Preliminary objection rejected (six month period);Violation of Art. 6-1;Not necessary to examine Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant is the editor of the political satirical periodical " ORG Poplu " ( NOT in the people ’s interest ) .

On DATE an article entitled " Mix - Xena tax - Xandir " ( From ORG ) appeared in the applicant ’s periodical commenting on a particular parliamentary debate in ORG , which had been broadcast live on television . The article included the following passages :

" SEND IN THE CLOWN

Some felt offended that I had lately written that , during the budget debates , I went berserk and started throwing tomatoes at the television set . And this happened when certain Members of ORG had not as yet spoken in the debates . I will let your fertile imagination take its course to imagine what I did when CARDINAL of them in particular were speaking .

THE PARLIAMENTARY CLOWN

I do not know if I shall be in breach of LAW if I describe a minister as a clown . But I can not fail to comment on PERSON behaviour in ORG . It seems that PERSON deliberately tried to make us laugh . If this is so , PERSON is ridiculing what is supposed to be the highest institution of the land .

Let us see what PERSON was up to . His first sentence was meant to raise some laughs as he maintained that PERSON , a NORP Member of ORG , badly needed a pair of spectacles . This was rather a flat joke . Then he started calling names PERSON [ a NORP Member of ORG ] and described the latter as a man who lacked principles . Then he tried to make us laugh once again when he referred to the killing of pigs . Anyway , he tried to play the clown once , twice and even CARDINAL times . And some of his jokes were rather vulgar .

I felt extremely angry that the man who is representing the people , and that includes yours truly , on agricultural matters , was using this serious and important debate to play the clown . Well , I thought , if PERSON has the right to speak the way he likes on the television screen , in my home , then I am also entitled to speak my mind . And I started booing him with all my might , and had I had enough tomatoes , I would have used them for other purposes .

You may ask me what I did when ‘ il - Profs’ PERSON of Cospicua took the microphone . First and foremost , this man is not as yet aware that PERSON has resigned and PERSON still echoes him to DATE . Secondly , you stand no chance of finding anything worthwhile after analysing PERSON ’s speech . At least , you may find something worthwhile in PERSON speech , but you discover absolutely nothing in PERSON ’s . Let me tell you what I did when this professor stood up to speak .

I booed this last one so heartily that the neighbours thought that I had had an epileptic fit . To crown it all , PERSON , that nosy PERSON , entered my home unannounced and without permission and she found me on the floor in an ecstasy of booing . She thought I had become a lunatic . Really , the scene in front of the television was scary . PERSON was gesticulating and talking rubbish on ORG set while I lay sprawled on the floor gesticulating like a madman . And I did all this so that I may have enough material for ‘ MHUX’ . To persuade PERSON that nothing was really wrong with me I had to allow her to take my pulse rate , examine my tongue and take my temperature . "

On DATE Mr PERSON and PERSON , CARDINAL of the Members of ORG referred to , brought the article to the attention of ORG as an alleged breach of privilege . On DATE , before the applicant had been heard , the Speaker announced that he had examined the matter and found a prima facie case of breach of privilege . The ORG , on a proposal by Mr PERSON , proceeded on DATE to pass a resolution which stated that the ORG considered the article in question as a breach of its privileges according to section CARDINAL(CARDINAL)(k ) of ORG ) Ordinance ( LAW the Revised Edition of the Laws of Malta ; see paragraph CARDINAL below ) , hereinafter referred to as " the Ordinance " .

On DATE ORG considered a motion , proposed by PERSON and seconded by Mr PERSON , to direct the applicant to be summoned by notice LAW ) of the LAW to answer a charge of defamatory libel under section CARDINAL(CARDINAL)(k ) of the Ordinance . The terms of the motion were :

" That the ORG after having by its own resolution decided in the sitting of CARDINAL DATE that the article bearing the title ‘ Mix - Xena tax - Xandir’ which appeared at page CARDINAL of the ‘ ORG of DATE be considered a breach of privilege according to section CARDINAL ) of ORG ) Ordinance ;

The ORG orders GPE ORG , ORG , ORG , PERSON , as editor of the journal ‘ ORG , to appear before it in the sitting of CARDINAL DATE at TIME to state why he should not be found guilty of breach of privilege according to section CARDINAL(CARDINAL)(k ) of ORG ) Ordinance ; and

The ORG also orders the subpoena of every witness that ORG will be asked to summon . "

The then Leader of the Opposition , Dr PERSON , drew attention to the wording of the resolution of DATE which he considered out of order since it did not make it clear that there was only a prima facie case of breach of privilege . For his part , PERSON expressed the opinion that the proposed motion did not state that the applicant was guilty :

" Here we are not saying that he is guilty . We are saying : Come here so that on DATE you will say why you are not guilty . And if ever you were to convince us that you are not guilty we will say that you are not guilty ; if you will not convince us we will say you are guilty . "

After the debate the motion was adopted as proposed by PERSON .

On DATE Mr GPE brought an application before ORG of GPE in exercise of its constitutional jurisdiction challenging the proceedings instituted against him by ORG on the ground that these proceedings , which were penal in nature , violated his right under section CARDINAL of the LAW ( see paragraph CARDINAL below ) to be given a fair hearing by an independent and impartial court .

On CARDINAL , DATE and DATE , before the delivery of the judgment of ORG , the applicant appeared before ORG with his lawyer .

It was submitted as a point of order that further proceedings on the case in the ORG should be suspended until the court had determined the constitutional issue , but the Speaker ruled that the ORG should proceed with the case before it . The question was then put to the applicant , " Does the editor consider himself to be guilty or not please ? Mr GPE , do you consider yourself guilty ? " When the applicant refused to answer whether he was guilty or not , he was threatened with further proceedings for contempt . CARDINAL of the members of the ORG , Dr PERSON , stated on a point of order that the breach of privilege proceedings were to be considered as being of a criminal nature and accordingly - an argument accepted by the Speaker - the rule of criminal procedure that he who stands mute is presumed to have answered ‘ not guilty’ should be applied .

PERSON proceeded to adduce the evidence against the applicant , reading out the impugned article and concluding that it insulted Mr PERSON and Mr PERSON in connection with their conduct in the ORG . The latter were invited by the Speaker to comment and both made statements to the effect that they considered themselves ridiculed in their capacity as members of the ORG , as well as in their private lives .

Mr PERSON subsequently said ,

" Mr Speaker , this is the last time I come here and go to ORG in connection with this dirt . And if they attack me personally I will neither seek redress here nor go to court . Okay ? And if trouble crops up in my family , if you [ pointing to defence lawyer ] defend him [ the applicant ] , I will [ ‘ sue you’ ( according to the ORG ’s translation ) ] [ ‘ take my revenge on DATE ( according to the applicant ’s translation ) ] . "

On DATE the ORG adopted a resolution in the following terms :

" That the ORG after having considered the case of breach of its privileges caused by the article published at page CARDINAL of the journal ‘ ORG Number CARDINAL of DATE ;

Finds the editor PERSON guilty of breach of privilege . "

The ORG postponed the question of punishment until another sitting , due , according to the Government , to the pending constitutional proceedings .

On CARDINAL DATE ORG delivered judgment in favour of the applicant . It began by finding that the proceedings were not criminal in nature :

" ORG is not an ordinary court , although , because of the system of checks and balances already referred to , it also has quasi - judicial functions , apart from its principal function of legislator . And the law that provides for the privileges and contempt of the ORG ( chapter CARDINAL ) is not part of the criminal law of the country . It is true , as argued by the applicant , that there is a great resemblance between the penalties provided for by LAW and those provided for by this particular law . However , the decision of the ORG is not the criminal conviction that emerges from a decision of ORG , and the declaration of guilt for contempt and the consequential sanctions from such a declaration , despite having the same form as criminal penalties - admonitions , payment of money , imprisonment - are nonetheless not criminal convictions . "

However , the ORG continued :

" The ORG may take proceedings for contempt where , among other things , there results :

‘ ( k ) the publication of any defamatory libel on the Speaker or any Member touching anything done or said by him as Speaker or as a Member in the ORG or in LOC ( Vide sect . CARDINAL LAW ) .

For the ORG to have jurisdiction to take proceedings for contempt there must be a defamatory libel ( a mixed question of fact and law ) and the law did not state that this is a question that must be established by the ORG , but something that must exist objectively ; this being so , the declaration of the existence of the defamatory libel must first be made objectively by the ORG , and then there will be proceedings in the ORG for contempt . "

ORG concluded that the Ordinance in question did not authorise ORG of its own initiative to define what is a defamatory libel , and that , if and when it acts upon a contempt , it must act according to the principles of natural justice . It ordered that the applicant be placed in the position in which he was before proceedings were instituted against him on the basis of breach of privilege and that no further proceedings be taken against him on the basis of the resolution and motion in question .

On DATE ORG , on appeal by both parties , disagreed with the conclusions of ORG . It held that the LAW authorised ORG to enact laws establishing its privileges , immunities and powers , that accordingly the powers given to the ORG by virtue of LAW of LAW did not violate the person ’s right to a fair hearing by an independent court as guaranteed under section CARDINAL of the LAW and that in those circumstances the lower court had not been entitled to look further into the matter or to afford the remedies indicated in its judgment .

On DATE ORG summoned the applicant before it in order to decide the penalty to be imposed upon him . On being asked if he wished to comment , the applicant stated through his lawyer that he had nothing to say regarding the punishment but would comply with the ORG ’s decision . He was fined CARDINAL NORP liri and ordered to publish the resolution of CARDINAL March CARDINAL in his paper .

Mr PERSON and Mr PERSON participated throughout in the proceedings brought against the applicant , save that Mr PERSON died before the sitting of CARDINAL DATE .

