :

“ Pretrial detention is unlawful when it does not comply with the requirements of [ the ORG ] .

The ORG is liable under section CARDINAL(CARDINAL ) [ of the ] ORG when the pretrial detention has been set aside as unlawful , irrespective of how [ the criminal ] proceedings unfold later . In such cases compensation is determined separately .

If the person has been acquitted or the criminal proceedings have been discontinued , the ORG is liable under section CARDINAL(CARDINAL ) [ of the ] ORG . In that case , the compensation for non - pecuniary damage has to cover the damage flowing from the unlawful pretrial detention . If pecuniary damage has arisen , compensation for it is not included but has to be awarded separately , taking into account the particular circumstances of each case . ”

NORP CARDINAL of its decision the court dealt with the question whether the accused should be entitled to compensation under section CARDINAL(CARDINAL ) of the ORG when they have been convicted of some charges and acquitted of others . It held that compensation was due even in cases of partial acquittals , provided there was a proven causal link between the unlawful bringing of charges and the damage suffered . Nonpecuniary damages were to be assessed globally and in equity , taking into account the number of acts in respect of which an accused has been found not guilty and the respective gravity of the offences of which they have been convicted and those of which they have been acquitted . Pecuniary damages were to be awarded by taking into consideration the particular circumstances of each case and whether or not they flowed from the unlawful acts of the law enforcement authorities .

Under LAW of LAW , the sentencing court has to deduct from any sentence of imprisonment the time already spent by the offender pending the final outcome of the case .

Section CARDINAL(CARDINAL ) of the CARDINAL Execution of Punishments Act provides that inmates have the right to file applications and complaints , and to appear in person before the prison governor . By section CARDINAL ) of the LAW , these applications and complaints have to be sent immediately to the competent authorities .


The applicant was born in DATE and lives in GPE .

The applicant ’s wife died on DATE , leaving CARDINAL children , born in DATE and DATE . On DATE the applicant applied for widow ’s benefits . By a letter dated DATE , ORG informed him that it was unable to pay him any of the benefits claimed because he was not a woman .

On DATE the applicant applied for an allowance under the Income and Corporation Taxes Act DATE on the same basis as he would receive it if he were a widow whose husband died in similar circumstances . He only received a letter of reply on DATE .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no social security or tax benefits were payable to widowers under GPE law .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and PERSON , PERSON , PERSON and Geen v. GPE , nos . CARDINAL , GPE , GPE and GPE , DATE .


CASE OF CHRISTIAN DEMOCRATIC PEOPLE'S PARTY v. MOLDOVA (No. 2)

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

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

ORG ( “ the ORG ” ) is a political party in GPE which was represented in ORG and was in opposition at the time of the events .

On DATE the applicant party applied to ORG for an authorisation to hold a protest demonstration in FAC , in front of the Government ’s building , on DATE . According to the application , the organisers intended to express views on the functioning of the democratic institutions in GPE , the respect for human rights and the NORP conflict in GPE .

On DATE ORG rejected the applicant party ’s request on the ground that “ it had convincing evidence of the fact that during the meeting , there will be calls to a war of agression , ethnic hatred and public violence ” .

The applicant party challenged the refusal in court and argued , inter alia , that the reasons relied upon by ORG were entirely baseless .

On DATE the ORG dismissed the applicant party ’s action . The court found that ORG refusal to authorise the ORG ’s demonstration was justified because the leaflets disseminated by it contained such slogans as “ Down with PERSON ’s totalitarian regime ” and “ Down with PERSON ’s occupation regime ” . According to ORG , these slogans constituted a call to a violent overthrow of the constitutional regime and to hatred towards the NORP people . In this context , the court recalled that during a previous demonstration organised by the applicant party to protest against the presence of the NORP military in GPE , the protesters burned a picture of the President of GPE and a NORP flag .

The applicant party appealed against the above decision arguing , inter alia , that the impugned slogans could not have reasonably been interpreted as a call to a violent overthrow of the ORG or as a call to ethnic hatred and that the refusal to authorise the meeting constituted a breach of its rights guaranteed by ORG CARDINAL and CARDINAL of the Convention .

On DATE ORG dismissed the applicant party ’s appeal and confirmed the judgment of ORG .

NORP The relevant provisions of LAW of DATE read as follows :

( CARDINAL ) ORG shall be conducted peacefully , without any sort of weapons , and shall ensure the protection of participants and the environment , without impeding the normal use of public highways , road traffic and the operation of economic undertakings and without degenerating into acts of violence capable of endangering the public order and the physical integrity and life of persons or their property .

Assemblies shall be suspended in the following circumstances :

( a ) denial and defamation of the ORG and of the people ;

( b ) incitement to war or aggression and incitement to hatred on ethnic , racial or religious grounds ;

c ) incitement to discrimination , territorial separatism or public violence ;

d ) acts that undermine the constitutional order .

( CARDINAL ) ORG may be conducted in squares , streets , parks and other public places in cities , towns and villages , and also in public buildings .

( CARDINAL ) It shall be forbidden to conduct an assembly in the buildings of the public authorities , the local authorities , ORG offices , the courts or companies with armed security .

( CARDINAL ) It shall be forbidden to conduct assemblies :

( a ) within QUANTITY of the parliament building , the residence of the president of GPE , the seat of the government , ORG and ORG ;

( b ) within QUANTITY of the buildings of the central administrative authority , the local public authorities , courts , ORG offices , police stations , prisons and social rehabilitation institutions , military installations , railway stations , airports , hospitals , companies which use dangerous equipment and machines , and diplomatic institutions .

( CARDINAL ) PERSON access to the premises of the institutions listed in subsection ( CARDINAL ) shall be guaranteed .

( CARDINAL ) The local public authorities may , if the organisers agree , establish places or buildings for permanent assemblies .

( CARDINAL ) Not DATE prior to the date of the assembly , the organiser shall submit a notification to ORG , a specimen of which is set out in the annex which forms an integral part of this LAW .

( CARDINAL ) The prior notification shall indicate :

( a ) the name of the organiser of the assembly and the aim of the assembly ;

( b ) the date , starting time and finishing time of the assembly ;

( c ) the location of the assembly and the access and return routes ;

( d ) the manner in which the assembly is to take place ;

( e ) the approximate number of participants ;

( f ) the persons who are to ensure and answer for the sound conduct of the assembly ;

( g ) the services which the organiser of the assembly asks ORG to provide .

( CARDINAL ) If the situation so requires , ORG may alter certain aspects of the prior notification with the agreement of the organiser of the assembly . ”

( CARDINAL ) The prior notification shall be examined by the local government of the town or village at DATE before the date of the assembly .

( CARDINAL ) When the prior notification is considered at an ordinary or extraordinary meeting of ORG , the discussion shall deal with the form , timetable , location and other conditions for the conduct of the assembly and the decision taken shall take account of the specific situation .

( CARDINAL ) The local authorities can reject an application to hold an assembly only if after having consulted the police , it has obtained convincing evidence that the provisions of sections CARDINAL and CARDINAL will be breached with serious consequences for society .

( CARDINAL ) A decision rejecting the application for holding an assembly shall be reasoned and presented in writing . It shall contain reasons for refusing to issue the authorisation ...

