The applicant is a NORP national , born in DATE and living in PERSON . .

A.

By a decision of DATE ORG ( ORG ) in PERSON found the applicant guilty of a tax offence punishable under LAW committed in that she had made bookkeeping errors in the bookkeeping of a shop owned and run by her client , and imposed on her a pecuniary penalty of CARDINAL ORG , or DATE of imprisonment in default . She was also found guilty of another offence punishable under LAW , committed in that she had incorrectly calculated value of a certain tax subject to deduction from ORG ) , which resulted in a reduction of the taxes paid to the ORG by a sum of CARDINAL PLZ For this offence , the ORG imposed on her a pecuniary penalty of CARDINAL ORG , with CARDINAL days’ imprisonment in default .

The applicant lodged an appeal against this decision with the Opole Treasury Chamber ( Izba Skarbowa ) , arguing that the first - instance authority had breached a fundamental principle of tax law which provided that only the taxpayer , and not persons keeping books for him or her , was liable under the provisions of LAW . She further submitted that in fact her calculation of the taxes had been correct .

On DATE the ORG amended in part the decision under appeal by changing the legal qualification of the offence qualified by the lower administrative authority under LAW into an offence against LAW , and upheld the decision in its remainder . ORG considered that the principle referred to by the applicant in her appeal , i.e. the principle of an exclusive responsibility of a taxpayer towards the ORG for his or her taxes , was applicable only on the ground of tax law . However , this principle did not apply to the criminal liability as laid down in LAW . Consequently , it was not excluded that an offence punishable under LAW could be committed not only by a taxpayer himself , but also by any person keeping books for the taxpayer on the basis of a contract .

On DATE the applicant complained to the Minister of Finance about the decisions in her case , contending that they were unlawful . This complaint remained unanswered .

B. Relevant domestic law

Book One of the Fiscal Criminal Act ( LOC karna skarbowa ) is entitled “ ORG ” . Book CARDINAL is divided into CARDINAL Parts , ORG , the latter specifying acts punishable under LAW and setting out penalties imposable on perpetrators . Part CARDINAL is divided in CARDINAL Chapters , the first LAW pertaining to fiscal crimes and the second one to fiscal offences .

Under LAW , a wrongful act punishable under the provisions of the said LAW by imprisonment , limitation of liberty or a fine constitutes a fiscal crime . A fine can not be lower than CARDINAL PLZ and can not exceed CARDINAL PLZ . Article CARDINAL provides for additional sanctions for fiscal crimes such as : deprivation of civil rights , prohibition to exercise certain activities , confiscation of an object , and publication of the court judgment by which the offender was convicted .

Under LAW , a wrongful act punishable under the provisions of the said LAW by the imposition of a pecuniary penalty constitutes a fiscal offence . According to LAW , a pecuniary penalty can reach from CARDINAL PLZ to CARDINAL ORG . Under LAW , the additional sanction of confiscation of an object can be imposed if the LAW expressly provides therefor .

Under LAW , certain provisions of LAW , defining certain general notions of criminal responsibility , are applicable in the proceedings concerning fiscal offences . The provisions in question concern , inter alia , the definition of a punishable act , the prohibition of retroactivity , the definition of intentional and non - intentional offence , the age limit for liability , the attempted offence , the aiding and abetting , the circumstances justifying the exclusion of criminal liability , and the principles governing the determination of criminal sanctions .

Pursuant to LAW , the courts are competent to entertain cases concerning responsibility for the commission of fiscal crimes punishable by imprisonment or limitation of liberty . Under LAW , cases concerning fiscal crimes in which only fines can be imposed , and cases concerning fiscal offences , are examined by fiscal administrative boards .

Article CARDINAL of the Act states that decisions given in the proceedings concerning fiscal crimes and offences can be appealed against if the law so provides . The remedies are the following : an appeal , a demand that the case be examined by a court , and an appeal against interlocutory decisions .

Under LAW , in cases concerning fiscal crimes , a party to the proceedings is entitled either to lodge an appeal against a first - instance decision of an administrative authority with a higher administrative authority , or to demand that the case be examined by a court . An option to use CARDINAL remedy bars the use of the other . In the proceedings concerning fiscal offences , only an appeal to a higher administrative authority can be lodged .


Violation of Art. 8;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

In DATE he was prosecuted for his alleged membership of an illegal organisation , namely ORG ( “ NORP Youth ” ) but was acquitted on DATE . Another set of criminal proceedings brought against him under LAW for membership of another illegal organisation , namely PERSON ( “ FAC ” ) , were discontinued in DATE following the repeal of that provision .

On DATE the applicant was on his way to a demonstration in GPE , organised by ORG . He was arrested by the police , who allegedly beat him up . He was taken to a police station . A police report drawn up DATE stated that the applicant had a previous record for terrorist related activity in DATE .

On DATE the GPE prosecutor filed an indictment , accusing the applicant and CARDINAL other persons of contravening LAW , and charged them with the offences of damaging State property and resisting arrest by using force .

While the criminal proceedings were pending before ORG ( hereinafter “ the GPE court ” ) , a police report entitled “ information form on additional offences ” ( ORG ) was submitted to the GPE court . In the report , under the heading “ Records of Guilt ” ( PERSON ) , were CARDINAL entries concerning the applicant which read as follows :

“ CARDINAL- Member of PERSON , DATE , Political Offences Branch [ of the Police ] , ORG ;

CARDINAL- Member of Revolutionary Youth , DATE , ORG [ of the Police ] , CARDINAL ” .

The report , which also included the applicant ’s fingerprints , address and birth registry details , had been drawn up in accordance with LAW , which empowered the police to keep such details on persons accused or convicted of certain offences .

On DATE the applicant submitted a complaint to the prosecutor and brought to the prosecutor ’s attention his acquittal in DATE of the offence of membership of the illegal organisation Dev - Genç , and the discontinuation in DATE of the criminal proceedings concerning his alleged membership of Dev - Yol . The applicant drew attention to the fact that LAW also required the police to include in their records any acquittals or discontinuations of criminal proceedings . He asked the prosecutor to prosecute the police officers who had neglected their duties by failing to comply with the Regulations .

NORP In his complaint the applicant further argued that the police report as it stood infringed his right to the presumption of innocence protected by LAW . He was a sociologist and the author of a number of publications . He drew the attention of the prosecutor to the national press which had reported that “ one of the persons arrested [ in the demonstration ] was a member of ORG ” . He submitted that he was now regarded as a member of illegal organisations and this had adverse effects on his professional life and was detrimental to his psychological integrity .

On DATE the prosecutor dismissed the applicant ’s request for the police officers to be prosecuted . The prosecutor considered that the officers had not attempted to mislead anyone ; all they had done was to forward to a criminal court official records of past incidents concerning the applicant .

The applicant lodged an objection against the prosecutor ’s decision and argued that the prosecutor had not examined or even mentioned in his decision the Regulations in question before deciding not to prosecute the police officers . He further complained that his rights under LAW , in particular his rights to a fair trial and to respect for his private and family life , had been breached .

The applicant ’s objection was rejected by ORG on DATE .

On DATE the applicant was acquitted in the criminal proceedings which had been brought against him on DATE ( see paragraph CARDINAL above ) .

According to LAW in force at the time of the events , it was an offence for a public servant to delay in carrying out or to omit to carry out his or her duties .

Moreover , according to LAW , all decisions relating to the accusations mentioned in police reports – such as decisions rendered by prosecutors not to prosecute , court decisions on acquittals , and decisions to discontinue criminal proceedings – should also be included in the reports and a certified copy of such decisions should be attached to them . Competent authorities requiring information on the person in question should be provided with the reports as well as with the decisions relating to the accusations mentioned in them .

ORG has examined questions of data protection and concluded LAW DATE for ORG with regard to ORG . It came into force on DATE and its purpose is “ to secure ... for every individual ... respect for his rights and fundamental freedoms , and in particular his right to privacy with regard to automatic processing of personal data relating to him ” ( Article CARDINAL ) , such personal data being defined in DATE as “ any information relating to an identified or identifiable individual ” .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home;Respect for private life);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 6 - Right to a fair trial (Article 6-1 - Civil rights and obligations;Determination (civil));No violation of Article 13 - Right to an effective remedy

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

The applicant was born in DATE and lives in the village of PERSON , in the GPE municipality , in a house owned by him and his former wife . His parents also live in that house . His daughter , from whose mother the applicant is divorced , stays with him DATE in DATE . The applicant 's house is situated QUANTITY from the tailings pond ( хвостохранилище ) and the flotation plant ( обогатителна фабрика ) of a former copperore mine . The applicant cultivates agricultural land located QUANTITY from the pond . On DATE the applicant 's father donated to him more agricultural land in GPE ; the applicant did not specify its exact location .

The pond , whose surface area is CARDINAL.CARDINAL ha , was in operation until DATE . The mine continued to be worked until DATE . After decommissioning , measures for the conservation and reclamation of the pond were taken . In DATE a scheme , drawn up in DATE , was subjected to an environmental impact assessment ( “ ORG ” ) . The conclusion was positive . In DATE the ORG was submitted for public discussion by the inhabitants of PERSON and modified in line with their comments . The scheme was approved by ORG of ORG in DATE and began to be implemented in DATE . It consisted in laying earth and soil and planting vegetation on the pond . Its implementation was stopped in DATE .

