CASE OF SANOMA UITGEVERS B.V. v. THE NETHERLANDS

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

NORP The applicant company is based in ORG . Its business is publishing and marketing magazines , including the DATE Autoweek , which caters for readers who are interested in motoring .

The facts of the case , as submitted by the parties and shown by documents available to the public , may be summarised as follows .

On DATE , an illegal street race was held in an industrial area on the outskirts of the town of GPE . Journalists of PERSON attended this race at the invitation of its organisers . The journalists were given the opportunity to take photographs of the street race and of the participating cars and persons . Before they were given permission to take photographs , the journalists were made to guarantee the participants that the latter ’s identity would remain undisclosed . The street race was ended by the police , who were present and eventually intervened . The police did not make any arrests .

The applicant company intended to publish an article about illegal car races in LOC no . CARDINAL/CARDINAL of DATE . This article would be accompanied by photographs of the car race held on DATE . These photographs would be edited in such a manner that the participating cars and persons were unidentifiable , thus guaranteeing the anonymity of the participants in the race . The original photographs were stored by the applicant company on a CD - ROM , which was kept in the editorial office of a different magazine published by the applicant company ( not NORP ) .

In TIME of DATE , a police officer contacted the PERSON editorial office by telephone , summoning the editors to surrender to the police all photographic materials concerning the street race of DATE . This police officer was informed by the staff member whom she had called , i.e. the features chief editor ( chef reportage ) , that this request could not be met as the journalists had only been given permission to take photographs of the street race after having guaranteed the anonymity of the participants in the race . He further told this police officer that he thought that the press was reasonably protected against this kind of [ police ] action and advised her to contact the editorial office in writing .

In TIME DATE , QUANTITY police detectives visited the NORP editorial office and , after having unsuccessfully tried to obtain the surrender of the photographs , issued PERSON ’s editor - in - chief with a summons , within the meaning of Article PERSON of LAW Wetboek van Strafvordering ) . This summons was issued by the GPE public prosecutor and ordered the applicant company to surrender , in the context of a criminal investigation into offences defined in ORG CARDINAL - CARDINAL of LAW ( GPE ) against an unspecified person , the photographs taken on DATE during the illegal street race in GPE and all related materials . On behalf of the applicant company , ORG ’s editor - in - chief PERSON refused to surrender the photographs , considering this to be contrary to the undertaking given by the journalists to the street race participants as regards their anonymity .

DATE , a telephone conversation took place between , on the one side , CARDINAL public prosecutors and , on the other , the lawyer of the applicant company . The lawyer was told by the public prosecutors that “ it concerned a matter of life and death ” . No further explanation was given and the lawyer ’s request to amend the summons was not entertained .

NORP The police detectives and the public prosecutors threatened to detain Mr B. during DATE of CARDINAL to CARDINAL DATE for having acted in violation of LAW , i.e. the offence of failure to comply with an official order ( ambtelijk bevel ) , and to close and search the applicant company ’s LOC , if need be , for DATE . The latter action would entail considerable financial damage for the applicant company as , during DATE , articles were to be prepared for publication on the subject of the wedding of the GPE PERSON , due to take place on DATE .

At TIME on DATE , PERSON was arrested on suspicion of having violated LAW . He was not taken to the police station but remained on the applicant company ’s LOC . After the GPE public prosecutor had arrived on these LOC and after PERSON had been brought before the prosecutor , PERSON was released at TIME

The applicant company then consulted its own lawyer and a second lawyer . The latter spoke with the public prosecutors involved , after which the duty investigating judge ( rechter - commissaris ) of ORG ( arrondissementsrechtbank ) was contacted by telephone . After having spoken with one of the lawyers assisting the applicant company , and after having been briefed by CARDINAL of the public prosecutors , the investigating judge expressed the view that the needs of the criminal investigation outweighed the applicant company ’s journalistic privilege . On DATE at TIME , the applicant company , through its lawyer and under protest , surrendered the CD - ROM containing the photographs to the public prosecutor , who formally seized it .

On DATE the applicant company filed a complaint under LAW PERSON of LAW , seeking the lifting of the seizure and restitution of the CDROM , an order to the police and prosecution department to destroy copies of the data recorded on the CD - ROM and an injunction preventing the police and prosecution department from taking cognisance or making use of information obtained through the CD - ROM .

On DATE a hearing was held before ORG during which the public prosecutor explained why the surrender of the photographs had been necessary . The summons complained of had been issued in the context of a criminal investigation concerning serious criminals who had pulled cash dispensers out of the wall with the aid of a shovel loader , and there was reason to believe that a car used by participants in the street race could lead to the perpetrator(s ) of those robberies .

In its decision of DATE ORG granted the request to lift the seizure and to return the CD - ROM to the applicant company as the interests of the investigation did not oppose this . It rejected the remainder of the applicant company ’s complaint . It found the seizure lawful and , on this point , considered that a publisher / journalist could not , as such , be regarded as enjoying the privilege of non - disclosure ( verschoningsrecht ) under Article CARDINALa of LAW . Statutorily , the persons referred to in LAW and acknowledged as enjoying the privilege of non - disclosure were , amongst others , public notaries , lawyers and doctors . It considered that the right to freedom of expression , as guaranteed by LAW , included the right freely to gather news ( recht van vrije nieuwsgaring ) which , consequently , deserved protection unless outweighed by another interest warranting priority . It found that , in the instant case , the criminal investigation interest outweighed the right to free gathering of news in that , as explained by the public prosecutor during the hearing , the investigation at issue did not concern the illegal street race , in which context the undertaking of protection of sources had been given , but an investigation into other serious offences . ORG was therefore of the opinion that the case at hand concerned a situation in which the protection of journalistic sources should yield to general investigation interests , the more so as the undertaking to the journalistic source concerned the street race whereas the investigation did not concern that race . It found established that the data stored on the CD - ROM had been used for the investigation of serious offences and that it had been made clear by the prosecutor that these data were relevant to the investigation at issue as all other investigation avenues had led to nothing . It therefore concluded that the principles of proportionality and subsidiarity had been complied with and that the interference had thus been justified . ORG did not find that the seizure had been rash , although more tactful action on the part of the police and the public prosecutor might have prevented the apparent escalation of the matter .

The applicant company ’s subsequent appeal in cassation was declared inadmissible by ORG ( PERSON ) on DATE . ORG held that , as ORG had accepted the applicant company ’s complaint in so far as it related to the request to lift the seizure and to return the CD - ROM , the applicant company no longer had an interest in its appeal against the ruling of DATE . Referring to its case - law ( ORG , DATE , PERSON ( GPE Law Reports – “ GPE ” ) DATE , no . CARDINAL , and ORG , CARDINAL DATE , GPE DATE , no . CARDINAL ) , it held that this finding was not altered by the circumstance that the complaint – apart from a request to return the CD - ROM – also contained a request to order that any print - outs or copies of the CD - ROM were to be destroyed and that data collected with the aid of the CD - ROM could not be used , as neither Article DATE nor any other provision of LAW provided for the possibility of obtaining , once a seized item had been returned , in a procedure like the present one , a declaratory ruling that the seizure or the use of the seized item was unlawful .

In their observations on the admissibility and merits of the application , the ORG stated the following :

“ CARDINAL . To supplement the summary of the facts appended to the ORG ’s letter of DATE [ giving notice of the application to the respondent ORG under LAW ( b ) of ORG ] , the Government would make the following observations

The order in question , issued LAW PERSON of LAW ( ... , ‘ CCP’ ) , requiring the surrender for seizure of a CD - ROM containing photographs was closely related to a criminal investigation initiated following a series of ram raids in which cash machines were pulled from the wall with a shovel loader . These ram raids took place on DATE , DATE and DATE . A group of men was suspected of perpetrating the ram raids and CARDINAL members of the group ( ‘ A’ and ‘ M’ ) were the main suspects . A telephone conversation involving M , tapped in the context of the investigation on DATE , revealed that M and A had participated in an illegal street race in GPE with an ORG RSCARDINAL that day . The investigation team knew that journalists from the DATE magazine PERSON had taken photographs of the illegal street race .

On DATE another ram raid took place . During the incident , a bystander was threatened with a firearm . After ramming a cash machine , the perpetrators hauled it off in a lorry , which was followed closely by an ORG . The police , who had already been informed of the incident , saw the lorry stop and the driver get into an ORG , which then drove away with CARDINAL people inside . The police followed , but the ORG accelerated to QUANTITY and disappeared from view .

The police suspected that the ORG used in the illegal street race in GPE on DATE was the same ORG observed at the ram raid on DATE . With that in mind , the public prosecutor decided DATE ( DATE ) to issue an order under LAW ORG in order to obtain the photographs taken at the street race .

The course of events is summarised below :

DATE , DATE and DATE :

ram raids perpetrated ;

DATE :

illegal street race in GPE , in which FAC participated with an ORG RSCARDINAL ;

DATE : the public prosecutor learns from a tapped conversation that A and M took part in the street race with an ORG RSCARDINAL ;

DATE :

new ram raid , involving an ORG ;

DATE , at CARDINAL : order issued LAW CARDINALa of the ORG . ”

Under Article CARDINALa of the Code of Criminal Procedure , every civil servant invested with investigative powers ( opsporingsambtenaar ) may – in case of suspicion of an offence attracting a prison sentence of DATE or DATE such as for instance the offences defined in ORG CARDINAL - CARDINAL of LAW ( theft ; theft under aggravating circumstances ; robbery ) DATE or of a number of other specified criminal acts not relevant to the present case ( LAW ) – order any person who is reasonably believed to hold an item eligible for seizure to surrender it for that purpose . Article CARDINALa of LAW entered into force on DATE . Prior to this date , only the investigating judge was competent to issue an order to surrender items for the purpose of seizure ( former LAW ) .