( CARDINAL ) The organiser of the assembly can challenge in the administrative courts the refusal of the local government . ”


HOUDART AND VINCENT v. FRANCE [Extracts]

The applicants , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and live in FAC and GPE respectively . They were represented before the ORG by Mr Bigot , a lawyer practising in GPE .

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

The applicants are doctors . At the material time , although they remained registered with ORG ( ordre des médecins ) for the city of GPE , they were not practising medicine but were working as journalists for “ Sciences et Avenir ” , a DATE science magazine for the general public of which they were the editor - in - chief and deputy editor .

Issue number CARDINAL of the magazine , published in DATE , was entitled “ Hospitals , DATE edition ” with the following coverlines : “ League - table of CARDINAL NORP hospitals ” , “ Best results : the top CARDINAL facilities ” , “ Blacklist of problem hospitals ” and “ Exclusive : mortality in your hospital ” .

It was stated in the magazine that this special issue had been produced by the applicants , without their status as doctors being mentioned , and by a third journalist who was not a doctor . Its contents included a league - table of the CARDINAL best and CARDINAL worst hospitals in CARDINAL specialist fields . They were ranked according to CARDINAL criteria : their activity , based on health - establishment data from the ORG ( medicalised information system programme ) ; mortality , assessed by reference to a national mortality indicator for patients in the same age bracket and with similar medical conditions ; and notoriety , which was in fact measured by the attractiveness of the hospital for patients from outside the département . The combination of these criteria produced an overall rating out of CARDINAL . Information letters and requests for explanations were also sent to the directors of hospitals where major shortcomings had been found .

ORG ranked thirteenth in the list of the CARDINAL hospitals with the worst results in the field of digestive surgery , with an overall rating of CARDINAL out of CARDINAL and a mortality rate CARDINAL times higher than the norm .

On DATE Doctor PERSON , head surgeon at FAC , lodged a complaint with the département council ( conseil départemental ) of ORG for the city of GPE . He criticised the applicants for the highly inaccurate nature of their investigation , as a result of using inappropriate criteria , failing to take account of specificities related to the precise type of medical condition and not distinguishing between emergency and scheduled admissions . Moreover , in his opinion there had been no subsequent moderation , whether in the commentary or in the choice of persons interviewed . He thus considered that his reputation and that of his staff had been seriously impugned , all the more so because he was working in a small town . He lastly argued that the investigation , by casting doubt on the quality of this local - community medical facility , might lead to inappropriate attitudes on the part of patients , particularly in the event of an emergency .

By a decision of DATE , the département council referred the complaint to ORG regional council for ORG and requested to be joined to the proceedings on account of a breach of LAW and CARDINAL of LAW for medical practitioners . The rapporteur from the département council made the following submissions in particular :

“ Whilst the seriousness of the journalists ' work is not at issue , it does not appear upon reading the article that any disclaimer as to the limits of the methodology used has been clearly indicated .

The headings of the articles and paragraphs and the comments inserted in the boxes add a sensationalist tone which turns a report into an indictment .

Lastly , the possibilities for the criticised heads of department and hospital directors to defend themselves have been very limited .

Generally - speaking , the specific case of ORG raises the issue of the limits to the transparency of medical information . In the long term such transparency is desirable , but in the short term the beneficial effects of selecting the most efficient services for patients may be counter - balanced by the negative repercussions of anxiety - provoking remarks for a section of the population that is limited in its choice of hospital treatment by age , geography or social situation .

ORG and concern about the repercussions of remarks among members of the public , as required by LAW [ sic ] of LAW , do not seem to have guided the authors , who should have ensured that the limits to their work were made clear and , in such a sensitive area , should have avoided provocative headings . ”

In a decision of CARDINAL DATE the regional medical council dismissed the applicants ' plea of inadmissibility , which had been based on the possibility of raising the defences available under LAW of DATE , and found as follows :

“ Notwithstanding the existence of LAW of DATE , it is clear that everyone is free to use the means of his choosing to enforce his rights without such possibility being open to challenge . ”

The regional council gave the CARDINAL applicants a warning ( avertissement ) based on the following reasoning :

“ On the basis of data that could be regarded as objective , albeit open to debate and debated , Doctors PERSON and PERSON , by inserting crossheads , boxes and passages in italics , transformed an informative article into a sensationalist one ...

By placing the unwritten ethics of journalists before those of doctors , which have been codified in a regulatory text , they crossed a boundary which must not be overstepped , especially as LAW for medical practitioners has the aim of protecting patients – a section of the population that is weak both physically and psychologically . It can not validly be argued that ORG and PERSON submitted their article to the magazine without concerning themselves with the publication or without being aware of the sensationalist additions designed at least to lure readers and perhaps to boost sales ; if that were the case , they failed in their obligation to verify the ultimate and potential use of their statements or the possible impact of those statements on the general public .

In this connection it is ineffective to claim that , since they were not practising medicine , Doctors ORG and PERSON were not bound by the provisions of LAW for medical practitioners ; on the contrary , their voluntary registration with ORG shows their desire to abide by that Code , especially the provisions in the first section dealing with the general duties of doctors .

After studying the material in the file and hearing representations from the parties , it appears that ORG and PERSON interpreted information to give it a sensationalist and derogatory character , thus causing damage , perhaps unintentionally , to the complainant Doctor PERSON and to his patients , which is even worse . In these circumstances it is appropriate , in order to reiterate the need for medical ethics , to impose a penalty in the form of a warning . ”

The applicants , relying in particular on Articles CARDINAL and CARDINAL of the [ NORP ] Convention [ on Human Rights ] , then lodged an appeal with ORG .

On DATE the disciplinary section of ORG dismissed a complaint by the applicants concerning the rapporteur 's participation in the deliberation of the regional council , finding that his duties were consonant with the principle of impartiality enshrined in LAW . The disciplinary section further found that the applicants had breached their duty of care when imparting information to the public , as provided for in LAW for medical practitioners :

“ Doctors ORG and PERSON were , at the material time , respectively the editor - in - chief and deputy editor of the magazine ' Sciences et ORG ' , and it was in their capacity as journalists that they wrote the offending articles published in the DATE issue of that magazine . The fact that they were not practising medicine , that the acts were committed in the context of their work as journalists and that they did not invoke their status as doctors is not capable of precluding the application of LAW for medical practitioners , by which every doctor remains bound once he or she is registered with ORG . This fact obliges the disciplinary body , which has jurisdiction to rule on breaches by doctors of LAW for medical practitioners , only to reconcile the ethical duties of doctors with the requirements of the freedom of expression afforded to journalists . In that latter respect , whilst the first paragraph of LAW guarantees freedom to impart information and ideas , the second paragraph of that Article stipulates that the exercise of this freedom , carrying with it duties and responsibilities , may be subject to such restrictions or penalties as are necessary , in particular , for the protection of the reputation or rights of others ...