In DATE Mr PERSON , operating as a sole trader under the business name “ ET PERSON ” , proposed to ORG a new solution for the reclamation of the tailings pond . It consisted in the temporary capping of the pond 's surface and slopes with soil cement , to prevent the spreading of dust , and in the use of sludge from a waste - water treatment plant in GPE for biological reclamation .

On DATE ORG gave a negative opinion on the new scheme . It expressed doubts as to the sustainability and the stability in acidic environments of the soil cement intended to be used for capping the pond . The proposed technology would provide a provisional solution for containing the dust spread from the pond , but would not lead to the pond 's full reclamation . Moreover , ORG had not specified the chemical composition of the sludge from the GPE waste - water treatment plant . It appeared to contain heavy metals , as the plant treated not only domestic , but also industrial waste water . According to the relevant classifier , sludge resulting from the treatment of the latter was hazardous waste .

On DATE PERSON 's mayor also expressed a negative opinion on the new scheme . He noted , among other things , that the previous scheme had been fully approved and had begun to be implemented . In addition , the composition of the sludge from the GPE plant was unclear , as it treated not only domestic , but also industrial waste water . This meant that the sludge might contain heavy metals .

NORP However , on DATE ORG approved ET PERSON 's proposal and allowed him to submit a new scheme .

In a letter of DATE to ORG , the regional governor said that the new reclamation scheme was not technologically superior to the previous one and should not be approved .

On DATE the Minister of Industry transferred the tailings pond from the assets of the ORG - owned company ORG to those of a specially formed ORG - owned company , PERSON ORG .

On DATE ET PERSON presented its scheme to ORG . At about the same time ORG , which had been implementing the initial reclamation scheme ( see paragraph CARDINAL above ) , presented ORG with an update to the initial scheme .

The ORG appointed a specialist board of experts to assess the CARDINAL schemes . The board comprised experts from ORG , of ORG , and from ORG , as well as from ORG and ORG . It held a meeting on DATE to discuss the relative merits of the CARDINAL schemes . It noted that both lacked checks on the stability of the pond . However , according to an expert 's report , neither of them would impair the pond 's stability . Both lacked climatological and hydrological descriptions of the area and data on the expected consolidation of the sludge after the reclamation had ended . The problems relating to the neutralisation of the acid water were partially addressed in ORG scheme and not addressed in ORG 's scheme . According to an expert 's report , it was possible to use stabilised waste - water sludge from the GPE treatment plant . The area around the pond did not have enough humus for the biological reclamation envisaged by ORG 's scheme ; it would thus be necessary to enrich the existing soil artificially . ET PERSON scheme envisaged finishing the reclamation in DATE and resolving the dust - spread problem even before that . PERSON ORG 's scheme also had an eighteenmonth timeline , but it was unrealistic . ET PERSON scheme provided for the restoration of the productive qualities of CARDINAL ha of polluted soil outside the tailings pond and its use for the production of specialised grass . According to accounts submitted by the CARDINAL firms , ORG scheme would cost MONEY ( ORG ) and ORG scheme ORG CARDINAL,CARDINAL,CARDINAL . On that basis , the board recommended that ORG approve ORG scheme . CARDINAL experts representing ORG disagreed , saying that this scheme did not meet various regulatory requirements . In particular , wastewater sludge was not appropriate for reclamation ; humus was much better suited for that task . It was also unclear whether the use of sludge would yield stable and safe results . According to the relevant classifier , the sludge from the GPE plant was hazardous waste , because it came not only from domestic but also from industrial waste water . The documents relating to the scheme did not specify the exact toxic - substance content of the sludge . Lastly , the scheme 's scope and potential effects on the environment warranted an ORG . The updated initial scheme suffered from none of these drawbacks , but , on the contrary , would provide a sustainable solution .

ORG , comprising representatives from several ministries , considered the CARDINAL schemes on DATE . It examined the findings of the specialist board of experts , as well as the opinions of ORG , of GPE 's mayor , and of the regional governor . It also heard PERSON explanations . Following a discussion , which touched upon , among other matters , the alleged heavymetal content in the sludge from the GPE plant , the ORG unanimously resolved to approve ORG scheme . The resolution was later approved by the Minister for Industry .

In a newspaper interview published on DATE the Minister for the Environment said that the new reclamation scheme was controversial and that she intended to challenge it . In her view , a fresh method of reclamation was to be sought , if need be with the help of university scientists .

The new scheme began to be implemented in DATE . PERSON was the investor and ORG the contractor .

On DATE ORG found that the company carrying sludge from the GPE plant to the pond was doing so without the licence required under section CARDINAL ) the DATE Limitation of the Adverse Impact of Waste on LAW ( see paragraph CARDINAL below ) , which corresponded to an administrative offence . On DATE it fined the company .

Consequently , ET PERSON applied for such a licence , which was granted by the Minister for ORG on DATE . In her decision the Minister allowed ORG to process up to QUANTITY of domestic wastewater sludge a day . In particular , it could carry stabilised sludge from the GPE treatment plant to the pond , store it in pits or other openair containers and use it for fertilising soils or improving the environment . The sludge was to be carried in lorries , with CARDINAL from the GPE plant to the pond per day . It was to be laid on the pond in keeping with the technology approved by ORG and with certain other precautionary measures . The laying of sludge had to be finished before DATE . In the meantime , ORG had to present DATE chemical analyses of the sludge to ORG and ORG .

After finding out about the above licence , on DATE the applicant applied to ORG ( NORP административен съд ) for judicial review of the Minister 's decision to grant it . He started by contending that he had a sufficient legal interest to contest the decision , because it impacted on his right under LAW ( see paragraph QUANTITY in limine below ) to live in a “ healthy and favourable environment corresponding to the established standards and norms ” . He pointed out that he lived in PERSON , close to the place where the licence allowed sludge to be laid , and that the sludge could have adverse effects on the environment and human health . He also referred to Article CARDINAL § CARDINAL of the LAW ( see paragraph CARDINAL in fine below ) . He further argued that the decision was null and void , as its implementation was impossible . The decision allowed ORG to carry and process domestic waste - water sludge . However , this could not be done , because the waste water treated in the GPE plant came from both domestic and industrial sources . It was unfeasible to separate the domestic from the industrial sludge and for this reason it was impossible to carry and process solely domestic sludge . The applicant further argued that the Minister 's decision unlawfully classified the sludge as industrial waste , as under the relevant rules it was hazardous waste ; this was also evident from various analyses . Furthermore , the Minister had taken the decision in breach of the rules of procedure , as no ORG had been drawn up .

In his application the applicant also requested the court to stay , as an interim measure , the enforcement of the impugned decision , as failure to do so could frustrate the purpose of the proceedings and cause irreparable harm to the environment , thus infringing the right of PERSON 's inhabitants to a safe and healthy environment . As the court did not rule on that request , on DATE the applicant renewed it . He argued that the continuing implementation of the decision could lead to irreparable harm for the environment , as the spreading of sludge was still going on at a regular pace .

On DATE ( опр. № DATE от CARDINAL март DATE г. по адм. д. № CARDINAL/CARDINAL , ORG , ORG отд. ) a threemember panel of ORG declared the application inadmissible . It found that the applicant had not been party to the administrative proceedings and therefore had no standing to seek review of the Minister 's decision . His interests could not be adversely affected by the decision , but solely by the potential unlawful actions of those whom the decision authorised to carry and process waste .

On an appeal by the applicant , on DATE a fivemember panel of ORG quashed the threemember panel 's ruling and remitted the case for an examination on the merits ( опр. № CARDINAL от DATE г. по адм. д. № CARDINAL/CARDINAL , PERSON , петчленен състав ) . It held that in view of the aim of the environmental protection legislation – to prevent or at least reduce the adverse effects of waste on the environment and human health – all individuals living in an area at risk of pollution due to wastetreatment operations could be considered as interested parties . The applicant , as well as all persons living near the tailings pond , had an interest in preventing activities , such as those allowed by the impugned ministerial decision , which could pollute their environment and thus possibly impair their health .

On DATE the applicant reminded the court once more of his request for a stay of execution of the decision . On DATE the CARDINAL - member panel turned down the request , saying that the materials in the file did not point to any danger for the applicant 's interests .

A hearing listed for DATE did not take place , as ORG had not been properly summoned . It took place on DATE . The court heard the parties ' arguments . A public prosecutor participating in the proceedings ex officio submitted that the application should be allowed .

In a decision of DATE ( опр. № CARDINAL от DATE г. по адм. дело № DATE , ORG , ORG отд. ) the CARDINAL - member panel discontinued the proceedings , holding that the case had become devoid of object as the licence granted to ORG had expired on DATE .

The applicant appealed , arguing , among other things , that he had a continuing legal interest in seeking judicial review of the decision , because it had allowed waste disposal near his home , which could lead to problems for his health . The annulment of the decision was in addition a prerequisite for successfully prosecuting a claim in respect of the harm occasioned by the unlawful waste disposal . The decision 's effects had not ended on DATE , as the negative results of the activities which it had made possible could persist for DATE to come .

On DATE a fivemember panel of ORG upheld the discontinuance ( опр. № DATE от DATE г. по адм. д. № DATE , ORG , петчленен състав ) . It noted that the subsistence of a legal interest in seeking the annulment of an administrative decision was mandatory throughout the proceedings . The threemember panel had had regard to a fresh development – the expiry of the licence DATE which had come to pass while the proceedings were pending . The allegation that the applicant had suffered damage at the time when the licence had still been in force was not sufficient to establish the existence of a continuing legal interest , as reparation for such damage could be sought in civil proceedings .