A failure to comply with such an order constitutes an offence as defined in LAW failure to comply with an official order ) or LAW failure to make available documents ) of LAW . Pursuant to LAW § § CARDINAL and QUANTITY of LAW , no such order may be given to the suspect or to a person who , by virtue of ORG CARDINAL - CARDINAL of the Code of Criminal Procedure , enjoys the privilege of nondisclosure . Such persons are an accused ’s relatives , ( former ) spouse and ( former ) registered partner ( Article CARDINAL ) ; persons who , by virtue of their position , profession or office , are bound to secrecy albeit that their privilege of non - disclosure only covers matters the knowledge of which has been entrusted to them in that capacity ( Article CARDINAL ; for further details about this category , see PERSON v. the GPE , no . CARDINAL/CARDINAL , Commission decision of DATE , and ORG v. the GPE ( dec . ) , no CARDINAL/CARDINAL , DATE ) , and persons who , by giving evidence , expose themselves , their relatives “ to the second or third degree ” , their ( former ) spouse or their ( former ) registered partner to the risk of a criminal conviction ( Article CARDINAL ) .

Any interested person can lodge an objection against the seizure of an object , the refusal to return a seized object , or the examination ( kennisneming ) or use of electronic data . Such an objection is heard in public by ORG , which has the power to give whatever orders the situation may require ( Article PERSON of LAW ) .

Until DATE , ORG did not recognise a journalistic privilege of non - disclosure . On DATE , it handed down a judgment in which it found that a journalist , when asked as a witness to disclose his source , was obliged to do so unless it could be regarded as justified in the parti that the interest of non - disclosure of a source outweighed the interest served by such disclosure . This principle was reversed by ORG in a landmark judgment of DATE on the basis of the principles set out in the ORG ’s judgment of DATE in the case of PERSON v. GPE . In this ruling , ORG accepted that , pursuant to LAW , a journalist was in principle entitled to non - disclosure of an information source unless , on the basis of arguments to be presented by the party seeking disclosure of a source , the judge was satisfied that such disclosure was necessary in a democratic society for CARDINAL or more of the legitimate aims set out in LAW , no . CARDINAL ) . In a judgment given on DATE concerning the search of premises of a publishing company on DATE ( ORG [ National Jurisprudence Number ] PERSON ) , ORG held inter alia :

“ The right of freedom of expression , as set out in LAW , encompasses also the right freely to gather news ( see , amongst others , PERSON v. the GPE , judgment of DATE , GPE DATE , no . CARDINAL ; and Roemen and PERSON v. GPE , judgment of DATE [ ORG CARDINALIV ] ) . An interference with the right freely to gather news – including the interest of protection of a journalistic source – can be justified under LAW in so far as the conditions set out in that provision have been complied with . That means in the first place that the interference must have a basis in national law and that those national legal rules must have a certain precision . Secondly , the interference must serve CARDINAL of the aims mentioned in LAW . Thirdly , the interference must be necessary in a NORP society for attaining such an aim . In this , the principles of subsidiarity and proportionality play a role . In that framework it must be weighed whether the interference is necessary to serve the interest involved and therefore whether no other , less far - reaching ways ( minder bezwarende wegen ) can be followed along which this interest can be served to a sufficient degree . Where it concerns a criminal investigation , it must be considered whether the interference with the right freely to gather news is proportionate to the interest served in arriving at the truth . In that last consideration , the gravity of the offences under investigation will play a role . ”

On DATE , in the light of the case - law developments in this area and Recommendation No . R(CARDINAL ) CARDINAL adopted on DATE by ORG DATE ( see below under “ Relevant international materials ” ) , ORG ( College van procureurs - generaal ) adopted an ORG within the meaning of LAW of ORG ( Wet op de Rechterlijke Organisatie ) on the application by ORG of coercive measures in respect of journalists ( Aanwijzing toepassing dwangmiddelen bij journalisten ; published in ORG , no . CARDINAL ) , which entered into force on DATE for DATE . This Instruction defines who is to be considered as a “ journalist ” and sets out the pertinent principles and guidelines as regards the application of coercive measures , such as inter alia an order under LAW , in respect of a journalist .

On DATE , the boards of ORG - in - Chief ( PERSON ) and GPE ( PERSON ) set up a commission to investigate and take stock of problems arising in relation to the protection of journalistic sources and seizure of journalistic materials . This commission – which was composed of a professor of criminal law , the secretary of GPE , a ORG judge and an editor of a national DATE newspaper DATE concluded in its report of DATE , inter alia , that specific legislation was not necessary and that by way of making certain procedural changes – such as a preliminary assessment procedure , where it concerned the application of coercive measures in cases where the protection of sources was in issue – a number of problem areas could be resolved .

Already in DATE , PERSON DATE at the time a member of ORG of ORG ( ORG ) – had submitted a private member ’s bill ( initiatiefwetsvoorstel ) to amend LAW and LAW in order to secure the protection of journalistic sources and the protection of journalists as regards disclosing information held by them . On DATE , after remaining dormant , this bill was eventually withdrawn without having been taken up in parliament .

The ORG ’s judgment in the ORG case ( ORG v. the GPE , no . CARDINAL/CARDINAL , DATE ) has prompted the ORG to introduce new legislation . A bill now pending before ORG proposes to add a new LAW CARDINALa ) that would vouchsafe a right to refuse to give evidence or identify sources of information to “ witnesses to whom information has been entrusted within the framework of the professional dissemination of news ( beroepsmatige berichtgeving ) or the gathering of information for that purpose , or the dissemination of news within the framework of participation in the public debate , as the case may be ” . Such a right would be more limited than that enjoyed by the categories enumerated in Articles CARDINAL , CARDINAL and CARDINAL of LAW ; it would be subject to the finding of the investigating judge that no disproportionate harm to an overriding public interest ( zwaarderwegend maatschappelijk belang ) would result from such refusal . However , persons covered by the proposed new Article CARDINALa would not be among those entitled to refuse to surrender items eligible for seizure : the bill does not propose to include them in the enumeration contained in LAW ( paragraph CARDINAL above ) .

Several international instruments concern the protection of journalistic sources ; among others , ORG , adopted at the CARDINALth European Ministerial Conference on Mass Media Policy ( Prague , DATE ) and the ORG on ORG adopted by ORG ( DATE , ORG of ORG . C CARDINAL/CARDINAL ) .

NORP Moreover , Recommendation No . R(CARDINAL ) CARDINAL on the right of journalists not to disclose their sources of information was adopted by ORG DATE and states , in so far as relevant :

“ [ ORG ] Recommends to the governments of member States :

to implement in their domestic law and practice the principles appended to this recommendation ,

to disseminate widely this recommendation and its appended principles , where appropriate accompanied by a translation , and

to bring them in particular to the attention of public authorities , police authorities and the judiciary as well as to make them available to journalists , the media and their professional organisations .

Appendix to Recommendation No . R ( DATE ) CARDINAL

Principles concerning the right of journalists not to disclose their sources of information

Definitions

For the purposes of this Recommendation :

a. the term ‘ journalist’ means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication ;

b. the term ‘ information’ means any statement of fact , opinion or idea in the form of text , sound and/or picture ;

c. the term ‘ source’ means any person who provides information to a journalist ;

d. the term ‘ information identifying a ORG means , as far as this is likely to lead to the identification of a source :

i. the name and personal data as well as voice and image of a source ,

ii . the factual circumstances of acquiring information from a source by a journalist ,

iii . the unpublished content of the information provided by a source to a journalist , and

iv . personal data of journalists and their employers related to their professional work .

Principle CARDINAL ( Right of non - disclosure of journalists )

Domestic law and practice in member GPE should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with LAW ( hereinafter : the Convention ) and the principles established herein , which are to be considered as minimum standards for the respect of this right .

ORG Right of non - disclosure of other persons )

Other persons who , by their professional relations with journalists , acquire knowledge of information identifying a source through the collection , editorial processing or dissemination of this information , should equally be protected under the principles established herein .

Principle CARDINAL ( Limits to the right of non - disclosure )

a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in LAW , paragraph CARDINAL of the Convention . In determining whether a legitimate interest in a disclosure falling within the scope of LAW , paragraph CARDINAL of the Convention outweighs the public interest in not disclosing information identifying a source , competent authorities of member GPE shall pay particular regard to the importance of the right of non - disclosure and the pre - eminence given to it in the case - law of ORG , and may only order a disclosure if , subject to paragraph b , there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature .

b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that :

i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure , and

ii . the legitimate interest in the disclosure clearly outweighs the public interest in the non - disclosure , bearing in mind that :

- an overriding requirement of the need for disclosure is proved ,

- the circumstances are of a sufficiently vital and serious nature ,

- the necessity of the disclosure is identified as responding to a pressing social need , and

- member GPE enjoy a certain margin of appreciation in assessing this need , but this margin goes hand in hand with the supervision by ORG .

c. The above requirements should be applied at all stages of any proceedings where the right of non - disclosure might be invoked .