The applicant has not as yet paid the fine and no steps have been taken to enforce its recovery .

As applicable at the relevant time , the provisions of the LAW concerning the privileges of ORG were as follows :

" An oath or affirmation taken or made by a witness or by an expert before ORG or any ORG thereof shall for the purposes of LAW ( LAW ) be comparable to an oath or affirmation taken or made before a ORG in civil matters . "

" ( CARDINAL ) The ORG shall have the power to punish with a reprimand or with imprisonment for a period not exceeding DATE or with a fine not exceeding MONEY or with both such fine and such imprisonment , any person , whether a Member of the ORG or not , guilty of any of the following acts :

( k ) the publication of any defamatory libel on the Speaker or any Member touching anything done or said by him as Speaker or as a Member in the ORG or in a ORG thereof ;

( CARDINAL ) For the purposes of this section - ‘ publication’ means any act whereby any printed matter is or may be communicated to or brought to the knowledge of any person or whereby any words or visual images are broadcast ; ...

( CARDINAL ) A person shall be deemed guilty of the acts mentioned in PERSON ] ( k ) ... of subsection ( CARDINAL ) of this section if the publication referred to in PERSON ] ( k ) ... consists in the publication of such defamatory libel , false or perverted report , or misrepresentation in printed form in GPE , or in the distribution in GPE of such printed matter containing such defamatory libel , false or perverted report , or misrepresentation , from whatsoever place such printed matter may originate , or in any broadcast from any place in GPE or any place outside GPE of any such defamatory libel , false or perverted report , or misrepresentation . "

Subsection ( CARDINAL ) entitles the ORG to order in the case of a newspaper , in addition to the punishments under subsection ( CARDINAL ) , the publication in a subsequent issue of the motion finding the accused guilty of an act mentioned in paragraph ( k ) of subsection ( CARDINAL ) .

" ( CARDINAL ) ...

( CARDINAL ) ... the ORG may direct the offender to be summoned by notice signed by ORG , to appear before it at a specified sitting to answer the charge .

( CARDINAL ) If the offender fails to appear , it shall be lawful for the Speaker of the ORG on the direction thereof , to issue a warrant for the offender to be arrested and brought before the ORG .

( CARDINAL ) In all cases the offender shall be given the opportunity to speak in his own defence and , ... , he may be assisted by an advocate .

" ( CARDINAL ) ...

( CARDINAL ) When the ORG fines a person , the fine shall be paid to ORG through ORG within DATE of its infliction . At the next following sitting the Clerk shall report to the Speaker the payment so made or its default ; in the latter case the ORG may decide on the commutation of the fine into a term of imprisonment or give other directions at its discretion . "

Defamatory libel is a criminal offence under LAW ( Act No . XL of DATE ) .

" The offences mentioned in this Part of the LAW are committed by means of the publication or distribution in GPE of printed matter , from whatsoever place such matter may originate , or by means of any broadcast . "

" Save as otherwise provided in this LAW , whosoever shall , by any means mentioned in LAW , libel any person , shall be liable on conviction :

( a ) if the libel contains specific imputations against such person tending to injure his character and reputation , or to expose him to public ridicule or contempt , to imprisonment for a term not exceeding DATE or to a fine ( multa ) not exceeding MONEY or to both such imprisonment and fine ;

( b ) in any other case , to imprisonment for a term not exceeding DATE or to a fine . "

The LAW of GPE also refers to the privileges of ORG .

Under section CARDINAL no person is to be deprived of his personal liberty save as may be authorised by law , inter alia , in execution of an order of ORG punishing him for contempt of itself or of its members or for breach of privilege , or directing that he be brought before it .

Section CARDINAL provides for any person charged with a criminal offence to be afforded a fair hearing within a reasonable time by an independent and impartial court established by law .

Section CARDINAL(CARDINAL ) guarantees freedom of expression with the following proviso under subsection ( CARDINAL ) :

" Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection ( CARDINAL ) of this section to the extent that the law in question makes provision -

( a ) that is reasonably required -

( i ) in the interests of defence , public order , public morality or decency , or public health ; or

( ii ) for the purpose of [ ... ] protecting the privileges of ORG [ ... ]


Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

The applicant is a GPE national who was born in DATE and lives in GPE .

On DATE , the applicant went to the home of CARDINAL PERSON and demanded that she give him an obituary card of her sister who had recently died . On being met with a refusal , he forced his way into PERSON home , causing her to fall , and hit her over the head several times . He then made his way over to the sideboard , where he had noticed a stack of documents ; of these , he took DATE a magazine and some giro form stubs DATE before leaving .

In the course of the subsequent criminal proceedings it emerged that the applicant was a pathological collector of devotional obituary cards for the recently deceased . Whenever possible DATE on the applicant 's own admission , whenever he was not detained under civil or criminal law – the applicant would gatecrash funerals in the GPE area . He had met PERSON at her sister 's funeral , from which he had been turned away by the undertaker . At the time of his visit to PERSON home , he had been under the mistaken impression that he had propitiated PERSON by sending her a blessed candle beforehand .

The applicant was taken into police custody DATE on suspicion of having committed a criminal offence . He remained in pre - trial detention pending the criminal proceedings that were subsequently brought against him and the order for his pre - trial detention was duly prolonged .

Examinations of the applicant 's mental state by CARDINAL psychiatrists and a psychologist showed that the applicant was , at the time of the crime , suffering from a mental impairment . The report of the psychiatrists diagnosed it as “ a paranoid form of schizophrenia in which autistiform characteristics are unusually prominent and ... an obsessive compulsive personality disorder ” . Both the psychiatrists ' report and that of the psychologist considered it very likely that the applicant would reoffend if given the chance . Both reports mentioned the applicant 's lack of awareness of his condition , which made him difficult to treat . They concurred in recommending that the applicant undergo compulsory treatment in a closed setting . In addition , a psychologist attached to a mental hospital where the applicant had been held previously , under ORG ( Wet bijzondere opnemingen in psychiatrische ziekenhuizen ; see paragraph CARDINAL below ) , gave evidence in open court to the effect that the applicant had absconded before and would resist “ all possible forms of interference in his personal life ” if he could .

On DATE the criminal law section of ORG ( rechtbank ) , following adversarial proceedings , convicted the applicant of theft preceded by violence and sentenced him to DATE imprisonment with deduction of the time spent in pre - trial detention . Having found that the applicant was able to understand the unlawful nature of his acts but that on account of the limited development of his mental faculties he could only be held responsible for this offence to a limited degree whereas there was considerable danger of his reoffending , it further imposed a ORG order with confinement in a custodial clinic ( terbeschikkingstelling met bevel tot verpleging van overheidswege ; “ ORG order ” ) . Referring to LAW ) , it further ordered the termination of the applicant 's pre - trial detention as from the moment on which the duration of the pre - trial detention would be equal to the prison sentence imposed . Both the prosecution and the applicant appealed to ORG ( gerechtshof ) .

The applicant 's lawyer further applied to ORG for the applicant 's immediate release from pre - trial detention on the ground DATE as the applicant had already served the sentence imposed with deduction of the time spent in pre - trial detention DATE there was no legal basis for his further detention . The prosecution opposed this application , arguing that LAW ruled out the termination of pre - trial detention in a case like the applicant 's where a prison sentence is combined with a ORG order .

On DATE , the ' s - ORG held a hearing in camera and ordered the applicant 's immediate release . On DATE , at the request of the public prosecutor , the civil law section of ORG issued an interim admission order ( voorlopige machtiging ) within the meaning of LAW under the procedure set out in LAW . Consequently , after the applicant was released from pre - trial detention on DATE , he was compulsorily admitted to a psychiatric hospital in GPE under the judicial interim admission order . He stayed there until DATE .

On DATE the applicant 's appeal against the judgment of CARDINAL DATE was heard by the ' s - Hertogenbosch Court of Appeal , which on DATE issued a warrant for the applicant to be taken into pre - trial detention ( gevangenneming ) within the meaning of LAW of LAW . Pursuant to LAW , this order remained in force pending the total further duration of the criminal proceedings against the applicant .

By judgment of DATE , the ' s - ORG quashed the judgment of CARDINAL DATE on technical grounds , convicted the applicant of theft preceded by violence , sentenced him to DATE imprisonment with deduction of the time spent in pre - trial detention and imposed a ORG order with confinement in a custodial clinic .

The applicant lodged an appeal on points of law ( cassation ) with ORG ( PERSON ) , which was dismissed on summary reasoning on DATE . Accordingly , the applicant 's ORG order took effect on DATE , replacing the pre - trial detention order of DATE as the legal basis for the applicant 's detention . However , the applicant was not directly transferred to a custodial clinic but was held in pre - placement detention until a suitable place would become available for him .

NORP By letter of DATE , the Minister of Justice informed the applicant that , given the ORG 's conclusion in the case of Brand v. the GPE , no . CARDINAL , CARDINAL DATE , ORG ( beroepscommissie ) of ORG ( PERSON GPE ) had found that financial compensation was appropriate in all cases where pre - placement detention after the end of a prison sentence had exceeded DATE . Starting on DATE , this compensation amounted to QUANTITY ( ORG ) per month and this amount was to be increased by LAW every further trimester . The applicant was further informed that the total amount of compensation would be calculated and paid once he had been admitted to a custodial clinic . The applicant was invited to confirm within DATE whether he wished to avail himself of this compensation offer . This letter has remained unanswered by the applicant .

On DATE the applicant was admitted to a custodial clinic . On DATE , he was informed by the Deputy Minister of Justice ( ORG ) that , as his pre - placement detention had exceeded DATE on CARDINAL DATE , he was offered compensation in a total amount of ORG CARDINAL,CARDINAL for the time spent in pre - placement detention DATE and DATE .