The new reclamation scheme drew widespread disapproval from PERSON 's inhabitants . On CARDINAL and DATE Mr GPE , member of ORG , sent letters to ORG and to ORG ( a subdivision of ORG ) . He asked them to give their expert opinion on the question whether the implementation of the scheme could put at risk the health of the people living near the pond .

The ORG replied on DATE . It said that there was a risk of heavy - metal contamination impacting on the population 's health within a tenkilometre perimeter around the pond . The reclamation scheme lacked a suitable system for monitoring the underground water , where the migration of such metals could be expected , as the polymer cover was not stable in the long term . According to an expert in the ORG 's toxicology laboratory , the heavy - metal content of the sludge spread on the pond was above the regulatory maximum , as shown by the chemical analysis of samples . The high levels of copper , zinc , cadmium , nickel , cobalt and chrome led to a pollution risk and a risk to the population 's health . So did the presence in the sludge of lead and manganese . Those metals could have a negative impact on the nerve , respiratory and cardiovascular systems , the kidneys , the liver and the production of blood . Some of them were allergens , mutagens and carcinogens . The scheme 's implementation would thus lead to a risk of dust from the sludge spreading in the atmosphere . There was also a risk that those metals would migrate through the surface and underground water , because of the acid pH of the water in the pond . The methodology for reclaiming old polluted areas classified the area situated QUANTITY from the source of the pollution as being at risk .

Having received the ORG 's opinion , on CARDINAL DATE Mr GPE asked the Chief Sanitary Inspector to stop the operation of the site . He did not receive a reply . Mr PERSON also alerted the mayor of GPE .

On DATE GPE 's mayor appointed a commission to take samples from the place where the sludge was being spread and to submit it to a laboratory for an analysis of its heavy - metal content . Such samples were taken and sent to ORG . In a letter of DATE , accompanied by the expert opinion of a researcher in its toxicology laboratory , the ORG said that the lead , cadmium , copper , zinc , chrome and nickel content of the sample was well above the maximum permitted levels . Copper and zinc had a negative effect on agricultural crops and livestock . Lead , cadmium , chrome and nickel were systematically toxic for mammals and humans : they could harm the peripheral and central nervous systems , the production of blood , the liver and the kidneys . Those metals also had mutagenic and carcinogenic effects . In addition , chrome , cadmium and nickel were strong allergens . The underlying soil cement cover would provide some protection for the underground water in the region , but it was unclear how it would prevent the migration of heavy metals to the surface water .

On DATE GPE 's mayor and the regional governor wrote to the Deputy Prime Minister . They urged him to halt the scheme 's implementation and noted that its continuation could lead to civil unrest in PERSON . Apparently no reply was received .

On DATE ORG granted PERSON ORG a permit to discharge waste water , setting certain limits on the content of heavy metals and other toxic substances in it , and requiring the company to report to the competent authorities on a DATE basis .

On DATE the works on the pond were accepted by the authorities .

On DATE PERSON 's mayor asked the environmental inspection authorities in GPE to provide him with information about PERSON ORG 's DATE selfmonitoring reports . On DATE those authorities replied that they did not have such reports on file and that they were pressuring the company to comply with its reporting obligations .

On DATE , as a result of pressure from inhabitants of PERSON , the Minister for ORG ordered PERSON ORG to commission an ORG . In an additional decision of DATE she specified that the ORG was to be ready by DATE .

As a result of a hunger strike by CARDINAL members of a public committee opposed to the scheme and of a visit by the Minister for ORG , on DATE ORG , noting that no ORG had been drawn up , ordered that the implementation of the scheme be stopped pending completion of the assessment . However , by that time CARDINAL ha of the CARDINAL.CARDINAL ha of the pond had been covered with sludge . It seems that the total amount deposited was QUANTITY .

The ORG was ready in DATE or DATE . It was submitted for a public discussion , at which CARDINAL experts from ORG faculty of geology and geography expressed their misgivings about the scheme .

On DATE the Minister for ORG decided not to accept the ORG and sent it back for revision . She noted some serious omissions in its estimation of the health risk to the population arising from the reclamation scheme , the lack of information about the hazardous substances involved in the scheme , and the fact that the team which had drawn it up did not include an expert on the health and hygienerelated aspects of the environment . The Minister instructed the experts to revise the ORG and , in particular , to make a comparative study of the existing analyses and make an additional chemical analysis of the sludge laid on the pond . It was to be specifically checked for heavy metals and mercury content . The taking of samples for that analysis had to be done in the presence of the persons concerned . The experts were also to indicate the tailings ' permeability , before and after the pond 's capping with soil cement , as well as the permeability of the underlying rocks and the stability and the permeability of the soil cement after DATE of use . The revised ORG was to analyse all aspects of the scheme with reference to their effect on the health of the inhabitants of the villages surrounding the pond , and to propose concrete measures to tackle the problem . The analysis had to focus specifically on the penetration of heavy metals in the food chain .

In DATE PERSON ORG and the company which it had hired to draw up the ORG submitted additional documents to the ORG . In a letter of CARDINAL DATE the Minister said that those documents did not contain the information requested in her decision of DATE . It was thus impossible to draw any reliable conclusions as to the effect of the reclamation scheme on the people and the environment . However , under the regulations in force , it was not necessary to pursue the matter further and finalise the ORG . As the works on the site had already been completed , it was sufficient for ORG to produce a self - monitoring report on the scheme 's impact .

Following pressure from PERSON 's inhabitants and the local authorities , on DATE the Minister of Health ordered ORG to carry out an assessment of the environment and the impact of the reclamation scheme on the local population 's health . In a letter of DATE the ORG informed the Ministry that its experts were ready to complete the task , but that it could come up with QUANTITY of the necessary funding , amounting to ORG CARDINAL,CARDINAL . In DATE , DATE and DATE the applicant asked the municipality of GPE to cover the remaining MONEY of the amount , but the municipality made no provision for such an outlay in its budget . At the time of the latest information from the applicant on that point ( DATE ) the money had not been found and the assessment had not been completed .

The first selfmonitoring report by PERSON ORG was drawn up in DATE and covered the period DATE and DATE . It gave an account of , among other things , the heavymetal content of water coming out of the pond and of grass near it . These measurements were based on CARDINAL water samples and CARDINAL grass samples . CARDINAL of the water samples did not show a heavymetal content above the regulatory maximum levels , whereas the other did , leading the report to conclude that the pond 's drainage water was heavily polluted . According to the report , the polluting content of the grass samples was below the regulatory maximum level , but the applicant submitted that its authors had used the wrong comparators , using the regulatory maximum levels for soil , not grass , which were considerably lower . The report said that the pond should continue to be monitored , but at a decreasing pace , with sampletaking once a year for grass and twice a year for water . Further reporting was envisaged in DATE .

In its report on the state of the environment in DATE ORG noted , on page CARDINAL , that the GPE waste water treatment plant had generated QUANTITY of dangerous waste . In its DATE report for DATE ORG ( ORG агенция по околната среда ) noted , on page CARDINAL , that out of QUANTITY of sludge monitored by its GPE branch , QUANTITY could be classified as dangerous . In its reports for DATE and DATE the ORG noted , on pages CARDINAL and CARDINAL respectively , that the chromium content of the sludge coming from the GPE wastewater treatment plant was above the regulatory maximum . That sludge was therefore not appropriate for the reclamation and regeneration of agricultural land .

The relevant provisions of the DATE LAW read as follows :

“ GPE shall ensure the preservation and the reproduction of the environment , the conservation of the variety of living nature , and the reasonable utilisation of the country 's natural and other resources . ”

“ ORG shall have the right to a healthy and favourable environment corresponding to the established standards and norms . They must preserve the environment . ”

“ CARDINAL . The courts shall review the lawfulness of the administration 's acts and decisions .

Natural and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them , save as expressly specified by statute . ”

Under section CARDINAL(CARDINAL ) of the DATE LAW ( ORG за опазване на околната среда ) , repealed and replaced by DATE LAW , all activities of private individuals and entities and ORG bodies could be subjected to an ORG . Section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act , superseded by section CARDINAL(CARDINAL ) of LAW , provided that an ORG was mandatory for all the schemes listed in a schedule to the LAW . Those schemes included the dumping of industrial and domestic waste and of waste - water sludge ( point CARDINAL of the Schedule , as in force DATE ) . An ORG could be carried out in other cases as well , pursuant to a proposal made by those concerned to the competent authorities ( section CARDINAL ) of the CARDINAL LAW , superseded by LAW CARDINAL of LAW , which lays down more detailed rules in that domain ) .

The ORG was to be commissioned by the investor and carried out by independent experts having no connection with the scheme 's planning and no vested interest in its completion ( section CARDINAL(CARDINAL ) of the CARDINAL Act ) . The expenses were to be borne by the investor ( section CARDINAL ) of the DATE Act ) . The final report was to be submitted to the competent authority , which had to organise a public discussion on it ( sections CARDINAL ) and CARDINAL ) of the DATE Act ) . The public had to be notified of the discussion DATE in advance , through the mass media or other appropriate channels ( section CARDINAL ) of the DATE Act ) . The authority was to decide on the scheme 's feasibility not DATE ( after an amendment in DATE , DATE ) after the discussion ( section DATE ) of the DATE Act ) . The decision was to be notified to the investor and made public through the mass media or other appropriate channels ( section CARDINAL ) of the DATE Act ) . Those concerned could seek judicial review ( section CARDINALb(CARDINAL ) of the DATE Act ) . Under section DATE of the CARDINAL Act , the authorities had to ban or halt schemes whose EIAs were negative or which had not been subjected to an ORG if CARDINAL was mandatory .