... the right for doctors to inform the public about the quality of hospital services , even designated by name , and to give a critical assessment of some of them , can not be called into question , provided only that in presenting their analyses they do not breach the duty of care by which they are bound under the above - mentioned provisions of LAW . Whilst they set out the criteria by virtue of which they had drawn up a league - table of hospitals , they failed to take the precaution , which was all the more necessary as the publication was intended for the general public , of indicating the limits and the relative nature of a qualitative analysis based on data from the ORG ( medicalised information system programme ) , which they presented , by contrast , on page CARDINAL of the publication , as ' an outstanding tool with remarkable accuracy ' . Not only are the published results presented as unquestionable and scientifically established but they are also accompanied by comments and headings such as “ Its hospitals make GPE sick ” , “ Blacklist of problem hospitals ” , and “ underperforming facilities can be found virtually everywhere ” , the purpose of which is not to inform patients but to dramatise the information without any concern for the repercussions of this presentation on the patients who use services whose quality has been seriously impugned . Having regard to the applicants ' level of responsibility in the publication , they can not claim that they are mere employees working under the authority of the magazine 's management without any right of scrutiny in respect of the articles published , nor that the presentation of the facts , the headings and the comments are the work solely of the publication director and were not even tacitly approved by them ... ”

The applicants then lodged an appeal on points of law with the ORG d'Etat . They submitted that the professional disciplinary bodies did not have jurisdiction in respect of doctors who were not practising medicine professionally . They further complained that they had been deprived of a fair hearing , within the meaning of LAW , as they had not been given prior knowledge of the rapporteur 's report to the CARDINAL professional bodies . They lastly observed that the application of LAW for medical practitioners to doctors not practising medicine , in respect of acts they committed while engaged in the activity of journalism , and without their status as doctor being invoked , constituted a mistake of law . They based that latter argument on the wording of LAW of LAW for medical practitioners , which referred only to “ participation in an educational and health - related action of public information ” and on the incompatibility between the guarantees attaching to the status of journalist under LAW of DATE and the rules of medical ethics .

On DATE the ORG d'Etat dismissed the applicants ' appeal on points of law on the grounds that the professional disciplinary bodies did have jurisdiction because the applicants were registered with ORG , that the report – simply a statement of facts – drawn up by the rapporteur appointed by the chairman of the disciplinary section did not necessarily have to be communicated to the parties , and that LAW for medical practitioners could apply to acts relating to the applicants ' activity as journalists :

“ It transpires from the provisions of the above - mentioned LAW DATE that the disciplinary bodies of ORG have jurisdiction , in connection with proceedings brought before them , to assess the conduct of any registered doctor with regard in particular to the provisions of LAW for medical practitioners . It can be seen from the material in the file submitted to the tribunal of fact DATE and it is not in dispute – that PERSON and PERSON were , at the time of the impugned acts , registered with ORG . Accordingly , these doctors are not justified in arguing that the disciplinary sections of ORG regional medical council and of ORG were acting ultra vires in ruling on the breaches of professional duty that they were alleged to have committed in respect of certain articles published in a magazine under their management . The disciplinary section of ORG did not commit any mistake of law when it found that LAW for medical practitioners was applicable to facts relating to the applicants ' activity as journalists . ”

Decree no . CARDINAL of DATE laying down a Code of Professional Conduct for medical practitioners reads , in relevant part , as follows :

“ The provisions of the present Code shall be binding on medical practitioners who are registered with ORG ... ”

“ When a medical practitioner participates in an educational and health - related action of public information , regardless of the means of dissemination , he shall only impart information that has been confirmed , shall act with care and shall be concerned about the repercussions of his remarks among members of the public . In such a context he shall refrain from courting publicity , whether for personal reasons , for the benefit of bodies for which he works or to which he provides assistance , or in support of a cause that is not in the general interest . ”

“ All medical practitioners shall abstain , even when not exercising their profession , from any act that might bring discredit upon that profession ” .


No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-5;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicant was , and still is , a prominent member of ORG . He has been arrested by the police on a number of occasions and has issued proceedings relating to his allegations , inter alia , of arbitrary arrest , assault and ill - treatment arising out of CARDINAL incidents . In proceedings lodged for incidents in DATE and on DATE , he received an award of damages ( amount unspecified ) . In or DATE he was awarded damages of MONEY ( GBP ) for an incident in FAC on DATE when the judge found that he had been wrongfully arrested by police officers who had purported to arrest the applicant for obstruction in failing to give his name when in fact they were fully aware of his identity . This case concerns his arrest in DATE in relation to the murder of Mr PERSON .

PERSON was a NORP citizen working for the caterers of canteens in police stations in GPE . He was murdered on DATE . The Provisional IRA claimed responsibility for his death .

The Government submitted that Special Branch received intelligence that the applicant and CARDINAL other persons were involved in the murder . The intelligence derived from CARDINAL informants who had proved reliable in the past and had provided information leading to seizures of explosives or firearms and to prosecutions . None of the informants had a criminal record . The information given by these CARDINAL informants was consistent , in that all gave the same names as being involved , and independent , in that none was aware of the existence of the others and each gave the information at separate meetings with police officers .

Detective PERSON of ORG ( “ the ORG ” ) was briefed by Special Branch concerning this intelligence that the applicant was a member of ORG and had been implicated in the murder .

Detective PERSON briefed Inspector PERSON who in turn briefed Detective Constable S.

On DATE , at CARDINAL or TIME , Detective Constable PERSON visited the applicant ’s house and conducted a search . At the conclusion of the search , at TIME , PERSON arrested the applicant . He told the applicant that he was arresting him under section CARDINAL(CARDINAL)(b ) of ORG ( Temporary LAW DATE ( “ the DATE LAW ) which empowered a police constable to arrest , without a warrant , a person whom he had reasonable grounds for suspecting of being concerned in the commission , preparation or instigation of acts of terrorism .

The applicant was taken to FAC where he was questioned about his possible membership of the IRA , his suspected involvement in PERSON murder and also his possible involvement in the murder of CARDINAL soldiers on DATE . He was interviewed on CARDINAL occasions . He did not respond to any questions . According to the Government , the first interview occurred on DATE at CARDINAL a.m. , at the start of which he was told that the police were enquiring into his involvement with the Provisional IRA and related matters . Police notes provided by the Government record that during the next interview , from TIME , the interrogating officers told the applicant that they were making enquiries in relation to his membership of the IRA and the murder of PERSON .

On DATE the Secretary of ORG for GPE extended the applicant ’s period of detention beyond the initial CARDINAL-hour period , by DATE . The applicant was released without charge on DATE at TIME , after DATE and TIME in custody .

By a writ issued on DATE against the Chief Constable of the ORG , the applicant instituted a civil action for damages before ORG in GPE in respect of , inter alia , assault , seizure of documents , false imprisonment and unlawful arrest .

Before ORG , the submissions of the applicant ’s counsel concentrated , as the trial judge found , on the issues of assault and confiscation of documents . He did however raise the argument , in the context of the lawfulness of the arrest , that Detective Constable S. did not have sufficient grounds for suspicion that the applicant had committed an offence to justify the arrest . The evidence before the court from Detective Constable S. was to the effect that he attended a briefing at TIME on DATE in which he was told that he was to carry out a search to find evidence and arrest persons , including the applicant , suspected of involvement in the murder of PERSON . He had been told by his superior officer , Inspector PERSON , at that briefing that the applicant was involved in the murder and stated that these were the reasonable grounds for suspecting the applicant . He did not state that Inspector PERSON had told him the grounds for his own suspicion , nor was he asked about that matter by counsel for either party . It was common ground that the murder was a terrorist offence . The superior officer was not called as a witness in the proceedings .