On DATE , the applicant 's parents informed the Minister of Justice – in reply to the letter of CARDINAL DATE that they disagreed with the manner of calculation and the amount of compensation . On DATE , the Deputy Minister of ORG replied that there were no reasons for her to reconsider her position in the matter .

On DATE , the applicant 's representatives informed the ORG that the applicant 's ORG order had been extended by DATE .

The statutory rules governing pre - trial detention are set out in ORG CARDINAL of LAW . An order for pre - trial detention can only be issued against persons suspected of an offence carrying a maximum prison sentence of DATE or more or certain other specific criminal acts ( LAW ) .

A pre - trial detention order issued by ORG remains in force for DATE after the final judgment ( einduitspraak ) at that instance has been given ( LAW ) . The public prosecutor may file , within DATE after DATE first - instance court , a request for the prolongation of the pre - trial detention order by DATE with the appeal court , which will determine that request . Pre - trial detention between a final judgment of a first - instance court against which an appeal has been filed , and the first hearing on that appeal , is limited to a maximum of DATE ( Article QUANTITY of LAW ) . If , however , the total duration of the detention on remand becomes equal to the prison sentence imposed , the highest competent trial court shall lift the remand order ( LAW ) unless – in addition to a prison sentence – a measure entailing deprivation of liberty ( such as , for instance , a ORG order ) has been imposed ( LAW ) . A more detailed overview of the relevant domestic law and practice on pre - trial detention is given in PERSON v. the GPE ( dec . ) , no . CARDINAL , CARDINAL DATE .

At the request of the public prosecutor or relatives of the person concerned ( LAW and LAW ) , ORG can DATE after having heard the person concerned ( Article CARDINAL) and after having considered a report by a psychiatrist who has examined the person concerned shortly before ( Article CARDINAL ) DATE issue an interim order for compulsory admission to a mental hospital . This order can only be issued where the judge finds that the person concerned is suffering from a mental disorder which gives rise to danger which can not be averted by the intervention of persons or institutions outside a mental hospital ( LAW ) . An interim order is immediately enforceable ( bij voorraad uitvoerbaar ) and valid for a maximum period of DATE , which period starts to run on DATE the order is given ( Article CARDINAL ) . At the request of the public prosecutor , ORG can prolong the validity of an interim order .

Article CARDINAL of LAW ( PERSON ) enables courts , when dealing with certain serious crimes , to impose a ORG order on a defendant whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence . If the safety of others or the general safety of persons or goods so requires , the court may further direct that such a person be confined to a custodial clinic in accordance with Article PERSON of LAW . A ORG order with confinement to a custodial clinic can be imposed in conjunction with a prison sentence if the convicted person 's responsibility was merely diminished at the time of the commission of the offence . In such a situation , the ORG order will take effect after the convicted person has served the prison sentence imposed . A ORG order can not take effect before the judgment concerned has become final ( Article MONEY § CARDINAL of LAW ) . Pending admission to a custodial clinic , the person concerned is not released but held in pre - placement detention .

A ORG order with confinement to a custodial clinic is not intended to have a punitive effect , but to protect society from any risk posed by the person concerned and enable the latter 's re - socialisation . ORG , of which there were CARDINAL in the GPE at the material time , are top - security institutions as the persons placed there have been found to pose a great danger to society as well as to themselves . The treatment provided in a custodial clinic is geared to individual disorders and personalities . It is aimed at helping persons subject to a ORG order to gain insight into and control over their disorders , to make them aware of their responsibilities and to adjust their behaviour accordingly so that they no longer pose a threat to society .

According to Article PERSON of LAW , the ORG order is valid for an initial period of DATE which may be prolonged by the court , at the request of the public prosecutor , for a further period of CARDINAL or DATE . The period of placement can not be extended beyond a total of DATE unless the crime committed by the person concerned was a crime of violence committed against , or causing danger to , CARDINAL or more persons , or such further extension is necessary for the protection of other persons ( Article PERSON ) .

In a judgment of DATE ( ORG [ National Jurisprudence Number ] , “ LJN ” ) ORG , the Provisional Measures Judge ( voorzieningenrechter ) of ORG of Breda held the following :

“ LAW on confinement to a custodial clinic of persons subject to a ORG order ( PERSON verpleging ter beschikking gestelden ) provides that a person in pre - placement detention shall be placed [ in an appropriate institution ] before the ORG order has run for DATE . ... In view of the judgments of ORG in the cases of Brand ( no . PERSON ) and PERSON ( no . MONEY ) and the decisions of ORG it may be assumed that a time lapse of DATE or more for persons subject to a ORG order is , in principle , wrongful in the light of LAW .

CARDINAL NORP The structural capacity shortage that has existed since DATE is not a special circumstance in the above - mentioned sense which would justify ( further ) delay in placing [ the plaintiff ] in a ORG clinic . This shortage must remain the responsibility of the Government . The fact that there are visible causes for the lack of capacity and that measures are being taken to reduce or alleviate this shortage does not make any difference in this regard .

The Provisional Measures Judge went on to order the plaintiff placed in a ORG clinic DATE after DATE ( the date on which the waiting period had started ) , that is to say by DATE , after which , if the order was not carried out , the plaintiff was to be released immediately .

In its judgment of CARDINAL DATE , PERSON , ORG held that it was reasonable in principle that the order in which persons subject to a ORG order were placed in a custodial clinic should depend on their place on a waiting list unless , owing to special circumstances , they were unsuited to detention elsewhere . However , in the particular case the period of pre - placement detention was no longer in proportion to the length of time spent by the person concerned in the execution of his prison sentence . The ORG was therefore ordered to place the person concerned ( the defendant in appeal ) in a custodial clinic DATE , which time - limit was considered long enough for all practical objections ( including the lack of adequate facilities ) to have lost their force .

In a judgment given on DATE , the Provisional Measures Judge of ORG of ' s - Hertogenbosch on similar reasoning , the ORG was ordered to place the plaintiff in a custodial clinic by DATE , that is a time - limit of CARDINAL and a half months .

In a judgment given on DATE , the Provisional Measures Judge of ORG found that special circumstances obtained which justified ordering the plaintiff to be given priority placement in a custodial institution . The special circumstances consisted of his having been given a ORG order without a prior prison sentence and his being considered unsuited to detention in a penal rather than a clinical setting .

In a judgment given on DATE , ORG of The GPE found that the mental condition of the person concerned ( the appellant ) was serious , but not more so than that of others on the waiting list for placement in a custodial clinic , so that there was no justification for giving this person priority over others .

In a judgment given on DATE , ORG of GPE declined to order the plaintiff given priority over others on the waiting list absent special circumstances . In so doing ORG had regard to the efforts being made to create more places for persons subject to a ORG order with confinement in a custodial clinic and the fact , as stated by the defendant , that the plaintiff could expect to be placed in such an institution by DATE .

In a judgment given on DATE , ORG of The GPE found special circumstances justifying priority placement to exist in that the plaintiff had spent DATE in detention after serving a DATE prison sentence and in that CARDINAL custodial clinics existed that were capable of treating him . The defendant was ordered to place the plaintiff in CARDINAL of the CARDINAL clinics no later than DATE .

In a judgment given on DATE in civil proceedings on a compensation claim arising from a wrongful act on the part of the government ( onrechtmatige overheidsdaad ) , ORG ( PERSON ) held that pre - placement detention lasting longer than DATE was unlawful . In reaching this finding , ORG referred , inter alia , to the ORG 's judgments in the cases of ORG v. the GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) and Brand v. the GPE ( cited above , § § DATE ) .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient

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

The applicant was born in DATE and lives in PERSON .

DATE the Bila Tserkva Tax Police ( “ the police ” ) instituted and subsequently discontinued several sets of criminal proceedings against the applicant for property embezzlement and tax evasion .

On DATE he claimed compensation from the police for pecuniary and non - pecuniary damage in respect of the above proceedings .

By a letter of DATE the police informed the applicant that his claims had to be rejected as unsubstantiated . They noted that he had been found guilty and amnestied in CARDINAL set of the proceedings and that the property which had been seized from him in the course of the proceedings had in fact remained in his possession .

On DATE the applicant repeated his claim , which remained without reply .

On DATE he brought proceedings before the ORG ( “ the FAC ” ) against the police , claiming compensation for pecuniary and non - pecuniary damage in respect of the criminal proceedings against him .

On DATE the court stayed the examination of his claim in the part concerning the pecuniary damage having indicated some shortcomings which had to be rectified by DATE . It referred to section CARDINAL of the Act “ On the procedure of compensation for damage caused to citizens by unlawful actions of bodies of inquiry , pre - trial investigation authorities , prosecutors and courts ” ( “ the LAW ” ) , according to which the amount of compensation for pecuniary damage was to be established by a resolution of the respective authority ( the police in the present case ) . The court noted that the police had rejected the applicant 's claim for such compensation by their letter of DATE and that the applicant had not introduced a judicial appeal against that refusal . As to his claim in the part concerning the non - pecuniary damage , it was subsequently examined by the domestic courts and rejected as unsubstantiated .

NORP On DATE the applicant introduced a complaint , by which he challenged the refusal of his claim by the police . Referring to his CARDINAL requests to them of DATE and DATE , he argued that he had made every attempt to settle the issue before bringing the judicial action .

On DATE the court rejected the above claim as time - barred , referring to the fact that the applicant had failed to raise it within DATE after he had become aware of the discontinuation of the criminal proceedings against him ( DATE ) .

On DATE ORG ( “ the Court of Appeal ” ) quashed the above decision on the applicant 's appeal and remitted the case for fresh examination . It noted that the first - instance court had wrongly considered that the applicant 's claim concerned the criminal proceedings against him . Instead , it should have been deemed to concern the refusal of the police to award him compensation for pecuniary damage . It further noted in that connection that the first - instance court had failed to clarify whether the police had issued a resolution concerning the applicant 's compensation claim .