Under LAW of the CARDINAL LAW , whose text has been reproduced in section CARDINAL of the CARDINAL Act , everyone was bound to make good the damage which they had , through their own fault , caused to another by polluting or spoiling the environment . The amount of compensation could not be less than the money needed to repair the damage . Under section CARDINAL ) of the CARDINAL LAW , the text of which has been reproduced in section CARDINAL of LAW , those who had suffered damage as described in section CARDINAL could bring proceedings to enjoin the polluter to put an end to the breach and eliminate the pollution 's effects . Section CARDINAL(CARDINAL ) provided that such proceedings could be brought by any individual , the municipal authorities and nonprofit associations . There is no reported caselaw under those provisions .

The DATE Regulations on hygienic requirements for the protection of health in the urban environment ( GPE № CARDINAL от DATE г. за хигиенните изисквания за здравна защита на селищната среда ) , issued by the Minister of Health on DATE and amended several times after that , lay down minimum permitted distances between urban areas and sources of pollution . Schedule No . CARDINAL to the ORG provides , in point CARDINAL , that tailings ponds used for depositing hazardous industrial waste for DATE must be situated farther than QUANTITY kilometres from urban areas . Point CARDINALa lays down the same requirement in respect of tailings ponds used for depositing nonhazardous industrial waste for DATE . FAC provides that non - hazardous waste periodically covered with soil must be stored QUANTITY from urban areas . Point CARDINALa lays down the same requirement in respect of hazardous waste which is intended to remain in the storage area for DATE . ORG may authorise a reduction of those distances on the basis of an opinion by the local hygiene and epidemiology inspectorate and of an ORG ( regulation CARDINAL ) ) . If no ORG is required in respect of the installation in issue , before authorising a reduction the ORG must obtain a comprehensive ecological expert 's report containing a healthimpact assessment , drawn up by an independent expert ( regulation CARDINAL ) ) .

Under section CARDINAL ) of the CARDINAL Limitation of the Adverse Impact of Waste on the Environment Act ( ORG за ограничаване на вредното въздействие на отпадъците върху околната среда ) , superseded by section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW ( ORG за управление на отпадъците ) , a licence was required for all activities relating to the collection , storage or decontamination of waste . The decision to grant such licence was subject to judicial review ( section CARDINAL of LAW , superseded by section CARDINAL of the CARDINAL Act ) .

Section CARDINAL(CARDINAL ) of the DATE Act provided that facilities and installations for the storage and decontamination of waste could be built only following a positive ORG .

Section CARDINAL(CARDINAL ) of the LAW originally called the DATE ORG to Citizens Act , renamed on DATE the ORG and ORG , provides that the ORG is liable for the damage suffered by private persons as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of their duties . Section CARDINAL(CARDINAL ) provides that compensation for damage flowing from unlawful administrative decisions may be claimed after the decisions concerned have been annulled in prior proceedings . The court examining the claim for compensation can not enquire into the validity of a voidable decision ; it may merely examine whether a decision is null and void . Section CARDINAL(CARDINAL ) provides that if another statute provides for a special avenue of redress , the LAW does not apply .

The text of a number of international instruments and documents concerning the environment , including that of the DATE United Nations Convention on Access to Information , Public Participation in Decision Making and Access to ORG in ORG ( the Aarhus Convention , which GPE signed on DATE and ratified on DATE ) may be found in the ORG 's judgment in the case of PERSON GPE ( no . PERSON , ORG DATE ... ( extracts ) ) .

On DATE a standing committee acting on behalf of ORG adopted Recommendation CARDINAL ( DATE ) , entitled “ Future action to be taken by ORG in the field of environment protection ” . Point CARDINAL of the recommendation said that “ [ i]n the light of changing living conditions and growing recognition of the importance of environmental issues , ... the ORG could include the right to a healthy and viable environment as a basic human right ” . It urged ORG to , among other things , “ instruct the appropriate bodies within ORG to examine the feasibility of ... drafting an amendment or an additional protocol to LAW ] concerning the right of individuals to a healthy and viable environment ” .

On DATE ORG adopted LAW ( DATE ) , entitled “ Environment and human rights ” . Point CARDINAL of the recommendation stated that “ in view of developments in international law on both the environment and human rights as well as in NORP caselaw , especially that of the [ ORG ] , the time has now come to consider legal ways in which the human rights protection system can contribute to the protection of the environment ” . Point CARDINAL referred to “ the caselaw of the [ ORG ] concerning GPE ' positive obligations in the area of protection against environmental nuisances which are harmful or dangerous to health ” and said that it “ ORG ] to encourage this process by adding provisions concerning the recognition of individual procedural rights , intended to enhance environmental protection , to the rights set out in the [ Convention ] ” . It therefore recommended to the governments of the Member States to “ ensure appropriate protection of the life , health , family and private life , physical integrity and private property of persons in accordance with ORG , CARDINAL and DATE of the [ Convention ] and by LAW , by also taking particular account of the need for environmental protection ” . It also called upon ORG to “ draw up an additional protocol to LAW ] concerning the recognition of individual procedural rights intended to enhance environmental protection , as set out in the Aarhus Convention ” and to “ draw up , as an interim measure in preparation for the drafting of an additional protocol , a recommendation to member states setting out the ways in which LAW ] provides individual protection against environmental degradation , proposing the adoption at national level of an individual right to participation in environmental decision making , and indicating a preference , in cases concerning the environment , for a broad interpretation of the right to an effective remedy guaranteed under LAW ” .


Violation of Art. 6-1;No violation of Art. 8;Preliminary objections dismissed (non-exhaustion of domestic remedies);Violations of Art. 8;Preliminary objection allowed (non-exhaustion of domestic remedies);Remainder inadmissible;No violation of Art. 34;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in the village of GPE , GPE .

In DATE the applicant was arrested and charged with a number of serious offences , including possession of explosives , death threats , attempted murder and murder .

The Rostov Regional Court examined the applicant ’s case and gave judgment on DATE acquitting him on all charges .

On DATE ORG of GPE examined the first - instance judgment on appeal . The court decided that the trial court had committed serious breaches of procedure , quashed the judgment of DATE and remitted the case for a fresh examination at first instance .

On DATE ORG re - examined the applicant ’s case and found him guilty on all charges . He was sentenced to DATE imprisonment . The court also ordered the forfeiture of the applicant ’s property .

An appeal by the applicant against the judgment of DATE was dismissed by ORG of GPE on DATE .

On an unspecified date the Deputy Prosecutor General of GPE lodged a special appeal against the judgment of DATE and the decision of DATE .

On DATE the Presidium of ORG of GPE examined the prosecutor ’s appeal . The court reopened the proceedings and partly changed the decisions in the case . In particular , the court declared the prosecution in respect of the death threats to be time - barred and changed the legal characterisation of the applicant ’s criminal conduct in relation to CARDINAL of the other charges . The applicant ’s sentence remained unchanged .

The applicant and his counsel were neither notified of the hearing nor summoned to it . The prosecution was present and made submissions .

NORP In letters dated DATE , DATE , DATE , DATE and CARDINAL DATE the applicant complained that he had been unable to correspond freely with the ORG , other domestic authorities and his lawyers ; that the authorities had not accepted sealed envelopes for dispatch ; and that there had been considerable delays in forwarding correspondence to him after its receipt by the prison and in actually sending letters out after their acceptance for dispatch .

In their observations , the ORG submitted the register of correspondence which stated that the applicant had sent out letters to various destinations on various dates . There was a short description of the content of the letters dated DATE . In respect of the letters dated DATE , it was recorded that they had been “ sealed ” .

In a letter of DATE the applicant informed the ORG that its letters of DATE , DATE had been forwarded to him with considerable delay . In particular , the letter of DATE had been received by the prison on DATE , registered under the incoming number CARDINAL , and had not been forwarded to him until DATE .

In a letter of CARDINAL DATE the applicant informed ORG that the ORG ’s letter of DATE had been received by the prison on DATE and had not been served on him until DATE . He also stated that his understanding was that his letters dated DATE and CARDINAL , DATE and DATE ( outgoing no . ORG dated DATE , outgoing CARDINAL dated DATE and outgoing ORG dated DATE ) had not been received by ORG .

NORP In reply , in a letter of DATE , the Government submitted that the competent authorities had carried out an additional verification and had established CARDINAL occurrence of delayed forwarding of mail from the ORG to the applicant . As a result , some officials had been reprimanded . The Government denied , however , that any letters had been sent by the applicant to ORG on DATE , DATE and DATE .

In their further observations , the parties responded to the ORG ’s factual questions concerning the applicant ’s claims in this respect and provided the following information .

The Government submitted that DATE and DATE the applicant had served his sentence of imprisonment in penitentiary establishment UCh-CARDINAL/CARDINAL , GPE . As of DATE the applicant had been serving his sentence in penitentiary establishment MONEY , GPE .

