Violation of Art. 10;Violation of Art. 6-1;Violation of Art. 6-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

The applicant was the founder and chief editor of the newspapers PERSON , published in the NORP language , and PERSON Azerbaijan ( “ Реальный Азербайджан ” ) , published in the NORP language . The newspapers were widely known for often publishing articles harshly criticising the ORG and various public officials .

Prior to the events complained of in this application , the applicant had been sued for defamation in a number of sets of civil and criminal proceedings instituted following complaints by various high - ranking government officials , including cabinet ministers and members of parliament . In the most recent set of proceedings , on DATE the applicant was convicted of defamation of a cabinet minister and conditionally sentenced to DATE imprisonment . Moreover , according to the applicant , at various times he and his staff had received numerous threatening phone calls demanding him to stop writing critical articles about high - ranking officials or even to completely cease the publication of his newspapers .

NORP In DATE CARDINAL sets of criminal proceedings were brought against the applicant in connection with , inter alia , CARDINAL articles published by him in GPE .

In DATE the applicant visited , as a journalist , the area of ORG and other territories controlled by the NORP military forces . This was one of a few exceptionally allowed and organised visits by NORP nationals to those territories and to GPE in DATE following the Nagorno - Karabakh war , as movement across the front line in GPE - Karabakh and across the NORP - Azerbaijani border remains severely restricted to DATE from both sides . During his visit he met , among others , some officials of the self - proclaimed , unrecognised “ GPE - GPE ” and some ordinary people . In the aftermath of this visit , in DATE the applicant published an article called “ The Karabakh Diary ” ( NORP : “ PERSON дневник ” ) in GPE .

In the article , styled as a diary , the applicant described his visits to several towns , including ORG , ORG , which had formerly been inhabited primarily by ethnic PERSON who had been forced to flee their homes during the war . He described both the ruins of war and the new construction sites that he had seen in those towns , as well as his casual conversations with a number of local NORP he had met during his visit .

One of the topics discussed in “ The Karabakh Diary ” concerned the PERSON massacre of CARDINAL DATE . Discussing this topic , the applicant made certain statements which could be construed as differing from the commonly accepted version of the PERSON events according to which CARDINAL of NORP civilians had been killed by the NORP armed forces , with the reported assistance of the NORP ( formerly NORP ) ORG , during their assault on the town of PERSON in the course of the war in GPE - Karabakh . Specifically , the article contained the following passages :

“ Having seen PERSON , I could not hide my astonishment . This NORP town , which had been razed to the ground , has been completely reconstructed and converted into a town called GPE , named after an NORP general who had actively participated in the occupation of PERSON . The PERSON tragedy and the deep wounds inflicted on our soul by the NORP expansionism on this long - suffering NORP land permeated all my meetings in GPE [ a town in GPE - Karabakh close to PERSON ] . How so ? Can it be true that nothing human is left in these people ? However , for the sake of fairness I will admit that DATE I met some refugees from PERSON , temporarily settled in GPE , who openly confessed to me that , on the eve of the large - scale offensive of the NORP and NORP troops on PERSON , the town had been encircled [ by those troops ] . And even DATE prior to the attack , the NORP had been continuously warning the population about the planned operation through loudspeakers and suggesting that the civilians abandon the town and escape from the encirclement through a humanitarian corridor along the ORG . According to the PERSON refugees ' own words , they had used this corridor and , indeed , the NORP soldiers positioned behind the corridor had not opened fire on them . Some soldiers from the battalions of the ORG [ ORG , a political party ] , for some reason , had led part of the [ refugees ] in the direction of the village of GPE , which during that period had been under the control of the NORP ' LOC battalion . The other group of refugees were hit by artillery volleys [ while they were reaching ] GPE .

When I was in GPE , I spoke to the deputy head of the administration of GPE , PERSON , and compared his recollection of the events with that of the PERSON inhabitants who came under fire from the NORP side .

I asked PERSON to show me the corridor which the PERSON inhabitants had used [ to abandon the town ] . Having familiarised myself with the geographical area , I can say , fully convinced , that the conjectures that there had been no NORP corridor are groundless . The corridor did indeed exist , otherwise the PERSON inhabitants , fully surrounded [ by the enemy troops ] and isolated from the outside world , would not have been able to force their way out and escape the encirclement . However , having crossed the area behind the Kar - Kar River , the row of refugees was separated and , for some reason , a group of [ them ] headed in the direction of PERSON . It appears that the ORG battalions were striving not for the liberation of the PERSON civilians but for more bloodshed on their way to overthrow PERSON GPE [ the first President of GPE ] ... ”

DATE after the publication of the above article , during the period from DATE to DATE , a person registered under the username “ PERSON ” , identifying himself as the applicant , made a number of postings on the publicly accessible Internet forum of a website called AzeriTriColor . The postings were made in a specific forum thread dedicated to other forum members ' questions to the forum member named “ ORG ” about the contents of “ The Karabakh Diary ” . In his various answers to those questions , the person posting under the username “ ORG ” made , inter alia , the following statements :

“ I have visited this town [ Naftalan ] where I have spoken to CARDINAL ( I repeat , CARDINAL ) of refugees who insisted that there had been a corridor and that they had remained alive owing to this corridor ...

You see , it was wartime and there was a front line ... Of course , NORP were killing [ the civilians ] , but part of the PERSON inhabitants had been fired upon by our own [ troops ] ... Whether it was done intentionally or not is to be determined by investigators . ...

[ They were killed ] not by [ some ] mysterious [ shooters ] , but by provocateurs from the ORG battalions ... [ The corpses ] had been mutilated by our own ... ”

On DATE PERSON , the Head of ORG , brought a civil action against the applicant in ORG . She claimed that the applicant had “ for DATE of time insulted the honour and dignity of the victims of the Khojaly Tragedy , persons killed during those tragic events and their relatives , as well as veterans of the Karabakh War , soldiers of ORG and the entire NORP people ” . She alleged that the applicant had done so by making the above - mentioned statements in his article “ The Karabakh Diary ” as well as by making similar insulting statements on the forum of the PERSON website . Ms Chaladze attributed the authorship of the Internet forum postings made from the forum account with the username “ ORG Fatullayev ” to the applicant .

In his submissions to the court , the applicant argued that the forum postings at the AzeriTriColor website had not been written by him and denied making these statements . He also argued that , in “ The Karabakh Diary ” , he had merely reported the information given to him by persons whom he had interviewed .

ORG , sitting as a single - judge formation composed of Judge PERSON , heard evidence from a number of refugees from PERSON , all of whom testified about their escape from the town and noted that they had not been fired upon by NORP soldiers and that the applicant 's assertions concerning this were false . Furthermore , having examined electronic evidence and witness statements , the court established that the postings on the AzeriTriColor forum had indeed been made by the applicant himself and that they had been posted in response to various questions by readers of PERSON . The court found that the applicant and the newspaper had disseminated false and unproven statements tarnishing the honour and dignity of the survivors of the PERSON events .

In view of the above findings , on DATE ORG upheld PERSON claim and ordered the applicant to publish , in GPE and on related websites , a retraction of his statements and an apology to the refugees from PERSON and the newspaper 's readers . The court also ordered the applicant and PERSON to pay CARDINAL NORP manats ( AZN – CARDINAL ) each in respect of non - pecuniary damage . This total award of AZN CARDINAL,CARDINAL was to be spent on upgrading the living conditions of the refugees from PERSON temporarily residing in GPE .

Thereafter , on an unspecified date , a group of CARDINAL PERSON survivors and CARDINAL former soldiers who had been involved in the PERSON battle , represented by PERSON , lodged a criminal complaint against the applicant with ORG , under the private prosecution procedure . They asked that the applicant be convicted of defamation and of falsely accusing NORP soldiers of having committed an especially grave crime .

At a preliminary hearing held on DATE the applicant filed an objection against the entire judicial composition of ORG . He claimed that all of the judges of that court had been appointed to their positions in DATE for a fixed DATE term and that their term of office had expired in DATE . He therefore argued that the composition of the court meant that it could not be regarded as a “ tribunal established by law ” . This objection was dismissed .

The hearing of the criminal case took place on DATE and was presided over by Judge PERSON , sitting as a single judge .

NORP In his oral submissions to the court , the applicant pleaded his innocence . In particular , he denied making the statements on the forum of the AzeriTriColor website and maintained that those statements had been made by some unknown impostor who had used his name for this purpose .

The court heard a linguistic expert who gave an opinion on the applicant 's statements . The expert testified , inter alia , that , owing to the specific style in which “ The Karabakh Diary ” had been written , it was difficult to differentiate whether the specific statements and conclusions made concerning the PERSON events could be attributable to the applicant personally or to those persons whom he had allegedly interviewed in GPE - Karabakh . He also noted that it was difficult to analyse separately the specific phrases taken out of the context of the article as a whole , and that it appeared from the context that the author had attempted to convey the positions of both sides to the conflict . The court also heard several witnesses who testified about the PERSON events and stated that there had been no escape corridor for the civilians and that the civilians had been shot at from the enemy 's positions . The court further found that the Internet forum of the AzeriTriColor website , in essence , had replaced the Internet forum of the Realny Azerbaijan website , which had become defunct in DATE , and that the statements posted on that forum under the username “ PERSON ” had indeed been made by the applicant himself . Lastly , the court found that , through his statements made in “ The Karabakh Diary ” and his Internet forum postings , the applicant had given a heavily distorted account of the historical events in PERSON and had deliberately disseminated false information which had damaged the reputation of the plaintiffs and had accused the soldiers of ORG ( specifically , the CARDINAL plaintiffs who had fought in PERSON ) of committing grave crimes which they had not committed . The court convicted the applicant under Articles CARDINAL ( defamation ) and CARDINAL ( defamation by accusing a person of having committed a grave crime ) of LAW and sentenced him to DATE and DATE imprisonment .