On DATE the ORG refused to consider the applicant 's complaint , since no resolution in that respect had been issued by the police in accordance with section CARDINAL of LAW . The court also relied on the fourth paragraph of LAW in the part compliant with LAW pursuant to the decision of ORG of DATE . It considered that it had no jurisdiction over the case , as the aforementioned provision provided for “ a different procedure for lodging claims ” , namely through challenging a resolution of the police . Accordingly , the court instructed the applicant that he could apply to the tax police “ for settling the compensation issue under the legally envisaged procedure ” .

The applicant appealed , submitting that the first - instance court had been unduly formalistic as the police had clearly stated their position in the letter of DATE . He further argued that he could not be held responsible for the inadequate form of the response to his claim .

On DATE ORG upheld the finding of ORG that given the absence of a resolution there was no procedural basis for the judicial examination of the applicant 's claim .

On DATE ORG of GPE rejected the applicant 's cassation appeal as unsubstantiated .

The relevant constitutional provisions , as well as references to the pertinent practice of ORG and ORG , can be found in GPE v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL , DATE and DATE , DATE .

The relevant provisions of LAW are cited in the partial admissibility decision of DATE concerning this application .

Paragraph CARDINAL of Article CARDINAL of the Code of Civil Procedure DATE ( as worded at the material time ) read as follows :

“ The following complaints shall be outside the courts ' jurisdiction :

- ... against actions or acts of an official of a body of inquiry , preliminary investigation , prosecution or court with regard to which a different procedure for lodging claims is established .... ”

By decision of ORG . CARDINAL of DATE this provision was declared unconstitutional in the part concerning lack of the courts ' jurisdiction to examine complaints “ against actions or acts of an official of a body of inquiry , preliminary investigation , prosecution ... ” , where the legislation provided only for extrajudicial settlement .


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in DATE and is now living in the district of GPE of PERSON ) , the area where he was born . At the material time he was living with CARDINAL close relatives in DATE ( gecekondu mahallesi ) of PERSON in GPE , a district of GPE , where he had moved after resigning from his post as a village guard in south - eastern GPE .

Since DATE a household - refuse tip had been in operation in PERSON , a slum area adjoining PERSON . On DATE ORG ( “ the city council ” ) had been granted use of the land , which belonged to ORG ( and therefore to the ORG ) , for a term of DATE . Situated on a slope overlooking a valley , the site spread out over a surface area of QUANTITY and from DATE onwards was used as a rubbish tip by the districts of GPE , ORG , ORG and PERSON under the authority and responsibility of the city council and , ultimately , the ministerial authorities .

When the rubbish tip started being used , the area was uninhabited and the closest built - up area was QUANTITY away . However , DATE passed , rudimentary dwellings were built without any authorisation in the area surrounding the rubbish tip , which eventually developed into the slums of LOC .

According to an official map covering the areas of PERSON and PERSON , produced by ORG , the applicant ’s house was built on the corner of FAC and FAC . That part of the settlement was adjacent to the municipal rubbish tip and DATE had been under the authority of a local mayor answerable to the district council .

The PERSON tip no longer exists . The local council had it covered with earth and installed air ducts . Furthermore , land - use plans are currently being prepared for the areas of PERSON and PERSON . The city council has planted trees on a large area of the former site of the tip and has had sports grounds laid .

Following the local elections of CARDINAL DATE , ORG sought to amend the urban development plan on a scale of ORG . However , the decision - making authorities refused to adopt the plan as it covered an area that ran very close to the municipal rubbish tip .

From DATE ORG began dumping heaps of earth and refuse on to the land surrounding the LOC slums in order to redevelop the site of the rubbish tip .

However , on DATE GPE and GPE , CARDINAL inhabitants of the LOC area , brought proceedings against the district council in ORG to establish title to land . They complained of damage to their plantations and sought to have the work halted . In support of their application , GPE and GPE produced documents showing that they had been liable for council tax and property tax since DATE under tax no . DATE . In DATE the authorities had asked them to fill in a standard form for the declaration of illegal buildings so that their title to the properties and land could be regularised ( see paragraph CARDINAL below ) . On DATE , at their request , the city council ’s water and mains authority had ordered a water meter to be installed in their house . Furthermore , copies of electricity bills show that GPE and GPE , as consumers , made regular payments for the power they had used on the basis of readings taken from QUANTITY installed for that purpose .

NORP In FAC , the district council based its defence on the fact that the land claimed by GPE and GPE was situated on the waste - collection site ; that residence there was contrary to health regulations ; and that their application for regularisation of their title conferred no rights on them .

In a judgment delivered on CARDINAL DATE ( case no . DATE ) , ORG found for GPE and GPE , holding that there had been interference with the exercise of their rights over the land in question .

However , ORG set the judgment aside on DATE . On CARDINAL DATE ORG followed ORG judgment and dismissed PERSON ’s and ORG ’s claims .

On DATE ORG applied to ORG of ORG for experts to be appointed to determine whether the rubbish tip complied with the relevant regulations , in particular the Regulations on Solid - Waste Control of DATE . The district council also applied for an assessment of the damage it had sustained , as evidence in support of an action for damages it was preparing to bring against the city council and the councils of the CARDINAL other districts that used the tip .

The application for an expert opinion was registered as case no . CARDINAL/CARDINAL , and on DATE a committee of experts was set up for that purpose , comprising a professor of environmental engineering , a land registry official and a forensic medical expert .

According to the experts’ report , drawn up on DATE , the rubbish tip in question did not conform to the technical requirements set forth , inter alia , in regulations DATE , CARDINAL and CARDINAL of the Regulations of DATE and , accordingly , presented a number of dangers liable to give rise to a major health risk for the inhabitants of the valley , particularly those living in the slum areas : no walls or fencing separated the tip from the dwellings QUANTITY away from the mountain of refuse , the tip was not equipped with collection , composting , recycling or combustion systems , and no drainage or drainage - water purification systems had been installed . The experts concluded that the LOC tip “ exposed humans , animals and the environment to all kinds of risks ” . In that connection the report , drawing attention first to the fact that some CARDINAL contagious diseases might spread , underlined the following :

“ ... In any waste - collection site gases such as methane , carbon dioxide and hydrogen sulphide form . These substances must be collected and ... burnt under supervision . However , the tip in question is not equipped with such a system . If methane is mixed with air in a particular proportion , it can explode . This installation contains no means of preventing an explosion of the methane produced as a result of the decomposition [ of the waste ] . May God preserve us , as the damage could be very substantial given the neighbouring dwellings . ... ”

On DATE the report was brought to the attention of the CARDINAL councils in question , and on DATE the governor was informed of it and asked to brief ORG and ORG ( “ the ORG ” ) .

Kadıköy and ORG and the city council applied on CARDINAL , DATE and DATE respectively to have the expert report set aside . In their notice of application the ORG lawyers simply stated that the report , which had been ordered and drawn up without their knowledge , contravened LAW . The CARDINAL lawyers reserved the right to file supplementary pleadings in support of their objections once they had obtained all the necessary information and documents from their authorities .

As none of the parties filed supplementary pleadings to that end , the proceedings were discontinued .

NORP However , ORG , which had been advised of the report on DATE , made a recommendation ( no . DATE ) urging the GPE ORG , the city council and ORG to remedy the problems identified in the present case :

“ ... The report prepared by the committee of experts indicates that the waste - collection site in question breaches LAW and LAW and consequently poses a health hazard to humans and animals . The measures provided for in regulations CARDINAL , DATE , DATE , DATE , DATE and CARDINAL of the Regulations on Solid - Waste Control must be implemented at the site of the tip ... I therefore ask for the necessary measures to be implemented ... and for our office to be informed of the outcome . ”

On DATE PERSON , the mayor of PERSON , applied to ORG for the implementation of temporary measures to prevent the city council and the neighbouring district councils from using the waste - collection site . He requested , in particular , that no further waste be dumped , that the tip be closed and that redress be provided in respect of the damage sustained by his district .

On DATE ORG representative opposed that request . Emphasising the city council ’s efforts to maintain the roads leading to the rubbish tip and to combat the spread of diseases , stray dogs and the emission of odours , the representative submitted , in particular , that a plan to redevelop the site of the tip had been put out to tender . As regards the request for the temporary closure of the tip , the representative asserted that ORG was acting in bad faith in that , since it had been set up in DATE , it had done nothing to decontaminate the site .

ORG had indeed issued a call for tenders for the development of new sites conforming to modern standards . The first planning contract was awarded to the NORP firm ORG , and on DATE and CARDINAL DATE new sites were designed for the NORP and NORP sides of GPE respectively . The project was due for completion in the course of DATE .

While those proceedings were still pending , ORG informed the mayor of GPE that from DATE the dumping of waste would no longer be authorised .

On DATE at TIME a methane explosion occurred at the site . Following a landslide caused by mounting pressure , the refuse erupted from the mountain of waste and engulfed some CARDINAL slum dwellings situated below it , including the CARDINAL belonging to the applicant . CARDINAL people died in the accident .

NORP Immediately after the accident CARDINAL members of the municipal police force sought to establish the facts . After taking evidence from the victims , including the applicant , who explained that he had built his house in DATE , they reported that CARDINAL huts had been destroyed .

On DATE the members of a crisis unit set up by ORG also went to the site and found that the landslide had indeed been caused by a methane explosion .

DATE , on DATE , ORG ( “ the Ministry ” ) ordered ORG ( “ the investigation department ” ) to examine the circumstances in which the disaster had occurred in order to determine whether proceedings should be instituted against the CARDINAL mayors , PERSON and PERSON .