The applicant did not contest these dates .

In respect of the question concerning the total number of letters received by the applicant from the ORG through the prison services , the ORG submitted that DATE and DATE the applicant had received CARDINAL letters . These letters had been received by the prison and served on the applicant on the following respective dates : CARDINAL and DATE and DATE and DATE , CARDINAL and DATE ( CARDINAL letters ) and CARDINAL DATE , CARDINAL , DATE and DATE , CARDINAL and DATE ( CARDINAL letters ) , CARDINAL and DATE and CARDINAL and DATE .

They also submitted that all the letters had been handed to the applicant in sealed envelopes and had not been censored .

In his further observations , the applicant submitted that during this time he had received CARDINAL letters from the ORG through the prison authority . He also alleged that all of these letters had been served on him with substantial delays . He did not submit any concrete evidence in support of the latter point .

The ORG ’s database indicates that DATE and DATE it dispatched a total of CARDINAL letters to the applicant ’s prison addresses , dated respectively DATE , DATE and DATE , DATE , DATE and DATE , DATE and DATE , DATE and DATE , DATE and DATE , DATE , CARDINAL DATE and CARDINAL , DATE and DATE and CARDINAL DATE , DATE , DATE , DATE and DATE .

In respect of the question concerning the total number of letters sent by the applicant to the ORG through the prison services , the ORG submitted that DATE and DATE the applicant had sent out CARDINAL letters . These letters had been sent by the applicant on the following dates : DATE , DATE , DATE , DATE and CARDINAL May CARDINAL , and DATE , CARDINAL and DATE , CARDINAL DATE and DATE .

The Government admitted that the applicant ’s letters sent out on DATE , DATE and DATE had been censored by the prison authorities under LAW then in force . They stated , further , that there had been no censorship of the remaining letters as the relevant applicable legislation had been amended and ORG had been added to the list of bodies with which a prisoner could correspond without censorship .

The applicant submitted that , contrary to the ORG ’s submission , during that period he had sent out CARDINAL letters to the ORG through the prison administration and that the prison administration had required him to hand these letters to them unsealed for censorship . The dates of dispatch were as follows : CARDINAL DATE , DATE and CARDINAL May , DATE , CARDINAL DATE , DATE , CARDINAL and DATE ; CARDINAL May , DATE , DATE ; CARDINAL and DATE , DATE , CARDINAL May , DATE ; CARDINAL and DATE , CARDINAL DATE , DATE , DATE and DATE ; DATE , CARDINAL and DATE , DATE and DATE ; DATE ; and DATE .

The ORG ’s database indicates that DATE and DATE it received a total of CARDINAL letters from the applicant , dated respectively CARDINAL DATE , DATE , DATE , CARDINAL and DATE ; CARDINAL DATE , DATE and DATE ; DATE and DATE ; DATE , CARDINAL May , DATE , DATE and CARDINAL and DATE ; DATE , CARDINAL May and DATE ; and DATE and DATE . It is unclear whether the applicant sent these letters out directly from his prisons or through his relatives or a lawyer .

On DATE the ORG gave notice of the application to the respondent Government .

On DATE the ORG received the applicant ’s letter of DATE . The letter stated that in DATE some officials from ORG and ORG for the Execution of Sentences of ORG had visited him and had forced him to sign some papers . They had allegedly wanted the applicant to withdraw his application and had told him that he would not prove anything and only make things worse .

In their observations , the Government included the statement by the applicant dated DATE and addressed to the Head of ORG of ORG in charge of GPE , GPE , in which he stated that he had “ no complaints , claims against the prison administration ” and that he had no “ claims concerning the receipt and dispatch of correspondence to and from ORG . The statement was written in the applicant ’s own hand . In it the applicant also said that he had made his statement without physical or psychological coercion . The statement was collected and signed on the same date by CARDINAL officials : the Assistant to the Head of ORG of ORG in charge of GPE , PERSON . , and the Head of ORG in charge of GPE , B.

In respect of this letter the ORG submitted that on DATE the Assistant Chief of ORG , PERSON . , had had an interview with the applicant . According to the ORG , the purpose of the interview had been the “ clarification of some facts with a view to submitting the position of ORG on the application lodged by PERSON ” . PERSON ’s explanatory note to the interview stated that he had not requested the applicant to withdraw his application to ORG , and that the interview had been conducted in the correct form , without any rough , rude or degrading treatment on his part . The applicant ’s explanatory note stated that he had not made any complaints or critical remarks in respect of the prison administration and that he had not been subjected to any psychological or physical pressure .

The Government submitted a letter from ORG dated DATE in which the Deputy President of that court had certified that neither the applicant nor his counsel had made any complaints to the competent lower courts in respect of alleged interference with correspondence .

The Government submitted that on DATE Mr PERSON from ORG had had an interview with the applicant . The applicant had made the following statement to PERSON

“ ... My correspondence with ORG started in DATE during my detention in establishment UCh-CARDINAL/CARDINAL in the town of Shakhty . From that prison I sent out CARDINAL letters ( DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , DATE , DATE , DATE , DATE ) . All the above letters were received by the addressee and I retain proof of that . There were no instances of refusal to dispatch letters from prison IK-CARDINAL . However , all letters were only accepted by the administration in an unsealed form and were dispatched with considerable delay . I made attempts to send out sealed envelopes but the head of the special department returned them to me with reference to the corresponding instructions from higher authorities .

Since DATE I have been serving my sentence in UCh QUANTITY of ORG for the Execution of Sentences of ORG . From this correctional establishment I dispatched CARDINAL letters to ORG DATE , CARDINAL DATE , DATE , DATE and DATE ) . I only know that my letter of CARDINAL April DATE was dispatched on CARDINAL DATE , whilst CARDINAL previous letters never reached the ORG . As to the letter of DATE , I am unaware of its fate . All these letters were not accepted from me in sealed form . The authority forced me to present them unsealed . As regards the answers from ORG , I received CARDINAL whilst serving the sentence in IKCARDINAL , and all were sealed . The incoming numbers of IK-CARDINAL were : CARDINAL of DATE , DATE of DATE . I do not know the number of the third answer , because I did not keep it . But I remember the date of receipt DATE .

With all confidence I can state that I signed the receipt in respect of CARDINAL of the answers and do n’t remember in respect of the others . Whilst serving the sentence in IK-CARDINAL I received copies of CARDINAL answers from ORG . They had been forwarded from GPE since I had not received them there .

Apart from the foregoing , I do n’t have any other complaints in respect of the conditions of detention ... ”

On DATE the applicant was interviewed by PERSON . , the head of the ORG responsible for supervising the lawfulness of the execution of sentences at ORG . The applicant confirmed that on DATE he had had a word with PERSON . from ORG and on DATE with PERSON from ORG . The applicant submitted that they had not put any pressure on him whatsoever and that all explanations had been given by him voluntarily .

On DATE the applicant made the following statement to PERSON . :

“ In a supplementary application form I mentioned that I had been forced to sign some papers and this was formulated in such a way that it could be understood that I had signed the documents under pressure from the representative of the prosecutor ’s office and ORG for the Execution of Sentences . In fact , this did not correspond to reality because in that case I was referring to the relations that I had previously had with the prison administration , when correspondence had been dispatched with delays and the administration had requested me to withdraw the complaints and had refused to send them out .

At present the administration has been replaced and many officials fired , which is why I have normal relations with the administration and have no complaints . ... I have given no explanations against my will . ”

In their statements of DATE , PERSON . and PERSON explained that they had visited the applicant to check the facts outlined in his complaints to ORG and interview the persons allegedly involved and that no coercion whatsoever had been put on the applicant in connection with his application to the ORG .

NORP In their further observations , the Government said that the above - mentioned interviews had taken place during the check carried out by the competent bodies of GPE in connection with the request of ORG dated DATE to ORG to clarify the applicant ’s allegations . They also submitted that the difference in the applicant ’s position in his statements of CARDINAL and DATE did not prove the alleged coercion as the applicant could have changed his position for other reasons .

Section VI , LAW of LAW of DATE , ( Уголовно-процессуальный кодекс РСФСР ) , as in force at the material time , allowed certain officials to challenge a judgment which had become operative and to have the case reviewed .

Pursuant to LAW , a judgment became operative and was subject to execution as of DATE when the appeal ( cassation ) instance pronounced its judgment or , if it had not been appealed against , when the time - limit for appeal had expired .

“ The grounds for quashing or changing a judgment [ on supervisory review ] are the same as [ those for setting aside judgments which have not become operative on cassation appeals ] . ”

“ The grounds for quashing or changing a judgment on appeal are as follows :

( i ) prejudicial or incomplete inquest , investigation or court examination ;

( ii ) inconsistency between the facts of the case and the conclusions reached by the court ;

( iii ) grave violation of procedural law ;

( iv ) misapplication of [ substantive ] law ;

( v ) inadequacy of the sentence in relation to the gravity of the offence and the convicted person ’s personality . ”

Article CARDINAL of the Code of Criminal Procedure of DATE provided that the power to lodge a request for a supervisory review could be exercised by ORG , the President of ORG of GPE and their respective Deputies in relation to any judgment other than those of the Presidium of ORG , and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court . A party to criminal or civil proceedings could solicit the intervention of such officials for a review .