On DATE Judge PERSON found that there had been an unlawful taking of the applicant ’s notes by a police officer and awarded Mr CARDINAL in damages . He rejected the applicant ’s claims of assault and ill - treatment , finding that he had not satisfied him on the balance of probabilities that his version of events was right and that of the police officers wrong .

As regards the allegations of wrongful arrest , the judge noted :

“ ... while [ the applicant ’s counsel ] submitted that the officer who arrested the [ applicant ] was required , in order to render the arrest lawful , in addition to holding the suspicion grounding the arrest of the [ applicant ] , [ to ] have reasonable grounds for that suspicion , based on his own knowledge of facts giving rise to that suspicion . He accepted that both Mr Justice PERSON and the Lord Chief Justice had previously rejected the same submission in similar cases .

While he reserved his position on this issue he made no new submissions and produced no new arguments to me which would cause me to depart from the reasoning in their decisions , and in the circumstances I am satisfied in this case on the evidence of Detective Constable [ S. ] that as a result of the information he had been given he had reasonable grounds for suspecting that the [ applicant ] had been concerned in the commission , preparation or instigation of acts of terrorism .

Cross - examination of the detective constable did not probe the details which had been disclosed to Detective Constable [ S. ] in the course of the briefing during which he was supplied with this information .

I find on the evidence that the detective constable had a suspicion that the [ applicant ] was involved in the murder of PERSON and that this suspicion was reasonably based on information given to him by a superior officers at the briefing that TIME .

Either party could have elicited details of the briefing , not as truth of the matters disclosed , but as relevant on the issue of the reasonableness of the suspicion held by the arresting officer . Proof of the lawfulness of the arrest lies on the defendant .

I would not wish to lay down the proposition that reasonable suspicion could in all circumstances be based on the opinion of another officer expressed without any supporting allegations of fact . But it does seem to me that a briefing officially given by a superior officer would give reasonable grounds for suspicion of the matters stated therein . The fact that I have such scanty evidence of the matters disclosed to Detective Constable [ S. ] means that I am only just satisfied of the legality of the arrest , but I am fortified in my view by the lack of detailed challenge in cross - examination as to the nature of the information given to him .

The main issue between the parties is as to whether the [ applicant ] was assaulted and mistreated during the period of his detention ... ”

On DATE , the applicant gave notice of appeal to ORG in GPE concerning the claim of unlawful arrest and false imprisonment .

On DATE ORG dismissed the appeal , upholding the decision of ORG that reasonable suspicion could be derived from information provided by a superior officer and that the arrest was lawful .

“ Notwithstanding his concern that more detail of the briefing had not been given , the learned trial judge was able to conclude :

‘ ( CARDINAL ) that the arresting officer ... did have a suspicion that the [ applicant ] was involved in a terrorist murder and it was implicit that that suspicion was genuinely held by him ;

and ( CARDINAL ) that the official briefing which he had attended given by [ his superior officer ] gave him reasonable grounds for that suspicion.’

These were factual findings and clearly contained in our view all the essential proofs that the respondent was required to adduce to constitute lawful arrest under section CARDINAL(CARDINAL)(b ) of the LAW .

[ Applicant ’s counsel ] submitted that this was not the case . The source of the suspicion and the reasonable grounds for it must be before the court , namely evidence from the briefing officer , Inspector [ B. ] , as to the grounds on which he suspected the [ applicant ] of being involved in the commission , preparation and instigation of acts of terrorism . It would be unjust , he contended , if section CARDINAL could give Inspector [ B. ] protection from liability for false imprisonment if the ORG himself had not reasonable grounds for the suspicion . The first part of this submission flies in the face of the authorities as we have said . The second part , so far as this case is concerned , seems to be hypothetical in that the regularity or the bona fides of the ‘ official ORG were not questioned . No factual foundation for such a case was made out ...

We consider that the decision of the learned trial judge was correct . The information given at the briefing to the arresting officer was admissible and although , in his words , ‘ ORG it was sufficient to constitute the required state of mind of an arresting officer under section CARDINAL(CARDINAL)(b ) of the LAW . ”

An appeal to ORG against the decision of ORG was dismissed on DATE . In his judgment , with which the other judges agreed , Lord Hope of PERSON held that it was not necessary for an arresting officer to possess all the information which had led to the decision to arrest , but that the arresting officer must have equipped himself with sufficient information so that he had reasonable cause to suspect before exercising the power of arrest . The information acted upon by the arresting officer need not be based on his own observations , as he is entitled to form a suspicion based on what he has been told ; his reasonable suspicion may be based on information which has been given to him anonymously , or it may be based on information which turns out later to be wrong . While the evidence about the matters disclosed at the briefing was indeed scanty , he found that the trial judge was entitled to weigh up the evidence in the light of the surrounding circumstances and , having regard to the source of that information , and to draw inferences as to what a reasonable man , in the position of the independent observer , would make of it .

Lord PERSON stated , inter alia , concerning the general principles :

“ Certain general propositions about the powers of constables under a section such as section CARDINAL(CARDINAL ) can now be summarised . ( CARDINAL ) NORP In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case . Ex hypothesis one is considering a preliminary stage of the investigation and information from an informer or a tip - off from a member of the public may be enough : PERSON v. PERSON [ DATE ] ORG , CARDINAL . ( CARDINAL ) Hearsay information may therefore afford a constable reasonable grounds to arrest . Such information may come from other officers ... ( CARDINAL ) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest . ( CARDINAL ) The executive ‘ discretion’ to arrest or not ... vests in the constable , who is engaged on the decision to arrest or not , and not in his superior officers .

Given the independent responsibility and accountability of a constable under a provision such as section CARDINAL(CARDINAL ) of the Act of DATE it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of section CARDINAL(CARDINAL ) . It is accepted , and rightly accepted , that a mere request to arrest without any further information by an equal ranking officer , or a junior officer , is incapable of amounting to reasonable grounds for the necessary suspicion . How can the badge of superior officers and the fact that he gave an order make a difference ? ... In practice it follows that a constable must be given some basis for a request to arrest someone under a provision such as section CARDINAL(CARDINAL ) , e.g. a report from an informer . ”

Section CARDINAL of the Prevention of Terrorism ( Temporary Provisions ) Act CARDINAL provided at the relevant time :

“ ( CARDINAL ) Subject to sub - section ( CARDINAL ) ... , a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be :

( b ) a person who is or has been concerned in the commission , preparation or instigation of acts of terrorism to which this Part of this Act applies ;

( CARDINAL ) A person arrested under this section shall not be detained in right of the arrest for CARDINAL after his arrest ; but the Secretary of ORG may , in any particular case , extend the period of TIME by a period or periods specified by him . ”

This provision sets a test of an honest suspicion upon reasonable grounds , involving an objective element . Domestic case - law indicates that an arrest will be unlawful where , although there was an honest suspicion on the part of the arresting officer , that suspicion was not objectively reasonable ( see , for example , PERSON v. Chief Constable of ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) .

Although section CARDINAL concerns the suspicion held by the arresting officer , where a briefing officer has told an arresting officer that there is reliable information when there is not , the Chief Constable may become vicariously liable for a wrongful arrest , on behalf of the briefing officer , not the arresting officer ( see PERSON v. Chief Constable of GPE Police , CARDINAL DATE ) .