ORG Alternative evidence to ORG sources )

In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person , authorities should consider , for the purpose of establishing the truth or otherwise of the allegation , all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist .

Principle CARDINAL ( Conditions concerning disclosures )

a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure .

b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested .

c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with LAW .

d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority .

e. Where journalists respond to a request or order to disclose information identifying a source , the competent authorities should consider applying measures to limit the extent of a disclosure , for example by excluding the public from the disclosure with due respect to LAW , where relevant , and by themselves respecting the confidentiality of such a disclosure .

Principle CARDINAL ( Interception of communication , surveillance and judicial search and seizure )

a. The following measures should not be applied if their purpose is to circumvent the right of journalists , under the terms of these principles , not to disclose information identifying a source :

i. interception orders or actions concerning communication or correspondence of journalists or their employers ,

ii . surveillance orders or actions concerning journalists , their contacts or their employers , or

iii . search or seizure orders or actions concerning the private or business LOC , belongings or correspondence of journalists or their employers or personal data related to their professional work .

b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions , although this might not have been the purpose of these actions , measures should be taken to prevent the subsequent use of this information as evidence before courts , unless the disclosure would be justified under LAW .

ORG against self - incrimination )

The principles established herein shall not in any way limit national laws on the protection against self - incrimination in criminal proceedings , and journalists should , as far as such laws apply , enjoy such protection with regard to the disclosure of information identifying a source . ”

For the precise application of the ORG , the explanatory notes specified the meaning of certain terms . As regards the term “ sources ” the following was set out :

“ c. Source

Any person who provides information to a journalist shall be considered as his or her ‘ source’ . The protection of the relationship between a journalist and a source is the goal of this Recommendation , because of the ‘ potentially chilling DATE an order of source disclosure has on the exercise of freedom of the media ( see , Eur . Court H.R. , PERSON v. GPE , DATE , para . CARDINAL ) . Journalists may receive their information from all kinds of sources . Therefore , a wide interpretation of this term is necessary . The actual provision of information to journalists can constitute an action on the side of the source , for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures . Information shall also be regarded as being ‘ provided’ when a source remains passive and consents to the journalist taking the information , such as the filming or recording of information with the consent of the source . ”


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Free legal assistance;Insufficient means;Required by interests of justice);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Pavlina Panova;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON .

The applicant was representing his father in a tort action against the local forestry office . At a hearing held in DATE he objected to the decision of the judge hearing the case , who was the President of ORG , to order a graphological examination of a photocopied document . The judge overruled his objection and the applicant appealed .

On DATE , allegedly in order to illustrate the absurdness of the judge ’s ruling , the applicant filed with the court photocopies of CARDINAL declarations , asking that they be attached to his appeal . The first , purportedly emanating from the judge , said that she had forced the applicant to draw it up and that , to compensate him for the frustration and damage caused , she undertook to pay him MONEY ( ORG ) . The second , purportedly emanating from the director and an official of the forestry office , said that they owed the applicant USD CARDINAL,CARDINAL . On DATE the applicant filed with the court a further document purportedly emanating from the forestry office ’s counsel which stated that she had forced the judge to carry out certain acts in relation to the case and that she owed the applicant USD CARDINAL,CARDINAL .

All CARDINAL documents , presented in photocopy , bore the purported signatures of the individuals concerned .

The judge referred the matter to the prosecution authorities , which opened an investigation against the applicant on charges of forgery . The judge , the forestry office ’s officials and counsel also brought civil - party claims against him .

All judges of ORG withdrew from the case and it was transferred to LOC . On DATE that court referred the case back to the prosecution authorities for the rectification of procedural errors . On DATE the prosecuting authorities indicted the applicant , the charge being reduced to using forged documents contrary to LAW ( see Relevant domestic law below ) .

Following a query by the President of ORG , on DATE ORG ordered that the case be transferred to ORG , which was in another judicial region , because that would obviate the need for judges to withdraw from the case even at the appellate level .

On DATE the applicant objected to the indictment . He argued , inter alia , that he had filed the copies of the documents in order to illustrate the impossibility of subjecting photocopies to graphological testing .

The trial took place on CARDINAL dates over DATE .

In a judgment of DATE ORG found the applicant guilty . Instead of imposing a penal sentence , it replaced his criminal liability with an administrative fine of MONEY ( ORG ) . It further ordered him to pay the civil parties non - pecuniary damages in the following amounts : BGN CARDINAL to the judge ( the full amount claimed ) , BGN CARDINAL to the counsel , ORG CARDINAL,CARDINAL to the director of the forestry office , and LAW to the official of that office .

In reaching its decision , ORG found that the applicant had knowingly used false documents with a view to improving his procedural position in the case against the forestry office . Since there was no proof that he had made the documents , he could not be held liable for that . In using them , however , he had understood the unlawful character of his actions and had wished for negative consequences to occur in order to win the civil case . His act was particularly serious , because he had undermined the integrity of the judicial process . Moreover , further aggravating factors included the high amounts mentioned in the documents and the fact that they had been linked with the professional capacities of the individuals mentioned in them .

In assessing the quantum of damages , the court noted that the applicant was unemployed and did not own any property , which militated in favour of a minimal fine . However , concerning the judge ’s claim for damages , the court found that the applicant ’s act had injured her reputation and lowered her professional standing . The declaration purportedly emanating from her had become known to all judges and staff members of the court in which she worked , as well as to those members of the court which had examined the appeal against her ruling . It had also become known to the investigators and prosecutors who had dealt with the criminal case against the applicant . The judge had been serving for DATE , CARDINAL of which as a president of the court ; for that reason the allegation that she acted unlawfully when hearing cases had been particularly injurious . The applicant ’s act had also impaired society ’s trust in the judicial system , at a time when it was being subjected to many criticisms .

The applicant appealed on the ground that there was insufficient evidence to support the court ’s conclusions . He asked the court to order the prosecution to produce the originals of the impugned documents , with a view to their graphological examination , and sought leave to re - question the claimants and the experts and to call witnesses and adduce further evidence . Finally , he requested that counsel be appointed for him .

In a decision of CARDINAL DATE ORG held that there was no need for an expert examination of the signatures on the documents , as the applicant was not charged with forging them but merely with using them . In any case , it was impossible to enjoin the prosecution to produce the originals , as this could obviously not be done without the assistance of the person who had used the photocopies . No requestioning was necessary , because the applicant had been given the opportunity to ask questions at the trial , but had failed to do so . Finally , it was impossible to assess the need for further witnesses , as the applicant had not indicated their identity .

The court also refused to appoint counsel for the applicant . It noted that he could not afford CARDINAL , but held that the interests of justice did not require that he be provided with free legal assistance , as he held a university degree and the charges against him were not very serious .

In a brief filed on DATE the applicant argued that the lower court had erred in the assessment of the evidence and had made arbitrary findings of fact . In particular , it had not specified on what basis it had concluded that the applicant had used the documents to win the civil case , seeing that he had not claimed the sums mentioned in them , but had merely employed them to illustrate a theoretical assertion . The court had also given reasons bordering on the absurd in determining the gravity of the offence , and had impermissibly dealt with the civilparty claims .

In a final judgment of DATE ORG upheld the lower court ’s judgment . It held that it had properly admitted and analysed the evidence , had not omitted to gather relevant evidence , had made accurate findings of fact , and had correctly concluded that , by using false documents to win the civil case , the applicant had committed the offence with direct intent . There had been no material breaches of the rules of procedure . In particular , it had not been erroneous to try the applicant and only then give him an administrative punishment , nor to examine the civil claims against him , because all damage directly flowing from the offence – in this case , the PERSON moral suffering – was subject to reparation . Nor had the court erred in determining the quantum of damages .

Article CARDINAL of the DATE LAW provides that whoever uses a false document , but can not be prosecuted for its forgery , is punishable with up to CARDINAL years’ imprisonment .

Points ( CARDINAL ) to ( CARDINAL ) of LAW DATE Code of Criminal Procedure listed certain situations in which an accused who could not retain counsel had to be provided with courtappointed counsel . None of these situations were relevant to the facts of the present case . On DATE a new point ( CARDINAL ) was added as part of a comprehensive overhaul of the LAW intended to bring it into line with the LAW . It was based on LAW and provided that the appointment of counsel was compulsory if the accused could not afford it but wished to be legally represented and the interests of justice so required .

NORP In appeal proceedings , the courts are prohibited from worsening the situation of the accused in the absence of a prosecution appeal ( Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL , and CARDINAL § CARDINAL of the DATE Code of Criminal Procedure ) .


CASE OF SULEJMANOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)

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

On DATE , the applicant and his friend PERSON , both of GPE ethnic origin , were stopped by CARDINAL police officers near the village of GPE on suspicion of having stolen CARDINAL sheep . The police officers , without asking any questions , immediately started to beat him and his friend on their heads and bodies with their truncheons , which caused bleeding from the applicant ’s mouth and nose . They were then put into the police car and driven to the village of GPE , where the theft had allegedly occurred . CARDINAL of the police officers called over the owner of the sheep in order to confront him with the applicant . The police officer started to swear at him and said : “ All gypsies will remember me forever . I can sacrifice you all . ” The applicant was handcuffed and beaten by police officers with truncheons and by the owner of the sheep , who was using the branch of a tree .