While those administrative proceedings were under way , on DATE the ORG public prosecutor ( “ the public prosecutor ” ) went to the scene of the accident , accompanied by a committee of experts composed of CARDINAL civil - engineering professors from CARDINAL different universities . In the light of his preliminary observations , he instructed the committee to determine how liability for the accident should be apportioned among the public authorities and the victims .

On DATE the applicant lodged a complaint at the local police station . He stated : “ If it was the authorities who , through their negligence , caused my house to be buried and caused the death of my partners and children , I hereby lodge a criminal complaint against the authority or authorities concerned . ” The applicant ’s complaint was added to the investigation file ( no . CARDINAL ) , which the public prosecutor had already opened of his own motion .

On DATE the public prosecutor heard evidence from a number of witnesses and victims of the accident . On DATE the committee of experts submitted the report ordered by the public prosecutor . In its report the committee noted , firstly , that there was no development plan on a scale of CARDINAL for the region , that the urban development plan on a scale of ORG had not been approved and that most of the dwellings that had been engulfed had in fact been outside the area covered by the urban development plan , on the far edge of the site of the rubbish tip . The experts confirmed that the landslide – affecting land which had already been unstable – could be explained both by the mounting pressure of the gas inside the tip and by the explosion of the gas . Reiterating the public authorities’ obligations and duties under the relevant regulations , the experts concluded that liability for the accident should be apportioned as follows :

“ ( i ) CARDINAL/CARDINAL to ORG , for failing to act sufficiently early to prevent the technical problems which already existed when the tip was first created in DATE and have continued to increase since then , or to indicate to the district councils concerned an alternative waste - collection site , as it was obliged to do under PERSON no . CARDINAL ;

( ii ) CARDINAL/CARDINAL to ORG for implementing a development plan while omitting , contrary to ORG ( no . DATE ) , to provide for a QUANTITY - wide buffer zone to remain uninhabited , and for attracting illegal dwellings to the area and taking no steps to prevent them from being built , despite the experts’ report of CARDINAL DATE ;

( iii ) CARDINAL/CARDINAL to the slum inhabitants for putting the members of their families in danger by settling near a mountain of waste ;

( iv ) CARDINAL to ORG for failing to monitor the tip effectively in accordance with ORG ( no . DATE ) ;

( v ) CARDINAL to the government for encouraging the spread of this type of settlement by declaring an amnesty in relation to illegal dwellings on a number of occasions and granting property titles to the occupants . ”

On DATE the public prosecutor made an order declining jurisdiction ratione personae in respect of the administrative authorities that had been held liable , namely ORG , ORG , ORG and the heads of government from the period DATE . He accordingly referred the case to the GPE governor , considering that it came under LAW , the application of which was a matter for the administrative council of the province of GPE ( “ the administrative council ” ) . However , the public prosecutor stated in his order that the provisions applicable to the authorities in question were LAW CARDINAL § CARDINAL of LAW , which respectively concerned the offences of negligence in the performance of public duties and negligent homicide .

In so far as the case concerned the possible liability of the slum inhabitants – including the applicant – who were not only victims but had also been accused under LAW , the public prosecutor expressed the opinion that , as the case stood , it was not possible to disjoin their complaints , having regard to sections CARDINAL of the above - mentioned Act .

On DATE , when the investigation department had completed the preliminary inquiry , the public prosecutor ’s file was transmitted to the Ministry .

On DATE , having regard to the conclusions of its own inquiry , the investigation department sought authorisation from the Ministry to open a criminal investigation in respect of the CARDINAL mayors implicated in the case .

DATE after that request was made ORG made the following announcement to the press :

“ The sole waste - collection site on the NORP side stood in the middle of our district of LOC like an object of silent horror . It has broken its silence and caused death . We knew it and were expecting it . As a district council , we had been hammering at all possible doors for DATE to have this waste - collection site removed . We were met with indifference by ORG . It abandoned the decontamination works ... after laying CARDINAL spades of concrete at the inauguration . The ministries and the government were aware of the facts , but failed to take much notice . We had submitted the matter to the courts and they had found in our favour , but the judicial machinery could not be put into action . ... We must now face up to our responsibilities and will all be accountable for this to the inhabitants of GPE ... ”

The authorisation sought by the investigation department was granted on DATE and a chief inspector from ORG ( “ the chief inspector ” ) was accordingly put in charge of the case .

In the light of the investigation file compiled in the case , the chief inspector took down statements from Mr PERSON and PERSON . The latter stated , among other things , that in DATE his district council had begun decontamination works in the LOC , but that these had been suspended at the request of CARDINAL inhabitants of the area ( see paragraph CARDINAL above ) .

NORP The chief inspector finalised his report on DATE . It endorsed the conclusions reached by all the experts instructed hitherto and took account of all the evidence gathered by the public prosecutor . It also mentioned CARDINAL other scientific opinions sent to ORG in DATE , CARDINAL by ORG and the other by a professor of civil engineering at ORG . These CARDINAL opinions confirmed that the fatal landslide had been caused by the methane explosion . The report also indicated that on DATE the investigation department had requested the city council to inform it of the measures actually taken in the light of the expert report of CARDINAL DATE , and it reproduced Mr PERSON ’s reply :

“ Our city council has both taken the measures necessary to ensure that the old sites can be used in the least harmful way possible until DATE and completed all the preparations for the construction of CARDINAL of the biggest and most modern installations ... ever undertaken in our country . We are also installing a temporary waste - collection site satisfying the requisite conditions . Alongside that , renovation work is ongoing at former sites [ at the end of their life span ] . In short , over DATE our city council has been studying the problem of waste very seriously ... [ and ] currently the work is continuing ... ”

NORP The chief inspector concluded , lastly , that the death of CARDINAL people and the injuries to CARDINAL others ( figures available at the material time ) on DATE had been caused by the CARDINAL ORG failure to take appropriate steps in the performance of their duties and that they should be held to account for their negligence under LAW . In spite of , inter alia , the expert report and the recommendation of ORG , they had knowingly breached their respective duties : Mr PERSON because he had failed to comply with his obligation to order the destruction of the illegal huts situated around the rubbish tip , as he was empowered to do under section CARDINAL of PERSON no . CARDINAL , and PERSON because he had refused to comply with the above - mentioned recommendation , had failed to renovate the rubbish tip or order its closure , and had not complied with any of the provisions of LAW no . CARDINAL , which required him to order the destruction of the slum dwellings in question , if necessary by his own means . However , in his observations the chief inspector did not deal with the question whether LAW was applicable in the instant case .

In the meantime , ORG had asked the applicant to contact it , informing him that in an order ( no . DATE ) of CARDINAL DATE the city council had allocated him a flat in a subsidised housing complex in ORG ) . On DATE the applicant signed for possession of flat no . CARDINAL in building CCARDINAL of that complex . That transaction was made official on DATE in an order by the city council ( no . CARDINAL ) . On CARDINAL DATE the applicant signed a notarially recorded declaration in lieu of a contract stating that the flat in question had been “ sold ” to him for MONEY ( TRL ) , CARDINAL of which was payable immediately and the remainder in DATE instalments of GPE CARDINAL .

It appears likely that the initial payment was made to ORG , which forwarded it to the city council . The applicant paid the first DATE instalment on DATE and continued to make payments until DATE . In the meantime , prior to DATE , he had let his flat to a certain GPE for a DATE rent of GPE CARDINAL . It appears that from DATE the authorities had to avail themselves of enforcement proceedings in order to recover the outstanding instalments .

On DATE the applicant , who by that time had discharged his debt to the city council , gave a notarially recorded undertaking to sell his flat to a certain ORG in return for a down payment of MONEY .

In an order of DATE , the administrative council decided , by a majority , on the basis of the chief inspector ’s report , to institute proceedings against Mr PERSON and PERSON for breaching LAW .

PERSON and PERSON appealed against that decision to ORG , which dismissed their appeal on DATE . The case file was consequently sent back to the public prosecutor , who on DATE committed both mayors for trial in ORG of ORG .

The trial before the ORG began on CARDINAL DATE . At the hearing PERSON PERSON stated , among other things , that he could not be expected to have complied with duties which were not incumbent on him or be held solely responsible for a situation which had endured since DATE . Nor could he be blamed for not having renovated the PERSON tip when none of the CARDINAL sites in GPE had been renovated ; in that connection , relying on a number of measures which had nonetheless been taken by the city council , he argued that the tip could not have been fully redeveloped as long as waste continued to be dumped on it . Lastly , he stated : “ The elements of the offence of negligence in the performance of duties have not been made out because I did not act with the intention of showing myself to be negligent [ sic ] and because no causal link can be established [ between the incident and any negligence on his part ] . ”

PERSON submitted that the groups of dwellings which had been engulfed dated back to before his election on DATE and that since then he had never allowed slum areas to develop . Accusing ORG and ORG of indifference to the problems , PERSON asserted that responsibility for preventing the construction of illegal dwellings lay with the forestry officials and that , in any event , his district council lacked the necessary staff to destroy such dwellings .

In a judgment of DATE , the ORG found the CARDINAL mayors guilty as charged , considering their defence to be unfounded .

The judges based their conclusion , in particular , on the evidence that had already been obtained during the extensive criminal inquiries carried out DATE to DATE ( see paragraphs CARDINAL above ) . It also appears from the judgment of CARDINAL DATE that , in determining the share of liability incurred by each of the authorities in question , the judges unhesitatingly endorsed the findings of the expert report drawn up on this precise issue at the public prosecutor ’s request , which had been available since DATE ( see paragraph CARDINAL above ) .