Preliminary objections dismissed (ratione temporis, ratione materiae, non-exhaustion of domestic remedies);Non-pecuniary damage - financial award;Violation of P1-1

The applicant was born in DATE and lives in GPE .

The applicant owns a plot of land with a surface area of QUANTITY , located in the municipality of GPE , near GPE . It is listed in the local land register under entry No . DATE .

On DATE the applicant and his neighbours lodged their objections to a proposed new land development plan to be adopted by the municipality .

On DATE the municipal council of PERSON adopted the local land development plan . The applicant 's objections were not taken into consideration . Under the plan , the applicant 's land was designated for agricultural purposes . A road and a hospital were to be constructed on his land after expropriation .

The applicant and his neighbours complained of this decision to the GPE Governor , arguing inter alia that the plan breached their right to the peaceful enjoyment of their possessions . They submitted that the local land development plan had been prepared in a manner which failed to take properly into consideration and reconcile the various interests of the municipality and the local owners . As a result , the plan was unreasonable and did not comply with the standards of good land administration .

They transferred the complaint to ORG , after being informed that it alone was competent to examine the matter .

By a judgment of DATE , ORG dismissed the complaint , considering that there were no indications that the municipal authorities had failed to take into consideration and properly weigh the various competing interests involved in the preparation of the local land development plan . It noted that the restrictions on ownership imposed by land development measures were not per se incompatible with the nature of ownership guaranteed by LAW .

In DATE the applicant and CARDINAL other inhabitants of PERSON requested the Mayor to amend the DATE plan in order to avoid the loss of various investments they had made in their land after the implementation of the plan 's projects . This request apparently remained unanswered .

In a letter of DATE ORG , in reply to a query submitted by the applicant and other persons , stated that the municipal authorities were under no obligation to provide any compensation for owners whose property was to be expropriated in the future . They were also informed that the validity of the DATE plan had been prolonged for DATE under the amendment to LAW DATE adopted in DATE .

On DATE the Mayor of PERSON refused the applicant 's request for an initial approval of a development project on his land ( decyzja o warunkach zabudowy ) , considering that the project would be incompatible with the local land development plan . The applicant wished to have a house built on his land while , under the plan , it was designated for the construction of a road and a hospital .

The applicant appealed against this decision to the Mazowiecki Governor . In a reply of DATE , he was informed that the appeal should be lodged with ORG and that the construction of the road in PERSON would not be budgeted before DATE at the earliest . The applicant addressed ORG .

On DATE ORG dismissed the applicant 's appeal on the ground that his construction project was incompatible with the land development plan . It was further reiterated that , under LAW DATE , he had no right to compensation for the fact that his land had been “ frozen ” or for the restrictions on its use .

On DATE ORG informed the applicant that the plan had been amended in that the construction of the hospital was no longer foreseen . However , the project to build a road remained valid , but no timeframe was specified .

On DATE the applicant requested the Municipality to acquire his property . ORG refused to do so by a letter of DATE .

On DATE the applicant complained to ORG that the decisions it had given in respect of the land development in his neighbourhood were incompatible with the land development plan adopted in DATE .

By a letter of DATE , the ORG informed the applicant that , under domestic law , the owners of property to be expropriated in the future had no right to compensation for the fact that their land could not be developed . They would be entitled to compensation only after the final expropriation decisions in respect of their property had been taken .

On DATE ORG dismissed his appeal against the decision of DATE . The court observed that its jurisdiction was limited to the examination of the lawfulness of the impugned decision . It found that the decision was lawful as it was common ground between the parties that the applicant 's construction project was incompatible with the local land development plan .

It further noted that the applicant had complained that his situation could not be seen as being compatible with the LAW , given that owners affected by plans adopted prior to the LAW 's entry into force could not benefit from compensation claims provided for by section CARDINAL of LAW DATE . The court referred to the judgment of ORG given in DATE ( see paragraph CARDINAL below ) , which had examined the compatibility with LAW of section CARDINAL § CARDINAL of the CARDINAL Act . That provision had excluded the application of the owners ' right to compensation under section CARDINAL to land development plans adopted before DATE . It had found the provision to be compatible with the LAW .

ORG observed that it was not its task to amend or criticise existing laws and that it was bound by this provision . Otherwise , there were no grounds on which to consider that the decision challenged by the applicant had been unlawful .

In the meantime , in DATE the applicant petitioned the ORG .

On DATE the ORG informed him that the legal framework for “ frozen land ” was governed by LAW DATE . Under section CARDINAL of this Act , owners of such plots were entitled to various forms of compensation , but only insofar as their plots were affected by land development plans adopted after DATE .

On DATE the validity of the DATE land development plan expired .

On DATE the applicant was granted an initial planning permit ( decyzja o warunkach zabudowy ) in respect of his land .

DATE to DATE questions of land development were governed by LAW of DATE .

On DATE a new LAW was enacted . It entered into force on DATE .

On DATE ORG passed a law amending LAW DATE .

On DATE a new LAW was enacted which repealed LAW .

Under LAW of DATE owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date .

Section CARDINAL of LAW enacted in DATE created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities . The municipalities were obliged to buy such property , replace it with other land within DATE of an owner 's request , or provide compensation for the damage caused by the designation .

However , pursuant to LAW , these obligations and the corresponding claims of the owners applied only to plans adopted after LAW had entered into force , i.e. to plans adopted by local municipalities after DATE .

Pursuant to the DATE Act , plans adopted before its entry into force were to expire on DATE .

In DATE an amendment to LAW was adopted under which the validity of such plans was extended for DATE until DATE . Again , on DATE , ORG passed a law amending LAW DATE which extended until DATE the validity of the land development plans adopted before DATE .

Under LAW of LAW ( see paragraph CARDINAL above ) , all local plans adopted before DATE remained valid , but not beyond DATE .

Compensation entitlements for owners , provided for by LAW ( see paragraph CARDINAL above ) , were in essence maintained by LAW . Pursuant to LAW , when , following the adoption of a new local land development plan , the use of property in the manner provided for by a previous plan has become impossible or has been restricted , it is open to the owner to claim compensation from the municipality , or to request the municipality to buy the plot . Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts . It would appear that the operation of LAW is not retroactive , thus limiting the scope of any such claims to the period after the adoption of LAW .

Other relevant legislative provisions are extensively set out in the ORG 's judgment of DATE in the case of PERSON v. GPE ( no . CARDINAL , § § CARDINAL ) .

In its judgment of CARDINAL DATE ( K CARDINAL/CARDINAL ) , ORG examined the request submitted to it by the ORG to determine the compatibility with LAW of section CARDINAL § CARDINAL of LAW DATE insofar as it excluded the application of section CARDINAL of that Act to land development plans adopted before DATE . The court referred to its established case - law to the effect that ownership could not be regarded as ius infinitivum . Consequently , its exercise was normally restrained by many legal and practical considerations , including the necessity of balancing the owners ' interests against those of other persons . Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of ownership . In particular , owners of properties “ frozen ” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans . This did not amount to such an interference with ownership that it could be regarded as being incompatible with the constitutional protection of ownership .