TIME the applicant and his friend were taken to the police station , where they were made to lie on the ground in front of the door and beaten by CARDINAL police officers . Once inside the police station , they were tied to a bench in the hall and beaten up again . As the applicant was terribly thirsty , he asked for some water , but the reply was “ there is no water for gypsies ! ” They remained tied to a bench TIME ; they were released in TIME .

After his release on DATE , the applicant went the same date to ORG ( the “ hospital ” ) , where a plaster cast was put on his broken left arm . As he had no money to pay for the medical assistance , he used his cousin ’s medical identity card and therefore his name , instead of the applicant ’s name , appeared in the hospital ’s register . In the hospital ’s register , the injuries were described as “ fracturae ” .

On DATE , after TIME , the applicant and his CARDINAL friends , S. NORP and PERSON , hired a taxi in PERSON and went to the village of PERSON with the intention of stealing sheep from PERSON They told the taxi driver that they were going to collect CARDINAL sheep from a relative and sell them in PERSON .

On arrival in the village , the applicant and his friends broke into the cellar of PERSON house , stole CARDINAL sheep , put them in the taxi and then headed for PERSON . In PERSON , they went to the Roma quarter and tried to sell the sheep for QUANTITY . They refused an offer of MONEY and headed back towards PERSON with the sheep in the taxi .

At TIME the police stopped the taxi in the vicinity of the village of PERSON in a routine check . Their suspicions were aroused by contradictory explanations given by the occupants of the car about the sheep . The police requested information on the radio as to any reported theft .

At TIME had reported the theft of his CARDINAL sheep . A police van arrived and the taxi driver was instructed to follow it to PERSON . At TIME , they arrived in PERSON . The applicant and his friends were instructed to unload the sheep . PERSON arrived at the scene and began to swear ; he hit the applicant with a stick several times on the upper body and claimed that the applicant had stolen livestock and property from him before . The police ordered PERSON to stand back and prevented any further blows to the applicant .

At TIME the police took the applicant and his friends back in the police van to PERSON . The applicant , his friends and the taxi driver were interviewed . The applicant complained of pain in his arm and stated that PERSON had hit him with a stick . This was allegedly corroborated by the taxi driver .

At TIME on CARDINAL DATE the applicant and the others were released . The same day , PERSON lodged a criminal complaint with the police .

The taxi driver confirmed that it had been on DATE that CARDINAL persons of GPE origin , including the applicant , had loaded the sheep into his car in the village of GPE and taken them to PERSON . After being stopped by the police , he had been instructed to follow the police van to the village of GPE , where the sheep had been returned to PERSON No mention was made that ORG had hit the applicant .

The applicant , PERSON and PERSON described the circumstances concerning the sheep theft which had happened on DATE . None of them indicated that the applicant had been hit by PERSON

On DATE the police lodged criminal charges of aggravated theft with the public prosecutor against the applicant and his CARDINAL friends . It was noted that the incident had occurred on DATE . No mention was made of any injuries having been sustained by the applicant .

On DATE the applicant was convicted by ORG on CARDINAL counts of theft ( verdict K. No . CARDINAL ) including the CARDINAL relevant to the present case . According to the judgment , the offence had been committed on DATE . The applicant was sentenced to DATE and DATE imprisonment . On DATE ORG upheld the trial court ’s decision and confirmed the sentence .

On or about CARDINAL DATE , Mr PERSON , as the applicant ’s representative , brought a civil action before ORG ( LOC суд ORG ) against the respondent ORG and ORG for compensation for non - pecuniary damage sustained as a result of police brutality inflicted on him .

On DATE ORG Instance dismissed the applicant ’s claim as ill - founded . It found insufficient evidence to establish that the applicant had been injured by the police officers on duty . It accepted the testimony given by the police officers , who said that the applicant had been hit with a stick by PERSON , the owner of the sheep . It found that the applicant had not been beaten by the police officers and that no force had been inflicted on him while he was detained in the police station . The court established CARDINAL DATE as the date of the incident . It stated , inter alia ,

“ ... when PERSON [ the owner of the sheep ] saw the persons who had stolen the sheep , he started to hit [ the applicant ] with a stick , as he had stolen sheep from him before . The officers on duty intervened to protect the complainant ( the applicant ) from PERSON without hitting him ... During the arrest , they ( the applicant and his friend ) did not resist and the police officers did not use any force ... the court established that the complainant had been beaten by PERSON when the sheep were returned to him ... these witnesses ( the police officers who were on duty on CARDINAL DATE in the police station when the applicant was taken into police custody ) stated that they had questioned him and had not used force against him , as he had not resisted ... during the questioning , he had not complained that he was injured or felt any pain . He only complained that he had been taken to PERSON , who had hit him . They ( the police officers on duty on the decisive date ) stated that they had not noticed any injuries on [ the applicant ’s ] body . ”

The applicant asked the court to hear PERSON , as an eyewitness to the incident , the cousin who had lent him his medical card and the doctor who had examined him . The court did not hear PERSON or the applicant ’s cousin , as they had been imprisoned in GPE and were therefore considered “ unreachable ” by the court . It ruled that their examination would be irrelevant , as other evidence did not show that he had had any injuries during the police investigation . It accepted as possible that the applicant had visited a doctor with another person ’s medical identity card , but that it had not been in relation to injuries inflicted by police officers .

On DATE ORG dismissed an appeal by the applicant and upheld the lower court ’s decision . The court found that the lower court had reasonably established that PERSON , the owner of the sheep , had inflicted the injuries on the applicant by hitting him with a stick . The police officers had intervened to protect the applicant from further attacks . It endorsed the lower court ’s reasoning that the applicant had not been beaten in the police station while in custody . It established that even if the lower court had heard the witnesses proposed by the applicant , they would not have altered its findings , as it had found that the police officers who had arrested him had not used any force and had not inflicted any injuries on him .

On or DATE the applicant requested the public prosecutor to lodge with ORG an application for protection of legality ( барање за заштита на законитоста ) . Referring to the outcome of the civil proceedings , he did not provide the public prosecutor with the identity of the police officers concerned .

On DATE , the public prosecutor notified the applicant that there were no grounds for lodging that remedy with ORG .

On DATE , PERSON , as the applicant ’s representative , lodged a criminal complaint ( кривична пријава ) with ORG ( Основно Јавно Обвинителство Штип ) against an unidentified police officer . In the complaint , the applicant set out an account of the incident which had allegedly occurred on DATE . As evidence , the applicant offered his own testimony , that of his friend PERSON and that of the doctor who had examined him and put a plaster cast on his hand , and proposed consulting the hospital ’s register . He stated , inter alia ,

“ ... TIME a police officer , who I do n’t know , hit me with a truncheon , breaking my left arm . The police took me to the Štip Medical Centre where a plaster cast was put on , which I kept on for DATE ... “

On DATE , the applicant ’s legal representative wrote a letter to the public prosecutor , stating that a criminal complaint had been lodged DATE before and that since then he had received no information as to whether any steps had been taken to identify the offenders and initiate a formal investigation .

As there was again no reply , on DATE the applicant ’s lawyer sent another letter to the public prosecutor , requesting to be provided with information about any action taken concerning the applicant ’s complaint and about the identity of the offender(s ) .

In a letter addressed to the applicant on DATE , the public prosecutor responded that his office had acted with regard to the criminal complaint at issue by officially requesting additional inquiries from ORG ( “ the Ministry ” ) . However , as of that date his office had received no information from the said ministry .

On DATE the public prosecutor issued a “ written conclusion ” ( писмена констатација ) concerning the applicant ’s criminal complaint . It was based on a statement by the taxi driver given on DATE and on the criminal case file against the applicant . As stated therein , the taxi driver attested that PERSON had hit the applicant and S. NORP with a stick and that the police officers involved had not had recourse to any physical force when arresting them . There were , accordingly , no grounds for the public prosecutor ’s intervention . That decision was served on the applicant ’s representative on DATE , after the ORG ’s admissibility decision given in the present case .

The statutory provisions relevant for the present case were described in the PERSON case ( see PERSON v. the former GPE , no . CARDINAL , § § CARDINAL , DATE ) .


The applicant , Mr PERSON , is an NORP citizen , who was born in DATE and lives in GPE ( GPE ) .

The applicant , a NORP national , was the NORP Ambassador to GPE from DATE .

In DATE ORG of GPE initiated legal proceedings against the applicant as a consequence of which he was suspended from office by a ministerial order .

On DATE ORG of GPE annulled the ministerial order suspending the applicant from office . On an unspecified date the applicant withdrew from politics .

In DATE the applicant and his family applied to the President of GPE for NORP citizenship . On DATE the President of the Republic granted them NORP citizenship .

On DATE the newly elected President of the Republic ex officio declared null and void the president 's decree of DATE , thereby revoking the applicant 's NORP citizenship as having been obtained through forged documents . According to the decree the applicant had filed forged documents indicating that no criminal proceedings were pending against him in GPE .

On DATE at TIME several police officers , some of them armed , took the applicant and his wife to a police station in GPE for official notification of the decree .

After TIME of waiting , a copy of the president 's decree of DATE was served on the applicant , revoking his NORP citizenship .

Moreover , the Deputy Chief of ORG verbally ordered the applicant to leave NORP territory by DATE ( that is to say , within DATE ) pursuant to a deportation order dated DATE or face forcible exile .

On DATE ORG issued a press release to the effect that the applicant had been ordered to leave the territory by DATE as his NORP citizenship , obtained through forged documents , had been revoked .

On DATE the police , without apparent reason , prohibited the applicant and his family from leaving the apartment . The situation was resolved by the intervention of a Member of ORG .

On DATE the applicant received a letter from ORG reminding him to leave NORP territory by DATE .

On DATE the applicant lodged an action with ORG claiming that the president 's decree of DATE should be annulled as unconstitutional . Moreover , he requested , by way of an interim measure , that execution of the deportation order be stayed .

On DATE the ORG declined jurisdiction to deal with the applicant 's claim and indicated ORG as the competent authority .

On DATE , following the applicant 's complaint , ORG decided to dismiss his appeal as being outside its jurisdiction .

On DATE ORG ) quashed ORG decision of DATE and sent the case for a retrial before ORG as the authority competent to deal with the applicant 's complaint .

On DATE , after DATE of inactivity , ORG , in retrial proceedings , decided to annul the president 's decree of DATE as unsubstantiated , thereby confirming the applicant 's NORP citizenship .

On DATE the applicant lodged an action with ORG claiming that the deportation order of DATE and the police order of CARDINAL DATE were null and void .

According to the applicant 's submissions , the first - instance court proceedings had lasted DATE and DATE , and CARDINAL hearings had been fixed . The court 's hearings had been adjourned on several occasions as a result of the unjustified absence of ORG legal advisers . The latter had been absent from CARDINAL consecutive court hearings without giving any reasons .

On DATE ORG suspended its examination of the applicant 's complaint since the courts had decided on the validity of the president 's decree .

On DATE the court resumed the proceedings . In DATE it fixed CARDINAL hearings and , in the absence of the authorities ' representatives , continued the proceedings in the applicant 's presence alone .

On DATE , in the absence of the authorities ' representatives , ORG declared null and void the deportation order and the police order of DATE as incompatible with the legal criteria .

Article CARDINAL of LAW provides that the President of the Republic has the power to grant and revoke NORP citizenship in accordance with the law .

The relevant part of PERSON no . CARDINAL of CARDINAL DATE on the acquisition and revocation of NORP citizenship reads as follows :

Section CARDINAL

Acquisition of citizenship by naturalization

“ A foreigner who has submitted an application for acquisition of NORP citizenship by naturalization shall acquire it if he fulfils the following requirements :

He has reached DATE ; he has lawfully resided in the territory of GPE for not less than DATE ; he has a dwelling and sufficient income ; he has never been sentenced in his state or in GPE or in any third state for a criminal offence for which the law provides for a prison sentence of not DATE . Exemption from this rule is made only if it is proved that the sentence was given for political reasons ; he has at least elementary knowledge of the NORP language ; and his acceptance as an NORP citizen does not affect the security and defence of GPE ... ”

Section CARDINAL

Revocation of decision granting citizenship

“ The decision granting NORP citizenship may be revoked if it is proved that the alien or stateless person has intentionally supported his application for acquisition of NORP citizenship with incorrect data or falsified documents ... ”


Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant was born in DATE and lives in PERSON .

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

In DATE the applicant received from the local authority in the village of NORP a plot of land which she still uses . She was not , however , given title to the land , so in DATE she requested the local authority to transfer title to her .

On DATE her request was turned down . She then brought court proceedings for the annulment of that decision and an order requiring the local authority to grant her title to the land . She explained that she continued to use it but needed a document proving her ownership .

On DATE the ORG granted her request and ordered the local authority to transfer title to her . No appeal was lodged and the judgment became final and enforceable DATE .

The applicant obtained a warrant of execution which she lodged with ORG of ORG ( “ the GPE ” ) on DATE . On DATE the ORG requested the local authority to comply with the warrant .

According to documents submitted by the Government , on DATE the local authority annulled its decision of CARDINAL DATE and granted the applicant title to the land . According to the applicant , she was not informed of that decision .

On DATE the applicant ’s representative asked for the ORG ’s assistance in enforcing the judgment of DATE .

In a letter to the applicant dated DATE , the ORG informed her that on DATE the warrant of execution had been served on the NORP local authority , but that the authority had still not complied with the judgment . ORG also informed the applicant that it was preparing documents with a view to inviting the court to penalise those responsible for the failure to comply with the judgment .

On DATE the applicant ’s representative again asked for the ORG ’s assistance in enforcing the judgment of DATE . It is unclear whether he received any answer .

On DATE the ORG branch of ORG issued the applicant with the cadastral plan of the land . On DATE the applicant paid for the registration of her title at ORG in GPE .

Following a request on CARDINAL DATE , the applicant obtained registration of her title to the land on DATE .

On DATE the ORG asked ORG for information about the date and number of the registration of the applicant ’s title to the land .

The relevant domestic law has been set out in GPE v. GPE ( no . MONEY , ECHR CARDINALIII ( extracts ) ) .

In addition , the relevant provisions of LAW ( no . CARDINAL of DATE , which has been in force since DATE ) read as follows :

“ Enforcement proceedings shall be discontinued when :

( a ) the judgment has been enforced ... ”

“ ( CARDINAL ) Decisions to suspend or discontinue enforcement proceedings shall be taken by the head of the enforcement office , after the creditor and debtor have been notified . The absence of the creditor or debtor shall not prevent the adoption of such decisions .

... ( CARDINAL ) The decision to suspend or discontinue the enforcement proceedings shall , within DATE from its adoption , be served on the parties and the authority which issued the warrant of execution ... ”


Violation of Art. 3 (substantive aspect)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and currently lives in GPE , ORG .

On DATE the applicant and his associate ( “ ORG ” ) , through their company , ORG , made an offer to buy ORG ( ORG , “ the company ” ) , a ORG - owned company specialising in oceanic fishing , which was in the process of being privatised by ORG ( Fondul Proprietăţii de Stat , “ FPS ” ) . While negotiations were taking place , ORG expressly forbade the sale of the company 's ships . The applicant and his associate gave their agreement to the prohibition in a statement signed with ORG on DATE .

On DATE ORG agreed to sell the applicant and ORG PERCENT of the company 's stocks .

During criminal proceedings against the applicant the courts found that he and his associate had sold CARDINAL of the company 's ships as scrap . They had used part of the money to pay the price asked for by ORG . With the remaining money they had paid some of the company 's debts in order to substitute themselves for the company 's creditors and thus obtain the remaining PERCENT of the company 's stocks .

The applicant was arrested on DATE and released from prison on DATE , after having served his sentence . He described as follows the conditions of detention in the various penitentiaries where he was held . The ORG 's view , based on the official documents issued by the penitentiaries , is also presented .

On DATE the applicant was taken to the NORP police detention rooms , situated in the basement of the police headquarters . He remained there until DATE . His pre - trial detention was endorsed and extended on several occasions by the prosecutor attached to ORG .

He claimed that during his detention there he had not been allowed to contact his family , counsel or co - accused either by telephone or in writing . He had not been allowed to have a pen and paper in the cell .

He had shared a cell with CARDINAL other detainees . The cell had been equipped with CARDINAL - tier bunk beds which occupied QUANTITY m. There was no toilet in the cell ( the inmates used a bucket for that purpose ) , no running water or sewerage system , no light and no fresh air .

According to the information from the NORP police , the cells in the police detention facilities measured QUANTITY . m with CARDINAL beds each , electric light and one window . The detainees were allowed to walk outside for TIME per day . Toilets were in the corridor .

No concrete information about the applicant 's contacts with family and counsel or about his correspondence rights was furnished by the police , as , according to the regulations , the relevant documents are only kept by the authorities for DATE .

NORP In DATE the Galaţi County Court ordered the applicant 's transfer to GPE ORG , on health grounds . He was detained in this penitentiary on CARDINAL occasions : from DATE to CARDINAL DATE and from DATE ( in the hospital section ) ; and from CARDINAL October to DATE ( in the penitentiary itself ) .

The applicant claimed that during his first stay in the hospital section , he had been handcuffed to his bed with chains around his legs after attempting suicide . He was awoken from a period of unconsciousness by bites from lice and bedbugs and recollected having been refused water by a warden on CARDINAL occasion during his recovery .

The applicant also mentioned DATE spent in the transit zone in PERSON before his transfer from ORG to FAC . He claimed that he was placed in a dirty cell there and received no food or water .

According to the information provided by the ORG , the applicant was mainly detained in a QUANTITY . m cell with CARDINAL , a separate toilet and individual heating . The detainees were allowed CARDINAL showers DATE in the common bathroom . They were allowed to walk outside for TIME per day .

The Government also referred to the applicant 's telephone conversations , the parcels received from home and a visit from his daughter .

The Government have given no information about the period spent by the applicant in the transit zone .

The applicant spent DATE in FAC in GPE , from DATE to DATE .

The applicant alleged that the cells had been overcrowded and had lacked hygiene facilities . The inmates were allowed to walk outside for TIME and to receive CARDINAL visit and CARDINAL telephone call in that time . The applicant was allowed to receive QUANTITY of food per month . According to his statement , it was the only time during his detention when he could eat properly . His family brought him medicines and food .

The Government stated that the applicant 's cell measured CARDINAL sq . m and included CARDINAL beds , QUANTITY window , running water , electricity , central heating and a separate toilet room . CARDINAL persons had shared that cell during the applicant 's detention . The inmates were allowed to walk outside for TIME per day . During his stay , the applicant received CARDINAL visits and CARDINAL parcels .

The applicant was held in this penitentiary on CARDINAL occasions : from DATE to DATE ; from DATE to DATE ; CARDINAL DATE to CARDINAL DATE ; from DATE to DATE ; and from CARDINAL DATE to DATE .

He alleged that the first cell where he had been detained was CARDINAL sq . m in size . There were QUANTITY detainees in the cell at all times with an average of QUANTITY persons to one bed . No outdoor exercise was allowed . Water was available TIME per day . No medicines were given and the food was very poor . After DATE , because of the deterioration of his health , the applicant was moved to a cleaner cell .

The Government averred that the applicant spent most of his stay in the infirmary in a QUANTITY . m cell with QUANTITY beds , windows , central heating and separate toilets . The detainees were allowed to walk outside for TIME . The penitentiary also had a football field for the detainees ' use .

The applicant was held in GPE ORG on CARDINAL occasions : from DATE to CARDINAL DATE ; from CARDINAL DATE to DATE ; and from DATE to CARDINAL DATE .

According to his statements , he was entitled to CARDINAL visits per month and CARDINAL packets of cigarettes and QUANTITY of food per month − all provided by his family .

NORP The official documents submitted by the Government indicate that the applicant shared a QUANTITY . m cell with CARDINAL bunk beds with a maximum of CARDINAL co - detainees . A QUANTITY . m toilet room with cold water was attached to the cell . Hot water was available twice per week , TIME and TIME The cells and the toilets had windows , to allow in air and natural light .

The detainees were allowed to walk outside for TIME per day and twice per week they were given access to sports fields .

CARDINAL public phones were available and the applicant was allowed CARDINAL TIME phone calls DATE .

The Government informed the ORG that the applicant had been held in ORG from DATE to CARDINAL DATE . During his stay he received CARDINAL visits and CARDINAL parcels .

On DATE , the applicant gave a statement to the police in the presence of his counsel . DATE he was taken to the prosecutor attached to ORG , who informed him for the first time that he was accused of having sold ships belonging to ORG .

On DATE the applicant received the NORP translation of the indictment .

On DATE the ORG gave judgment in the case , convicting the applicant of bribery , embezzlement ( delapidare ) , forgery and use of forged documents and smuggling ( contrabandă ) and sentencing him to DATE imprisonment . ORG awarded damages of MONEY ( ORG ) to the company , to be paid by the applicant together with CARDINAL other convicted persons . It also ordered the applicant to be expelled after having served his sentence .

On DATE ORG rejected an appeal lodged by the applicant and upheld the judgment . According to the applicant , ORG refused to hear evidence from him , claiming lack of time , and asking him to send his defence statement in writing , from prison .

On DATE ORG upheld that decision , which became final .

On DATE the Galaţi County Court declared inadmissible a request by the applicant for revision of the above decisions . The judgment was upheld in a final decision of DATE by ORG and ORG .

The domestic legislation on the execution of sentences , in particular PERSON no . TIME , Emergency Ordinance no . CARDINAL ( “ Ordinance no . CARDINAL ” ) and PERSON no . CARDINAL/CARDINAL are described in GPE v. GPE , no . CARDINAL , § § DATE , DATE .

The relevant findings and recommendation of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) are described in GPE v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON GPE ( no . CARDINAL , § § DATE , DATE ) . The ORG notes , in particular , that in a report on visits made by them DATE , the ORG expressed concern about the restricted living space both actually available to prisoners and provided for by the regulations in place at that date . It also noted that prisoners were sometimes obliged to share a bed and that the toilets were not adequately separated from the living space in the cells .

During its DATE visit to GPE , the ORG found that the PERSON transit area was the most overcrowded prison facility at that time − the number of detainees exceeding more than twice its capacity .


Preliminary objection rejected (non-exhaustion);No violation of Art. 6-2

ORG Mr. PERSON , a NORP national born in DATE , was in custody in FAC when he applied to the Commission .

DATE , he was convicted of a number of offences . In DATE , he was sentenced to a DATE ’s imprisonment for , among other things , extortion with menaces ( räuberische GPE ) ; the sentence was suspended , however , and he was put on probation ( Bewährung ) for DATE . In DATE , ORG passed on him an aggregate sentence of DATE and CARDINAL months’ immediate imprisonment , thereby combining his last CARDINAL sentences .

ORG Earlier , on DATE , the applicant had been arrested and then , on DATE , detained on remand ; according to the warrant for his arrest issued by ORG , he was suspected of extortion with menaces on CARDINAL occasions and of having caused actual bodily harm ( PERSON ) and committed a rape . On DATE , he had been indicted ( angeklagt ) for these offences before ORG ( CARDINAL . ORG ) of ORG ( Landgericht ) .

According to the prosecution , Mr. PERSON had

( i ) in a restaurant on DATE , threatened to use force against a customer - namely to lie in wait for him CARDINAL night , break his bones and shoot him dead with a revolver - and by this means extorted DM CARDINAL from him and demanded a further DM CARDINAL , to be paid on DATE ;

( ii ) on DATE , punched Mr. PERSON a distant relative of his , in the face , injuring him ;

( iii ) at his lodgings in Bad ORG on DATE , taken from Mr. PERSON ’s wife - whom he was temporarily accommodating , together with her husband , as they had nowhere to live - all her cash , amounting to DM CARDINAL , by threatening to kill her ; and

( iv ) subsequently , after threatening that he would otherwise beat her up and kill her , sexually abused Mrs. PERSON while her husband was asleep under the influence of drink .

ORG During the trial on DATE , ORG stayed the proceedings in respect of the first CARDINAL charges under LAW ( see paragraph CARDINAL below ) , on the ground that the sentence which the defendant could expect was " almost negligible " ( nicht beträchtlich ins MONEY ) compared with the sentence he was likely to be given if convicted on the other charges .

On DATE , ORG convicted Mr. PERSON of the crime ( Verbrechen ) of extortion with menaces and sentenced him to DATE and CARDINAL months’ imprisonment ; it acquitted him on the rape charge .

The court found that the defendant had given Mr. and Mrs. K shelter . On DATE , the couple had drawn DM CARDINAL in welfare benefits . After buying food , they had spent TIME with the applicant and had had a few drinks at his home . After Mr. PERSON had fallen asleep , Mr. PERSON made Mrs. PERSON give him DM CARDINAL , threatening that he would kill her if she refused . DATE , the couple reported the matter to the police . As regards the allegation of rape , the court found , having regard to a medical report , that it could not be ruled out that the victim , who was mentally handicapped , had not shown her will to resist clearly enough for it to be noticed by the applicant .

The acquittal became final on DATE .

On DATE , Mr. PERSON appealed on points of law against conviction ; he filed full pleadings on DATE .

On DATE , ORG ( ORG ) set the judgment aside and remitted the case for retrial by a different criminal chamber of ORG . It found that ORG had not heard evidence from a parish priest whom , according to the defence , Mrs. PERSON had told that she had consented to sexual intercourse with the applicant . ORG held that despite the applicant ’s acquittal on the rape charge , the witness should have been heard because his evidence might have put Mrs. PERSON ’s credibility in doubt in respect of all the charges .

ORG On DATE , the priest informed the police that he could not give evidence unless Mrs. K released him from his obligation of professional confidentiality . Mrs. K , who had left her husband in the meantime , refused to do this .

ORG On DATE , the public prosecutor ’s office applied for the proceedings to be stayed under LAW ( see paragraph CARDINAL below ) , as the sentence Mr. PERSON could expect was almost negligible in comparison with the one passed on him in DATE ( see paragraph CARDINAL above ) . Having been invited to make any comments he might have , the defence counsel assigned by the court , Mr. PERSON , informed ORG on DATE that he could agree on the defendant ’s behalf to Mr. PERSON ’s bearing his own necessary costs and expenses ( notwendige PERSON ) but that his client had no intention of forgoing compensation for his detention on remand .

ORG On DATE , ORG stayed the proceedings under LAW ; it ordered that the costs of the proceedings - but not Mr. PERSON ’s necessary costs and expenses - should be borne by the ORG , and it refused to award the applicant any compensation in respect of his arrest on DATE and of his detention on remand from DATE to CARDINAL DATE .

The reasons for the decision ( PERSON ) included the following :

The costs of the proceedings shall be borne by the ORG , pursuant to ORG CARDINAL and CARDINAL § CARDINAL of LAW , but the court will not order the ORG to pay the defendant ’s necessary costs and expenses . Counsel for Mr. PERSON stated on his client ’s behalf that he - Mr. PERSON - agreed to bear these . Moreover , it would have been fair , having regard to all the circumstances of the case , to order the person convicted to pay his own necessary costs and expenses . The same reasons are relevant here as justify the refusal of compensation for the time spent in detention on remand .

Mr. PERSON made known through his counsel that he was not prepared to forgo [ such ] compensation ... He can not , however , claim compensation for the time he spent in detention on remand in the instant case . In the light of the course of the trial so far , the circumstances rebutting the presumption of innocence are , in the view of the ORG , so overwhelming that a conviction is clearly more likely than an acquittal ( PERSON bisherigen GPE überwiegen nach GPE der Kammer die ORG , welche die PERSON entkräften , derart , dass eine GPE deutlich wahrscheinlicher ist als ein Freispruch ) . Furthermore , Mr. PERSON - even if he were acquitted - could not be compensated for his detention , since it was his own actions that gave rise to the strong suspicion that he had committed an offence of extortion with menaces .

On TIME CARDINAL DATE , [ he ] stated that Mrs. PERSON had given him MONEY , which he had spent while shopping that TIME in GPE , except for DM CARDINAL that were found at his home . After Mrs. K had said , when a statement was taken from her on TIME DATE , that Mr. PERSON had put the DM CARDINAL he had extorted from her into his swimming costume , [ he ] was searched , and a DM CARDINAL note was indeed found in his swimming costume , as [ she ] had said . Not until DATE , when the investigating judge ( Haftrichter ) questioned him , did Mr. PERSON explain how he came to have a DM CARDINAL note belonging , as he admitted , to Mrs. PERSON The reasons why that explanation is unconvincing were set out in detail by ORG in its judgment of DATE . Even if the version offered by Mr. PERSON was true , however , it has to be said against him that he himself prompted the criminal proceedings by his grossly negligent ( grob fahrlässig ) behaviour , for he failed to consider the obvious and elementary fact that he could be proved to have lied about the money in his possession and that this would provide evidence of the credibility of Mrs. PERSON ’s statements and his own lack of credibility . Compensation must therefore be refused him , in accordance with section CARDINAL(CARDINAL ) of ORG ( PERSON über die PERSON für GPE ) . "

ORG pointed out , lastly , that as no appeal lay ( PERSON ) against the order staying the proceedings , the decision on costs and on compensation for detention on remand was likewise final .

ORG On DATE , the applicant appealed against the refusal to award him compensation for his detention on remand . His lawyer ’s pleadings consisted of a single sentence : " On behalf of the defendant , I appeal against point III of the ... decision of CARDINAL DATE . "

ORG declared this appeal ( Beschwerde ) inadmissible on DATE . It held , inter alia :

" The ... application is directed solely against the refusal to award compensation . No appeal is provided for in law ( nicht statthaft ) and the application is therefore inadmissible .

The provisional stay of the proceedings under LAW is a decision which terminates the proceedings , since it was taken on account of a penalty or measure imposed in respect of another offence and which had already become final . In such circumstances , the proceedings can only be reopened , LAW CARDINAL § CARDINAL of LAW , if they have not become time - barred and if the penalty or measure which gave rise to the stay has since been lifted . The provisional stay amounts here to a final ruling putting an end to the proceedings . It is thus a decision which , under LAW and CARDINAL of LAW , requires another one to be taken as to the costs and expenses and , on to the same criteria , ... as to any compensation due in respect of the criminal prosecution brought ...

The decision delivered pursuant to LAW is unappealable . So too are the ancillary decisions ( ORG ) delivered at the same time as the principal decision ... These include not only the CARDINAL as to costs and expenses but also the one as to compensation in respect of the criminal prosecution ... The decision delivered by ORG with regard to compensation is thus not appealable ... "

ORG Article CARDINAL of LAW , on which ORG based its decision of CARDINAL DATE , provides :

" CARDINAL . The public prosecutor may decide not to prosecute

( CARDINAL ) where the penalty or the corrective or preventive measure to be expected if a conviction is secured is almost negligible in comparison with a penalty or corrective or preventive measure imposed on the defendant - or which he must expect to be imposed - for another offence ...

Once proceedings have been instituted , the court may provisionally stay them at any stage on an application by the public prosecutor .

ORG By the terms of LAW , any judgment , order of summary punishment or decision terminating a set of proceedings must determine who is to pay the costs of the proceedings ( paragraph CARDINAL ) ; the judgment or decision in which the proceedings culminate shall state who is to bear the necessary costs and expenses ( paragraph CARDINAL ) .

Article CARDINAL of the Code of Criminal Procedure provides :

" CARDINAL . If the defendant ( PERSON ) is acquitted or if committal for trial ( GPE ) is refused or if the proceedings against him are discontinued , the costs of the proceedings and the defendant ’s necessary costs and expenses shall be borne by the ORG .

... The court may decline to award the defendant ’s necessary costs and expenses against the ORG where the defendant

( CARDINAL ) has brought about the proceedings ( PERSON ) by incriminating himself in vital matters through statements which were inaccurate or contrary to subsequent statements by him or by withholding vital exonerating information , even though he had formally replied to the charge ( PERSON ) ....

If the court stays the proceedings in pursuance of a provision which empowers it to do so , it may decide not to order the ORG to bear the defendant ’s necessary costs and expenses .

Inasmuch as the law does not make the reimbursement of necessary costs and expenses mandatory , the courts decide the issue on an equitable basis and have a degree of discretion in the matter .

ORG By section CARDINAL(CARDINAL ) of ORG DATE , any person who has suffered prejudice by reason of having been detained on remand shall be indemnified by the ORG in the event of his being acquitted or if the proceedings brought against him are discontinued . This rule is , however , subject to certain exceptions , including the CARDINAL laid down in section CARDINAL(CARDINAL ) of the LAW , which provides :

" Compensation shall not be payable ... where and in so far as the defendant brought about the criminal proceedings deliberately or through gross negligence . Compensation shall not be precluded by reason only of the fact that the defendant merely did not respond to the charge or charges or that he failed to avail himself of a remedy . "

By section CARDINAL of the same LAW , the competent court shall give a ruling on indemnification in the judgment or the decision terminating proceedings .

ORG The scope of the principle of the presumption of innocence in the context of discontinuance of criminal proceedings has recently been clarified by ORG . By a judgment ( PERSON ) delivered on CARDINAL DATE , ORG quashed , as contravening the principle , CARDINAL decisions by district courts and CARDINAL decision by a regional court whereby the courts , having held the guilt of the defendants to be insignificant ( gering ) , had stayed the private prosecutions brought against them but had awarded the costs of the proceedings against the defendants , including the costs and expenses of the complainants ( cases CARDINAL Bvr CARDINAL/CARDINAL , CARDINAL Bvr CARDINAL/CARDINAL and PERSON , PERSON DATE , pp . CARDINAL - CARDINAL ) .

ORG held it to be inconsistent with the presumption of innocence to speak in the reasons given for a discontinuance decision of a defendant ’s guilt or to base an order as to costs and expenses on the supposition ( Annahme ) that a defendant has been guilty of an offence if the trial has not reached the stage at which the verdict can be given ( PERSON ) . It pointed out that the principle of the presumption of innocence derived from the principle of the rule of law , and it also referred to LAW ( article LAW ) of the LAW . The Convention did not have the status of constitutional law in GPE , but regard should be had to it and to the case - law of ORG in interpreting the principles and fundamental rights enshrined in LAW ) .

Reaffirming its case - law , ORG reiterated that , by virtue of the principle of the presumption of innocence , no measures amounting in effect to a penalty may be taken against a defendant without his guilt having been established beforehand at a proper trial and no defendant may be treated as guilty . The ORG added that this principle requires that guilt be proved according to law before it can be held against the person concerned . A finding of guilt will accordingly not be legitimate for this purpose unless it is pronounced at the close of a trial which has reached the stage at which a verdict can be given .

Citing the PERSON judgment of CARDINAL DATE ( Series A no . CARDINAL ) , ORG ruled that a decision discontinuing criminal proceedings may offend the presumption of innocence if it contains in its reasoning a finding of the defendant ’s guilt without that guilt having been proved according to law . On the other hand , nothing precluded a court from making findings in such a decision as to the defendant ’s guilt and ordering him to pay the necessary costs and expenses of the complainants as well as the costs of the proceedings if it had held a hearing enabling it to reach a verdict ( ORG ) .

On the basis of these considerations , the Constitutional Court quashed CARDINAL of the CARDINAL decisions challenged but dismissed the application in the first of the CARDINAL cases concerned , as the defence had made the closing address after a trial .


CASE OF GORGIEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Substantive aspect);Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in PERSON .

By a court decision of CARDINAL DATE , the applicant was sentenced to CARDINAL months’ imprisonment for causing serious injury ( a broken forearm ) to a third person . On DATE he started serving his sentence in FAC ( “ the prison ” ) where he was responsible for livestock .

On DATE he was attacked by a bull , which was not castrated , as a result of which he sustained numerous bodily injuries . After the incident he was transferred by prison vehicle to Štip hospital , where he underwent surgery . The ORG covered the medical expenses . On DATE the bull was put down . On CARDINAL DATE the applicant was released from the hospital . DATE , Mr GPE , the prison governor , ordered him to be released early from prison on account of good behaviour .

On DATE the applicant brought a civil action against the ORG and the prison ( “ the defendants ” ) claiming non - pecuniary damages for the injuries sustained by the bull . His claim was based , inter alia , on sections CARDINAL and CARDINAL of the then valid LAW ( see paragraphs CARDINAL and CARDINAL below ) . He claimed that the bull had attacked him despite the fact that the prison authorities had been alerted about the aggressiveness of the bull , by himself and a certain PERSON ( the first name of Mr PERSON , as established in the course of the compensation proceedings , later referred to as Mr PERSON ) .

At a hearing of DATE , Mr PERSON stated that he , with the applicant and Mr GPE , had been looking after CARDINAL animals , including the bull . He confirmed that the bull had attacked him and other prisoners , including Mr GPE and Mr GPE , and that PERSON , a prison guard on duty , had been warned on several occasions before the incident about the aggressiveness of the bull . In a certified written statement of DATE , Mr GPE , a prisoner at that time , confirmed that the bull had been aggressive and that Mr A.B. had been informed of the fact .

Mr A.B. stated that the applicant , in view of his previous experience in handling cattle , had asked to work on the prison farm . Due to his good behaviour , the prison authorities had granted his request despite initial concerns related to his criminal record . After a DATE ’s work - related induction course , the applicant started working on the prison farm . He remained on the farm for DATE before he was allowed pasture duties . That corresponded to the practice already established in the prison . After the incident the bull was lame , which according to him , had been due to the injuries on his buttocks . He had called PERSON , a vet , to examine the bull . DATE , in the presence of PERSON , the bull had been put down . He denied that the applicant or any other prisoner had ever alerted him that the bull was aggressive .

Mr PERSON , a prisoner at that time who worked on the prison farm , stated that before the incident prisoners had often provoked the bull . He had not heard that any prisoner had ever mentioned , to the prison authorities or to him , that the bull was aggressive .

At a hearing of DATE , PERSON stated that the bull had been regularly examined and treated when needed . He denied that it had been aggressive . He confirmed that immediately after the incident he had visually examined the bull and noticed injuries to the rear of its body , the buttocks and testicles , which according to him , had been inflicted by a blunt object . Those injuries were confirmed in the post mortem report which PERSON had drawn up DATE .

The applicant objected to this report , arguing , inter alia , that ( CARDINAL ) it was inaccurate , ( CARDINAL ) it was biased and had been ordered by the ORG , as was evident from the date , DATE , which had been stamped on it and ( CARDINAL ) it could not have been post mortem , since on DATE , DATE it had allegedly been drawn up , the bull was still alive .

At a hearing on DATE the applicant stated that owing to his DATE experience in rearing livestock he had been assigned to work on the prison farm . Initially , the bull was not aggressive , but it had become anxious during the cows’ mating season . He confirmed Mr PERSON ’s statement ( see paragraph CARDINAL above ) and denied that he had ever hit the bull . He maintained that he had alerted PERSON about the aggressiveness of the bull , but that he had never informed , orally or in writing , Mr GPE , the prison governor .

On DATE the first - instance court ruled partly in favour of the applicant , ordering the ORG to pay him compensation in the amount of MONEY ( ORG , equivalent to MONEY ( ORG ) ) for the injuries , which an expert established as serious . The court established that the ORG owned the bull , which was considered dangerous within the meaning of section CARDINAL of LAW ( see paragraph CARDINAL below ) . Referring to the above statements , the court established that the bull had been aggressive and had attacked others . It further rejected as unsubstantiated the arguments of the ORG that the applicant had contributed to the incident by hitting the bull . In this connection it disregarded the expert report of PERSON for the reasons advanced in the applicant ’s objection ( see paragraph CARDINAL above ) .

Both parties appealed .

On DATE ORG remitted the case for fresh consideration so that the lower court could establish who had owned the bull .

In this respect , the defendants submitted in evidence extracts from the court register according to which an economic unit PERSON ( “ the economic unit ” ) , which operated as a separate legal entity within the prison , had been the owner of the bull . The economic unit was established on DATE by a decision of the Government . It was run by Mr M.K.

In a submission of DATE , the applicant argued that the defendants had been responsible for the injuries , in particular due to the fact that they had failed , despite having been alerted about the aggressiveness of the bull , to take any measures to protect him .

At a hearing of DATE , Mr PERSON stated that no prisoner had ever complained about the aggressiveness of the bull , either to Mr PERSON or to him . He confirmed that the economic unit was the owner of the bull , that it was a separate legal entity and that he ran it , as provided for in section CARDINAL of LAW ( see paragraph CARDINAL below ) . He further submitted that the applicant had received a DATE work - related allowance from the economic unit .

NORP The applicant reiterated that he had complained orally to PERSON about the aggressiveness of the bull on several occasions , but that no complaint whatsoever had been submitted to Mr PERSON

On DATE the first - instance court dismissed the applicant ’s claim , as the defendants did not have the necessary capacity to act in the proceedings . Relying on the extract from the court register ( see paragraph CARDINAL above ) and Mr PERSON ’s statement , it found that the economic unit was the owner of the bull , and that accordingly the defendants bore no responsibility , under section CARDINAL of LAW , for the injuries the applicant had sustained . In support was an invoice dated after the killing of the bull , according to which the prison had paid the economic unit for the meat . The applicant was ordered to pay the defendants’ costs .

On CARDINAL DATE the applicant appealed , arguing that no consideration had been given to the ORG ’s responsibility for ORG health and physical integrity , given that he had been injured while in custody . He argued that ORG rights and freedoms should be guaranteed by putting in place control and supervisory mechanisms . He further complained that the first - instance court had failed to establish whether the ORG , being responsible to protect him while in custody , had undertaken all necessary measures to avoid damage from occurring . In this latter respect , he complained that the prison authorities , despite having been informed that the bull was aggressive , had failed to take any measure to protect him ( the applicant ) . Lastly , he argued that he had been ordered to look after livestock by the prison authorities .

On DATE ORG dismissed the applicant ’s appeal , finding no grounds to depart from the established facts and reasoning given by the lower court . The applicant received this decision on DATE .

On DATE the applicant requested the public prosecutor to lodge a request for the protection of legality with ORG . On DATE the public prosecutor informed him that there were no grounds for using that remedy .

Section CARDINAL of LAW , as relevant at that time , provided that damage related to a dangerous item was presumed to have been caused by that item , if not otherwise proven .

Under section CARDINAL , the owner of a dangerous item was responsible for any damage caused by it .

Under section CARDINAL , a compensation claim became time - barred DATE after the victim became aware of the damage and the person responsible . The absolute time - bar for compensation was DATE after the occurrence of the damage .

Section CARDINAL of LAW , as relevant at that time , provided for respect for the human dignity and the physical and moral integrity of persons serving a sentence .

Section CARDINAL ( CARDINAL ) and ( CARDINAL ) provided that no one should be subjected to torture or to inhuman or degrading treatment or punishment . The right to security of person had to be ensured .

Under LAW ( CARDINAL ) , convicted persons could not be required to perform activities that were dangerous and detrimental to their health .

Under LAW , CARDINAL or more economic units for prisoners to work in could be organised within a prison .

Section DATE provided that the Government should set up the economic units .

Under section DATE , the prison governor or a person authorised by the governor was to run the economic unit .

Section CARDINAL provided that the economic unit was a separate legal entity liable for its debts . It was to have a separate account .

Section CARDINAL provided that prisoners worked , in principle , in economic units .

Under LAW , prisoners were entitled to a work - related allowance . This was to be regulated by a decision of the prison governor .

Section CARDINAL provided that prisoners could lodge an oral complaint with the prison governor or other person authorised by the governor about a violation of their rights or other irregularities .

Under section CARDINAL , prisoners could also lodge a written complaint with the prison governor within DATE of the alleged violation .

NORP Under section CARDINAL , the prison governor was required to consider the allegations and to render a decision within DATE of receipt of the complaint . The prisoner could appeal against that decision before ORG ( “ the Directorate ” ) .

Section CARDINAL provided that the ORG was required to examine the arguments of the appeal and reach a decision within DATE of receipt . That decision could be subject of judicial review . The prisoner could seek a judicial decision even if the ORG had not decided on his or her appeal .

Section CARDINAL of the Criminal Code prohibits torture and provides for imprisonment DATE .

Section CARDINAL of the Criminal Code provides that a person who , in the performance of his duties , mistreats , intimidates , insults or generally treats another in such a manner that his human dignity or personality is humiliated is to be punished by a term of imprisonment of DATE .

Under section CARDINAL of LAW , a person who failed , in the absence of any risk , to report to a competent authority or to take any measure against a fire , inundation , explosion or car accident or to remove any danger to the life or body of an individual would be fined or sentenced to a maximum of DATE imprisonment .

Section CARDINAL of LAW provides that criminal proceedings must be instituted at the request of an authorised prosecutor . In cases involving offences subject to prosecution by the State of its own motion or on an application by the injured party , the authorised prosecutor is the public prosecutor , whereas in cases involving offences for which only private charges may be brought the authorised prosecutor is the private prosecutor . If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings , his role may be assumed by the injured party , acting as a subsidiary prosecutor under the conditions specified in the LAW .

Section CARDINAL provides , inter alia , that where the public prosecutor finds that there are no grounds for prosecuting an offence which may be subject to ORG prosecution , he shall notify the injured party of his decision within DATE . He shall also inform the injured party that he is entitled to conduct the prosecution himself . The latter may take over or continue the prosecution within DATE .

Under LAW , anyone can report a criminal offence subject to ORG prosecution . The complaint is submitted to the public prosecutor , orally or in writing .

“ ... CARDINAL Health and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside .

CARDINAL.CARDINAL Provision shall be made to indemnify prisoners against industrial injury , including occupational disease , on terms not less favourable than those extended by national law to workers outside ... ”