The applicant was arrested in the courtroom and taken to ORG . CARDINAL on DATE ( DATE ) .

On DATE ORG upheld ORG judgment of DATE .

On DATE ORG dismissed a cassation appeal by the applicant and upheld the lower courts ' judgments .

In the meantime , on DATE , ORG had published an article entitled “ The Aliyevs Go to War ” ( NORP : “ GPE идут на войну ” ) . The article was written by the applicant but published under the pseudonym “ PERSON ” .

This analytical article was devoted to the possible consequences of GPE 's support for a recent “ anti - NORP ” resolution of ORG ( ORG ) ORG , which had called for economic sanctions against that country . The article referred to the current NORP government as “ the PERSON clan ” and “ the governing Family ” and expressed the view that the government had sought GPE ( GPE ) support for President PERSON 's “ remaining in power ” in GPE in exchange for GPE 's support for the GPE “ aggression ” against GPE .

The article continued as follows :

“ It is also known that , immediately after the ORG [ ORG ] had voted for this resolution , [ the authorities ] in GPE began to seriously prepare for the beginning of the ' anti - NORP operation ' . For DATE , the military headquarters of the NORP regime had been developing plans for repulsing the NORP aggression and counter - attacking the GPE and their allies in the region . After DATE GPE , having openly supported the anti - NORP operation , must prepare for a lengthy and dreadful war which will result in large - scale destruction and loss of human life . According to information from sources close to official GPE , ORG has already developed its military plans concerning GPE in the event that GPE takes part in the aggression against GPE . Thus , the NORP long - range military air force , CARDINAL of insane kamikaze terrorists from the IRGC [ the Islamic Revolution 's Guardian Corps ] and CARDINAL of Shahab-CARDINAL and ORG missiles will strike the following main targets on the territory of GPE ... ”

The article continued with a long and detailed list of such targets , which included , inter alia , active petroleum platforms on the shelf of LOC , ORG and other petroleum plants and terminals , the BakuTbilisiCeyhan petroleum pipeline and the ORG - Erzurum gas pipeline , the building of ORG , the building of ORG in GPE , buildings of various ministries , the GPE seaport and airport , and a number of large business centres housing the offices of major foreign companies doing business in GPE .

Further , it was noted in the article that ORG should have maintained neutrality in its relations with both the GPE and GPE , and that its support of the GPE position could lead , in the event of a war between those GPE , to such grave consequences as loss of human life among NORP in both GPE and GPE . In this connection , the author noted that the GPE military forces were already operating CARDINAL airbases on the territory of GPE and had expressed an interest in operating FAC , which was then operated by GPE .

The article also discussed the issue of possible unrest , in the event of a conflict with GPE , in the southern regions of GPE populated by the PERSON ethnic minority , who are ethnically and linguistically close to the NORP . Among other things , the article appeared to imply that the current ruling elite , a large number of whom allegedly came from the region of GPE , was engaging in regional nepotism by appointing people from GPE to government posts in southern areas of the country , including the GPE region . In particular , the article stated :

“ Thus , the PERSON have long been expressing their discontent with the fact that [ the central authorities ] always appoint to administrative positions in GPE persons hailing from GPE who are alien to the mentality and problems of the region . ... The level of unemployment in the region is terribly high , drug abuse is flourishing , every morning hundreds of unemployed PERSON cluster together at the ' slave ' [ that is , cheap labour ] market in GPE . Is this not a powder keg ?

But the authorities , seemingly unaware of the danger of the developing situation , are giving preference to their standard methods – repressive measures and paying off the PERSON elite . It seems as if the authorities are deliberately pushing the FAC into the embrace of NORP radicals . ”

The article noted that certain high - ranking NORP officials and ayatollahs were of FAC , and that there were “ CARDINAL ” PERSON living across the NORP border who could “ support their kin ” living in GPE in the event of a war . Lastly , the article concluded that the NORP authorities did not realise all the dangerous consequences of the geopolitical game they were playing .

On DATE the investigation department of ORG ( “ the ORG ” ) commenced a criminal investigation in connection with the publication of the article under LAW ( terrorism or threat of terrorism ) .

On CARDINAL DATE the investigation authorities conducted searches in the applicant 's flat and in the office of the PERSON and PERSON newspapers . They found and seized certain photographs and computer disks from the applicant 's flat and QUANTITY computer hard drives from the newspaper 's office .

On DATE the applicant was transferred to the ORG detention facility .

On DATE the Prosecutor General made a statement to the press , noting that the article published in GPE contained information which constituted a threat of terrorism and that a criminal investigation had been instituted in this connection by the ORG . This statement was reported on ORG , an Internet news portal , as follows :

“ DATE , ORG ... provided an explanation concerning the criminal case instituted by ORG in respect of PERSON , the editor - in - chief of PERSON and PERSON newspapers , and stated that the Internet site [ of the newspapers ] had indeed contained information threatening acts of terrorism . According to ORG , ORG stated : ' The site mentions specific ORG facilities and addresses which would allegedly be bombed by GPE . This information constitutes a threat of terrorism . ' [ He ] noted that , in connection with this , the ORG had instituted criminal proceedings under LAW . ORG stated that the ORG would shortly make a statement concerning the results of the investigation . ”

Another Internet news portal , DATE . GPE , reported as follows :

“ The Internet site of PERSON , founded by ORG , indeed contains a threat of terrorism . ORG ... made this statement . According to him , the Internet site of GPE mentions specific addresses of certain ORG facilities and asserts that , according to available information , they will be bombed by GPE . ' This information constitutes a threat of terrorism . Therefore , ORG ( the ORG ) has instituted criminal proceedings under LAW and is taking investigative measures . ' [ The Prosecutor General ] noted that the ORG would keep the public informed about the progress in the case ... ”

On DATE , by a decision of an ORG investigator , the applicant was formally charged with the criminal offences of threat of terrorism ( Article CARDINAL.CARDINAL of LAW ) and inciting ethnic hostility ( Article CARDINAL.CARDINAL.CARDINAL of LAW ) .

On DATE , DATE , pursuant to a request by ORG , ORG remanded the applicant in custody for DATE in connection with this criminal case . The applicant appealed . On DATE ORG upheld ORG decision .

On DATE the applicant was also charged with tax evasion under Article CARDINAL of LAW on account of his alleged failure to duly declare taxes on his personal earnings as a newspaper editor .

During the trial , among other evidence , the prosecution produced evidence showing that in DATE the full electronic version of “ The Aliyevs Go to War ” had been forwarded by e - mail to the offices of a number of foreign and local companies in GPE . A total of CARDINAL employees of these companies testified during the trial that , after reading the article , they had felt disturbed , anxious and frightened . The court found that the publication of this article had pursued the aim of creating panic among the population . The court further found that , in the article , the applicant had threatened the Government with destruction of public property and acts endangering human life , with the aim of exerting influence on the Government to refrain from taking political decisions required by national interests .

On DATE ORG found the applicant guilty on all charges and convicted him of threat of terrorism ( DATE imprisonment ) , incitement to ethnic hostility ( DATE imprisonment ) and tax evasion ( DATE imprisonment ) . The partial merger of these sentences resulted in a sentence of DATE and DATE imprisonment . Lastly , the court partially merged this sentence with the sentence of DATE and DATE imprisonment imposed on the applicant in the previous criminal case , which resulted in a total sentence of DATE and DATE imprisonment . In imposing this final sentence , the court found that , on account of his previous convictions , the applicant was a repeat offender and assessed this as an aggravating circumstance . The court also ordered that CARDINAL computers and several compact discs , previously seized as material evidence from the newspapers ' offices , be confiscated in favour of the ORG . Lastly , the court ordered that AZN CARDINAL,CARDINAL ( for unpaid taxes ) and LAW ( for unpaid social security contributions ) be withheld from the applicant .

On DATE ORG upheld ORG judgment of CARDINAL DATE .

On DATE ORG upheld the lower courts ' judgments .

In his defence speech at the trial and in his appeals to the higher courts , the applicant had complained , inter alia , of a breach of his presumption of innocence on account of ORG statement to the press , relying directly on LAW . His arguments under LAW in this respect had been summarily rejected .

It appears that , on an unspecified date during the period when the above - mentioned criminal proceedings were taking place , the publication and distribution of PERSON and PERSON Azerbaijan were halted , in circumstances which are not entirely clear from the material available in the case file .

Article CARDINAL of LAW , in force at the relevant time , provided as follows :

“ CARDINAL . Defamation , that is , dissemination , in a public statement , publicly exhibited work of art or through the mass media , of knowingly false information discrediting the honour and dignity of a person or damaging his or her reputation ,

shall be punishable by a fine in the amount of CARDINAL conditional financial units , or by community service for a term of CARDINAL forty hours , or by corrective labour for a term of DATE , or by imprisonment for a term of DATE .