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Lawful order of a court);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE she complained to the police about her neighbours . She stated that a “ gang ” of neighbours had damaged her property and had used “ psychotronic generators ” in their apartments and cars to cause damage to her health and mind . The applicant also mentioned in the complaint that she had in the past made submissions to ORG , the President of GPE and ORG , which had been unsuccessful .

On DATE a police officer took statements from the applicant ’s neighbours , who stated that she had behaved unreasonably , walked naked on the streets , shouted at people and accused them of various illegal activities .

The Psychoneurological Outpatient Clinic no . CARDINAL of GPE ( “ the ORG ” ) was requested by the police on DATE to carry out a psychiatric examination of the applicant .

On DATE a resident psychiatrist at the ORG ( PERSON ) issued a report confirming the need for a psychiatric examination of the applicant relying on the evidence obtained DATE before . The report stated that the nature of the applicant ’s complaints to various authorities gave reason to believe that they were brought about by a pathology associated with a psychiatric disorder . The psychiatrist concluded that an examination of the applicant was necessary , because progressive development of the disorder might cause a deterioration in her health and aggressive behaviour towards others . The report was certified by the head physician of the ORG . It is not clear whether the psychiatrist examined the applicant in person before issuing the report .

On DATE PERSON filed an application with LOC of GPE ( “ the ORG ” ) seeking authorisation for an involuntary psychiatric examination under LAW , subsection CARDINAL ( c ) of the PERSON of ORG and Guarantees of ORG DATE ( “ LAW ” ) . The application stated that there was evidence of “ a psychiatric disorder resulting in significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance ” . It also indicated that on DATE , during a police interview , the applicant had refused to consent to undergo a voluntary psychiatric examination . The application was also certified by the head physician of the ORG .

Evidence attached to the application included the above - mentioned psychiatrist ’s report of DATE , the applicant ’s complaint to the police of DATE , the police officer ’s request of DATE , and the applicant ’s NORP statements of DATE .

The application was received by ORG on DATE and a hearing was scheduled for DATE . On DATE the court sent a summons to the applicant by registered letter , but that was later returned to the sender after several unsuccessful delivery attempts .

On DATE ORG considered the psychiatrist ’s application for involuntary psychiatric examination of the applicant . Neither the applicant nor the representative of the ORG were present at the hearing . It was noted in the court transcript and decision that both parties had been duly notified of the hearing but that neither had chosen to appear in court . ORG authorised a psychiatric examination of the applicant without her consent and ordered it to be carried out either at her home or at the ORG . It reasoned as follows :

“ The court , having examined the evidence , namely the report of the ORG on the need for a psychiatric examination , considers the application well - founded ... for the following reasons .

In accordance with LAW , subsection CARDINAL of LAW DATE ... a psychiatric examination of a person may be carried out without his or his legal representative ’s consent when the evidence available suggests that the examinee performs acts giving reason to presume the existence of a severe psychiatric disorder which causes feebleness , i.e. the inability to autonomously satisfy one ’s basic needs , or significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance .

The said condition ... has been proven by the ORG ’s medical report , a copy of the applicant ’s complaint to [ the police ] concerning the use of various types of secret weapons , a copy of a statement by PERSON . ( ORG neighbour ) , who stated that ORG behaved unreasonably , walked naked on the streets and shouted at people , as well as by other evidence confirming the need for a psychiatric examination of ORG . ”

The ORG has received no evidence to suggest that the applicant was either notified of the decision or provided with a copy .

DATE , on DATE , the ORG sent a request to the police seeking their assistance in the applicant ’s apprehension in order to prevent her from potentially behaving aggressively towards others . The request stated that the clinic was unable to ensure that the applicant would attend an examination .

On DATE at TIME CARDINAL policemen visited the applicant ’s flat and took her by force to a police station . Having spent TIME there she was transferred by ambulance to ORG no . CARDINAL ( “ the ORG ” ) . At TIME on arrival at the hospital , the applicant was informed that she had been brought there under the authorisation of ORG . It is not clear whether she was allowed to read the court order .

DATE at TIME the applicant was examined by a medical counselling panel and diagnosed with paranoid schizophrenia aggravated by paranoid syndrome .

After her release from the hospital on DATE the applicant requested ORG to provide her with a copy of its decision of DATE authorising her involuntary psychiatric examination .

On DATE the applicant appealed against that decision . She argued , inter alia , that ORG had examined the case in her absence and that she had not been duly notified of the hearing ; that the decision did not contain reasons and that it was based on a single psychiatric report which was accepted by the court without scrutiny .

On DATE ORG after hearing the applicant and her representative dismissed the applicant ’s appeal and upheld the authorisation for an involuntary psychiatric examination . The court reasoned that the applicant ’s presence at ORG hearing was not required under LAW . Furthermore , it stated that the psychiatric report was well - founded because it contained details of the applicant ’s actions giving grounds to presume the existence of a psychiatric disorder .

NORP The applicant applied for supervisory review , but to no avail .

The applicant lodged a constitutional complaint about LAW . She alleged that this legal provision did not guarantee her a right to be present during the hearing of an application for involuntary psychiatric examination , since it specified that such applications shall be considered by “ a single judge ” .

On DATE ORG of GPE dismissed the applicant ’s complaint . It argued that the term “ single judge ” for the purposes of LAW referred only to the composition of a court and did not preclude the parties’ participation in a hearing .

On DATE after the applicant was brought to the hospital and diagnosed with paranoid schizophrenia aggravated by paranoid syndrome ( see paragraphs CARDINAL above ) , the medical panel of the ORG concluded that involuntary hospitalisation of the applicant was required CARDINAL of LAW DATE in order to prevent potentially significant damage to her health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance . The application for involuntary hospitalisation was filed with ORG of GPE on DATE .

On DATE the applicant was discharged from ORG and advised to follow an outpatient treatment programme . DATE the deputy head physician of ORG requested ORG of GPE to discontinue the proceedings concerning the applicant ’s involuntary hospitalisation in the light of her discharge from the facility . The request was granted and the proceedings discontinued on DATE .

The applicant did not initiate any proceedings for review of her hospitalisation .

Article CARDINAL of the Code of Civil Procedure of GPE , which entered into force on DATE , regulates the procedure for the judicial authorisation of involuntary psychiatric examinations . It reads as follows :

“ An application for involuntary psychiatric examination of a citizen shall be lodged by a psychiatrist with the court at the place of the citizen ’s place of residence . A reasoned report by a psychiatrist on the need to conduct such an examination and other evidence shall be attached to the application . Within DATE of the application being filed , a single judge shall consider the application for involuntary psychiatric examination and shall decide to either authorise the involuntary psychiatric examination of a citizen or refuse [ it ] . ”

LAW DATE in section CARDINAL subsection CARDINAL provides a list of the rights of persons suffering from a psychiatric disorder , including the right to be informed of their rights , the nature of their disorder and available treatment , the right to the least restrictive methods of treatment , and the right to the assistance of a lawyer , legal representative or other person . LAW prohibits restrictions on the rights of persons suffering from a psychiatric disorder solely on the basis of their diagnosis or their admission to a specialised facility .

Sections DATE and CARDINAL of the LAW regulate the procedure for conducting involuntary psychiatric examinations . The relevant parts read as follows :

“ ( CARDINAL ) ORG psychiatric examination shall be conducted in order to determine whether the examinee suffers from a psychiatric disorder and needs psychiatric assistance , and to determine the type of such assistance .