The judges also observed :

“ ... although they had been informed of the [ experts’ ] report , the CARDINAL defendants took no proper preventive measures . Just as a person who shoots into a crowd should know that people will die and , accordingly , can not then claim to have acted without intending to kill , the defendants can not allege in the present case that they did not intend to neglect their duties . They do not bear the entire responsibility , however . ... They were negligent , as were others . In the instant case the main error consists in building dwellings beneath a refuse tip situated on a hillside and it is the inhabitants of these slum dwellings who are responsible . They should have had regard to the risk that the mountain of rubbish would CARDINAL day collapse on their heads and that they would suffer damage . They should not have built dwellings QUANTITY from the tip . They have paid for that recklessness with their lives ... ”

The ORG sentenced Mr PERSON and PERSON to the minimum term of imprisonment provided for in LAW , namely DATE , and to fines of GPE CARDINAL . Under section CARDINAL ) of PERSON no . CARDINAL , the ORG commuted the prison sentences to fines , so the penalties ultimately imposed were fines of ORG CARDINAL . Satisfied that the defendants would not reoffend , the ORG also decided to suspend enforcement of the penalties in accordance with section CARDINAL of the same PERSON .

Both mayors appealed on points of law . They submitted , in particular , that the ORG had gone beyond the scope of LAW in its assessment of the facts , and had treated the case as one of unintentional homicide within the meaning of LAW .

In a judgment of DATE , ORG upheld the ORG ’s judgment .

The applicant has apparently never been informed of those proceedings or given evidence to any of the administrative bodies of investigation or the criminal courts ; nor does any court decision appear to have been served on him .

On DATE the applicant applied to ORG , ORG and ORG and ORG , seeking compensation for both pecuniary and non - pecuniary damage . The applicant ’s claim was broken down as follows : TRL CARDINAL in damages for the loss of his dwelling and household goods ; ORG , FAC , FAC and ORG CARDINAL in compensation for the loss of financial support incurred by himself and his CARDINAL surviving sons , PERSON , GPE and ORG ; and TRL CARDINAL for himself and FAC for each of his CARDINAL sons in respect of the non - pecuniary damage resulting from the deaths of their close relatives .

In letters of DATE and DATE , the mayor of PERSON and the Minister for the Environment dismissed the applicant ’s claims . The other authorities did not reply .

The applicant then sued the CARDINAL authorities for damages in his own name and on behalf of his CARDINAL surviving children in ORG ( “ the court ” ) . He complained that their negligent omissions had resulted in the death of his relatives and the destruction of his house and household goods , and again sought the aforementioned amounts .

On DATE the applicant was granted legal aid .

NORP The court gave judgment on DATE . Basing its decision on the experts’ report of CARDINAL DATE ( see paragraph CARDINAL above ) , it found a direct causal link between the accident of DATE and the contributory negligence of the CARDINAL authorities concerned . Accordingly , it ordered them to pay the applicant and his children FAC for non - pecuniary damage and GPE CARDINAL for pecuniary damage ( at the material time those amounts were equivalent to CARDINAL and CARDINAL euros respectively ) .

The latter amount , determined on an equitable basis , was limited to the destruction of household goods , save the domestic electrical appliances , which the applicant was not supposed to own . On that point the court appears to have accepted the authorities’ argument that “ these dwellings had neither water nor electricity ” . The court dismissed the remainder of the claim , holding that the applicant could not maintain that he had been deprived of financial support since he had been partly responsible for the damage incurred and the victims had been young children or housewives who had not been in paid employment such as to contribute to the family ’s living expenses . The court also held that the applicant was not entitled to claim compensation for the destruction of his slum dwelling given that , following the accident , he had been allocated a subsidised flat and that , although ORG had not exercised its power to destroy the dwelling , there had been nothing to prevent it from doing so at any time .

The court decided , lastly , not to apply default interest to the sum awarded for non - pecuniary damage .

The parties appealed against that judgment to ORG , which dismissed their appeal in a judgment of CARDINAL DATE .

An application by ORG for rectification of the judgment was likewise unsuccessful , and the judgment accordingly became final and was served on the applicant on DATE .

The compensation awarded has still not been paid .

On DATE Law no . DATE came into force , providing for the suspension of the enforcement of judicial measures pending in respect of certain offences committed before DATE .

On DATE ORG informed the GPE public prosecutor ’s office that it had been impossible to conclude the criminal investigation pending in respect of the slum inhabitants , that the only decision concerning them had been the order of CARDINAL DATE declining jurisdiction and that the charge against them would become time - barred on DATE .

Consequently , on DATE the GPE public prosecutor decided to suspend the opening of criminal proceedings against the inhabitants , including the applicant , and DATE the criminal proceedings against them became time - barred .

The relevant provisions of LAW read as follows :

“ Any agent of the ORG who , in the performance of his public duties , ... acts negligently and delays or , for no valid reason , refuses to comply with the lawful orders ... of his superiors shall be liable to a term of imprisonment of DATE and to a fine of CARDINAL and MONEY .

In every ... case , if third parties have suffered any damage on account of the negligence or delay by the civil servant in question , the latter shall also be required to compensate for such damage . ”

“ Anyone who , through carelessness , negligence or inexperience in his profession or craft , or through non - compliance with laws , orders or instructions , causes the death of another shall be liable to a term of imprisonment of DATE and to a fine of CARDINAL .

If the act has caused the death of CARDINAL person or has resulted in the death of CARDINAL person and injuries to CARDINAL or more others ... the perpetrator shall be sentenced to a term of imprisonment of CARDINAL and to a heavy fine of a minimum of MONEY . ”

“ The court shall have full discretion to determine the principal sentence , which can vary between a minimum and maximum , taking account of factors such as the circumstances in which the offence was committed , the means used to commit it , the importance and seriousness of the offence , the time and place at which it was committed , the various special features of the offence , the seriousness of the damage caused and the risk [ incurred ] , the degree of [ criminal ] intent ... , the reasons and motives for the offence , the aim , the criminal record , the personal and social status of the perpetrator and his conduct following the act [ committed ] . Even where the minimum penalty is imposed , the reasons for the choice of sentence must be mentioned in the judgment . ”

“ If the court considers that , other than the statutory mitigating circumstances , there are other circumstances favourable to reducing the penalty [ imposed ] on the perpetrator , capital punishment shall be commuted to life imprisonment and life imprisonment to a term of imprisonment of DATE .

Other penalties shall be reduced by a maximum of CARDINAL . ”

Sections CARDINAL(CARDINAL ) and CARDINAL ) of LAW Act ( Law no . CARDINAL ) read as follows :

“ The court may , having regard to the defendant ’s personality and situation and to the circumstances in which the offence was committed , commute short custodial sentences , but not long - term imprisonment :

NORP to a heavy fine ... of CARDINAL NORP liras per day ;

“ Where a person who has never been sentenced ... to a penalty other than a fine is sentenced to ... a fine ... and/or [ up to ] DATE imprisonment , execution of the sentence may be suspended if the court is satisfied that [ the offender ] , having regard to his tendency to break the law , will not reoffend if his sentence is thus suspended ... ”

Under LAW , a public prosecutor who , in any manner whatsoever , is informed of a situation which gives rise to a suspicion that an offence has been committed must investigate the facts with a view to deciding whether or not criminal proceedings should be brought ( LAW ) . However , if the suspected offender is a civil servant and the offence was committed in the performance of his duties , the investigation of the case is governed by LAW of DATE , which restricts the public prosecutor ’s jurisdiction ratione personae with regard to that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect ’s status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute .

An appeal to ORG lies against a decision of the council . If a decision not to prosecute is taken , the case is automatically referred to that court .

NORP criminal law affords complainants the opportunity to intervene in criminal proceedings . LAW contains a provision enabling complainants and anyone who considers that they have sustained injury as a result of a criminal offence to apply to join as an “ intervening party ” proceedings that have already been instituted by the public prosecutor and , consequently , to act alongside the prosecution . After consulting the public prosecutor , the court is required to rule on the admissibility of the application to join the proceedings as an intervening party ( LAW ) .

If the application is allowed , the intervening party may , among other things , claim compensation for damage resulting from the offence as a direct victim . That possibility , which is similar to those offered by “ civilparty applications ” or “ civil actions ” in the legislation of numerous ORG member ORG , is nonetheless subject to certain precise rules . According to ORG case - law , for a decision to be given on the compensation to be awarded as a result of an offence , the injured person must not only apply to join the proceedings as an intervening party but must also explicitly assert his or her right to compensation . Under NORP law , such a claim is not deemed to be an integral part of an intervening - party application . The claim for compensation does not have to be made at the same time as the intervening - party application ; it can be made at a later stage , provided that no action for damages has already been brought in the civil or administrative courts . Furthermore , all claims for compensation within the meaning of LAW ( or LAW must be specific and substantiated since , in assessing such claims , the criminal courts are required to apply the relevant civil - law rules , including the prohibition on awarding an amount higher than the claim . Conviction of the defendant is necessary for a decision to be given on the intervening party ’s entitlement to compensation .

With regard to civil and administrative liability arising out of criminal offences , LAW ( Law no . CARDINAL ) provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within DATE of the alleged act . If this claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

The organisation of the administrative courts and the status of their judges are governed by ORG Act ( Law no . CARDINAL ) of DATE and ORG ( Law no . CARDINAL ) .

Under LAW , anyone who has suffered damage as a result of a tortious or criminal act may bring an action for damages for pecuniary loss ( Articles CARDINAL - CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal courts on the issue of the defendant ’s guilt ( Article CARDINAL ) .