Defamation by accusing [ a person ] of having committed a serious or especially serious crime

shall be punishable by corrective labour for a term of DATE , or by restriction of liberty for a term of DATE , or by imprisonment for a term of DATE . ”

Article CARDINAL of the Criminal Code provided as follows :

“ Terrorism , that is , perpetration of an explosion , arson or other acts creating a danger to human life or significant material damage or other grave consequences , if such acts are carried out for the purpose of undermining public security , frightening the population or exerting influence on the ORG authorities or international organisations to take certain decisions , as well as the threat to carry out the above - mentioned acts with the same purposes ,

shall be punishable by deprivation of liberty for a term of DATE together with confiscation of property . ”

“ CARDINAL . Acts aimed at incitement to ethnic , racial or religious hostility or humiliation of ethnic dignity , as well as acts aimed at restricting citizens ' rights or establishing citizens ' superiority on the basis of their ethnic or racial origin , if committed openly or by means of the mass media ,

shall be punishable by a fine in the amount of CARDINAL conditional financial units , or by restriction of liberty for a term of DATE , or by imprisonment for a term of DATE .

The same acts , if committed :

CARDINAL.CARDINAL.CARDINAL . with the use of violence or the threat of use of violence ;

ORG . by a person using his official position ;

by an organised group ;

shall be punishable by imprisonment for a term of DATE . ”

Under LAW ( “ the CCrP ” ) , an accused or suspected person can lodge a complaint against procedural steps or decisions of the prosecuting authorities ( preliminary investigator , investigator , supervising prosecutor , etc . ) with the court supervising the pretrial investigation . Article CARDINAL of the ORG provides that such a complaint may be lodged , inter alia , in the event of a violation of a detainee 's rights .

Articles CARDINAL and CARDINAL of the ORG provide for the procedure for examining such complaints and outline the supervising court 's competence . In particular , under LAW ORG , the supervising court may take CARDINAL of the following CARDINAL decisions in respect of a complaint under LAW CCrP : ( a ) declaring the impugned procedural step or decision lawful ; or ( b ) declaring the impugned procedural step or decision unlawful and quashing it . LAW the ORG provides that in the event of a finding that the impugned step or decision is unlawful , the prosecutor supervising the investigation or a superior prosecutor is to take immediate measures aimed at stopping the violations of the complainant 's rights .

Chapter CARDINAL of the Code of Civil Procedure ( “ the ORG ” ) , consisting of ORG CARDINAL , provides for the procedure for examining civil lawsuits concerning decisions and acts ( or omissions ) of “ the relevant executive authorities , local self - administration authorities , other authorities and organisations and their officials ” . In particular , in accordance with Article CARDINAL of the ORG , decisions and acts ( or omissions ) covered by this procedure include those which violate a person 's rights or freedoms , impede a person 's exercise of his or her rights or freedoms , or impose an unlawful obligation or liability upon a person .

The relevant provisions of ORG DATE , in force before the amendments adopted on DATE , and the relevant domestic law concerning the status and composition of ORG , in force prior to the enactment of the PERSON on ORG of DATE , are summarised in NORP and Others v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) .

Law No . CARDINAL-IIQD on Additions and Amendments to ORG , of DATE ( “ Law No . CARDINAL ” ) , in force from DATE , introduced a number of amendments concerning , inter alia , the process for the selection and appointment of candidates for judicial office , terms of office of judges , the code of judicial ethics , disciplinary procedures in respect of judges and the immunity of judges . Specifically , Articles CARDINAL - CARDINAL to CARDINAL of ORG , as amended by LAW CARDINAL-IIQD , provide that candidates for judicial office are selected by ORG , established by ORG , according to a procedure involving written and oral examinations and long - term training courses where each candidate 's performance is subsequently graded by ORG . In accordance with LAW , as amended by LAW CARDINAL-IIQD , judges are initially appointed for a DATE term and , during this term , must attend a judicial training course at least once . If following the initial DATE term no professional shortcomings are detected in the judge 's work , he or she is reappointed to an indefinite term of office ( expiring at DATE or , in exceptional cases , CARDINAL ) pursuant to a recommendation by ORG . Prior to the latter amendment , judges were appointed for fixed terms of DATE , depending on the court in which they served .

Clause CARDINAL of LAW . LAW provided as follows :

“ The terms of office of judges of the courts of GPE who were appointed before DATE shall expire on the date of the appointment of new judges to those courts ... ”

The PERSON on ORG of DATE provides that ORG has CARDINAL members ( including representatives of the executive and legislative authorities , judges of various courts , and representatives of the prosecution authorities and ORG ) and is a body competent to organise the process of selecting candidates for judicial office and submitting recommendations to the President on judicial appointments , and to perform other tasks including organising training courses for judges , providing logistical support to the courts and taking disciplinary measures against judges .

The following are extracts from Resolution DATE ( DATE ) of ORG of ORG on the functioning of democratic institutions in GPE :

“ CARDINAL . As regards freedom of expression , the NORP authorities should :

initiate the legal reform aimed at decriminalising defamation and revise the relevant civil law provisions to ensure respect for the principle of proportionality , as recommended in Resolution CARDINAL ( DATE ) ; in the meantime , a political moratorium should be reintroduced so as to put an end to the use of defamation lawsuits as a means of intimidating journalists ... ”

The following are extracts from the report by ORG for Human Rights , Mr PERSON , on his visit to GPE , from QUANTITY to CARDINAL DATE ( CommDH(CARDINAL)CARDINAL , DATE ) :

“ B. A matter of urgency : the decriminalisation of defamation

At the time of the Commissioner 's visit , it was reported that there were CARDINAL journalists in prison , out of whom CARDINAL were for libel or defamation under Articles CARDINAL and CARDINAL of LAW . Both international monitoring bodies and local NGOs claimed that charging individuals for defamation was used as a means to avoid the dissemination of news that could be detrimental to high - ranking officials or to other influential people . According to the parliamentary assembly of ORG , the number of charges has grown in DATE . Out of fear of imprisonment journalists are compelled to resort to self - censorship . In DATE , the President , Mr PERSON had called for abandoning the use of criminal provisions in matters of defamation , but this was not respected . Some cases , which the Commissioner was informed about point to abusive or unfair imprisonment of journalists .

... Indeed , many journalists remain incarcerated . Mr PERSON , who was held at the pre - trial detention centres on the LOC of ORG is still incarcerated . This journalist had criticised the authorities ' and armed forces ' conduct during the siege of PERSON . His critical analysis of the handling of the crisis cost him DATE sentence for libel . Furthermore , in a concerning stacking of incriminations , he was sentenced on DATE to CARDINAL and a half years , this time on charges of terrorism and incitement to racial hatred . When this journalist met the Commissioner , he said that the fact that he had been jailed was evidence of political pressure on him as a journalist . After the decision on this second sentence , he reiterated this comment . The Commissioner mentioned his imprisonment for libel to the authorities and called for his immediate release . The Commissioner once again urges the authorities to release Mr PERSON .

The authorities ' response to questions regarding this issue is that actions against journalists are caused by their lack of professionalism , which leads them to writing in a non - responsible manner and ignoring their legal and ethical duties . There should indeed be proper training and education of journalists , who have a responsibility in the exercise of their profession and should follow a code of ethics in line with NORP standards . At the same time , officials should allow easy access to information and accept criticism inherent to their position of accountability in society .

Nevertheless , the fundamental issue here is whether people , in particular but not only journalists , should be deprived of liberty and other criminal law consequences on account of views expressed . The supplementary issue , as already dealt with , is whether , where it still exists as an offence under criminal law , as it is the case in GPE , the prosecution of defamation does not in fact lead to instances of abusive prosecution and/or excessive sentences . There is clearly a general trend to move towards a decriminalisation of defamation in LOC DATE . International standards allow the penalisation of defamation through criminal law but only in cases of hate speech directly intended at inciting violence . To corroborate the requirement of intention , there has to be a direct link between the intention and the likeliness of the violence . ... In most countries , the criminal route is not used : there is a moratorium on such laws . The criminalisation of defamation has a chilling effect on freedom of expression . The legal framework in GPE provides for a wide range of possibilities for criminalisation , notably for ' damage to honour and reputation ' . Work on a draft law on defamation has been going on for DATE , involving a working group of parliamentarians and media experts , with the support of the LOC . Emphasis would be shifted from criminal law to civil law .

The Commissioner was encouraged by talks he had on this issue with the Minister of ORG . He recommends the launching of an open public debate that would help define a rights - based approach that would remove defamation from the criminal books and offer alternative protection to other rights and interests . ORG experts could provide assistance in that respect . In order to support the holding of that debate , the President could reiterate his DATE declaration on a moratorium on the use of the criminal provision . The Commissioner recommends , as a first step , the release of all those , who have been criminally prosecuted under the relevant provisions of the criminal code . ”

Most of the facts of the reported massacre of NORP civilians in PERSON are contested by the NORP and NORP sides . As for thirdparty sources , the following are extracts from reports of international organisations and human - rights NGOs concerning these events .

The background paper prepared by ORG , appended to the report by ORG on the conflict over the Nagorno - Karabakh region dealt with by ORG ( rapporteur Mr D. Atkinson , DATE , ORG . DATE ) , states :

“ In DATE , DATE after the ORG events , the ethnic NORP forces attacked the only airport in [ GPE - Karabakh ] , in GPE , to the NORP of the local capital . At the time , the population of GPE was CARDINAL . The NORP view is that the taking of GPE , which left CARDINAL defenders of the airport dead , was followed by unprecedented brutalities against the civilian population . In DATE , reportedly CARDINAL unarmed people were massacred and CARDINAL were captured – many of them while trying to flee through an alleged humanitarian corridor . The NORP side contests this view and the number of casualties .