( CARDINAL ) A psychiatric examination , as well as a prophylactic examination , shall be conducted at the examinee ’s request and with his consent ...

( CARDINAL ) A psychiatric examination of a person may be carried out without his or his legal representative ’s consent in cases when the available evidence suggests that the examinee performs acts giving reason to presume the existence of a severe psychiatric disorder which causes :

c ) significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance ... ”

( CARDINAL ) In cases when a person does not present an immediate danger to himself or others , the application for a psychiatric examination shall be submitted in writing and shall contain detailed information giving reasons for the need for examination and an indication of the refusal by the person or his or her legal representative to consult a psychiatrist . The psychiatrist may request additional information necessary for making the decision .

( CARDINAL ) Having established that the application ... is well - founded the psychiatrist submits to a court at the place of the person ’s residence his written reasoned conclusion as to the need of the examination as well as the application for examination and other available materials . The judge gives sanction within DATE from receiving all of the materials ... ”

The Police Act DATE in section CARDINAL establishes the duties of police in law enforcement . In the relevant part it reads as follows :

“ The police in line with assigned tasks shall :

( CARDINAL ) deliver to healthcare institutions ... for medical treatment persons refusing to appear , suffering from diseases and presenting danger to themselves and others , and also ... to ensure together with healthcare institutions in cases and under a procedure prescribed by law supervision over persons suffering from mental disorders ... and presenting danger to others ... ”

In its decision of DATE ( no . CARDINAL ) interpreting LAW DATE , ORG stated that judicial proceedings in cases concerning psychiatric assistance must be adversarial and respect the principle of equality of parties . Consequently , a psychiatric facility lodging an application with a court was under an obligation to provide evidence confirming the information stated in such an application .

In the decision of DATE ( no . CARDINAL-O - O ) concerning procedural guarantees afforded to individuals subjected to involuntary psychiatric examination , ORG concluded that such guarantees were essentially the same as those afforded in the course of involuntary hospitalisation and that they included the duty of the courts to verify all the evidence presented to them .

Article CARDINAL of the Code of Civil Procedure of DATE establishes the procedural guarantees afforded to a person placed in a psychiatric facility . In the relevant part it reads as follows :

“ CARDINAL . An application for involuntary placement to a psychiatric facility , or extension of a period of involuntary placement , of a citizen who is suffering from a psychiatric disorder shall be considered by a judge within DATE from the date on which the proceedings were initiated . The court shall hold a hearing in the courtroom or in the psychiatric facility . The citizen has the right to personally participate in the hearing concerning his involuntary placement to a psychiatric facility or the extension of a period of his involuntary placement . In cases when according to the information provided by the representative of the psychiatric facility the citizen ’s mental state prevents his personal participation in the court hearing ... , the application ... shall be considered by the judge in the psychiatric facility .

NORP The case shall be considered with the participation of a prosecutor , a representative of the psychiatric facility which applied to the court ... , and the citizen ’s representative ... . ”

Articles CARDINAL and CARDINAL of the Code of Civil Procedure establish the grounds for discontinuation of the proceedings and its consequences . In the relevant part they read as follows :

“ The court discontinues the proceedings on the case , if : ...

a plaintiff withdraws his lawsuit and the court accepts the withdrawal ... ”

“ The proceedings in the case are discontinued by a decision of the court , which states that repeated submission of the lawsuit regarding the dispute between the same parties , on the same matter and the same grounds in not permitted . ”

Section CARDINAL subsections CARDINAL and CARDINAL of the LAW ( as in force at the material time ) specified that persons suffering from a psychiatric disorder had the right to a representative of their own choosing . The administration of the psychiatric facility had the obligation to ensure the opportunity for the individual to obtain legal representation by a lawyer ( except for urgent cases ) .

Section CARDINAL of the LAW sets out the following grounds for involuntary placement of a person in a psychiatric facility :

“ A person suffering from a mental disorder may be hospitalised at an inpatient psychiatric facility without his or his representative ’s consent prior to judicial authorisation only if his medical examination or treatment is not possible outside of an inpatient facility , the mental disorder is severe and causes :

a ) a immediate danger to himself or others , or

b ) feebleness , i.e. the inability to autonomously satisfy basic needs

c ) significant damage to health due to the deterioration or aggravation of the psychiatric condition in the absence of psychiatric assistance . ”

Section CARDINAL of the LAW specifies the procedure for the examination of patients involuntarily placed in a psychiatric facility :

“ CARDINAL . A person placed in a psychiatric hospital on the grounds defined by section CARDINAL of the present Act shall be subject to compulsory examination within TIME by a panel of psychiatrists of the hospital , who shall take a decision as to the need for hospitalisation . ...

NORP If hospitalisation is considered necessary , the conclusion of the panel of psychiatrists shall be forwarded to the court having territorial jurisdiction over the hospital , within TIME , for a decision as to the person ’s further confinement in the hospital . ”

Sections CARDINAL set out the procedure for judicial review of applications for the involuntary in - patient treatment persons suffering from a psychiatric disorder :

“ CARDINAL . Involuntary hospitalisation for in - patient psychiatric treatment on the grounds laid down in section CARDINAL of the present Act shall be subject to review by the court having territorial jurisdiction over the hospital .

An application for the involuntary placement of a person in a psychiatric hospital shall be filed by a representative of the hospital where the person is confined ...

A judge who accepts an application for review shall simultaneously order the person ’s detention in a psychiatric hospital for the term necessary for that review . ”

“ CARDINAL . An application for the involuntary placement of a person in a psychiatric hospital shall be reviewed by a judge , on the LOC of the court or hospital , within DATE of receipt of the application .

NORP The person has the right to personally participate in the hearing concerning his involuntary placement to a psychiatric facility or the extension of a period of his involuntary placement . In cases when according to the information provided by the representative of the psychiatric facility the citizen ’s mental state prevents his personal participation in the court hearing ... , the application ... shall be considered by the judge in the psychiatric facility ... ”

“ CARDINAL . After examining the application on the merits , the judge shall either grant or refuse it . ... ”

On DATE ORG adopted Recommendation Rec(CARDINAL)CARDINAL concerning the protection of the human rights and dignity of persons with mental disorder . In the relevant part the ORG provides :

“ CARDINAL . The law may provide that exceptionally a person may be subject to involuntary placement , in accordance with the provisions of this chapter , for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if :

i. his or her behaviour is strongly suggestive of such a disorder ;

ii . his or her condition appears to represent such a risk ;

iii . there is no appropriate , less restrictive means of making this determination ; and

iv . the opinion of the person concerned has been taken into consideration . ”

“ CARDINAL . The decision to subject a person to involuntary placement should be taken by a court or another competent body . The court or other competent body should :

i. take into account the opinion of the person concerned ;

ii . act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted ...

Involuntary placement , involuntary treatment , or their extension should only take place on the basis of examination by a doctor having the requisite competence and experience , and in accordance with valid and reliable professional standards . ”

“ CARDINAL . Persons subject to involuntary placement or involuntary treatment should be promptly informed , verbally and in writing , of their rights and of the remedies open to them ... ”

They should be informed regularly and appropriately of the reasons for the decision and the criteria for its potential extension or termination . ”

“ CARDINAL . In the fulfilment of their legal duties , the police should coordinate their interventions with those of medical and social services , if possible with the consent of the person concerned , if the behaviour of that person is strongly suggestive of mental disorder and represents a significant risk of harm to him or herself or to others .