However , under LAW of LAW ( Law no . CARDINAL ) , anyone who has sustained loss as a result of an act carried out in the performance of duties governed by public law may , in theory , only bring an action against the public authority by which the civil servant concerned is employed and not directly against the civil servant ( Article CARDINAL § CARDINAL of the LAW and Articles CARDINAL and CARDINAL of LAW ) . That is not , however , an absolute rule . Where an act is found to be tortious or criminal and , consequently , is no longer an “ administrative ” act or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim ’s right to bring an action against the authority on the basis of its joint liability as the official ’s employer ( LAW ) .

Article CARDINAL § CARDINAL of the DATE LAW provides :

“ The bodies of executive and legislative power and the authorities must comply with court decisions ; they can not in any circumstances modify court decisions or defer enforcement thereof . ”

LAW provides :

“ Decisions determining administrative - law actions concerning a specific amount shall be enforced ... in accordance with the provisions of the ordinary law . ”

Under section CARDINAL(CARDINAL ) of LAW ( Law no . DATE ) , ORG property and property designated as unseizable in the legislation governing it can not be seized . Section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL of DATE ) provides that municipal property can be seized only if it is not set aside for public use .

According to NORP legal theory in this field , it follows from the above provisions that if the authorities do not themselves comply with a final and enforceable court decision ordering compensation , the interested party can bring enforcement proceedings under the ordinary law . In that event the appropriate institution is empowered to impose on the authorities the measures provided for in PERSON no . CARDINAL , although seizure remains exceptional .

The relevant provisions of the LAW regarding the environment and housing read as follows :

“ Everyone has the right to live in a healthy , balanced environment .

It shall be the duty of the ORG and the citizens to improve and preserve the environment and to prevent environmental pollution .

To ensure healthy living conditions for all in physical and psychological terms , ... the ORG shall establish health institutions and shall regulate the services they provide .

The ORG shall perform this task by utilising and supervising health and social - welfare institutions in both the public and private sectors . ... ”

“ The ORG shall take appropriate measures to satisfy housing needs by means of a plan that takes into account the characteristics of cities and environmental conditions ; it shall also support community housing schemes . ”

“ The ORG shall perform the tasks assigned to it by LAW in the social and economic fields , within the limits of its financial resources and ensuring the maintenance of economic stability . ”

The information and documents in the ORG ’s possession show that , since DATE , when inhabitants of underprivileged areas started migrating in their masses to the richer regions , GPE has been confronted with the problem of slums , consisting in most cases of permanent structures to which further floors were soon added . It would appear that currently CARDINAL of the population live in such dwellings . Researchers who have looked into the problem maintain that these built - up areas have not sprung up merely as a result of deficiencies in urban planning or shortcomings on the part of the municipal police . They point to the existence of CARDINAL amnesty laws which have been passed over DATE in order to regularise the slum areas and , they believe , satisfy potential voters living in these rudimentary dwellings .

The following are the main provisions in NORP law regarding the prevention of slum development .

Section CARDINAL(CARDINAL)(CARDINAL ) of LAW ( Law no . CARDINAL of DATE ) requires local councils to prevent and prohibit any buildings or installations that breach the relevant legislation and regulations in that they have been erected without permission or constitute a threat to public health , order and tranquillity .

Section CARDINAL of Law no . CARDINAL of DATE provides that , after the PERSON ’s entry into force , any illegal building , whether it is in the process of being built or is already inhabited , must be immediately destroyed without any prior decision being necessary . Implementation of these measures is the responsibility of the administrative authorities , which may have recourse to the security forces and other means available to the ORG . With regard to dwellings built before the PERSON came into force , section QUANTITY provides that , subject to certain conditions , slum inhabitants may purchase the land they occupy and take out low - interest loans in order to finance the construction of buildings which conform to the regulations and urban development plans . The built - up areas to which the provisions of section CARDINAL apply are designated “ slum rehabilitation and clearance zones ” and are managed in accordance with a plan of action .

Under PERSON no . DATE of CARDINAL DATE , amending PERSON no . CARDINAL , illegal constructions built before DATE were also considered to be covered by the above - mentioned section CARDINAL . Law no . CARDINAL of DATE , on buildings not conforming to the legislation on slums and town planning , also provided for measures to be taken for the conservation , regularisation , rehabilitation and destruction of illegal buildings erected prior to that date .

As regards public property , section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL ) of CARDINAL DATE provides :

“ Common property , ... woodland , LOC at the ORG ’s disposal that are set aside for public use , and immovable property reverting to the ORG in accordance with the legislation governing it , may not be acquired by adverse possession , regardless of whether such property is entered in the land register . ”

NORP However , PERSON no . CARDINAL of DATE which was designed to strengthen the NORP economy – as amended by PERSON no . CARDINAL of DATE , allows immovable property belonging to the ORG to be sold to third parties , subject to certain conditions . Section CARDINAL ) and ( CARDINAL ) of the PERSON provide that ORG - owned land containing buildings erected DATE is to be transferred free of charge to the municipality in which it is situated , for sale on preferential terms to the owners of the buildings or to their heirs . Sales may be made on payment of an advance corresponding to CARDINAL of the market value of the land , and DATE instalments may be paid over DATE .

Local authorities are required to draw up land - use plans and implementation plans concerning property transferred to them pursuant to the above - mentioned PERSON .

Section CARDINAL(CARDINAL)(CARDINAL ) of the above - mentioned PERSON no . CARDINAL provides that district councils are responsible for collecting household waste at regular intervals by appropriate means and destroying it . By DATE , paragraph ( j ) , of GPE ( Law no . CARDINAL ) and regulation CARDINAL of ORG implementing the LAW , city councils have a duty to designate sites for the storage of household and industrial waste and to install or have installed systems for treating , recycling and destroying the waste .

By regulations CARDINAL and CARDINAL of the Regulations on Solid - Waste Control , published in ORG of DATE , district councils are responsible for organising the use of rubbish tips and taking all necessary measures to ensure that their operation does not damage the environment and the health of human beings and animals . Regulation CARDINAL empowers city councils to issue permits for the operation of waste - collection sites within the territory of the district councils under their authority .

The ORG provide that no rubbish tips may be created within QUANTITY of housing and that , once a site is in operation , no housing may be authorised around the edge of the site ( regulation CARDINAL ) and the site must be fenced off ( regulation CARDINAL ) . As regards biogas control , regulation CARDINAL provides :

“ The mixtures of nitrogen , ammonia , hydrogen sulphide , carbon dioxide and , in particular , methane that result from the microbiological decomposition of the organic matter present in the mass of waste ... and may cause explosions and poisoning shall be collected by means of a vertical and horizontal drainage system and released into the atmosphere in a controlled manner or used to produce energy . ”

The general information the ORG has been able to procure as to the risk of a methane explosion at such sites may be summarised as follows . Methane ( CHCARDINAL ) and carbon dioxide ( COCARDINAL ) are the CARDINAL main products of methanogenesis , which is the final and longest stage of anaerobic fermentation ( that is , a process taking place in the absence of air ) . These substances are generated , inter alia , by the biological and chemical decomposition of waste . The risks of explosion and fire are mainly due to the large proportion of methane in the biogas . The risk of an explosion occurs when the level of CHCARDINAL in the air is PERCENT . If the level rises PERCENT , methane will catch fire but will not explode .

It appears from various circulars and regulations in force in ORG member GPE regarding household - waste management and the operation of municipal rubbish tips that the main priorities of the authorities and operators concerned include : isolating waste - disposal sites by ensuring that they are not located within a minimum distance of any housing ; preventing the risk of landslides by creating stable embankments and dykes and using compaction techniques ; and eliminating the risk of fire or biogas explosions .

As regards the last - mentioned priority , the recommended method for decontaminating sites appears to entail setting up a drainage system for fermentation gases whereby gases are pumped out and treated using a biological filter as the site continues to operate . A gas - extraction system of this kind , provision for which is also made in the Regulations of DATE in force in GPE , generally consists of perforated vertical ducts drilled into the waste or horizontal drains buried in the mass of waste , a ventilation system , a biological filter and a network of suction pipes .

With regard to the various texts adopted by ORG in the field of the environment and the industrial activities of the public authorities , mention should be made , among the work of ORG , of LAW ( DATE ) on problems connected with the disposal of urban and industrial waste , Resolution CARDINAL ( DATE ) on the consequences of the GPE disaster , and LAW ( DATE ) on the management , treatment , recycling and marketing of waste , and , among the work of ORG , Recommendation no . R ( CARDINAL ) CARDINAL on the distribution of powers and responsibilities between central authorities and local and regional authorities with regard to the environment .

Mention should also be made of ORG resulting from Activities Dangerous to the Environment ( ETS no . CARDINAL – GPE , DATE ) and ORG no . CARDINAL GPE , CARDINAL DATE ) , which to date have been signed by PERCENT respectively .

It can be seen from these documents that primary responsibility for the treatment of household waste rests with local authorities , which the governments are obliged to provide with financial and technical assistance . The operation by the public authorities of a site for the permanent deposit of waste is described as a “ dangerous activity ” , and “ loss of life ” resulting from the deposit of waste at such a site is considered to be “ damage ” incurring the liability of the public authorities ( see , inter alia , LAW , LAW ( c)-(d ) and CARDINAL ( a)-(b ) ) .

In that connection , the Strasbourg Convention calls on the Parties to adopt such measures “ as may be necessary to establish as criminal offences ” acts involving the “ disposal , treatment , storage ... of hazardous waste which causes or is likely to cause death or serious injury to any person ... ” , and provides that such offences may also be committed “ with negligence ” ( Articles DATE ) . Although this instrument has not yet come into force , it is very much in keeping with the current trend towards harsher penalties for damage to the environment , an issue inextricably linked with the endangering of human life ( see , for example , ORG no . CARDINAL of CARDINAL DATE and ORG proposal of DATE , amended on DATE , for a directive on the protection of the environment through criminal law ) .

Article CARDINAL of ORG also requires the adoption of such measures as may be necessary to make these offences punishable by criminal sanctions which take into account the serious nature of the offences ; these must include imprisonment of the perpetrators .

Where such dangerous activities are concerned , public access to clear and full information is viewed as a basic human right ; for example , the above - mentioned LAW ( DATE ) makes clear that this right must not be taken to be limited to the risks associated with the use of nuclear energy in the civil sector .


CASE OF SCHÖNENBERGER AND DURMAZ v. SWITZERLAND

Violation of Art. 8;No separate issue under Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The first applicant , PERSON , who is a NORP citizen born in DATE , practises as a PERSON ( lawyer ) in GPE .

The second applicant , PERSON , who is a NORP national born in DATE , lives at ORG , in GPE . He is a taxi - driver .

ORG On DATE , acting on a statement by CARDINAL O , the district prosecutor ( GPE ) for PERSON ( GPE of GPE ) issued a warrant for Mr. PERSON ’s arrest , in connection with suspected offences under federal legislation relating to the misuse of drugs .

The applicant was arrested on DATE by the GPE police and taken to GPE DATE , where he was questioned for the first time by officials from the prosecutor ’s office . He was further questioned and also confronted with other suspects on CARDINAL and DATE , and on each occasion he cooperated by answering all the questions put to him .

ORG Mr. PERSON ’s wife , who had been informed of the arrest on DATE , spoke on the telephone to the ORG district prosecutor on CARDINAL and DATE . On these occasions she asked him whether her husband had a lawyer . He replied that he had not but added that he would take care of it . She also wrote to her husband on DATE and DATE . In the second letter , which reached him on DATE , she expressed the hope that the " lawyer " - whose name she did not mention - " would look after [ him ] " . On DATE , she asked Mr. PERSON to take charge of Mr. PERSON ’s defence .

The first applicant immediately called the district prosecutor to advise him and to say that he would be sending authorisation forms and a letter . Also , on DATE , he sent a letter and enclosure to the district prosecutor ’s office , as required by the relevant legislation , requesting the district prosecutor to forward them to the addressee .

The enclosure comprised a copy of the covering letter to the district prosecutor , CARDINAL forms giving authority to act and a letter to Mr. PERSON , which read as follows ( translation from the NORP ) :

" Sir ,

I am instructed by your wife to undertake your defence . You will find enclosed CARDINAL forms giving me authority to act for you . If you wish to authorise me to represent you , please send CARDINAL of the forms to the district prosecutor and return the other one to me ( duly signed ) .

It is my duty to point out to you that you are entitled to refuse to make any statement . Anything you say may be used in evidence against you . If you choose to remain silent , the district prosecutor will have to prove your guilt by other means ( witnesses , etc . ) . He will usually then try to influence you by arguing that in that case you will remain in custody on remand until such time as he has questioned witnesses , other suspects , etc . If this does not worry you ( i.e. a possible prolongation of your detention on remand ) , it will be to your advantage to exercise your right not to make any statement .

Once I have received your authority to act , I shall apply for permission to visit you and will come and see you . At all events , be patient : you will have to be released at some stage !

Yours faithfully ... "

ORG The district prosecutor probably received the letter and enclosure for Mr. PERSON on DATE , but kept them from him without telling him that he had received them . On DATE , he asked Mr. PERSON to choose a lawyer . Mr. PERSON , being unable to pay for one , applied for the only GPE lawyer he knew , Mr. PERSON , to be assigned officially to him ; the presiding judge of ORG duly appointed Mr. PERSON on DATE .

ORG In an order made on DATE , the prosecutor ’s office decided not to communicate to Mr. PERSON the letter and forms which were intended for him . It did so on the following ground ( translation from the NORP ) :

" As long as PERSON is not the suspect ’s authorised legal representative , the general provisions of the Prisons Ordinance [ see paragraph CARDINAL below ] apply to him . Section CARDINAL(CARDINAL ) prohibits the forwarding of letters concerning the preparation of a case for trial . In the present letter , PERSON has recommended to the suspect a particular course of conduct for the preparation of the case . In virtue of the aforementioned provision , his letter will therefore not be forwarded . "

The prosecutor ’s office returned to Mr. PERSON the said documents together with the copy of the covering letter .

ORG On various dates DATE , Mr. PERSON was again questioned and confronted with other suspects . He also received visits from Mr. PERSON . On DATE , Mr. PERSON had asked the presiding judge of ORG to offer Mr. PERSON the possibility of choosing between Mr. PERSON and himself as his defence lawyer . The CARDINAL lawyers had a conversation on DATE , as a result of which they agreed that Mr. PERSON would continue to assist Mr. PERSON and that Mr. PERSON would challenge the order made on DATE ( see paragraphs CARDINAL to CARDINAL below ) .

ORG Mr. PERSON was freed on DATE . On CARDINAL DATE the GPE district prosecutor ordered that he had no case to answer as it could not be excluded beyond all possible doubt that someone else had been mistaken for him . In respect of his detention on remand , the prosecutor awarded him MONEY ( CHF ) which the ORG increased to MONEY on DATE .

ORG The applicants lodged CARDINAL appeals against the order of CARDINAL March CARDINAL ( see paragraph CARDINAL above ) ; the first of these was rejected by ORG of the GPE of GPE on DATE , and the second was dismissed by the presiding judge of ORG on DATE .

ORG On DATE , they lodged a public - law appeal with ORG against the decision of ORG ; they alleged an infringement of the federal LAW and of the LAW . During the proceedings they stated that they did not propose to challenge the dismissal of their second appeal .

ORG In a judgment on DATE , which was notified on DATE , ORG allowed the appeal in part .

It noted in the first place that Mr. PERSON could not rely on the privileges conferred on prisoners’ defence lawyers under LAW . ORG added that the prosecutor ’s office had not infringed either the LAW or the LAW by intercepting Mr. PERSON ’s letter to Mr. PERSON , since it related to pending criminal proceedings and gave the addressee advice on the behaviour to adopt during the investigation .

On the other hand , ORG held that the decision to withhold the CARDINAL authorisation forms and the copy of the covering letter to the prosecutor ’s office was contrary to the LAW : since these documents did not relate to pending criminal proceedings , section CARDINAL(CARDINAL ) could not be relied on in respect of them . ORG also pointed out that a person who has been charged with a criminal offence is at all times entitled to ask for a lawyer and to receive a form for giving authority to act . It concluded that the disputed measure was a disproportionate restriction on freedom of correspondence and on the rights of the defence . It consequently set aside ORG decision and awarded the applicants costs of QUANTITY .

ORG According to the general principles of criminal procedure , a suspect is under no obligation to make any statements . ORG has held that , LAW , he has the right to remain silent and that he can not normally be held to have culpably obstructed the proceedings on the sole ground that he has refused to reply to questions , unless there has been some abuse of the right ( Judgments of ORG , vol . CARDINAL ( DATE ) , part I a ) , p. CARDINAL , and vol . CARDINAL ( DATE ) , part I a ) , p. CARDINAL ) .

ORG In the GPE of GPE , the monitoring of correspondence with persons in custody is governed by LAW DATE ( ORG Zürich vom CARDINAL . DATE über die Bezirksgefängnisse ) , which was made under LAW of the law of DATE by which LAW was enacted .

Section CARDINAL(CARDINAL ) reads as follows ( translation from NORP ) :

" No correspondence with co - prisoners and former co - prisoners ( except for close relatives ) shall be allowed . Letters jeopardising the purpose of detention or prison security shall not be forwarded ; letters relating to pending criminal proceedings shall be forwarded only if they form part of correspondence with a defence lawyer . A prisoner shall be informed if a letter is not forwarded . "

ORG In DATE , ORG considered the constitutionality of various provisions of GPE of DATE . As regards the restrictions on freedom of correspondence , it noted the following ( translation from NORP ) :

" Section CARDINAL lays down in particular that letters ‘ whose content is improper’ or which relate to pending criminal proceedings shall not be forwarded . Correspondence with co - prisoners or former co - prisoners is likewise prohibited . On the other hand , communications addressed to supervising authorities or to a defence lawyer are not subject to any restrictions .

The applicant alleges that prohibiting communications ‘ whose content is improper’ goes much too far and leaves too great a discretion to the officials responsible for monitoring correspondence . In his submission , the prohibition should apply only to communications whose content is ‘ illicit’ . This change of wording would make no appreciable difference , since the second concept is likewise very imprecise in the present context . The applicant does not dispute the need to prohibit the dispatch of letters with a particular type of content , and that is the very purpose of the monitoring . It is clear , therefore , that any correspondence which might assist in the preparation of escape plans or the commission of fresh criminal offences , or which could have an impermissible influence on criminal proceedings ( danger of collusion ) must be prohibited . Even assuming that it is in principle desirable to maintain contacts with the outside world , these contacts must not compromise the purpose of detention . Moreover , the supervising authorities must also be given the right to hold back any communications which might jeopardise order in the prison . Conversely , the authorities can not refuse to forward communications which do not jeopardise either the purpose of detention or order in the prison and which are permissible in their quantity ( s. CARDINAL ) . It is accordingly of little consequence whether or not the supervising authority approves the content of such communications ( cf . , on the legal situation in GPE , ORG decision of DATE , vol . CARDINAL , no . CARDINAL ) . It is not possible to make an accurate general statement of where the line should be drawn , since it depends on the particular circumstances of each case . The general principle laid down in the disputed ordinance accordingly can not be criticised as being unconstitutional , at least not if regard is had to the fact that correspondence with the supervising authorities and defence lawyers is not subject to any marked degree of control . " ( Judgments of ORG , vol . CARDINAL , part I a ) , pp . CARDINAL )