The first applicant , PERSON , is a nation wide DATE newspaper . The second applicant , PERSON , born in DATE , is a journalist employed by the newspaper . The applicants are represented by Mr PERSON Ryssdal and PERSON , lawyers practising in GPE and GPE respectively .

The facts of the case , as described mainly in the national judgments , may be summarised as follows .

Since DATE PERSON has run PERSON A / S , a clinic of cosmetic surgery ( hereinafter referred to as “ the ORG ” ) in Bærum ( near GPE ) , a limited liability company providing mostly liposuction and breast surgery services . For a long while and including the relevant period , Dr PERSON was the ORG ’s only permanent doctor . From the beginning he was the ORG ’s DATE manager and the chairperson of the company ’s governing board . PERSON and his wife each owned PERCENT of the shares until DATE , when his brother acquired PERCENT of the shares . PERSON owned PERCENT and his wife PERCENT of the shares .

PERSON ( born in DATE ) called the ORG to fix an appointment indicating that the services she desired related to problems with fat and her bust . On DATE Ms J. visited the ORG for a consultation with Dr Dillerud . She was interested in his assistance as she wished to become a model . She subsequently made an appointment for liposuction to be performed on her thighs and hips . Before she could be attended to by Dr Dillerud , PERSON was requested to fill in a medical questionnaire to certify her known medical status . She marked various rubrics indicating that , except for bronchitis and allergy , she had not previously suffered from any illness . She omitted to mention other diseases and positively stated that there were no present or previous illnesses to be noted . At the time she had made a number of suicide attempts , was being treated for general psychiatric problems and eating disorders and had from the age of DATE been unable to study or work . She indicated that she had regularly used contraceptive pills but no other medicines , thereby actively concealing the fact that she was using ORG ( a drug specifically aimed at persons suffering from bulimia ) , anti - depressive drugs and sleeping pills . She gave an affirmative answer to the question whether she had previously been operated on , stating that she had undergone liposuction in DATE , but concealed the fact that she had also undergone CARDINAL other operations of a character which indicated eating disorders . The declaration was dated but not signed . At the time PERSON was being treated for psychiatric problems , including bulimia , and for other complaints by CARDINAL doctors and CARDINAL psychologist , but she did not inform PERSON about this or the fact that she had a long history of suicide attempts .

On DATE Ms J. again saw PERSON and got further information from him about the operation . She told her doctors and friends about her consultations with PERSON and the planned operation ; they advised her against it . None of these doctors however took any further steps to stop the operation . The doctors included Chief Dr PERSON of the paediatric department of ORG ) , the country ’s leading expert on eating disorders . On CARDINAL DATE PERSON called the ORG and cancelled the operation . At the same time she contacted ORG enquiring as to whether the newspaper had anything on Dr Dillerud ; she said she was angry with him because he had failed to understand that she suffered from bulimia . The applicant journalist listened to PERSON story and proposed to prepare an article , to which the latter agreed provided that the article was not published before she had got back the money which she had paid to the ORG in anticipation of the operation . On DATE the journalist interviewed Dr Trygstad about PERSON ’s case but without disclosing the identity of PERSON .

On DATE , the second applicant telephoned PERSON and informed him about the paper ’s wish to publish an article on PERSON consultation at the FAC . PERSON pointed out that as long as PERSON had not released him from his duty of confidentiality , he considered himself barred from commenting on the actual consultation but he commented in general terms and denied that he had been aware that the patient had bulimia . It was then agreed that , subject to PERSON releasing Dr. PERSON from his duty of confidentiality , he would be able to comment more specifically . Subsequently , PERSON agreed and signed a declaration to that effect . On DATE ( DATE before GPE ) PERSON received the declaration and tried to contact the second applicant , but in vain , as the journalist had gone on holiday and the report had already been , or was being , printed .

On DATE , CARDINAL DATE ORG published , as the issue ’s main item , a report prepared by the second applicant containing criticism made by PERSON Dr Dillerud The second applicant had based her report on information provided by PERSON and comments obtained from Chief PERSON NORP of ORG ) and Mr PERSON , Secretary General of ORG .

The front - page was primarily devoted to the story . It carried the title “ BULIMIA VICTIM TO BE LIPOSUCTIONED ” in large bold capital letters on CARDINAL lines . To the right of the title was the photograph of PERSON wearing trousers and a sleeveless shirt , standing with her back turned towards the camera . Under the heading there appeared in CARDINAL bold prints :

“ For DATE she has fought anorexia and bulimia . Nonetheless , according to the DATE , Dr PERSON in Bærum had no reservations about performing liposuction on her . Good friends and Chief Dr PERSON of ORG managed to dissuade her from undergoing the operation , which was to cost ORG CARDINAL,CARDINAL . ”

On pages CARDINAL and CARDINAL of the paper there was CARDINAL main article and CARDINAL smaller articles and a large photograph , extending over large parts of both pages , of PERSON head as she covered her face with her hands . On the upper right part of the photograph there appeared the following quotation in white bold letters :

“ He also offered to lift my eyebrows , to give my nose a more classical finishing touch , to remove a wrinkle on my forehead and CARDINAL laughter dimples around my mouth . PERSON further considered that my breasts were awry and should be straightened . ”

Under the photograph a caption stated :

“ SICKENING OFFER : The DATE woman suffers from bulimia and is very thin . Nonetheless Dr PERSON offered to perform liposuction on her , in addition to a number of other beauty operations in order to improve her face . – As she did not say that she was ill , it was impossible for me to know that she was , PERSON comments . ”

The report read :

“ She is young and beautiful DATE and very slim . For DATE she has been fighting against anorexia and bulimia , and she still has a long way to go before she can be considered in good health . Nevertheless , according to the DATE , the controversial Dr PERSON in Bærum had no reservations about performing liposuction on her – for a remuneration of ORG CARDINAL .

– He also offered to lift my eyebrows , to give my nose a more classical finishing touch , to remove a wrinkle on my forehead and CARDINAL laughter dimples around my mouth . PERSON further considered that my breasts were awry and should be straightened and that my nipples needed adjustment , said the DATE , a previous finalist in the beauty contest ‘ the face of the PERSON .

Warning

Good friends and the doctor treating her for bulimia at ORG , Chief Doctor PERSON , managed to persuade the DATE that she nevertheless ought not to have the operation done .

– I now wish to warn other people who are in the same situation . I am aware of how desperate persons suffering from bulimia and anorexia might be and how far we might go in order to carry out alterations to our appearance . I thought that doctors had certain ethical norms to comply with , but it appears that some are prepared to do anything to earn money , says the young woman .

Chief Doctor PERSON at FAC of ORG has a long and particularly extensive experience in treating young people suffering from eating disorders . He considers that the offers which his patient says she received from PERSON are sheer madness .

– An experienced plastic surgeon ought to have been in contact with a sufficient number of people with behavioural problems to be able to see that this patient was ill . CARDINAL may wonder whether money is all they think about , says PERSON .

Many people have regrets

He also considers that it would have been very natural for this plastic surgeon to ask the patient whether she was ill or had previously been hospitalised . – After all , says PERSON GPE , it is the eating disorder , not the symptoms , that has to be treated .

A number of his bulimia patients have sought treatment from plastic surgeons .

– Many of them have regretted it later . Some have even sustained nerve damage ( paralysis ) as a result of undergoing liposuction . In Dr GPE ’s opinion , many tragedies could have been avoided if the surgeon had first tried to establish whether the patient was ill .

The plastic surgeon Dr PERSON affirms that all patients arriving at PERSON must sign a declaration , almost before they are allowed to enter . This includes information inter alia about previous and present illnesses .

– The security is in general better here than in public hospitals . But if the patient hides information about her illness , there is little that I can do , says PERSON But could you not see that this woman was ill ?

– Because of my duty of confidentiality I am not able to comment on any individual patient . But , generally , if I suspect that a patient suffers from bulimia , she will never be operated on by me , assures the plastic surgeon and adds .

– However , I know of several surgeons who would operate without taking into account the patient ’s condition in the way we do here . Anyhow , CARDINAL patient in CARDINAL who comes to us is refused because he or she is not fit for such an operation . For example , the person may be too overweight or too underweight to make it justifiable to carry out the desired intervention .

Not a judge

The DATE states that it was initially her wish to have her bust lifted that made her solicit the services of PERSON and PERSON .

– I came to his office and was told to undress . While standing there wearing only my knickers I asked ‘ What can you do for GPE . I obviously referred to my breasts and I was quite taken aback when he replied that he would propose alterations to my look from my forehead down to my knees , said the DATE .

I would never have answered a question such as ‘ What can you do for GPE . The patient must know herself what she wants ; it is not my job to be a judge of appearances , PERSON maintains , rejecting her allegation .

According to the DATE bulimic , who now is QUANTITY tall and weighs QUANTITY it was PERSON who suggested that she undergo liposuction on her stomach , her thighs and hips . After the consultation , which lasted TIME , they agreed on the liposuction and to consider the other kinds of intervention later .

Made savings

– Since I am a student he asked me how I was going to pay , but I assured him that I had saved up enough money , says the young woman .

She lost her deposit of ORG CARDINAL,CARDINAL as she cancelled the operation DATE before it was to take place .

– It makes me a bit bitter to think , she says ironically , that it cost me ORG CARDINAL,CARDINAL to learn that I looked even worse than I thought .

Another plastic surgeon in GPE surgically inserted a so - called slimming flask into her . At that time she weighed QUANTITY less than DATE .

A poor self - image and dissatisfaction CARDINAL ’s body is a distinctive feature of persons suffering from eating disorders .

– However slim a bulimic might be , she would always consider herself as overweight . As long as they are ill they will NEVER be satisfied with their own body or their appearance , says PERSON at ORG . ”

The first of the CARDINAL short articles at the top of p. CARDINAL of the paper was an interview with Mr PERSON :

“ Should not occur

– I hope this is a rare error and that an apology has been made . It should obviously not occur , says Secretary General of ORG PERSON commenting on the bulimia patient who was offered liposuction . Without wishing to comment on this case in particular , he emphasises that the operating surgeon ’s responsibility in ascertaining who should not be operated on is just as great as that of establishing who should be operated on .

– Probably the greatest art of medical science is to know what to do and what not to do , says PERSON .

He does not believe that cosmetic surgery performed by plastic surgeons on patients suffering from , for instance , anorexia and bulimia constitutes a great problem .

We should be cautious not to minimise this problem , but I do not believe it occurs to a great extent . Our margins of error have to be extremely small and I also believe that they are , says the Secretary General .

PERSON adds that plastic surgeons would normally be particularly aware that patients who seek their services might have other reasons than purely physical ones behind their wishes to be operated on .

– Since the adoption in DATE of the new rules on recognition of specialist competence for plastic surgery ORG has received very few complaints about plastic surgery , says PERSON . ”

The other short article was entitled “ Controversial Doctor ” and read :

“ PERSON has had to bear criticism also for his previous work within the practice . In DATE ORG warned its members against taking part in a world congress on liposuction which PERSON had organised in GPE . He has also attracted several law suits from patients who claim that they have been in part disabled and ruined after treatment by the PERSON doctor .

For DATE PERSON ran his private clinic on the island GPE outside GPE , without having qualifications as a generalist surgeon or as a plastic surgeon . When new rules for plastic surgery were introduced in DATE , PERSON obtained a dispensation for DATE , in order to enable him to acquire the requisite qualifications .

ORG was of the view that PERSON did not present sufficient documentation on his qualifications and refused to recognise him as a generalist surgeon .

Not until DATE did PERSON obtain special recognition as a general surgeon . Only then was he able lawfully to run his practice at PERSON . ”

The article was accompanied by a photograph of PERSON with the following caption :

“ A ORG OF CRITICISM : PERSON has attracted several legal actions taken by his patients . ”

On DATE PERSON and the ORG instituted defamation proceedings against the applicants , requesting compensation for pecuniary and non - pecuniary damage and annulment ( mortifikasjon ) with respect to the following CARDINAL statements :

Item CARDINAL . The text on the front page :

“ For DATE she has fought anorexia and bulimia . Nonetheless , according to the DATE , Dr PERSON in Bærum had no reservations about performing liposuction on her . Good friends and Chief Dr PERSON of ORG managed to dissuade her from undergoing the operation , which was to cost ORG CARDINAL . ”

Item CARDINAL . “ For DATE she has been fighting against anorexia and bulimia , and she still has a long way to go before she can be considered to be in good health . Nevertheless , according to the DATE , the controversial Dr PERSON in Bærum had no reservations about performing liposuction on her – for a remuneration of NOK CARDINAL . ”

Item CARDINAL . “ I thought that doctors had certain ethical norms to comply with , but it appears that some are prepared to do whatever to earn money , says the young woman . ”

Item CARDINAL . “ SICKENING OFFER : The DATE woman suffers from bulimia and is very thin . Nonetheless Dr PERSON offered to perform liposuction on her , in addition to a number of other beauty operations in order to improve her face . ”

The plaintiffs subsequently withdrew their request for annulment of the CARDINAL statements .

By a judgment of CARDINAL DATE ORG ordered the applicants jointly and severally to pay PERSON CARDINAL in respect of pecuniary damage . The DATE earnings of the ORG was reduced by some ORG CARDINAL immediately after the reportage and it took DATE to recover these losses . As regards non - pecuniary damage , the newspaper and the journalist were ordered jointly and severally to pay PERSON CARDINAL,CARDINAL and the newspaper alone was ordered to pay an additional ORG CARDINAL,CARDINAL . With respect to the plaintiffs’ costs , the applicants jointly and severally were ordered to pay ORG MONEY and , the first applicant , ORG CARDINAL .

ORG noted , inter alia , that bulimia was an illness which was hard to detect ; the patient would normally do anything that he or she could to conceal the illness . PERSON withholding of certain information confirmed this . ORG also observed that Verdens Gang had in a CARDINAL - sided fashion relied on statements made by a patient who , the paper was aware , suffered from psychological problems , bulimia being an illness of a primarily psychological nature . The paper had deliberately and negligently omitted to make the further inquiries required by the nature of the matter at hand . The journalist had not awaited PERSON comments after he was released from his duty of confidentiality . This omission had been the basis for a sensationalist coverage for which there was no factual support . The brief article entitled “ Controversial Doctor ” and the caption stating that Dr Dillerud had been the subject of several legal actions taken by former patients , were also found to be factually incorrect and biased . The advice to boycott the world conference had been related to a general dispute between plastic and cosmetic surgeons and entailed no professional criticism of Dr Dillerud . As regards CARDINAL actual lawsuits , CARDINAL had been dropped and CARDINAL settled out of court .

The applicants appealed against ORG judgment to ORG ( lagmannsrett ) , which held a hearing during the period from DATE . ORG heard evidence from the second applicant and Mr PERSON , Chief Editor of Verdens Gang , PERSON and CARDINAL witnesses , not including PERSON who died shortly before the hearing .

By a judgment of DATE , ORG upheld ORG judgment , except that the award of compensation for pecuniary damage was amended so as to compensate both PERSON and the ORG , and ordered the applicants jointly to pay the plaintiffs ORG CARDINAL,CARDINAL,CARDINAL with respect to their costs before ORG . The judgment included the following reasons .

ORG was only called upon to decide the question of defamation as such in relation to a claim for compensation and reached the same conclusions as ORG in this respect . ORG considered the newspaper report as a whole , while taking as its starting point the CARDINAL statements . The ORG considered the impression which the coverage would have on the ordinary reader .

At the outset ORG found beyond doubt that the front page and the reportage as such left the impression that PERSON had acted in a manner which should be severely criticised , and that this criticism was endorsed not only by PERSON but also by the newspaper and PERSON .

Items CARDINAL and CARDINAL would give the ordinary reader the impression that Dr Dillerud had knowledge of PERSON eating disorder . It was undisputed that , from a professional and ethical point of view , it would be unjustifiable to carry out liposuction on a patient with eating disorders unless there had been prior consultation with the doctor treating the patient for such disorders . It was considered unethical because of the loss in self - esteem and aggravation of psychological problems that this kind of medical intervention was likely to cause on a person suffering from bulimia . Items CARDINAL and QUANTITY constituted on their own allegations of serious culpability on the part of LOC .

Item CARDINAL had been presented as PERSON own assessments , but the use of such expressions as “ I thought ” and “ it appears as if ” did not remove its accusatorial character involving unethical behaviour .

Apart from containing the value - judgment “ Sickening Offer ” , item CARDINAL contained a statement which appeared as if it was the newspaper ’s own . Since it was followed by a quotation from PERSON that he was not aware that PERSON suffered from bulimia , item CARDINAL did not appear to accuse him of such knowledge .

Unlike ORG , ORG did not find that items CARDINAL , CARDINAL and CARDINAL in isolation could be interpreted as an allegation of greed on PERSON part . ORG did not find it necessary to consider whether the reportage as such gave the impression of greed .

ORG did not find any elements in the report as a whole which removed the impression that PERSON was accused of being prepared to perform liposuction on PERSON despite his being aware that she suffered from bulimia . Although it was mentioned that PERSON himself had stated that he was unaware of this fact , PERSON had alleged the contrary and PERSON ORG comments and the paper ’s description were both based on her version .

There was no doubt that the allegations were damaging to PERSON personal reputation , which was emphasised by the fact that PERSON , Mr GPE and PERSON had criticised on ethical grounds what they believed had happened . Moreover , the allegations were capable of damaging his professional reputation .

ORG further considered that no evidence had been adduced which could prove the truth of the accusations . There was nothing to support the assumption that , when it was agreed that PERSON should perform liposuction on both of PERSON thighs , he was aware that she suffered from bulimia . ORG , moreover , did not find it substantiated that there were any circumstances suggesting that PERSON ought to have been aware that PERSON was ill or that he ought to have carried out further investigations . PERSON wished to be operated on by PERSON and she must have understood that it was important that her illness was not revealed as she concealed it when filling in the questionnaire . She had no external symptoms at this point in time and she had previously succeeded in concealing her illness from other doctors . The fact that she was slim and somewhat underweight ought not of its own to have aroused suspicion about eating disorders or made the removal of fat concentrations inadvisable . Ms J. was slightly shorter and heavier than stated in the newspaper .

ORG found that the second applicant had behaved negligently in her report . Although she was not responsible for the front - page , the text of item CARDINAL essentially repeated item CARDINAL drafted by her . She had based her sensational report on information from PERSON whom the journalist knew had psychiatric problems . This information , moreover , lacked a factual basis . The journalist sought the comments from Mr GPE and the Secretary General of ORG . While this might have provided a possible corrective to PERSON assessments , it was of limited value as their comments were based on PERSON version of what had happened during her consultation with PERSON .

Thus the impugned allegations were untrue . Even assuming that their purpose was justified in order to protect the interests of others ( Article CARDINAL ( CARDINAL ) of LAW ) , it could not be said that the journalist had exercised due caution . There was no time - pressure . For the second applicant it must have been apparent that PERSON may have possessed information of importance for assessing the accuracy of the information provided by PERSON In this situation it was negligent of the paper and the journalist to publish the report in question without taking further steps to reach PERSON other than contacting his office .

ORG considered that the impugned newspaper coverage concerned a matter of general interest calling for strong protection of the right to freedom of expression . However , in its view , it was not justified to make untrue defamatory statements about PERSON . The newspaper did not limit itself to reiterating PERSON allegations . The newspaper made its own accusations for which there was no basis , which was attributable to the journalist ’s negligence since , for instance , there were no time constraints or other circumstances which dispensed the paper from awaiting or seeking more information . The possible beneficial effects of the coverage could have been achieved without addressing any accusations against PERSON . The interest in protecting freedom of expression could not exclude the person who is unjustifiably injured by the accusations from claiming compensation for the damage caused .

ORG considered that the case differed from that determined by ORG in the GPE v. GPE judgment of DATE ( Series A no . CARDINAL ) , where the applicant journalist did not in any way identify himself with the impugned allegations . Nor did ORG case - law otherwise suggest that PERSON claim of protection against unjustified accusations must give way to freedom of expression . The applicants were thus liable under LAW , second subsection , to compensate PERSON and the ORG for the damage suffered .

The applicants sought to appeal against the above judgment but , on DATE , ORG of ORG refused them leave to appeal .

Under NORP defamation law , there are CARDINAL kinds of responses to unlawful defamation , namely the imposition of a penalty under the provisions of LAW , an order under LAW declaring the defamatory allegation null and void ( mortifikasjon ) and an order under LAW DATE ( Skadeserstatningsloven – Law no . CARDINAL of DATE ) to pay compensation to the aggrieved party . Only the latter was at issue in the present case .

Section CARDINAL - CARDINAL of the aforementioned LAW reads :

“ A person who has injured the honour or infringed the privacy of another person shall , if he has displayed negligence or if the conditions for imposing a penalty are fulfilled , pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable , having regard to the degree of negligence and other circumstances . He may also be ordered to pay such compensation for non - pecuniary damage as the court deems reasonable .

If the infringement has occurred in the form of printed matter , and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection , the owner and publisher are also liable to pay compensation . The same applies to any redress imposed under the first subsection unless the court finds that there are special grounds for dispensation ... ”

Conditions for holding a defendant liable for defamation are further set out in LAW of LAW , ORG and CARDINAL of which provide :

“ LAW . Any person who by word or deed unlawfully defames another person , or who is accessory thereto , shall be liable to fines or imprisonment for a term not exceeding DATE .

Article CARDINAL . Any person who , by word or deed , behaves in a manner that is likely to harm another person ’s good name and reputation or to expose him to hatred , contempt , or loss of the confidence necessary for his position or business , or who is accessory thereto , shall be liable to fines or imprisonment for a term not exceeding one year . If the defamation is committed in print or in broadcasting , or otherwise under especially aggravating circumstances , imprisonment for a term not exceeding DATE may be imposed . ”

A limitation to the applicability of LAW follows from the requirement that the expression must be unlawful ( rettstridig ) . While this is expressly stated in LAW , LAW has been interpreted by ORG to include such a requirement .

In a civil case concerning pre - trial reporting by a newspaper , ORG found for the newspaper , relying on the reservation of lawfulness ( rettsstridsreservasjonen ) , even though the impugned expressions had been deemed defamatory . It held that , in determining the scope of this limitation , particular weight should be attached to whether the case was of public interest , having regard to the nature of the issues and to the kind of parties involved . Regard should be had to the context in which , and the background against which , the statements had been made . Moreover , it was of great importance whether the news item had presented the case in a sober and balanced manner and had been aimed at highlighting the subject - matter and the object of the case ( PERSON PERSON [ The Norwegian Law Report ] DATE , p. CARDINAL , at p. CARDINAL ) .

Further limitations on the application of LAW are contained in LAW , the relevant part of which reads :

“ CARDINAL . Punishment may not be imposed under Articles CARDINAL and CARDINAL if evidence proving the truth of the accusations is adduced ...

Punishment may not be imposed under Articles CARDINAL and CARDINAL on any person who is under a duty or obligation to express his opinion or who has expressed his opinion in legitimately taking care of his own or another person ’s interests and where it has been established that he has displayed proper care in every respect . ”


Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in GPE .

In the context of an inquiry , GPE of ORG established that the applicant had failed to pay MONEY ( MONEY ) . It ordered him to pay the outstanding tax plus a fine of ORG CARDINAL ( approximately CARDINAL,CARDINAL euros ) and HUF CARDINAL ( MONEY ) in accrued interest .

The applicant appealed . On DATE ORG upheld the first - instance administrative decision . It found that the applicant had received , on a regular basis , sums from a private company for his work but he had failed to pay taxes on this income . ORG relied on documentary evidence .

In DATE the applicant sought judicial review of the final administrative decision before GPE .

On DATE ORG found , after having held CARDINAL hearings , that ORG had acted in compliance with the law and dismissed the applicant ’s action . The applicant appealed .

ORG , after having held CARDINAL hearings , upheld the first - instance decision on DATE . The courts relied on documentary evidence and the testimony of the parties .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in ORG . He suffers from hebephrenic schizophrenia .

In DATE , GPE District Court established that the applicant had committed CARDINAL thefts from apartments while in a state of criminal irresponsibility . He was relieved from serving his sentence and placed in a psychiatric hospital for “ general observation ” ( atidavimas į psichiatrinę ligoninę bendrojo stebėjimo sąlygomis ) .

On DATE the GPE City ORG found that the applicant , who had in the meantime been released , had been involved in several more robberies . The medical experts testified in court that the applicant was suffering from hebephrenic schizophrenia and recommended that he be treated in a psychiatric hospital under general observation . On the court ’s order , the applicant was placed under the above regime .

On DATE the applicant ran away from the psychiatric hospital .

NORP In DATE a pre - trial investigation was opened in respect of thefts committed DATE by a group of people .

On DATE the applicant was apprehended and detained by the police . He presented himself under the false name of Mr PERSON . The temporary arrest record states that “ the applicant was suspected of having committed a crime enumerated in LAW [ theft ] ” . The applicant signed the record without any further remarks . As it transpires from the investigator ’s report of DATE , the applicant asked the authorities not to inform his relatives about his arrest .

On DATE the applicant was questioned by a police investigator in connection with the thefts . The applicant was served with a “ notice of suspicion ” ( pranešimas apie įtarimą ) , where multiple episodes of theft attributed to him were explained on CARDINAL a page . The document listed each single allegedly stolen item , its value and owner . The time and location of the crimes were also mentioned . The applicant did not have his passport with him , maintained his false identity and did not confess to the thefts . The lawyer for the applicant , PERSON , was present at the questioning . In the record of his questioning , which the applicant signed , he wrote “ I understand the charges against me . I do not confess ” .

At a hearing of DATE at ORG , the applicant continued to present himself as Mr PERSON . The judge explained the applicant that he was suspected of thefts but the applicant did not confess to having committed them . The court granted the prosecutor ’s request that the applicant be detained for a period of DATE , on the ground that he might evade investigation and influence witnesses . The court noted that the applicant did not have a job or source of income and that he was suspected of a rather serious crime . The applicant ’s lawyer was also present at that hearing .

Later on , and on the basis of the applicant ’s fingerprints , the authorities established that the applicant ’s true name was Mr Laimutis Liuiza .

At a hearing on DATE at ORG , the applicant confessed that he had earlier lied about his true identity . At the request of a prosecutor , the court extended the applicant ’s pre - trial detention by DATE .

The pre - trial detention was further extended by court orders of CARDINAL DATE , DATE and DATE , where the court noted , inter alia , that the applicant was suspected of having committed “ a crime of medium severity ” ( apysunkį nusikaltimą ) , had been in a possession of an unauthorised firearm and had disguised his true identity at the beginning of the criminal investigation .

By a ruling of CARDINAL DATE ORG , at the request of a prosecutor , ordered a forensic medical examination of the applicant . The court noted that the applicant had a history of mental illness . It was important to establish whether he could stand trial . The court also ordered the experts from ORG , where the applicant had been treated a number of times , to determine “ what medical measures would be appropriate ” in respect of the applicant . The following day the applicant was transferred to that hospital .

The applicant challenged the appointment of the experts of ORG to examine him . He submitted that earlier he had had conflicts with the administration of that hospital . However , on DATE the LOC prosecutor dismissed the applicant ’s claim that the experts of ORG were biased as unfounded .

When questioned by an investigator on DATE and in the presence of his lawyer PERSON , the applicant partly confessed to having fraudulently used a bank card . He denied the charges of theft and unlawful possession of a firearm .

On DATE the investigator informed the applicant in writing that he was suspected of theft , fraud and unlawful possession of a firearm . The applicant signed the document ( i.e. the notice of suspicion ) .

On DATE the psychiatrists from ORG concluded that the applicant “ was not able to understand the actions taken within the framework of the pre - trial investigation and no investigative actions could be carried out with his participation ” . The doctors deemed that the applicant was thus unfit to stand trial and that it was appropriate to keep him under “ strict observation in ORG ” . In report no . CARDINAL the doctors noted that the applicant had already been treated in psychiatric hospitals on CARDINAL occasions . In particular , in DATE he had been treated in ORG after a court had established that he had committed several thefts . Later on the applicant had been released ; however , subsequent observations revealed unpredictable behaviour . The applicant ’s mental state would often worsen . When not in in - patient care he would not visit the doctors or take medicine . In DATE , and in connection with the [ fresh ] criminal proceedings , the applicant had been placed in GPE prison hospital , where the diagnosis of hebephrenic schizophrenia had been confirmed . The psychiatrists also noted that at the time of their examination the applicant did not demonstrate a negative view of his illness or the [ criminal ] acts ; he was often antisocial .

On DATE ORG ordered the applicant ’s committal to psychiatric care under “ strict observation ” ( stebėjimas ir gydymas griežto stebėjimo sąlygomis ) . The detention was ordered until the end of the criminal proceedings against him , which were expected to be terminated on account of the application of compulsory medical measures in respect of the applicant . The court relied on the conclusions of report no . CARDINAL compiled by the medical experts .

On DATE the applicant was placed in ORG .

As it transpires from the notice of suspicion provided by the Government , on DATE the applicant was informed of and charged with theft , unlawful possession of a firearm and fraudulent use of a bank card . The facts were described in CARDINAL full pages . The applicant did not sign the document ; however , it bears the signature of his lawyer , GPE

On DATE another lawyer , GPE , was appointed to represent the applicant .

On DATE the Jonava ORG received a written response from ORG to that court ’s inquiry of CARDINAL DATE into the applicant ’s mental state . The ORG recommendation was that the applicant be held under strict observation , because he was a threat to others and lacked critical thinking .

NORP The applicant ’s psychiatric confinement under strict observation was extended DATE pending trial DATE by ORG on DATE and DATE . The court relied on the ORG opinion that the applicant could not think clearly , was aggressive and habitually wrote complaints about the doctors and law - enforcement officers . The court also noted that the applicant was charged , inter alia , with unlawful possession of a firearm , and stated that “ there was no evidence that [ psychiatric confinement under strict observation ] should not be applied ” . Officially - appointed defence counsel was present at the hearings .

On DATE the applicant lodged a complaint before ORG , alleging that the experts had been biased and that report no . CARDINAL was flawed . However , the court dismissed the complaint as unsubstantiated .

On DATE the Jonava ORG found that the applicant had been in possession of an unauthorised gun , and had been involved in several episodes of theft and unauthorised payment with a bank card belonging to another person . In setting out its reasons the court relied on witness testimonies , material evidence and expert reports . Expert PERSON , CARDINAL of the CARDINAL experts who had signed report no . CARDINAL , testified in court that at the time the crimes were committed the applicant had been suffering from hebephrenic schizophrenia and could not understand or control his actions . She deemed it appropriate that the applicant be placed in ORG under strict observation . On the basis of that testimony and the conclusions of report no . CARDINAL , the court held that the applicant had committed those offences while in a state of lacking criminal responsibility and relieved him from serving his criminal sentence . In accordance with LAW , the court ordered that the applicant be confined in ORG for observation and treatment under strict conditions . The applicant was not present before the court , but was represented by officially - appointed defence counsel .

The applicant appealed , arguing that a new expert examination of his mental state was necessary and that the regime of strict observation was too severe a measure , given that he had been charged only in connection with crimes which were not particularly serious . The applicant also confessed to the appellate court that he had fraudulently used another person ’s bank card twice , but wrote that he regretted that . He denied having committed the other criminal acts .

In a report of DATE the experts from ORG concluded that the applicant had behavioural problems . In particular , he was egocentric , always considered himself right in every situation , and was uncritical of the criminal acts he was charged with . He was also angry , agitated and would terrorise other patients and take their pre - paid telephone cards from them . The applicant also threatened retribution against prosecutors and judges . The doctors also noted that on DATE the applicant had attacked a nurse . The doctors recommended that the applicant be treated in a psychiatric hospital under strict observation .

On DATE ORG extended the applicant ’s confinement until the decision of ORG of DATE came into force . It noted that the applicant still represented a threat to others .

The applicant appealed against that measure , requesting that the conditions of his pre - trial confinement be changed . However , his action was later dismissed as unsubstantiated by ORG . The court noted that there were no procedural irregularities in the detention order .

On DATE ORG dismissed the applicant ’s appeal in respect of the criminal charges against him . The applicant ’s lawyer was present at the hearing . The court held that there was no reason to request a fresh expert examination as to the applicant ’s mental health . Expert report no . CARDINAL was based on long - term observation of him , and the diagnosis of schizophrenia had already been established in DATE . In the court ’s view , the expert who was questioned at the appellate court hearing also did not say anything that could cast doubt on the reliability of that report .

ORG also dismissed the applicant ’s plea that a milder regime at a psychiatric hospital should be applied to him . Whilst acknowledging that the crimes the applicant had been charged with were not particularly grave , the court nonetheless held that it was appropriate to place the applicant under strict observation because of his aggressive behaviour , as attested by the expert , expert report no . CARDINAL and the data provided by ORG . The appellate court lastly observed that the regime could always be varied , provided the applicant ’s health condition and behaviour ameliorated .

On DATE ORG extended the applicant ’s placement under strict observation . In setting out its reasons , the court relied on the report by ORG of DATE , to the effect that the applicant suffered from hebephrenic schizophrenia . He was still unstable and uncritical of his earlier behaviour as well as remained dangerous to others . The applicant ’s lawyer was present at the hearing and did not object to the recommendation by the hospital .

By a ruling of CARDINAL DATE the applicant ’s appeal on points of law was dismissed . ORG shared the view of the appellate court to the effect that it was necessary to keep the applicant under strict observation owing to his state of mind and his behaviour ; there was no doubt as to the appropriateness of that regime . ORG also observed that , in accordance with LAW of LAW , a court should assess the appropriateness of the compulsory medical measures DATE ( see “ Relevant domestic law ” below ) . Moreover , pursuant to LAW , it was the court of a person ’s place of residence which decided such questions . It followed that ORG did not have jurisdiction to change the applicant ’s hospitalisation regime .

The applicant ’s lawyer took part in the hearing .

On DATE the ORG extended the applicant ’s in - patient treatment under strict observation . It relied on the report by the doctors of ORG of DATE . The report read that the applicant suffered from hebephrenic schizophrenia , his behaviour was unpredictable and unstable . The applicant was constantly threatening to hang himself or to kill himself with a knife . The applicant ’s lawyer took part in the hearing and did not oppose the measure .

On DATE the ORG again extended the applicant ’s in - patient treatment under strict observation . The court based its decision on a psychiatrists’ report dated DATE attesting to the destructive behaviour of the applicant . His lawyer was present at the hearing and requested that a milder regime , “ increased observation ” ( sustiprinto stebėjimo sąlygos ) , be applied to his client .

The applicant was present when his appeal was examined and dismissed as unfounded by a higher court .

On the basis of a ruling of DATE by ORG , the applicant was placed under the increased observation regime . The court relied on a psychiatrists’ report dated DATE , which stated that the applicant ’s mental health had improved to a certain extent .

By a ruling of CARDINAL October CARDINAL , ORG granted a request by ORG that a milder measure , the “ general observation ” regime ( bendro stebėjimo sąlygos ) , be applied to the applicant . The court noted the psychiatrists’ conclusion to the effect that the applicant ’s mental state had improved , that he had started planning his future , and was critical of the criminal acts he had committed .

On DATE the ORG changed the applicant ’s hospitalisation regime to CARDINAL of “ increased observation ” . The court relied on a ORG report that the applicant was argumentative and behaved aggressively towards other patients . Furthermore , the stricter regime was justified because of CARDINAL incidents that had taken place in the reference period . In particular , since DATE the applicant had attempted to regurgitate his prescribed medicine , threatened another patient with physical violence , pushed another patient out of the smoking room and grabbed yet another patient by the throat in the canteen . According to the ORG report , there was a tendency for the applicant ’s violent behaviour to increase .

On DATE the ORG extended the applicant ’s detention under increased observation , on the basis of a LOC report of CARDINAL DATE according to which the applicant continued to show aggression towards others . That ruling was upheld by a higher court .

The Criminal Code , insofar as relevant to this case , provides as follows :

“ CARDINAL . A person shall be considered legally incapacitated where , at the time of commission of an act forbidden under this Code , he was unable to understand the dangerous nature of the act or to control his behaviour as a result of a mental disorder .

A person found legally incapacitated by a court shall not be held liable under this Code for having committed a dangerous act . The court may order that compulsory medical treatment as provided for in LAW be applied . ”

“ CARDINAL . Persons who are recognised by a court as being legally incapacitated or of diminished capacity as well as persons who , after committing a criminal act or having received a penalty , develop a mental disorder rendering them incapable of understanding the nature of their actions or controlling them may be subject to a court order for the following compulsory medical treatment measures to be applied :

CARDINAL ) NORP out - patient observation under the conditions of primary mental health care ;

CARDINAL ) NORP in - patient treatment under general observation at a specialised mental health care establishment ;

CARDINAL ) NORP in - patient treatment under increased observation at a specialised mental health care establishment ;

CARDINAL ) NORP in - patient treatment under strict observation at a specialised mental health care establishment .

A court shall order out - patient observation where it is not necessary to subject the person in question to observation and in - patient treatment due to the dangerousness of the committed act and his mental state , or where the person may continue out - patient treatment after his mental state improves following in - patient treatment .

A court shall order in - patient treatment under general observation where a person needs to be under observation and undergo treatment at a specialised in - patient treatment establishment due to a mental disorder .

A court shall order in - patient treatment under increased observation at a specialist establishment where a person has committed a dangerous act and has a mental disorder warranting such a measure .

A court shall order in - patient treatment under strict observation at a specialist establishment where a person has made an attempt on a person ’s life or health and is particularly dangerous to those around him due to a mental disorder .

A court shall not set any period of time for compulsory medical treatment . It shall be applied until the person is cured or his mental state improves and he no longer poses a threat to others . At least once DATE , a court must decide , on the basis of a report by a health - care establishment , on the extension of compulsory medical treatment , change of type thereof or discontinuation thereof .

Where it is not necessary to subject a person to compulsory medical treatment , or where a court orders that such treatment be discontinued , the person may be transferred by the court into the custody or guardianship of his relatives or other persons and may concurrently be subject to medical observation . ”

The Code of Criminal Procedure provides :

“ CARDINAL . Where during the investigation or hearing of a criminal case there is a need for a medical or psychiatric expert examination of a suspect , he or she shall be committed by a court decision to the examining institution before a medical report is submitted to a prosecutor or the court . The time spent at the institution shall be included in the detention term .

NORP If a psychiatric expert establishes that the suspect , because of his or her mental disorder , may be dangerous to the public , the court may order extension of his or her stay at the examining institution or the suspect may be transferred to another institution until the court decides upon the issue of employing coercive medical measures .

A suspect shall be committed to an examining institution and his period of stay at the institution shall be determined and extended following the same procedure for ordering , extending or appealing against detention .

During the pre - trial investigation the detained suspect shall be committed to an examining institution by the decision of a prosecutor .

An accused may also be committed to an examining institution . ”

In accordance with LAW , the court shall at least once DATE determine the issue regarding the extension of the maximum period of application of the compulsory medical treatment measure , changing the type of measure or discontinuing its application . A representative of the medical institution that submitted a report about the appropriateness of CARDINAL or another measure must take part in the hearing . The court may also request that the hospitalised person be present at the hearing , unless his mental state does not allow for it .

DATE provides that hospitalised patients have a right to communicate with others .


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The present application was lodged by the applicant ’s guardian and daughter , PERSON , on behalf of her mother – the applicant . She was represented before the ORG by PERSON and Mr PERSON , lawyers practising in Ivanić Grad . ORG ( “ the Government ” ) were represented by their Agent , Ms Š. PERSON .

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

By a decision of ORG ( PERSON ) of DATE the applicant was divested of her legal capacity on account of her mental illness . She did not participate in those proceedings but was represented by her father .

By a decision of ORG , ORG ( ORG za socijalnu skrb GPE , ORG – “ FAC ) of DATE the applicant ’s mother , PERSON , was appointed her legal guardian . On DATE the ORG appointed the applicant ’s brother PERSON her new legal guardian . The change was due to GPE ’s statement that their mother , PERSON , was no longer able to take care of the applicant ’s interests owing to her own illness .

On DATE the applicant ’s father died and inheritance proceedings were instituted before a public notary in GPE . The applicant did not participate in these proceedings in person , but was represented by her brother , PERSON The written record of a hearing held on DATE states that the present heirs , that is , the applicant ’s mother PERSON and her brother PERSON , agreed that PERSON would inherit all movables from her husband , while PERSON and the applicant would inherit a flat in GPE , FAC , so that GPE would become the owner of CARDINAL of the flat and the applicant of CARDINAL . On DATE a decision on inheritance was issued confirming that agreement .

On DATE the applicant ’s daughter , PERSON , submitted a request with the ORG , asking that she be appointed her mother ’s legal guardian . She explained that for DATE she had been studying in GPE and had now returned to GPE and was willing to care for her mother and fully capable of doing so . She added that all the family members supported her request .

On DATE PERSON informed the ORG that on DATE PERSON had thrown the applicant out of the flat where she had been living up to then ( the one left by her late father ) and changed the lock . PERSON asked the ORG to take urgent measures to protect the interests of the applicant . She reiterated this request again on CARDINAL DATE and on an unspecified date . She requested the ORG to bring a civil action against GPE for disturbance of possessions .

On DATE PERSON also lodged a request for supervision of the Centre ’s work with ORG ( ORG zdravstva i socijalne skrbi – the “ Ministry ” ) . She complained that her request of CARDINAL DATE to be appointed the applicant ’s legal guardian had not been registered or processed . A lawyer of the ORG had kept the request in a drawer and had only handed it back to PERSON on DATE at ORG ’s insistence ; PERSON had then had it recorded in the ORG ’s incoming mail register . She further alleged that PERSON had thrown the applicant out of the flat where she had been living , had moved into the flat himself and had been showing it to potential buyers . PERSON also maintained that the ORG had not protected the applicant ’s interests but on the contrary had already sent an expert to estimate the value of the flat .

On DATE the ORG employees visited the flat and found the applicant and CARDINAL there . The applicant said that she had no problems with her brother .

On DATE the Ministry asked the Centre to reply to PERSON ’s allegations .

On DATE the ORG asked GPE to reply to PERSON ’s allegations .

On DATE PERSON again urged the ORG to take measures to protect the applicant ’s interests . She alleged that the applicant had been released from a psychiatric hospital on DATE . Although PERSON had given the applicant the keys to the flat in DATE , he continued to take the keys away and give them back to her as he wished . He had also locked all but CARDINAL of the rooms of the flat , including those where items necessary for the applicant ’s DATE life were kept , such as her clothes , the washing machine and the switch that regulated the heating . Furthermore , he had prevented PERSON from living in the flat with the applicant , despite the applicant not being capable of taking care of herself because of her mental condition . Since PERSON no longer lived in the flat , the applicant lived alone . Thus , she had lived in the flat for DATE with no supervision , after which her condition had worsened and she had had to be hospitalised again .

ORG further maintained that GPE had been shouting at and threatening the applicant , which had caused her intense fear and worsened her condition . He had forbidden the applicant to visit their mother , PERSON , in an old people ’s home , threatening to beat her up if she did otherwise . PERSON continued that on DATE , on the applicant ’s birthday , PERSON had forbidden the applicant to invite her for lunch , and after that had again taken the keys to the flat from the applicant and had not returned them to her .

He had also been receiving the applicant ’s pension payments and spending them as he wished . PERSON asked as a matter of urgency that he be dismissed as the applicant ’s legal guardian .

On DATE a hearing was held in the FAC on the subject of changing the applicant ’s legal guardian . On DATE made a statement in the ORG that she objected to the sale of the flat where the applicant had lived unless PERSON provided another , smaller flat for the applicant .

On DATE the ORG appointed PERSON the applicant ’s legal guardian . On DATE the ORG appointed an attorney , GPE , the applicant ’s guardian ad litem in the proceedings concerning the sale of the flat in FAC . He was expressly authorised to take all actions in order to sell the flat .

At a hearing held on DATE in ORG said that the applicant had been discharged from a psychiatric hospital on DATE and that since then they had been living together in a rented flat , because PERSON had prevented them from living in the flat in FAC . She also stated that GPE was still receiving the applicant ’s pension payments and asked that they be paid to her and her mother .

An appeal lodged by PERSON against the decision of DATE concerning the authorisation given to GPE as regards the sale of the flat in FAC was dismissed on DATE by ORG .

At a hearing held on DATE in the Centre , PERSON was informed that in the meantime PERSON had returned a bank card for the bank account into which he had been receiving the applicant ’s pension payments . The card was handed over to PERSON However , PERSON had not handed over the applicant ’s pension for DATE and DATE .

At a hearing held in the ORG on DATE an offer made by GPE to buy the applicant ’s share of the flat in FAC was accepted by FAC .

By a decision of DATE the ORG authorised GPE to conclude a sale agreement with GPE and to deposit the sum of MONEY ( ORG ) in the applicant ’s bank account . On DATE PERSON lodged an appeal against that decision , arguing that a decision on inheritance had already been adopted unlawfully , since PERSON had represented the applicant in these proceedings although he was an interested party . She further argued that the price did not correspond to the market value of the applicant ’s share of the flat .

On DATE the ORG dismissed the appeal . On DATE G.B. lodged an administrative action with ORG ( Upravni sud PERSON ) against the ORG ’s decision .

At a hearing held on DATE in ORG was informed that PERSON had paid an amount of CARDINAL NORP kunas ( HRK ) into the applicant ’s bank account .

The proceedings concerning the sale of the flat are still pending before ORG .

The relevant provisions of LAW ( Obiteljski zakon , ORG nos . CARDINAL , CARDINAL , CARDINAL and DATE ) read :

“ ( CARDINAL ) An adult who , on account of mental illness or other reasons , is unable to care of his or her own needs , rights and interests , or who presents a risk to the rights and interests of others , shall be partially or completely divested of his or her legal capacity by a court of law in non - adversarial proceedings .

“ The competent social welfare centre shall place under guardianship a person ... divested of his or her legal capacity ... ”

“ ( CARDINAL ) The guardian shall care for the person , rights , obligations and well - being of the ward with due diligence , manage his or her assets and take measures aimed at enabling the ward to have an independent professional and personal life .

“ ( CARDINAL ) The guardian represents the ward .

“ In order to take more important measures concerning the person , personal status or health of the ward , the guardian shall obtain prior consent from a social welfare centre . ”