Articles CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure of DATE provided that a request for supervisory review was to be considered by the judicial board ( the ORG ) of the competent court . The court could examine the case on the merits , and was not bound by the scope and grounds of the extraordinary appeal . The ORG could dismiss or uphold the request . If the request was dismissed , the earlier judgment remained in force . If it upheld the request , the ORG could decide whether to quash the judgment and terminate the criminal proceedings , or remit the case for a new investigation or fresh court examination at any instance , or uphold a first - instance judgment reversed on appeal , or amend and uphold any of the earlier judgments .

Article CARDINAL § § CARDINAL and CARDINAL of LAW of DATE provided that the ORG could in the same proceedings reduce a sentence or amend the legal classification of a conviction or sentence to the defendant ’s advantage . If it found a sentence or legal classification too lenient , it had to remit the case for a new examination .

In accordance with LAW , a public prosecutor took part in hearings before a supervisory review instance . A convicted person and his or her counsel could be summoned if a supervisory review court found it necessary . If summoned , they were to be given an opportunity to examine the application for supervisory review and to make oral submissions at the hearing .

On DATE ORG of GPE ruled that LAW was unconstitutional in so far as it allowed supervisory review proceedings to be conducted in the absence of the defence where a special appeal against the previous decisions would , if successful , result in the worsening of the convicted person ’s situation .

Under LAW of LAW , which entered into force on DATE , a convicted person and his counsel are notified of the date , time and place of hearings before the supervisory review court . They may participate in the hearing provided that they have made a specific request to that effect .

Article PERSON ) of LAW of DATE ( Уголовно-исполнительный кодекс ) provided for censorship of ORG correspondence .

Law no . CARDINAL-FZ of DATE amended this Article to provide for an exception from the rule in respect of correspondence with a court , a prosecutor ’s office , higher officials of the penitentiary system and the Ombudsman of GPE . A prisoner ’s correspondence with his lawyer or representative could be censored in certain cases upon a reasoned decision of the director or deputy director of the prison authority .

Law no . CARDINAL of DATE introduced further amendments to the LAW . ORG was added to the list of bodies with which the prisoner could correspond without censorship . The PERSON entered into force as of the date of its first official publication on DATE .


Krone Verlag GESELLSCHAFT M.B.H. and Gerhard WALTER v. AUSTRIA

The first applicant ORG . H. , is the owner and publisher of the DATE newspaper “ ORG ” with its seat in GPE . The second applicant , PERSON , is an NORP national , who was born in DATE and lives in GPE . He is a journalist working for the first applicant .

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

DATE a series of letter bombs which severely injured some of the addresses was sent to politicians and other persons of public interest in GPE .

The bombs were accompanied by confessing letters signed “ ORG ” ( NORP [ NORP tribe tracing back to the CARDINALth and DATE ] ORG ) .

After the first assaults , an expert on criminal psychology drew up a psychological profile of the author(s ) of these acts and concluded that they were committed by a single person . According to another hypothesis the series of bombs had to be attributed to a group of right wing extremists .

From DATE until DATE Mr GPE was Federal Minister for the ORG ( ORG ) .

The author of the assaults , PERSON , a person with no particular connection to any political grouping , was arrested in DATE .

In DATE sporadic critics in the press and by some politicians reproached Mr PERSON with having neglected the theory of a single author . A politician of the ORG ( ORG ) accused Mr PERSON of having suppressed the single author profile because it did not correspond with what he imagined the author of the offences would be .

In DATE the television film “ The Letter Bomber ” ( “ FAC ” ) , an NORP and NORP co - production , which was to be shown on NORP and NORP television , was presented to the press . The film , a fiction , based its story - line on the above cited series of letter bombs . It dramatised in substance the criminal investigations from the point of view of the expert on criminal psychology , the responsible of the investigation team and the committer himself .

In the film the character of the Minister for the ORG , Mr M , favoured for political reasons the theory attributing the bombs to a group of right wing extremists and therefore suppressed the single author theory . This becomes particularly evident in CARDINAL scene , where Mr M forbade the film character personating the expert on criminal psychology to publish the psychological profile of the author of the offences and shortly afterwards forbade him to speak to the press .

The article at issue

On DATE the second applicant published a CARDINAL - page article under the heading “ Bomber – Film with explosive message ” in the “ PERSON GPE ” .

The subtitles read as follows : “ Already seen for readers of the “ Krone ” : the television thriller about the hunting down of PERSON . Suspenseful and close to the truth . Particularly close to the political [ truth ] ” .

In its first paragraph the article again stated that the film at issue was a “ thriller with an explosive political message- against the former Federal Minister for the Interior PERSON ”

The article went on to describe the film as the result of meticioulous investigation and possessing a documentary quality . It then explained that the film concentrated on CARDINAL important aspects . On the one hand the fierce and long lasting battle of the criminal psychologist defending the single author theory against his colleagues . And , on the other hand , his battle

“ against a Minister for the ORG who refuses for political reasons to communicate the psychological profile of the author of the offences - which later turned out to be astonishing correct - to the public . And this because in view of forthcoming elections the Minister - everybody in GPE knows , that PERSON is meant - prefers to have the search continued much too long in the right wing circles . [ This matter is ] still political explosive DATE . Bad rumour has it that this is possibly the reason why the broadcast [ of the film ] by ORG - originally planned for DATE before the elections in GPE - has been postponed to DATE . ”

Defamation proceedings and compensation under LAW

Mr PERSON filed a private prosecution for defamation ( üble GPE ) against the second applicant and a compensation claim against the first applicant company under LAW ( Mediengesetz ) with ORG ( PERSON ) .

On DATE ORG ordered the first applicant to publish a notice on the introduction of the proceedings .

On DATE and on DATE ORG held hearings and heard inter alia the second applicant , Mr GPE , the criminal psychologist , the Director General for public security ( ORG für öffentliche ORG ) and the responsible police officer for the criminal investigations at the time of the letter bomb series .

On DATE ORG convicted the second applicant of defamation under LAW ) and sentenced him to a fine CARDINAL DATE rates ( PERSON ) of ORG CARDINAL each ( i.e a total of ORG DATE , CARDINAL [ approximately € CARDINAL,CARDINAL ] ) or DATE imprisonment in default .

It further ordered the applicant company to pay ORG CARDINAL ( MONEY ) as compensation to Mr GPE , pursuant to LAW .

Finally , the court ordered confiscation of the remaining stocks of the relevant issue of “ ORG ” and the publication of extracts from its judgment .

The court noted that the second applicant had not merely repeated the story - line of the television film but had rather given the reader the impression that he identified with its message . He had conveyed to the reader that Mr GPE , in abuse of his authority , had disregarded his duty to resolve properly and efficiently the letter bomb case . He had thereby accused Mr PERSON of behaviour contrary to honour or morality ( unehrenhaftes PERSON ) , namely of politically motivated breach of his professional duty .

This accusation was a statement of fact . The applicant had , however , failed to supply any evidence to prove this reproach .

The court noted in this regard that Mr PERSON had mobilised a special investigation team for the investigation concerning the letter bomb series . Mr PERSON had not given any instruction as to the orientation of the investigations nor had he prevented the experts from investigating all avenues .

The court found it established that in DATE a book about the psychological profile of a single author of all acts was presented to the public . The idea behind the book , which had been written in cooperation with the Director General for public security and the expert on criminal psychology , was to get by this way in contact with the still unknown author of the attacks and to prompt a reaction from him . It subsequently came to a debate between the chief executive officer for public security and Mr GPE as the latter had not been informed about the publication of the book . The expert on criminal psychology had been instructed not to give any statements on that subject to the public . However , there had never been a discussion between Mr PERSON and the expert on criminal psychology during which the latter had requested permission from Mr PERSON to publish the single committer profile which Mr PERSON had refused . Nor was there any further indication that Mr PERSON had in fact influenced , had given instructions or had hindered the investigations .

The court further noted that the second applicant had not complied with the standards of journalistic diligence . The second applicant had in particular never confronted Mr PERSON with the reproaches he was raising against him .

The applicants appealed against this judgment and argued inter alia that the court had wrongly classified the article at issue as a statement of fact instead of a value judgment , which , at all events , was based on true facts . They referred in this regard to the statements of the witnesses in the proceedings before the Regional court according to which Mr PERSON had been of the opinion that the bombs had to be attributed to several committers .

On DATE ORG ( Oberlandesgericht ) dismissed the applicants ' appeal . It noted that the article could not be seen as neutral reporting . It was true that the second applicant in his article correctly reproduced the story of the film . He had , however , added formulations and wordings which showed that he identified with the film 's message , found its reproaches justified and repeated them .

It further noted that at the time of the criminal investigations the experts ' opinions had been divided on the question whether the bombs had to be attributed to a single person or to a group of right wing extremists . At this time nobody could have taken it for established that the single committer theory finally turned out to be correct . The mere preference of CARDINAL of the hypothesis could therefore not justify the reproach that the other hypothesis had been suppressed on purpose . Nor did the statements of the witnesses in the proceedings at issue give any indication that Mr PERSON had abused his function .

Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim damages from him / her . In this context “ defamation ” has been defined in LAW ) , as follows :

“ CARDINAL . As it may be perceived by a third party , anyone who accuses another of having a contemptible character or attitude , or of behaving contrary to honour or morality , and of such a nature as to make him contemptible or otherwise lower him in public esteem , shall be liable to imprisonment not exceeding DATE or a fine ...