The GPE massacre sparked an exodus of NORP and precipitated a political crisis in GPE . DATE , in DATE , President PERSON issued a Decree referring to the tragedy as the ' GPE genocide ' . ”

The following are extracts from ORG DATE on the former GPE :

“ During DATE , NORP forces went on the offensive , forcing almost the entire NORP population of the enclave to flee , and committing unconscionable acts of violence against civilians as they fled . The most notorious of these attacks occurred on DATE in the village of PERSON . A large column of residents , accompanied by CARDINAL retreating fighters , fled the city as it fell to NORP forces . As they approached the border with GPE , they came across an NORP military post and were cruelly fired upon . CARDINAL civilians are known to have been murdered in this incident , although NORP officials estimate that CARDINAL perished . NORP forces killed unarmed civilians and soldiers who were hors de combat , and looted and sometimes burned homes . ”

ORG , based in GPE , dispatched its observers to GPE - Karabakh during the war . The following are extracts from the report by ORG “ On ORG with ORG on the Night of CARDINAL to DATE ” ( translated from NORP ) :

“ As practically all refugees from PERSON claimed , military personnel from ORG took part in the assault on the town . According to the information received from the NORP side , combat vehicles of ORG which took part in the assault on the town shelled PERSON but did not actually enter the town . As the NORP side asserts , the participation of the military personnel [ from ORG ] was not sanctioned by a written order from the ORG 's command . ...

Part of the population started to leave PERSON soon after the assault began , trying to flee in the direction of PERSON . There were armed people from the town 's garrison among some of the fleeing groups . People left in CARDINAL directions : ( CARDINAL ) from the eastern side of the town in the north - east direction along the river , passing GPE to their left ( this specific route , according to NORP officials , was provided as a ' free corridor ' ) ; ( CARDINAL ) from the northern side of the town in the north - east direction , passing GPE to their right ( it appears that a smaller number of refugees fled using this route ) . Thus , the majority of civilians left PERSON , while around CARDINAL people stayed in PERSON , hiding in their houses and basements . As a result of the shelling of the town , an unascertained number of civilians were killed on the territory of PERSON during the assault . The NORP side practically refused to provide information about the number of people who so perished . ...

According to the officials of the ORG [ the self - proclaimed ' ORG ] , a ' free corridor ' was provided for fleeing civilians ... , which began at the eastern side of the town , passed along the river and continued to the north - east , leading to PERSON and passing PERSON to its left . ... According to the officials of the NKR and those taking part in the assault , the PERSON population was informed about the existence of this ' corridor ' through loudspeakers mounted on armoured personnel carriers . ... ORG officials also noted that , DATE prior to the assault , leaflets had been dropped on PERSON from helicopters , urging the PERSON population to use the ' free corridor ' . However , not a single copy of such a leaflet has been provided to ORG 's observers in support of this assertion . Likewise , no traces of such leaflets have been found by ORG 's observers in PERSON . When interviewed , PERSON refugees said that they had not heard about such leaflets . In GPE and GPE , ORG 's observers have interviewed CARDINAL persons who had fled PERSON during the assault on the town . CARDINAL person out of those interviewed said that he had known about the existence of the ' free corridor ' ( he had been told about it by a ' military man ' from the PERSON garrison ) . ... DATE prior to the assault , the representatives of the NORP side had , on repeated occasions , informed the PERSON authorities by radio about the upcoming assault and urged them to immediately evacuate the population from the town . The fact that this information had been received by the NORP side and transferred to GPE is confirmed by ORG newspapers ( PERSON ) . ...

A large column of inhabitants [ of PERSON ] rushed out of town along the river ( route DATE [ see above ] ) . There were armed people from the town garrison in some of the groups of refugees . These refugees , who walked along the ' free corridor ' ... , were fired upon , as a result of which many people were killed . Those who remained alive dispersed . Running [ refugees ] came across NORP military posts and were fired upon . Some refugees managed to escape to PERSON , some , mainly women and children ( the exact number is impossible to determine ) , froze to death while wandering around in mountains , some ... were captured ... The site of the mass killing of refugees , as well as their corpses , was filmed on videotape when the NORP units carried out an operation to evacuate the corpses to PERSON by helicopter . ... Among the corpses filmed on the videotape , the majority were those of women and elderly people ; there were also children among those killed . At the same time , there were also people in uniform among those killed . ... Within DATE , CARDINAL corpses were evacuated to PERSON . A few score of corpses bore signs of mutilation . ...

Official representatives of the ORG and members of the NORP armed forces explained the death of civilians in the zone of the ' free corridor ' by the fact that there were armed people fleeing together with the refugees , who were firing at NORP outposts , thus drawing return fire , as well as by an attempted breakthrough by the main NORP forces . According to members of the NORP armed forces , the NORP forces attempted to battle through from PERSON in the direction of the ' free corridor ' . At the moment when the NORP outposts were fighting off this attack , the first groups of PERSON refugees approached them from the rear . The armed people who were among the refugees began firing at the NORP outposts . During the battle , CARDINAL outpost was destroyed ... , but the fighters from another outpost , of whose existence the Azerbaijanis were unaware , opened fire from a close distance at the people coming from PERSON . According to testimonies of PERSON refugees ( including those published in the press ) , the armed people inside the refugee column did exchange gunfire with NORP outposts , but on each occasion the fire was opened first from the NORP side . ... ”


No violation of Art. 3;No violation of Art. 5-1;No violation of Art. 5-3;No violation of Art. 8;Violation of Art. 5-4;Violation of Art. 8;Violation of Art. 10;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Mr PERSON is a NORP citizen who has lived in GPE since DATE . He currently resides in GPE .

From CARDINAL DATE to CARDINAL DATE he served CARDINAL prison sentences in succession , following convictions pronounced by ORG ( PERSON für PERSON ) and confirmed in part by ORG ) , inter alia for assaults on his wife , clients of his television repair business and public officials .

The Inner Vienna District Court ( PERSON Innere GPE ) on DATE and ORG ( PERSON für PERSON ) , acting as guardianship court ( GPE ) , on DATE declared the applicant partly incapacitated ( beschränkt entmündigt ) and appointed an adviser ( ORG ) for him . They did so on the basis of a psychiatrist ’s report which had been drawn up following numerous complaints by him about prison conditions .

On DATE ORG appointed a new adviser , who has acted as such since then . According to a ruling of the guardianship court of DATE , his position was equivalent as from DATE to that of a curator ( Sachwalter ) within the meaning of LAW ) , sub - paragraph CARDINAL , of LAW ( see paragraph DATE below ) .

In the meantime , further prosecutions were brought against Mr Herczegfalvy for assaults on warders and fellow prisoners and for serious threats against judges .

On DATE ORG ordered that once he had finished serving his sentence on DATE ( see paragraph CARDINAL above ) the applicant should remain in detention under LAW ) , sub - paragraphs CARDINAL and CARDINAL , of LAW ( see paragraph CARDINAL below ) , as there was reason to fear that he might attempt to abscond and might commit other offences . The applicant unsuccessfully appealed to ORG ( Ratskammer ) of ORG and to ORG ( Oberlandesgericht ) , whose rulings were given on DATE and DATE respectively . The pre - trial detention ( Untersuchungshaft ) was confirmed by the presiding judge of ORG on DATE .

In accordance with the opinions of several experts , the presiding judge on DATE ordered Mr ORG ’s provisional placement ( vorläufige Unterbringung ) in an institution for mentally ill offenders ( LAW ; see paragraph CARDINAL below ) . The order was confirmed by ORG on DATE and ORG on DATE , and the applicant was transferred to the special prison at GPE , GPE .

According to the psychiatrists who examined him , he was suffering from paranoia querulans , which was equivalent to a mental illness and meant that he was not responsible for his acts ; he was extremely aggressive and incapable of understanding that his behaviour was unlawful , and there was a risk that attendance at the trial could harm his health .

Following these reports , the public prosecutor ’s office amended the indictment on DATE and now sought PERSON detention rather than conviction . From that date the detention in issue was based on LAW ( see paragraph CARDINAL below ) . The applicant ’s appeal against the amended indictment was dismissed by ORG on DATE .

The hearing before ORG took place on CARDINAL and DATE . It had previously been necessary to adjourn a hearing arranged for DATE because the case - file had been lost , to adjourn a hearing of CARDINAL DATE because of the applicant ’s request for further witnesses to be called , a hearing of DATE because the presiding judge was absent , CARDINAL of DATE because fresh evidence had been produced , CARDINAL of DATE because of mistakes in sending out summonses , and CARDINAL of CARDINAL DATE because the applicant had spat in the presiding judge ’s face , which had led to the indictment being amended ( see paragraph CARDINAL above ) .

On DATE the court found that the charges against Mr Herczegfalvy had been proved and ordered him to be detained under LAW ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) , on the grounds that he was dangerous and not criminally responsible for his acts . The court relied on the opinions of CARDINAL psychiatrists who had each diagnosed paranoia querulans which from DATE at least had been equivalent to a mental illness .

The applicant brought an application for a declaration of nullity ( PERSON ) to ORG . ORG decided , however , that pending the decision he should remain provisionally detained under LAW , but in prison , on the psychiatrist ’s recommendation .

On DATE ORG , relying on LAW , ordered that the detention should be continued and that the applicant should be transferred as a matter of urgency to a psychiatric hospital , so that the treatment he required could be carried out . PERSON stayed there from DATE to DATE and was then returned to the prison .

ORG , to which the applicant had appealed , held on DATE that it had no jurisdiction : as LAW was the only provision which could apply , it was for ORG to hear the appeal .

On DATE ORG upheld the detention in issue . Applying Article CARDINAL ( CARDINAL ) of LAW , it ordered PERSON to be sent to the GPE psychiatric hospital so that he could receive urgent medical and socio- and psycho - therapeutic treatment there , which was essential inter alia because of the hunger strike he had carried on since DATE . On DATE he was admitted to ward CARDINAL of that hospital , and stayed there until his release on DATE .

The applicant ’s appeal against this decision was dismissed by ORG on DATE .

In the meantime ORG had on DATE varied the judgment of DATE in part ( see paragraphs CARDINAL above ) , quashed the detention order and remitted the case to ORG .

On DATE Mr ORG requested his release . On DATE the investigating judge informed him that he continued to be detained in accordance with LAW .

At that judge ’s request , the psychiatric hospital submitted a report dated DATE expressing the opinion that it was not possible to place the applicant in ordinary pre - trial detention , as his aggressive behaviour was still causing danger to those around him .

Pursuant to LAW and ORG extended the detention in question in DATE .

After hearings on DATE and DATE ORG , to which the case had been remitted ( see paragraph CARDINAL above ) , found that the charges against PERSON which included further serious threats against a judge on DATE - had been proved and ordered him to be detained in an institution for mentally ill offenders under LAW ( CARDINAL ) of LAW . It based its decision on the judgment of DATE , the CARDINAL psychiatric reports on which it had been based ( see paragraph CARDINAL above ) , and the opinions of the authors of the reports , who had appeared at the hearing and stated that despite certain improvements there had been no fundamental change in the situation .

As the applicant had withdrawn his appeal and application for a declaration of nullity in writing on DATE and at a hearing on DATE , the judgment was on the latter date declared binding by a final order ( Endverfügung ) , which set the date of DATE for the next judicial review of the detention ( LAW ) of LAW ; see paragraph DATE below ) .

The applicant subsequently challenged the validity of his declarations . He said that he had made them only with a view to his repatriation to GPE , which was discussed on DATE but did not come about .

On CARDINAL DATE ORG , acting under LAW ( CARDINAL ) of LAW , extended PERSON detention , as a psychiatric report produced at the request of that court stated that he was a dangerous person . The court took its decision under LAW ) of LAW , after an official of the psychiatric hospital had stated to the court that the DATE review of the lawfulness of the detention should have taken place on DATE at the latest ( see paragraph CARDINAL above ) .

On DATE , DATE and a date in DATE the applicant requested his release , pointing out that the period for carrying out the DATE review had expired on CARDINAL DATE . On receiving the first of these applications , the court consulted a psychiatrist , who submitted a report on DATE recommending the applicant ’s release subject to supervision ( see paragraph CARDINAL below ) .

An application to exercise its supervisory jurisdiction ( Dienstaufsichtsbeschwerde ) was made to ORG , which ordered ORG to reach a decision speedily ; on DATE the latter court ordered a further extension of the detention in issue . Taking into account the opinions of the psychiatric expert and the director of the hospital , filed on DATE , it considered that there had been no fundamental change in Mr ORG ’s mental state . He was still suffering from paranoia querulans , and if released would undoubtedly refuse to follow the necessary course of treatment ; he would consequently be likely to bring numerous complaints or even carry out the threats he had made , in particular those against the prison staff ( see paragraph CARDINAL below ) .

On DATE ORG dismissed the applicant ’s appeal and confirmed that the requirements for his release under LAW ( CARDINAL ) of LAW were not satisfied .

PERSON made further applications for release on DATE and DATE . He was conditionally released on DATE in accordance with the court ’s decision of DATE , itself based on a psychiatric report dated DATE ( see paragraph CARDINAL below ) . The court found that the applicant ’s paranoia had admittedly worsened , but that it was primarily due to his detention ( Haftquerulanz ) ; the vexatious complaints and petitions ( Rechtsquerulanz ) did not constitute a danger within the meaning of LAW ; since being detained the applicant had behaved with genuine aggressiveness on a few occasions only ; although the possibility could not be excluded of his becoming aggressive in the event of frustration , his psychiatric history did not permit the conclusion that his abnormal personality would induce him to commit criminal offences ; moreover , continued psychiatric treatment or treatment by drugs was not considered necessary by the expert , although it was recommended .

On being returned to prison after his stay in the GPE psychiatric hospital from DATE to DATE ( see paragraph CARDINAL above ) , PERSON had begun a hunger strike on DATE as a protest against his detention and the refusal to give him his files . He collapsed on CARDINAL DATE and was transferred to a clinic where he received intensive medical care . On DATE he was transferred back to the GPE psychiatric hospital , where he remained until his release on DATE ( see paragraph CARDINAL above ) .

As the applicant was in an extremely weak state when returned there , the director of the hospital ordered him to be force fed , pursuant to section CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) . The applicant refused all contact and refused to have any medical examination or treatment , and was also given sedatives against his will ( CARDINAL doses of QUANTITY each of NORP ) ; on DATE and DATE he was attached to a security bed , the net and straps of which he succeeded in cutting through . On DATE he was given a different neuroleptic ( Sordinol IM ) , as infiltrations had appeared . He stopped refusing food on DATE , after being allocated a single room and being given some of his files .

Mr Herczegfalvy again went on hunger strike from DATE to CARDINAL DATE , on which date he allegedly eventually agreed to be fed through a tube ( GPE ) once daily . However , he later denied that his consent had been validly given .

In view of the deterioration of his physical and mental state , he was injected by force with QUANTITY of GPE on DATE , in order to bring about a state of somnolence ( Dämmerschlaf ) in which it would be possible to treat him by means of perfusions . Since he had resisted this with violence , the emergency team had had to overpower him . On DATE he was transferred to the intensive care unit , as he showed symptoms of pneumonia and nephritis ; he stayed there until DATE .

He had not made a complete recovery when he left , and he still needed treatment with antibiotics and neuroleptics . On his return to the closed unit he was handcuffed and a belt placed around his ankles because of the danger of aggression and the death threats he was making ; the restraints were not removed until DATE . According to the Government , their position was changed regularly , in order to avoid nervous paralysis , and on DATE he had agreed to be fed by a woman doctor . The applicant stated , however , that other belts had been put around his thighs and stomach and had been untied for the first time only on DATE ; in order to obtain his files and writing materials with which to write his complaints , he had continued his hunger strike without interruption , and had been artificially fed throughout this period .

From CARDINAL DATE the applicant calmed down and behaved in a more co - operative manner . Although he continued to insult the staff from time to time , he agreed to communicate with those around him and consented to being fed through a tube by a female doctor twice DATE . On DATE he was given paper and a ballpoint pen .

Following a dispute about his correspondence , PERSON was forbidden on DATE to watch television . As his physical resistance to the forced administration of neuroleptics had frequently been in vain and had even led to injuries ( loss of teeth , broken ribs and bruises ) , he brought a complaint of assault on each occasion that he was given medicaments . These letters , which he claimed had not been communicated to the relevant authorities , filled CARDINAL binders ; they were given to him on his discharge .

During this period he continued to refuse , at least in part , to take nourishment other than through a tube , but on CARDINAL DATE he stated that he no longer needed to be fed artificially , as a doctor had persuaded him to end his hunger strike by explaining to him that it was endangering his life . Hospital reports had , however , stated that he appeared to be adequately nourished .

In an opinion of CARDINAL DATE an expert considered that conditional release of the applicant would be possible if certain accompanying psychiatric and social measures were taken . In his view , PERSON behaviour was much improved , so that there was now virtually no danger .

After a further series of complaints which were regarded as vexatious , ORG consulted the hospital on DATE as to the applicant ’s possible release .

On DATE an expert noted the progress which the applicant had made and expressed the opinion that troublesome behaviour did not constitute a risk within the meaning of LAW .

However , in a letter of DATE , the director of the hospital advised the court not to terminate Mr ORG ’s detention ; as the treatment carried out , based on medication , had only a sedative effect , the possibility could not be excluded that if he were released , he would again become aggressive and dangerous .

ORG thereupon on DATE refused to release the applicant ( see paragraph CARDINAL above ) .

He eventually recovered his liberty on DATE , after a further expert report dated DATE ( see paragraph CARDINAL above ) .

While in detention PERSON addressed an extremely large number of petitions and complaints to various authorities , relating inter alia to his medical treatment and the proceedings brought by him . As he considered that he did not have the necessary money , he refused on several occasions to put stamps on his letters , or sent them to ORG for that purpose . In order to stem this flow of correspondence , he was deprived from time to time of writing materials , and his unstamped letters were frequently returned to him , with the exception of those addressed to the public authorities , in particular the courts .

With respect to the letters written at the psychiatric hospital , the hospital management had agreed with the applicant ’s curator that they would be transmitted to him regularly and it would be for him to decide whether it was necessary to send them on ; this system would apply to all letters other than those to his lawyer , his adviser and the guardianship court . PERSON has complained that even those letters were not all sent on .

When he left the hospital the applicant was given CARDINAL binders containing the originals of these letters and also CARDINAL sealed letters ; the postal register showed that the latter had never been sent to their addressees , namely the police , the public prosecutor ’s office and the courts .

PERSON also claimed that he had been deprived of reading matter , radio and television for long periods during his detention , in particular from DATE to DATE and from DATE ; from DATE there had been no television set in his cell or in the ward . He alleged that these measures had been taken for disciplinary purposes only .

DATE . According to the Government , these measures were based on section CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) , had been justified for therapeutic reasons , and had lasted for a short time only on each occasion .

LAW , in the version in force at the time , permits the pre - trial detention of a person ( where there are serious reasons for suspecting him of having committed a criminal offence ) if there is a danger of absconding , collusion or repetition of offences .

The risk of absconding can not be presumed if the accused is liable to a penalty of not more than DATE imprisonment , is living in normal conditions and has a permanent address in GPE , unless he has already attempted to abscond ( LAW ) .

The accused can bring an application for release at any time ( LAW ) . Under Articles CARDINAL and CARDINAL the request is examined by ORG at a hearing in private , in the presence of the accused or his lawyer . If the accused or the public prosecutor ’s office appeals to ORG , the hearing also takes place in private , in the presence of a member of the principal public prosecutor ’s office , but in the absence of the accused and his lawyer .

If no such application is made by the accused , ORG of its own motion reviews the detention when it has lasted for DATE or where DATE have passed since the last hearing and the accused has no lawyer ( LAW ) .

After the definitive indictment or the fixing of the hearing date for the trial , these review hearings cease . Decisions on the continuation of the detention are now taken by the trial court during the hearing and by ORG , sitting in private , at other times ( LAW .

Detention on remand is terminated at the latest at the time when a person who has been convicted begins to serve his sentence ; the time spent in detention on remand is automatically deducted from the sentence ( LAW ) .

In CARDINAL cases specified in ORG CARDINAL ( CARDINAL ) and CARDINAL of LAW , pre - trial detention may take the form of placement in an institution for mentally ill offenders :

" If CARDINAL of the reasons for detention specified in LAW ) exists , or if the person concerned can not remain at liberty without there being a danger for himself or other persons , or if medical observation of him is necessary , an order shall be made for his provisional detention in an institution for mentally ill offenders or for his admission to a public hospital for mental illnesses ... "

" If there are sufficient reasons for presuming that the conditions in [ LAW are fulfilled , and if reasons for detention ( LAW ) ) exist , but the accused can not without difficulty be detained in the prison of a court , an order shall be made that detention on remand is to take the form of provisional placement in an institution for mentally ill offenders ... "

Under LAW :

" ( CARDINAL ) If a person commits an offence punishable with a term of imprisonment DATE , and if he can not be punished for the sole reason that he committed the offence under the influence of a state of mind excluding responsibility ( LAW ) resulting from a serious mental or emotional abnormality , the court shall order him to be placed in an institution for mentally ill offenders , if in view of his person , his condition and the nature of the offence it is to be feared that he will otherwise , under the influence of his mental or emotional abnormality , commit a criminal offence with serious consequences .

( CARDINAL ) If such a fear exists , an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who , while not lacking responsibility , commits an offence punishable with a term of imprisonment DATE under the influence of his severe mental or emotional abnormality . In such a case the placement is to be ordered at the same time as the sentence is passed . "

The duration of these preventive measures is governed by LAW , which states that :

" ( CARDINAL ) Preventive measures are to be ordered for an indefinite period . They are to be implemented for as long as is required by their purpose ...

( CARDINAL ) The termination of preventive measures shall be decided by the court .

( CARDINAL ) The court must of its own motion examine at least once yearly whether the placement in an institution for mentally ill offenders ... is still necessary .

LAW provides that :

" Pre - trial detention is intended to counteract the dangers specified in LAW . In accordance with the statutory provisions and the regulations based thereon , persons in pre - trial detention may be subjected to restrictions only if they serve the purposes of detention or the maintenance of security or order in the institutions . Prisoners in pre - trial detention are to be treated with calm , seriousness and firmness , in a just manner and with respect for their sense of honour , human dignity and with as little as possible interference with their personality . "

Articles CARDINAL and CARDINAL of the Code of Criminal Procedure govern the correspondence of prisoners in pre - trial detention :

" ( CARDINAL ) Prisoners in pre - trial detention may , without prejudice to LAW and sections CARDINAL of ORG , correspond in writing with all persons who are not likely to prejudice the purpose of the pre - trial detention , and to receive visits from such persons .

( CARDINAL ) Correspondence shall not be subject to any restrictions , unless surveillance is prejudiced by the exceptional volume of the correspondence of a prisoner in pre - trial detention . In such a case the restrictions which are necessary for proper surveillance shall be ordered . Letters which are likely to prejudice the purpose of the detention are to be withheld , unless provided otherwise by sections CARDINAL and CARDINAL ( CARDINAL ) of ORG , relating to written correspondence with official bodies and legal advisers . Letters from prisoners in pre - trial detention which give rise to suspicion that an offence , not being an offence which can be prosecuted only at the request of a person concerned , is being committed by means of them , are always to be stopped , unless they are addressed to a national general representative body , a national court or another national authority , or to ORG .

" Decisions as to which persons prisoners in pre - trial detention may correspond in writing with and which visits they may receive , surveillance of correspondence and visits , and all other orders and decisions relating to contacts between prisoners in pre - trial detention and the outside world ( sections CARDINAL of GPE ) are to be taken by the investigating judge , with the exception of surveillance of parcels . Surveillance of correspondence can be waived only in so far as no prejudice of the purpose of detention is to be feared as a result thereof . "

DATE . Unless provided otherwise , the provisions of ORG ( Strafvollzugsgesetz ) applicable to persons in prison also apply by analogy to persons placed in institutions for mentally ill offenders ( section CARDINAL ( CARDINAL ) of that law ) . They lay down detailed regulations , for example , with respect to :

- the right to necessary medical treatment ( sections CARDINAL et seq . ) , and compulsory medical treatment and force - feeding ( section CARDINAL ) ;

- the right of access to information by means of books , magazines , newspapers , radio and television ( sections CARDINAL et seq . ) ;

- the right of correspondence , in particular with close relatives and other persons , lawyers , courts and other authorities , representative bodies , the ombudsman , ORG and , in the case of a foreign national , his consulate ( sections CARDINAL et seq . ) ;

- the right to bring petitions and complaints ( sections CARDINAL et seq . ) . Prisoners may submit petitions concerning their conditions of imprisonment ( section CARDINAL ) and complain of actions of the prison staff which in their opinion infringe their rights ( section CARDINAL ) . Complaints are to be addressed to the governor of the prison or , where the complaint is brought against the governor , to ORG ( section CARDINAL ) ; this remains subject to review by ORG and ORG ( Articles CARDINAL and CARDINAL of LAW ) .

Prisoners may submit petitions and requests , other than those relating to their medical treatment , by means of an application to a higher official , but this does not give the right to an administrative decision ( section CARDINAL ( CARDINAL ) , second sentence , and section CARDINAL ) .

Section CARDINAL ( CARDINAL ) authorises restrictions on the rights of mentally ill offenders only to the extent necessary for the attainment of the purpose of the detention , and prohibits all interferences with their human dignity and with the rights guaranteed them by sections CARDINAL to CARDINAL . It also provides that complaints which have obviously been brought solely because of the detainee ’s mental or emotional disturbance and which are not based on an infringement of his rights shall be rejected without any formal procedure .

Before the establishment of special institutions for mentally ill offenders , they were placed in closed units of public psychiatric hospitals , regulated by LAW . That law provides inter alia :

" ( CARDINAL ) The medical service must be organised in such a way that medical assistance is always immediately available in the hospital .

( CARDINAL ) Hospital patients may be medically treated only in accordance with the principles and recognised methods of medical science .

( CARDINAL ) Special curative treatments including surgical operations may be carried out on a patient only with his consent , but if the patient has not yet reached DATE or if because he lacks mental maturity or health he can not assess the necessity or usefulness of the treatment , only with the consent of his legal representative . Consent is not required if the treatment is so urgently necessary that the delay involved in obtaining the consent of the patient or his legal representative or in appointing a legal representative would endanger his life or would entail the danger of serious harm to his health . The medical director of the hospital or the doctor responsible for the management of the hospital department concerned shall decide on the necessity and urgency of treatment . "

" Patients who are compulsorily detained ... may be subjected to restrictions with respect to freedom of movement or contact with the outside world . "

The applicant ’s partial legal incapacitation , which was pronounced in DATE ( see paragraph CARDINAL above ) , was based on sections CARDINAL ( CARDINAL ) and CARDINAL of the Incapacitation Regulations ( Entmündigungsordnung ) of DATE :

" Adults who are unable to look after their own affairs and , because of a mental illness or a handicap , need the assistance of an adviser ( ORG ) to look after their affairs appropriately , may be declared partially incapacitated . "

" ( CARDINAL ) A person who is partially incapacitated shall be treated as a minor over DATE ( mündiger PERSON ) and shall be given an adviser .

( CARDINAL ) The adviser shall have the rights and duties of a guardian ( Vormund ) , but the guardianship court may reserve to the adviser the right to dispose over what the incapacitated person acquires by his work . "

The functions of a guardian are defined in LAW , first sentence , of ORG ) , which reads as follows :

" A guardian must primarily take care of the person of the minor , but also administer his property . "

Article CARDINAL ( CARDINAL ) states that if care for the person and education of a minor is not the responsibility of a person having parental authority , the guardian shall have responsibility therefor .

Under the Law of DATE on the appointment of curators of handicapped persons ( ORG ) , persons who have been declared totally or partly legally incapacitated are to be regarded from DATE as having the assistance of a curator ( Sachwalter ) , empowered under LAW ) , sub - paragraph CARDINAL , of LAW to look after all their affairs .

Under LAW a curator has the same rights and obligations as a guardian , but must also care for the person of a handicapped person , in particular his medical and social treatment , unless a court decides otherwise .

Any administrative act , including the exercise of direct administrative compulsion against a particular person , may in principle be challenged as to its lawfulness before ORG ( Verwaltungsgerichtshof , LAW ) and as to its constitutionality before ORG Verfassungsgerichtshof , Article CARDINAL ) .

However , there does not appear to be any example in the case - law of such an application against the acts of a psychiatric hospital of the type of those in issue in the present case .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Rajko Pirnat

The applicants , PERSON and PERSON , are NORP nationals who were born in DATE and live in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , State Attorney General .

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

The case concerns CARDINAL sets of administrative proceedings resulting from the applicants’ dissatisfaction with their neighbour ’s allegedly illegal construction of extensions to his house and various facilities . This construction is situated on their neighbour ’s plot of land which is separated from the applicants’ land by a public road .

On DATE the applicants reported their neighbour ’s building of an extension to his house , a garage and certain facilities to ORG NORP za okolje in prostor DATE “ the ORG ” ) . The applicants disputed the legality of the construction and requested that proceedings be instituted against their neighbour .

NORP In DATE the applicants learned that the ORG had not found any irregularities concerning the allegedly illegal construction . Subsequently , the applicants unsuccessfully appealed to ORG glavnega republiškega inšpektorja ) .

On DATE the applicants requested that the proceedings be reopened .

On DATE the applicants lodged a claim with ORG sodišče ) on account of the ORG ’s failure to decide ( molk organa ) .

On DATE the applicants lodged a claim before ORG arguing that ORG okolje in prostor – “ the Ministry ” ) had also failed to decide .

On DATE the applicants requested the proceedings to be joined .

Meanwhile , on DATE , the ORG ruled that under the law in force , the applicants did not have locus standi in the proceedings concerning the neighbour ’s construction work in spite of the fact that they had requested the ORG to act . These proceedings had been instituted by the ORG itself and only the initiator of the allegedly illegal construction had standing in the proceedings brought by the ORG against him .

On DATE the applicants lodged an appeal which was rejected by ORG on DATE .

On DATE the applicants challenged the ORG ’s decision before ORG . At the same time , the applicants withdrew their previous claim lodged on DATE ( see paragraphs CARDINAL , CARDINAL , CARDINAL above ) .

On DATE ORG delivered a judgment rejecting the applicants’ claim . This decision was served on the applicants on DATE .

On DATE the applicants appealed to ORG .

On DATE ORG upheld the applicants’ appeal . It quashed the ORG ’s decision of CARDINAL DATE ( see paragraph CARDINAL above ) and ordered the Ministry to re - examine the case . The judgment was based on ORG decision of DATE issued in the second set of proceedings ( see paragraph CARDINAL below ) requiring the authorities to take into account the actual effect the ORG proceedings had on the particular complainant .

On DATE , as a result of the ORG decision of DATE , the ORG quashed the ORG ’s decision of DATE ( see paragraph CARDINAL above ) and ordered the Inspectorate to re - examine the case .

On DATE the ORG , applying the criteria from ORG decision , again rejected the ORG request for recognition that they had locus standi in the proceedings . The ORG found that there was a public road between the applicants’ and their neighbour ’s plot of land . Hence , neither the applicants’ rights and obligations nor their legal interest could have been affected by the ORG proceedings conducted against their neighbour . In addition , the ORG found that the applicants’ neighbour had acquired the urban planning permit ( urbanistično potrdilo za gradnjo ) for the works concerned .

The applicants appealed . The Ministry rejected their appeal on DATE .

On DATE the applicants challenged the ORG ’s decision by bringing a claim before ORG .

On DATE ORG rejected the applicants’ claim finding that the applicants had failed to demonstrate their legal interest , namely , in what way the ORG ’s measures might affect their rights , as required by ORG decision , and that they accordingly did not have standing .

On an unspecified date the ORG instituted proceedings concerning the applicants’ neighbour ’s construction of a wall . On DATE the applicants proposed that proceedings be instituted also with respect to the landslip .

On DATE the applicants requested an access to the case file and asked the ORG to secure certain evidence in connection to the landslip .

On DATE the ORG issued a decision finding that they did not have locus standi in the proceedings and they could not be granted access to the file or make a request for evidence to be secured .

On DATE the ORG rejected their appeal .

On DATE the applicants challenged the ORG ’s decision in ORG and requested that the present proceedings be joined with the first set of proceedings .

On DATE ORG rejected the ORG claim and request .

On DATE ORG rejected the appeal .

On DATE the applicants lodged a constitutional appeal with ORG .

On DATE ORG issued a decision ( Up-CARDINAL/CARDINAL - CARDINAL ) finding that when deciding on the applicants’ standing in proceedings instituted ex officio by the ORG , the authorities should have taken into account their legal interest , in particular , whether their rights were affected in these proceedings . It quashed the disputed decisions and remitted the case for re - examination by the ORG . This decision was served on the applicants on DATE .

On DATE the applicants urged the ORG to decide in accordance with ORG ruling .

It appears from the letter of ORG , ORG ( Ministrstvo za notranje zadeve , PERSON ) , sent to the applicants on DATE further to their prior complaint , that the ORG allowed them to examine the case file .

NORP However , on DATE the ORG , relying on ORG decision , ruled that the applicants did not have locus standi in the ORG proceedings , finding that they were not the immediate neighbours since there was a public road between the CARDINAL plots of land . In addition , the ORG found that a potential landslip did not present any risk to the property of the applicants . As neither the applicants’ rights and obligations nor their legal interest could be affected by the ORG proceedings conducted against their neighbour , they could not be said to have standing .

The applicants appealed to ORG .

On DATE the ORG rejected their appeal .

On DATE the applicants challenged this decision and instituted proceedings before ORG .

On DATE ORG rejected the ORG claim , finding that they had failed to demonstrate their legal interest , namely that the ORG ’s measures might affect their rights . As a result , ORG ruled that the applicants did not have standing .

On DATE the applicants requested permission to examine the case file from DATE concerning their neighbour ’s urban planning permit ( urbanistično potrdilo za gradnjo ) issued in respect of certain buildings on their neighbour ’s plot of land .

On DATE the officer of ORG enota GPE ) orally informed the applicants that their request would be refused . No written decision was issued within the prescribed time - limit .

On DATE the applicants lodged an appeal to ORG against the oral decision refusing them access to the file .

On DATE they lodged a claim with ORG on account of the ORG ’s failure to decide . In accordance with a change in the relevant legislation , ORG obtained jurisdiction in the case .

However , on DATE , ORG issued a decision rejecting the ORG appeal .

On DATE the applicants extended the claim lodged on DATE to include also the ORG ’s decision .

On DATE ORG quashed the ORG ’s decision for procedural reasons and remitted the case for re - examination .

On DATE , since no decision had been issued by ORG within the prescribed time - limit , the applicants requested ORG to give a ruling . ORG rejected their request as premature .

On DATE the applicants were asked to demonstrate their legal interest in the case . As a result , the applicants submitted ORG decision of DATE .

DATE . On DATE ORG , after re - examination , again rejected the applicants’ request to have access to the file since they had failed to demonstrate their legal interest in the case .

On DATE the applicants appealed to the Ministry .

On DATE the Ministry rejected the appeal . The applicants did not lodge any claim against this decision to ORG . However , on DATE , they requested the Ministry to reopen the proceedings .

On DATE that request was rejected by ORG .

On DATE the applicants’ neighbour lodged an application for a site development permit ( lokacijsko dovoljenje ) concerning the legalisation of extensions to his house and certain facilities built on his property . By virtue of the applicable domestic law , the applicants were a party to this set of proceedings .

Hearings were held on DATE and DATE ; the applicants participated in these hearings .

On DATE and CARDINAL DATE the applicants requested that the relevant evidence in the proceedings be secured by ORG decision .

On DATE the applicants appealed to ORG on account of ORG failure to decide .

On DATE ORG issued a decision rejecting the applicants’ request to secure evidence .

On DATE the applicant appealed against that decision to the Ministry .

On DATE they urged the ORG to rule on their appeal .

On DATE the ORG quashed the first - instance decision of DATE and remitted the case for re - examination .

In response to a letter of DATE in which the ORG requested an explanation , ORG informed the ORG that the decision quashing the first - instance decision ( see paragraph CARDINAL above ) had never been served on them . Subsequently , ORG informed ORG that the decision had been served on them on DATE .

On DATE the applicants requested the Ministry to urge ORG to decide on the case .

On DATE ORG informed the ORG that the delays were due to the backlog of administrative cases . On DATE , finding the said reasons for delays unjustified , the Ministry ordered ORG to issue a decision within DATE .

On DATE ORG issued a site development permit which had the effect of legalising the relevant buildings and facilities .

On DATE the applicants appealed to the Ministry against this decision .

On DATE the ORG quashed the first - instance decision and remitted the case for re - examination .

DATE . On DATE and on CARDINAL DATE CARDINAL hearings were held . Subsequently , ORG issued a new site development permit legalising the relevant buildings and facilities .

The applicants appealed against this decision .

On DATE the Ministry quashed the first - instance decision and remitted the case for re - examination .

On DATE ORG rejected the application for a site development permit lodged on DATE by the ORG neighbour . It appears that the neighbour did not appeal against this decision .

Pursuant to section DATE of the DATE LAW ( Zakon o splošnem upravnem postopku , ORG no . CARDINAL ) , as in force at the material time , only a person having requested the institution of proceedings , a person against whom the proceedings were conducted or a person allowed to participate in the proceedings to protect his or her rights , was to be considered a party to proceedings .

Section CARDINAL provided that administrative proceedings might be instituted by the administrative authorities ex officio on the basis of law or when so required by the public interest . When instituting proceedings ex officio , the authorities were required to consider any request made by an individual or an organisation as well as any instructions of other authorities .

Section CARDINAL ( CARDINAL ) provided that in simple matters , where there was no need to undertake a separate examination or there was no other reason which would prevent the authorities from deciding immediately , an administrative body was obliged to give a decision within DATE of the submission of the request for the institution of proceedings or the date on which the proceedings were instituted ex officio . In all other cases the administrative body was obliged to give a decision within DATE .

Section CARDINAL ( CARDINAL ) entitled a party whose application had not been decided within the time allowed in sub - section CARDINAL to lodge an appeal as if the application had been denied .

DATE . Section CARDINAL of the DATE LAW ( Zakon o upravnem sporu , ORG no . CARDINAL /CARDINAL , entry into force DATE ) entitles a party having lodged an application with an administrative body to institute administrative proceedings before ORG ( administrative dispute ) in the following cases :

If the appellate body does not rule on the applicant ’s appeal against the first - instance decision within DATE , or within a shorter period , if any , prescribed by law , and fails to make an award upon a subsequent request within a further period of DATE , the applicant may then bring an administrative action , as if his request had been dismissed .

The applicant may also act in accordance with the preceding paragraph when an administrative body of the first - instance fails to give a decision from which no appeal lies .

If in matters where a right to an appeal exists a body of the first instance fails to give a decision upon the individual ’s application within DATE , or within a shorter period , if any , prescribed by law , the individual may then submit his application to the appellate administrative body . Should the latter find against him , the individual may then bring an administrative action . The individual may also bring an administrative action under the conditions set out in paragraph CARDINAL . ”


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , Mr Valeriy Olegovich Zenin , is a NORP national who was born in DATE and lives in GPE - on - Don . He was represented before the Court by PERSON , a lawyer practising in PERSON - on - PERSON . ORG ( “ the Government ” ) were represented by Mr P. Laptev , the then Representative of GPE at ORG .

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

In DATE the applicant was arrested and detained in remand centre no . CARDINAL on suspicion of a customs offence . Several other persons were detained in relation to the above offence . The applicant ’s detention was extended until DATE . On that date the criminal case was sent for trial before ORG of GPE .

On DATE the trial court , having detected a number of procedural defects , returned the case to the prosecutor for further investigation . The court also held that “ the preventive measure should remain unchanged ” and the detainees “ should be taken in charge by ORG of the Rostov Region ” . Under LAW , in force at the time , after receiving the case file from the court the investigating or prosecuting authority was thus required inter alia to decide on the detention issue ( see “ Relevant domestic law ” below ) .

On DATE a new Code of Criminal Procedure ( CCrP ) entered into force . Pursuant to the Law on Transitional Measures , any decision on the remand matter taken before DATE was valid within the time - limit for which the preventive measure had been authorised ( see “ Relevant domestic law ” below ) .

The applicant did not appeal against the detention order of DATE . However , ORG lodged objections to the remittal . On DATE the Rostov ORG rejected them . The appeal court did not rule on the remand issue .

On DATE ORG received the case file . On DATE the file was transmitted to an investigator . On the same date , the authorities applied to ORG for an extension of the applicant ’s detention . On DATE ORG declined jurisdiction in favour of ORG .

Having been notified of the outcome of the appeal proceedings in relation to the order of DATE , the administration of remand centre no . CARDINAL ordered on DATE the applicant ’s transfer to remand centre no . CARDINAL within the jurisdiction of the investigating and prosecuting authorities .

On DATE ORG extended the applicant ’s detention until DATE . On DATE ORG upheld the order .

In the meantime , on DATE the administration of remand centre no . CARDINAL rejected the applicant ’s request to be released considering that his detention continued to be authorised by the order of DATE .

On DATE the applicant ’s lawyer brought proceedings in ORG of GPE - on - PERSON against both remand centres accusing their respective administrations of “ unlawful inaction ” . In that connection , the applicant pleaded that after DATE there should have been a new detention order issued by a court under the CCrP. He also alleged that the refusal to release him had been unlawful under LAW and section CARDINAL of LAW ( see “ Relevant domestic law ” below ) . ORG examined the applicant ’s claims under LAW . By a judgment of DATE , it rejected them considering that the applicant ’s detention after CARDINAL DATE had been authorised under the order of DATE ; after receiving in DATE the information about the outcome of the appeal proceedings in relation to that order the administration of remand centre no . CARDINAL had promptly ordered the applicant ’s transfer within the jurisdiction of the investigating and prosecuting authorities to remand centre no . CARDINAL ; the latter had no reason to release the applicant since the order of DATE was valid . Lastly , ORG noted that on DATE the applicant ’s detention had been extended .

On DATE ORG upheld the judgment adding that the applicant ’s claim had been confined to the alleged unlawfulness of the refusal to release him while the applicant had not claimed any specific redress , which would be intended to remedy the alleged violation of an individual right ; in any event , by the time of the proceedings before the first - instance court the applicant ’s detention had already been validly extended until DATE .

Prior to DATE criminal law matters were governed by LAW ( the RSFSR CCrP ) . From DATE it was replaced by LAW ( the CCrP ) .

Under the RSFSR CCrP , the authority in charge of the case ( inquirer , investigator , prosecutor or a court ) could order detention of an accused ( LAW ) ; the detention period could be extended by a prosecutor ( LAW ) .

Following arrest the person is detained “ pending investigation ” until DATE when the case is sent to a court for trial ( Article CARDINAL of the RSFSR CCrP , Article CARDINAL § CARDINAL of the new CCrP ) . From the date the prosecutor forwards the case to the trial court , the defendant ’s detention was “ during the trial ” ( Article CARDINAL - CARDINAL of the RSFSR CCrP ) . The trial court can vary or annul a preventive measure against the defendant ( Article CARDINAL of the RSFSR CCrP , Article CARDINAL of the CCrP ) .

Under the RSFSR CCrP , the trial court was empowered to remit the case for “ further investigation ” when procedural defects had been detected that could not be remedied at the trial ( LAW ) . When doing so , the court had to decide on the application of a preventive measure to the accused ( LAW ) . In such cases the defendant ’s detention was again classified as “ pending investigation ” . The investigating and prosecuting authorities were required to comply with the remitting court ’s order and to decide on the detention issue , if appropriate .

As follows from LAW , only a prosecutor had a right of appeal in relation to decisions taken by a first - instance court under LAW ; no appeal lay against a court decision under LAW . On DATE ORG declared Article CARDINAL of the Code unconstitutional .

Under LAW of the existing ORG , a detention order is amenable to review before a higher court by way of an ordinary appeal .

Under LAW ORG , the authority in charge of the criminal case ( an inquirer , investigator , prosecutor or a court ) can annul or replace a preventive measure with another one . Annulment of a preventive measure indicated by an inquirer , investigator or a prosecutor at the pre - trial stage of proceedings requires consent from the prosecutor . A preventive measure indicated by a court can be annulled or replaced only by a court .

During the preliminary investigation a detainee can apply to the authority in charge of the criminal case ( inquirer or prosecutor ) with an application for release . The authority ’s refusal is amenable to review by a court under LAW

LAW ORG provides for judicial review of the decisions or ( in)actions on the part of an inquirer , investigator or a prosecutor , which has affected constitutional rights or freedoms . The judge is empowered to verify the lawfulness and reasonableness of the decision/(in)action and to grant the following forms of relief : ( i ) to declare the impugned decision/(in)action unlawful or unreasonable and to order the respective authority to remedy the violation ; or ( ii ) to reject the complaint .

Pursuant to the Law on Transitional Measures , as amended on DATE , any decision on the remand matter taken before DATE was valid within the time - limit for which the preventive measure had been authorised ( section CARDINAL ) .

Under PERSON of DATE no . CARDINAL-FZ “ On ORG and Accused of Criminal Offences ” ( LAW ) , the prison governor should release the detainee , having received a court order or the prosecutor ’s decision to this effect . The prison governor should notify the authority in charge of the criminal case and the prosecutor that the authorised period of detention expires within TIME . If the authorised period of detention has expired and no decision to extend it or release the detainee has been received , the prison governor should immediately release the detainee ( section CARDINAL ) .

The Act concerns all ( in)action by a public authority except those for which there is a specific court procedure provided for by the legislation ( section CARDINAL ) . LAW provides that a NORP citizen can bring a court action against a public authority , if the latter ’s ( in)action has violated his or her rights or freedoms . If the plaintiff ’s claim is justified , the judge declares the impugned ( in)action unlawful and requires the respondent authority to grant this claim , or otherwise remedies the violation of the person ’s rights or freedoms ( section CARDINAL ) . A subsequent claim for compensation arising out of the above decision should be examined with reference to LAW ( ibid ) .