Where other appropriate possibilities are not available the police may be required , in carrying out their duties , to assist in conveying or returning persons subject to involuntary placement to the relevant facility .

Members of the police should respect the dignity and human rights of persons with mental disorder . The importance of this duty should be emphasised during training . ”


The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the Court by PERSON NORP PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr V. Grosu .

In DATE the police arrested CARDINAL women for engaging in prostitution . Following questioning it was discovered that they were part of an organised group headed by a pimp . In particular , it appeared that the pimp , PERSON , had rented an apartment for that purpose , hired CARDINAL other persons to answer telephone calls from clients and arrange meetings and placed ads in a local newspaper advertising dates with female partners . The police found the ads in the newspaper and identified the persons responsible for answering telephone calls from clients . CARDINAL of those persons was the applicant .

On DATE a search was conducted in the applicant 's apartment and a journal containing CARDINAL pages of telephone numbers , lists of clients , amounts of money and a black list of clients was seized . The journal also contained the telephone number of L. and of the apartment where the CARDINAL prostitutes who allegedly worked for L. carried out their activity . DATE the applicant was questioned at the police station as a witness . She admitted to having worked for PERSON and gave details about the functioning of their group . Her duty was to answer telephone calls from clients in search of sex services and to set - up meetings between them and prostitutes . She was to inform clients about the rates and the exact description of the services provided by the prostitutes . She was also to ask for a description of the clients ' appearance and to indicate to them the time and place for meeting the prostitutes . After that she was to call PERSON and provide her with the information concerning the time of the meeting and details about the particular client 's appearance . PERSON would then provide the information to the prostitutes who would later approach the client , if he appeared acceptable to them or if they did not find him suspicious . The applicant also gave details about the division of the revenue among all the members of the group and stated that she was entitled to PERCENT of each successful transaction set - up by her . The sums indicated by the applicant in her declaration were consistent with the amounts indicated in the journal seized from her apartment .

The police also questioned the CARDINAL other telephone operators , the prostitutes and the alleged pimp , PERSON except for PERSON admitted to having been part of the group and gave details about the group 's activity . The police also obtained a detailed transcript of the telephone communications of all the members of the group over a period of DATE from which it appeared that the pattern of communication between them and the clients was consistent with the scheme described by them during questioning . The police also questioned a client , who had been caught red - handed and who confirmed the story provided by the prostitutes and the telephone operators . The police obtained copies of the applications for placing ads in the newspaper . It appeared from them that the ads containing the applicant 's telephone number had been placed by PERSON of the ads concerning other telephone numbers belonging to the CARDINAL other telephone operators had also been placed by L.

After the criminal investigation was terminated by the police , the file was transmitted to ORG which indicted all the members of the criminal group , except for the prostitutes , with the offence of trading in prostitution . In the first round of questioning following her indictment the applicant , assisted by a lawyer , admitted to having worked for PERSON by answering telephone calls and arranging meetings , but stated that she had not been aware that the persons in question were prostitutes and possible clients . Later the applicant hired another lawyer and , during the second round of questioning , rejected the charges against her and refused to make any statements . The prostitutes reiterated their statements made at the police station according to which PERSON was their pimp . They identified PERSON from numerous pictures presented to them . CARDINAL of them was confronted with L.

During the court proceedings the applicant changed her defence and argued that she had been working as an independent prostitute and that the ads in the newspaper had been placed in order to find clients for herself . She did not explain why the ads had been placed by L. According to the applicant she met clients at her home while her husband was away or at the clients ' homes . She emphasised that she did not seek clients for other prostitutes . When asked to explain her relationship with L. she submitted that they had been acquaintances and often telephoned each other because she was sewing a costume for PERSON 's daughter . The journal seized by the police on DATE was hers and she had noted down information in it about her own clients . The applicant did not explain why the telephone numbers of PERSON and of the CARDINAL prostitutes were contained in the journal . She stated that she had been intimidated during the questioning by the police and that her statements given to the police had not been true . As to her statements made during the first round of questioning at ORG , she maintained that they were also false because her lawyer had advised her to lie .

On DATE the ORG convicted PERSON of trading in prostitution but acquitted the applicant and CARDINAL other co - accused . PERSON 's conviction was based , inter alia , on the testimonies of the CARDINAL prostitutes made to ORG during the investigation stage of the proceedings which were read out in court . None of the witnesses was heard in court because the court had failed to obtain their attendance even with the help of the police . At the same time , the court considered that the testimonies of the CARDINAL prostitutes given during the investigation stage could not be used against the applicant because they did not contain anything to incriminate her and the CARDINAL other co - accused telephone operators . The court considered that the applicant 's confession made during the investigation stage could not be relied upon and that the prosecution had failed to prove that the applicant 's statement that she had been an independent prostitute was incorrect . ORG appealed against this judgment .

On DATE the court of appeal , following an oral hearing , upheld the prosecutor 's appeal and reversed the judgment of the lower court in respect of the applicant and the CARDINAL other telephone operators . It found the applicant guilty as charged on the strength of her own admission during the first round of questioning by ORG , namely that she had been working for PERSON by answering telephone calls and arranging meetings between interested persons . The court dismissed the applicant 's defence that she had been an independent prostitute . The court also considered relevant the applicant 's testimony made to the police in her capacity as a witness in which she gave details about her duties in the criminal group . The court also gave weight to the journal seized from the applicant 's apartment on DATE , the detailed transcript of her telephone communications and other evidence contained in the case file , without specifying the nature of that evidence . According to the court of appeal 's judgment , the testimonies of the CARDINAL prostitutes used against L. were not the basis of the applicant 's conviction . The applicant was exempted from serving a prison sentence on the basis of an amnesty law .

The applicant lodged an appeal on points of law against this judgment and argued mainly that the witnesses whose testimonies had been relied upon in the court of appeal 's judgment had not been heard by that court and that she did not have a chance to put questions to them .

On DATE ORG rejected the applicant 's appeal on points of law , finding that the court of appeal had correctly established her guilt on the strength of the evidence in the case file and the witness testimonies relied upon .

Under the NORP legislation prostitution is not considered to be a criminal offence but an administrative misdemeanour punishable by a fine or administrative detention . The same is not the case of the offence of trading in prostitution ( “ proxenetism ” ) and obtaining revenue from prostitution practiced by other persons . The latter is considered to be a criminal offence and is punishable by DATE imprisonment .


Violation of Article 6 - Right to a fair trial

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in Ağrı .

On DATE the applicant was arrested in GPE on suspicion of being a member of an illegal organisation . On DATE he was remanded in custody .

On DATE the public prosecutor filed a bill of indictment against the applicant and CARDINAL other accused with ORG . On DATE the trial commenced . On DATE the applicant was released pending trial .

By PERSON no . CARDINAL , in DATE ORG were abolished . Subsequently , ORG acquired jurisdiction over the case .

On DATE ORG ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time limit under LAW and ORG of LAW had expired .