Anyone who commits this offence in a printed document , by broadcasting or otherwise , in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ...

The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . ”


Remainder inadmissible;Violation of Art. 5-4;Violation of Art. 12;Violation of Art. 13;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested by the police on suspicion of having committed rape and uttered threats against a certain PERSON On DATE he was brought before FAC ( Sąd Rejonowy ) and , upon the application of FAC ( Prokurator Rejonowy ) , detained on remand for DATE starting from the date of his arrest , that is , until DATE .

The court held that the evidence against the applicant , in particular his partial confession , justified a reasonable suspicion that he had committed the offences with which he had been charged . It also considered that there was a considerable risk that the applicant , if released , would obstruct the proceedings against him or induce witnesses to give false testimony . Moreover , CARDINAL of the offences in question ( rape ) carried a maximum sentence of CARDINAL years’ imprisonment , which made it likely that a severe penalty would be imposed on him . In sum , in the court ’s opinion , keeping the applicant in custody was necessary to secure the proper conduct of the proceedings .

Earlier , the applicant and PERSON had been in a relationship that had lasted DATE , but they had terminated it DATE before the above events .

As regards the circumstances surrounding PERSON ’s decision to ask the prosecution to institute criminal proceedings against the applicant , the ORG submitted that , when testifying during the initial stage of the proceedings , she had stated that she had been afraid to terminate their relationship because she had been threatened by the applicant , and that on several occasions he had beaten her . On DATE , when ORG again heard evidence from her , she confirmed her decision .

In the meantime , on DATE , FAC had extended the applicant ’s detention until DATE , holding that the grounds stated in the initial decision remained valid . It added that his detention was necessary to secure the process of obtaining evidence from experts in sexology , forensic psychiatry and psychology .

NORP The applicant appealed on DATE . He contested the factual basis for the rape charge , arguing that it was doubtful whether his acts could be qualified as rape , in particular as they had been directed against his co - habitee , PERSON , whom he had beaten during intercourse because she had told him that she had had a relationship with another man . He had already confessed to battery . Moreover , since in his view it was the victim ’s evidence , not his , that was the most relevant for the outcome of the proceedings , there was no risk of his exerting pressure on her . He also relied on LAW , maintaining that , in these particular circumstances , his detention amounted to serving a prison sentence .

The appeal was examined and rejected by ORG ( PERSON ) on DATE . The court held that the charges against the applicant were supported by the existing evidence and that keeping him in detention was justified by a serious risk of collusion and of his interfering with the collection of evidence . These conclusions were based on the fact that the applicant had threatened the victim and used physical violence against her , and that one of the offences carried a severe penalty .

Meanwhile , on DATE , PERSON had prolonged the applicant ’s pre - trial detention until DATE , relying on the grounds given in the previous decisions . The applicant appealed on DATE , again contesting the basis for the rape charge and submitting that there were serious doubts as to whether he had committed the offence since PERSON wished to marry him .

Earlier , on DATE , the applicant had asked PERSON to release him under police supervision , stating that on DATE he had received a visit from PERSON He had apologised to her and she had forgiven him for everything he had done . They wanted to get married and live a normal family life together . In consequence , she wished to withdraw all her accusations . As DATE was approaching , he wanted to spend it with PERSON and her daughter to strengthen their relationship and make amends for all the harm he had done to her . He feared that his continued detention would be detrimental to their relationship and to PERSON ’s young daughter , who treated him as her father and whom he treated as his own daughter .

ORG rejected the application on DATE .

On DATE PERSON asked ORG to release the applicant , unconditionally or under police supervision . She said that he had apologised and she had forgiven him . She thought he should be released because the time he had already spent in detention had changed him for the better and made him realise that what he had done was wrong . She believed that he would mend his ways as he was aware that if he did not he would be severely punished . She admitted that she had made her accusations against the applicant under the influence of the anger and pain he had caused her , adding that , for those reasons , she would like to be absolved from testifying against him .

On DATE the applicant asked ORG to release him under police supervision . He stated that he loved PERSON and had apologised to her and been forgiven . What had happened would never happen again . They wanted to get married and live together . They could move into a flat that he had meanwhile inherited from his grandfather . PERSON needed his financial support and help taking care of her daughter , whom he used regularly to fetch from school . He added that , having been in detention since DATE , he had understood that what he had done had been wrong . He knew that he would never do it again . He wanted very much to be with PERSON and make amends to her for what he had done .

The application was rejected on DATE .

On DATE the applicant also filed a complaint that his appeal of DATE had been examined as late as DATE , that is to say DATE . This was incompatible with LAW , which required the court to examine the lawfulness of his detention “ speedily ” .

On DATE the applicant was indicted before ORG on charges of rape and uttering threats .

On DATE ORG heard the applicant ’s appeal of DATE against the decision extending his detention until DATE . It dismissed the appeal , finding that the decision had been fully justified by the need to secure the proper conduct of the proceedings . In particular , the court stressed the risk of the applicant ’s exerting pressure on PERSON , especially in view of the fact that she had stated during the investigation that even when in detention he had sent her a letter hinting that after his release he might seek revenge on her . Moreover , the offence of rape carried a maximum sentence of DATE which , together with the serious circumstances of the incident as related by PERSON , gave sufficient grounds to believe that the applicant , given the severity of the penalty , might be prompted to bring pressure to bear on her in order to make her refuse to testify , or change her testimony .

The trial started on DATE . PERSON stated before the court that she “ was a family with the applicant ” and wished to exercise her right not to testify .

On DATE ORG ordered that the applicant be held in detention pending trial until DATE . In particular , it relied on the risk of his bringing pressure to bear on PERSON It further reiterated all the previous grounds for his continued detention .

The applicant appealed and again contested the factual basis for the rape charge and stressed that his detention had exceeded a “ reasonable time ” within the meaning of LAW .

In the meantime , presumably on DATE , PERSON had made a written declaration to the court , submitting that she wished to exercise her right not to testify because she was , as defined in LAW ( NORP postępowania karnego ) , “ in a particularly close personal relationship ” ( w szczególnie bliskim stosunku osobistym ) with the applicant . She also asked the court to release the applicant and stated that she wished to marry him .

On DATE PERSON repeated that statement at a hearing and asked the court to absolve her from her duty to testify . However , the court rejected her request . It held , first , that her refusal was dictated by her fear of the applicant rather than by her affection for him and , secondly , that their relationship – both past and present DATE lacked the necessary psychological , physical and financial bonds to be regarded as a de facto marriage and , consequently , a “ particularly close personal relationship ” within the meaning of LAW that would override her duty to testify against the applicant at the trial . Since PERSON persisted in refusing to testify , the presiding judge imposed a fine on her for obstructing the trial .

On DATE PERSON unsuccessfully appealed against the court ’s decision to fine her for refusing to testify . She again stated that she did not want to testify against the applicant .

On DATE ORG dismissed the applicant ’s appeal against the decision of DATE , holding that ORG had correctly assessed the evidence before it and had rightly concluded that it fully indicated the probability that the applicant had committed the offences with which he had been charged . It also analysed the circumstances surrounding PERSON ’s refusal to testify , explaining that , even though she had again informed the trial court that she would like to exercise her right not to testify because she regarded herself as a “ person in a particularly close relationship ” with the applicant , that question had to be decided finally by the trial court . In ORG opinion , regardless of how the trial court eventually qualified their relationship there was still the risk that the applicant would attempt to influence the witness , especially in view of his previous aggressive behaviour towards her . Lastly , referring to the complaint of a breach of LAW , the court rejected the applicant ’s arguments as to the allegedly excessive length of his detention . It observed that ORG had proceeded swiftly with the trial . Since DATE , the date on which the bill of indictment had been lodged , it had already held QUANTITY hearings and , as it had heard most of the evidence , the first - instance proceedings were soon to be concluded .

During the proceedings the applicant sent numerous letters to PERSON In DATE their number reached CARDINAL .

Subsequently , ORG gave CARDINAL further decisions prolonging the applicant ’s detention . On DATE it extended his detention until DATE and on DATE until DATE . The court relied on the grounds given in the previous decisions , attaching special importance to the risk of the applicant ’s tampering with the witness PERSON At that time the witness still maintained her decision to marry the applicant and her refusal to testify .

The applicant unsuccessfully appealed against those decisions , submitting that the trial court , by holding him in custody , repeatedly imposing fines on PERSON and refusing to grant them leave to marry in prison , had not only penalised him without him having been convicted but also showed no respect for their private life . In his view , this amounted to a “ misunderstanding ” and unjustified interference with their right to private life . He also relied on the fact that PERSON had stated before the court that she “ no longer felt that she had been raped ” , maintaining that the change of both parties’ attitude to each other and to the applicant ’s deed was an important circumstance militating in favour of his release . In his appeals , he invoked LAW and LAW .

Before the end of the trial PERSON eventually testified , stating , among other things , that she no longer considered that the applicant had raped her and that she had forgiven him .

On DATE FAC convicted the applicant as charged and sentenced him to DATE imprisonment . It ordered that the applicant be held in custody pending the outcome of his appeal .

On DATE the ORG heard the applicant ’s appeal . It upheld the conviction but reduced the sentence to CARDINAL years’ imprisonment , finding that the complete change of the victim ’s attitude to the applicant over the course of the proceedings fully justified the reduction . It also observed that that change could not have been dictated simply by her fear of the applicant because , had it been so , she would have preferred to have him locked up for the longest period possible .

The applicant filed a cassation appeal ( kasacja ) with ORG ( Sąd Najwyższy ) . ORG heard and dismissed the appeal on DATE .

On DATE the applicant asked the trial court to grant him leave to marry PERSON in FAC . He maintained , among other things , that they both wished to solemnise their relationship and that they had already planned to get married in the past . In DATE their plans were delayed because PERSON , who had been pregnant with their child , had had a miscarriage . DATE was to be fixed for DATE but that fell through because he was arrested and detained on remand in DATE .

On DATE PERSON requested PERSON to grant them leave to marry in prison . She stated that they had been together for DATE and remained in a close relationship for DATE . She also referred to their past decisions to get married DATE which had not been realised because of her miscarriage in DATE and , as regards the plans to fix a marriage date in DATE , because the applicant had been arrested . Furthermore , she submitted that their marriage would also be important for her daughter , who had developed a close emotional bond with the applicant , treated him as her father and missed him badly . Finally , she said that she loved the applicant very much and asked for her request to be granted .

At the hearing held on DATE the applicant again asked the court to grant him leave to marry PERSON in prison . He said that he loved her very much and would like to marry her as soon as possible .

PERSON , summoned by the presiding judge to the hearing room , confirmed that she had already applied to the court for leave to marry the applicant in ORG . She asked the court to enable her to contact him in order to discuss arrangements for the marriage . She continued to refuse to testify against him , saying that she loved him very much and deeply regretted what she had said at the police interview . She asked the court to regard her as his common - law wife .

On DATE the applicant again asked ORG for leave to marry in FAC , maintaining that the judge had informed him at the hearing of DATE that leave had been granted and that he would receive it in writing . He further asked the court to grant him permission to have photographs taken of the ceremony and to serve light refreshments , such permission being required by the Governor of ORG in order to organise the event .

By a letter of DATE the presiding judge informed the applicant , his lawyer and PERSON that their requests for leave to marry in the remand centre had been refused . The letter read , in so far as relevant , as follows :

“ FAC hereby informs you that the application for leave to contract a marriage in prison made by the accused PERSON and the injured party ( pokrzywdzona ) [ PERSON ] has not been granted in view of the interests of the proceedings .

A prison or remand centre is no place to hold ... ceremonies so important in a person ’s life as a wedding .

In this court ’s opinion no circumstances justify contracting a marriage in the remand centre . If indeed DATE which in the court ’s view is doubtful DATE the accused and the injured party are sure of their decision that is so important for them and for their families and want to hold a ceremony , they may plan it for another time and in another place than a remand centre .

It should be noted that marriage is always connected with a ceremony and the participation of other persons whose presence is obligatory ; certainly , the conditions in a remand centre or prison are not suitable for it .

If the accused and the injured party have known each other for DATE and they have not yet managed to officialise their life , in the circumstances of the present case their sudden decision to enter into a marital union sheds doubt on their intentions , to say the least .

The accused and [ PERSON ] ’s decision to marry has emerged at TIME in the course of the proceedings , namely when the court refused to consider [ PERSON ] as a ‘ close person’ ( osoba najbliższa ) – [ a status ] which would have given her the right to refuse to testify DATE and when it imposed a fine on her for unjustified refusal to testify .

Thus , the court can not but find that a request for leave to contract a marriage [ made ] at this particular time is a further attempt to persuade the court that the relations between the accused and the injured party are of a close nature DATE which , in reality , in the court ’s opinion , is not the case and was invented only for the sake of the proceedings . ”

The applicant ’s lawyer replied to the letter on DATE . He stated that the court ’s arguments could not erase the applicant ’s and PERSON ’s right to marry guaranteed by LAW . He added that the mere fact that he was in detention did not deprive him of that right .

It appears that later the applicant and PERSON made further requests for leave to contract their marriage in the remand centre , but to no avail .

In his cassation appeal against ORG judgment of DATE the applicant invoked LAW as one of the legal grounds for the appeal . ORG , in its above - mentioned judgment of CARDINAL DATE ( see paragraph CARDINAL above ) , held that the refusal to grant the applicant leave to contract a marriage in prison constituted a violation of LAW . Nevertheless , in ORG view , this kind of – admittedly serious – breach of the law on the part of the trial court did not have any real bearing on the applicant ’s conviction and could not result in it being quashed .

The relevant part of the reasoning of ORG judgment reads as follows :

“ However , one must agree with the appellant that there has been a violation of LAW ] in the present case . This provision concerns the right to marry and in this context ORG Human Right ’s case - law states that a detainee can not be prohibited from marrying , except in order to prevent fictitious unions .... However , in the court ’s decision refusing the request made by the injured party and the accused for leave to marry , it was observed that if they had known each other for DATE and had not managed to officialise their life “ their sudden decision to enter into a marital union shed doubt on their intentions ” , especially as the request “ emerged at a particular moment ... when the court refused to consider [ PERSON ] as a ‘ close person’ ” ; this , in the [ court ] ’s view , was accordingly merely “ a further attempt to persuade the court that the relations between the accused and the injured party [ were ] of a close nature , which , in reality ... [ was ] not the case ” .

These arguments are not convincing . It is in a way natural that the request for leave to contract a marriage emerged after the court ’s refusal to recognise the injured party ’s status at the trial because the injured party and the accused had previously regarded themselves as close persons . It is also evident that if the accused had not been kept in detention but had been released , there would have been no obstacles to his contracting a marriage . Only his incarceration made it impossible for him and the injured party to decide autonomously to get married . A prospective nuptial couple ( nupturienci ) do not have to prove and demonstrate to the relevant authority the depth of their feelings justifying their marriage . The court ’s decision , especially in view of the reasons given for it , was consequently wrong and amounted to a flagrant breach [ of the law ] since it infringed the standards laid down in LAW , which is binding on GPE . ”

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

As regards the general situation of a detainee , during criminal proceedings against him he is considered to be “ at the disposal ” ( w dyspozycji ) of the authority – be it a prosecutor or a court DATE currently dealing with the case . CARDINAL of the consequences of this is that a detainee wishing to have visits from relatives in prison , or a visit from any third person or , as in the present case , to contract a marriage during his detention , must first obtain leave from the relevant authority . While the number and nature of visits in prison are regulated by the provisions of the Code of Execution of Criminal Sentences ( ORG karny wykonawczy ) and the Rules for Execution of Detention on Remand ( Regulamin wykonywania tymczasowego aresztowania ) , such matters as leave to contract a marriage in prison are entirely at the competent authority ’s discretion .

The Code of Criminal Procedure grants an unqualified right not to testify only to the accused ’s closest relatives and an accomplice witness who has been charged with the same offence in another case ( Article CARDINAL ) . Except for national security , in all other situations , even such as client - lawyer privilege , doctor - patient privilege and journalist privilege , the prosecutor or the court can either absolve witnesses from their duty not to disclose confidential information or order them to testify ( Article CARDINAL ) .

According to LAW , a similar rule applies to persons who are in a “ particularly close personal relationship ” with the accused . This provision reads as follows :

“ A person who remains in a particularly close personal relationship with the accused may , if he or she has so requested , be absolved from testifying or from replying to a question . ”

In the light of ORG case - law and legal writing , a “ particularly close personal relationship ” is generally defined as a strong and long - lasting emotional bond between the accused and the witness , resulting , for instance , from friendship , colleagueship , engagement , cohabitation or tutorship such that the act of testifying causes the witness internal conflict .

Under the provisions of ORG ( PERSON i PERSON ) the registrar of ORG ( PERSON ) may refuse to solemnise a marriage only if there exists a statutory obstacle rendering the marriage null and void , such as age , legal incapacity , mental disorder , bigamy , close affinity of the parties or adoptive relationship ( Articles CARDINAL , DATE , DATE and DATE ) . In case of doubt , the registrar must ask the competent court to rule on whether the marriage can be contracted ( Article CARDINAL ) .

Pursuant to LAW , a marriage before the registrar may not be concluded until DATE after the persons concerned have made a written declaration that they have no knowledge of any statutory obstacle to the solemnisation of their marriage . At their request and for important reasons , the registrar may solemnise the marriage before the expiry of that term .

Article CARDINAL of ORG lays down the rules for a proxy marriage . Contracting a marriage through a representative is subject to leave that can be granted by a family court in a non - contentious procedure . It depends on CARDINAL principal conditions . First , the court must be satisfied that there exist “ important reasons ” justifying the departure from the normal procedure . Secondly , the applicant ’s signature on a proxy must , on pain of being null and void , be made in the presence of a notary , who confirms its authenticity by a special declaration .

ORG case - law and the practice of the domestic courts in respect of proxy marriage is very scant . A few existing rulings of ORG relate to applications by foreigners for leave to contract proxy marriages with NORP women and date back to the CARDINALs .

The Recommendation of the Committee of Ministers to member states on ORG ( Rec(CARDINAL)CARDINAL ) ( “ FAC ” ) , adopted on DATE , sets out the following standards in respect of the enforcement of custodial sentences and detention on remand that may be relevant to the present case .

Rule CARDINAL reads :

“ Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed . ”

Rule CARDINAL reads , in so far as relevant :

“ CARDINAL . Prisoners , individually or as a group , shall have ample opportunity to make requests or complaints to the director of the prison or any other competent authority .

If the request is denied or a complaint rejected , reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority . ”