Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE . At the material time he was working as a professional driver .

On DATE , at TIME , the applicant parked his car at the side of the road , with the intention of spending TIME in his outhouse . He was accompanied by his girlfriend , PERSON When they started walking away from the car , CARDINAL lower ranking police officers ( plutonieri ) got out of a car and approached them , CARDINAL in uniform ( GPE ) and the other in plain clothes ( P.D. ) . Other police officers were also present at the scene , as traffic controls were being carried out .

GPE asked for the applicant ’s identification papers , but the latter could not produce them as he had left them in his other car . GPE grabbed the car keys from his hand with the intention of searching the car . The applicant told him that he would not find the papers in the car and that , in fact , he had just been fined for the same offence . He put his hand in his pocket to pull out the police report .

At that moment , the police officer punched the applicant in the mouth and tried to hit him again . The applicant stepped back and lifted his leg in defence . PERSON intervened and the QUANTITY police officers threw the applicant face down on his car and searched him and the vehicle . As his lip was bleeding , the applicant shouted at the police , calling them “ militia agents ” ( miliţieni ) . He told them he would go straight to a forensic doctor and would then press charges against them .

On DATE , at TIME , the applicant was driving his car while under the influence of alcohol . When he saw the police performing traffic controls , he decided to stop the car and continue on foot , in order to avoid being caught drunk driving . The police officers GPE and GPE noticed the applicant and assumed that he was trying to avoid being checked . They approached him in their car . GPE introduced himself and asked to see the applicant ’s identification papers .

The applicant turned his back on the police , shouted abuse and told them he did not have the papers on him . He was incoherent and smelled of alcohol . The police asked him to go with them to the hospital for a blood test . The applicant refused to follow them . When GPE tried to take him by the arm , the applicant became violent and abusive . He kicked GPE in the leg . He was then immobilised by GPE and GPE but managed to tear GPE ’s uniform .

After the incident , the applicant was taken straight to hospital to have his blood alcohol content tested . The physician concluded , after carrying out the standard tests , that the applicant was not under the influence of alcohol . She also noted in the clinical evaluation form that the applicant had a small bruise on the left upper lip . CARDINAL urine samples were taken and sent to the laboratory for further testing . The results ( available on DATE ) showed a blood alcohol content of CARDINAL.CARDINALg / oo .

Later that evening , the applicant was taken from the hospital to the police headquarters . His car was also brought to the police courtyard . His girlfriend was interviewed until TIME , when she was released .

On DATE the prosecutor ordered the applicant ’s arrest . On DATE he was remanded in custody for DATE . He remained in custody until the end of the criminal proceedings against him .

DATE after the incident , the police allowed PERSON to take the applicant ’s car from the police yard .

On DATE ORG attached to ORG indicted the applicant for driving under the influence of alcohol and for insult and violence . It described the incident as follows :

“ As [ the applicant ] did not have his identity papers , [ GPE ] insisted that they go to the hospital and when he tried to take his arm to lead him to the police car , [ the applicant ] became violent , tearing himself away and kicking him in the left femur , near the hip . ...

During the interview [ the applicant ] partially admitted the facts ; he declared that he had only drunk CARDINAL bottle of beer at TIME and that he had only kicked the police officer after having been slapped by him . ”

On DATE the court heard statements from ORG and a witness , PERSON They maintained the statements they had made to the prosecutor but the former added that she had seen the police officer hit the applicant and that he had started bleeding , and the latter added that he had seen the applicant bleeding .

On DATE ORG convicted the applicant as charged and sentenced him to CARDINAL GPE imprisonment . The court upheld the prosecutor ’s version of the events . The applicant reiterated that he had been hit by GPE The court discarded the statements given by PERSON and ORG as follows :

“ It is true that before the court the witness [ ORG ] declared that the applicant had been hit by [ GPE ] , and witness PERSON had noticed that the applicant had been bleeding , without having seen whether he had been hit . However , these statements will be set aside as insincere in so far as during the criminal prosecution the witnesses did not make such statements and could not justify why they did not do so . ”

The applicant appealed against the decision . He reiterated that he had been hit first by the police officer and made reference to the clinical evaluation form to prove the violence suffered . ORG based its examination on the statement the applicant made to the prosecutor and considered that his allegations were not supported by evidence . It therefore upheld the county court ’s decision , on DATE .

On DATE ORG dismissed an appeal on points of law lodged by the applicant and upheld his sentence . It held that :

“ None of the witnesses heard in the case confirmed the applicant ’s defence that he had been hit straight after the request to produce his identity papers . ”

On DATE the applicant requested PERSON to appeal against the final decision of DATE . On DATE , the Procurator General informed him that there were no reasons to request the reopening of the proceedings ( recurs în anulare ) . He received the same answer even after he complained that his intention had been to lodge a request for the annulment of the final decision ( contestaţie in anulare ) .

On DATE the applicant lodged a criminal complaint against GPE with ORG . He accused the police officer of having punched him in the mouth and in the back of his head .

He was interviewed on DATE and DATE .

On DATE GPE made a statement .

On DATE the applicant filed a complaint of theft from his car , apartment and outhouse , all keys being in the set that had been confiscated by the police and then returned to ORG

The police officers who had been witnesses to the incident were interviewed by the prosecutor . They all declared that the applicant had been recalcitrant and had hit GPE

On DATE ORG decided not to start criminal proceedings against GPE and the other police officers . It considered that the applicant had behaved aggressively on TIME of DATE . The decision made no reference to any act of violence having been perpetrated by the police officer . As for the accusations of theft , it noted that :

“ The car was transported to the Traffic Police headquarters and , as the driver was arrested DATE by ORG attached to ORG for insult and violence , it was released to [ ORG ] , the driver ’s mistress , and a report was drafted . ...

There is no evidence indicating that anything was stolen from the car ; the report confirms that it was given [ to ORG ] in good condition . ”

Subsequent complaints lodged by the applicant did not result in the reopening of the case by the military prosecutor , the latest decision not to prosecute being dated DATE .

The relevant provisions of LAW and of the provisions governing the police and military prosecutor are set out in PERSON GPE ( ( no . CARDINAL ) , no . CARDINAL , § § CARDINAL , DATE ) and PERSON v. GPE ( no . GPE , § CARDINAL , DATE ) .

In paragraphs CARDINAL of the judgment in PERSON ( no . CARDINAL ) , cited above , there is a description of the development of the law concerning complaints about decisions by the prosecutor ( LAW CARDINAL introduced by Law no . CARDINAL/CARDINAL DATE applicable from DATE ) .


The applicant company , Falter Zeitschriften GmbH , is the owner and publisher of the DATE newspaper Falter , having its registered office in GPE . It was represented before the ORG by Mr A. Noll , a lawyer practising in GPE . The respondent Government were represented by Mr PERSON , Head of ORG at ORG

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

In DATE a police officer revealed that he and some colleagues had repeatedly transmitted data from the central police computer to officials of ORG ( ORG ) . Subsequently criminal investigations were opened against several persons , amongst them Mr PERSON and Mr GPE , who were , respectively , the leader of the GPE branch of the ORG and his secretary .

In DATE criminal investigations against Mr PERSON were discontinued . Mr PERSON was convicted by the first - instance court in DATE , but was subsequently acquitted on appeal .

In the meantime , on DATE , the applicant company published a CARDINAL - page article in an issue of Falter commenting on the proceeding and the outcome of the investigations . The relevant passage concerning PERSON PERSON and Mr PERSON read as follows :

“ ... The commission investigated and proposed to the investigating judge that pre - trial detention be ordered for PERSON , head of GPE , and PERSON , his secretary . However , these individuals were both immune . Neither pre - trial detention nor house searches could be ordered rapidly . In DATE , on the premises of GPE so much material , like never before in DATE , was passed through the shredder . Files were discovered with some AUF [ police labour union ] officials in which just those passages subsequently to be found in ORG press releases had been highlighted in yellow .... ”

Referring to the penultimate sentence of this passage , PERSON and Mr GPE instituted proceedings in ORG ( PERSON für PERSON ) , claiming compensation and seeking an order for publication of the judgment under sections CARDINAL and CARDINAL of LAW ( Mediengesetz ) .

On DATE ORG held an oral hearing and examined CARDINAL witnesses requested by the defence . The press officer of ORG ( Die Grünen ) , which had its LOC under those of ORG , stated that at the relevant time the doors of the ORG branch had been locked and there had been rumours that the shredder had been in continuous use . The court also examined CARDINAL journalists from ORG , an NORP DATE newspaper which had reported on the issue . Both stated that CARDINAL independent , anonymous sources had confirmed that at the relevant time a large amount of paper relating to the “ police information scandal ” had been shredded on the LOC of the GPE ORG . However , the journalists refused to give any further information regarding their sources .

On DATE the court found that the offending statement amounted to defamation under LAW ) and to a violation of the presumption of innocence of PERSON and Mr GPE , as guaranteed under section CARDINALb of LAW ( Mediengesetz ) . It ordered the applicant company to pay MONEY ( ORG ) in compensation to Mr PERSON and Mr PERSON respectively , to publish the judgment and to pay the costs of the proceedings to each of them .

The court found that the offending statement , when read in its context , suggested that PERSON and PERSON had themselves destroyed evidence concerning the criminal proceedings instituted against them or at least had approved that destruction . This reading also appeared logical in the light of the fact that PERSON and Mr GPE would have benefited the most from the destruction of such material and that they were both , in their respective positions , the responsible persons . However , the evidence obtained at the trial was not sufficient to prove this allegation as the witnesses could not testify to anything they had perceived themselves . Furthermore , the applicant company had not given PERSON and PERSON the opportunity to comment on the allegations raised against them . The court lastly noted that the article did not refer to ORG and therefore dismissed the applicant company ’s argument that the offending statement was a neutral citation .

The applicant company appealed against this judgment . It submitted that ORG should have heard a representative from the administration of the LOC in question who could have stated that at the relevant time more paper than average had been put through the shredder by the ORG party . The court further should have examined the author of the article in order to give him the opportunity to prove that journalistic diligence had been complied with . It further complained that , in the light of the evidence given by the witnesses at the trial , the court should have reached the conclusion that there had been sufficient proof of the offending PERSON veracity .

On DATE ORG ( Oberlandesgericht ) confirmed ORG judgment but increased the amount of compensation to be paid to PERSON and PERSON , respectively , to ORG CARDINAL . It noted that the applicant company ’s request for the examination of a representative of the LOC in question had not been adequately submitted as it was filed only in written submissions prior to and not at the trial . In any event , however , a statement that more paper than average had been put through the shredder would not prove that it had in fact been evidence concerning the “ police information affair ” which had been destroyed . An examination of the author of the article to prove that journalistic diligence had been complied with had not been necessary . The applicant company had admitted that PERSON and PERSON had not been consulted before the writing of the article and it had not alleged that there had been exceptional circumstances , such as official documents , to prove the statement at issue , which would have exonerated it from this obligation . The court finally noted that the assessment of evidence was a matter to be dealt with by the courts . In the present case , the court could not possibly reach the conclusion that the information provided by anonymous sources had been reliable and credible as the ORG statements in this regard had to be considered as uncorroborated assessments by witnesses . In any event , these statements merely asserted that much material had been shredded , but did not prove that PERSON and PERSON had been involved .

This judgment was served on the applicant company ’s counsel on DATE .


Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-2;Violation of Art. 5-4;No violation of Art. 5-4;No violation of Art. 13;Non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicants were born in DATE and DATE respectively and live in GPE and GPE respectively .

On DATE PERSON ( the first applicant ) was appointed director of ORG , a ORG company producing alcohol . DATE and CARDINAL DATE he worked as the director of the agroindustrial department GPE - Vin . In DATE his son ORG ( the second applicant ) graduated from ORG and on DATE he was hired as an economist in ORG He also owns a PERCENT stake in that company .

The applicants are accused of having organised , DATE and DATE , the purchase by ORG of bottles using the services of ORG and PERSON ORG , instead of buying them directly from the producer , and thus damaging the ORG company 's interests . The profits made were then channelled to ORG , a private company registered in GPE in which ORG owned a PERCENT stake . His associate ORG owned a PERCENT stake and was also arrested and accused of co - authorship in the crime .

According to the applicants , not contradicted by the ORG , ORG is the owner of the well - known registered bottles PERSON and GPE , which are used by various companies , including ORG , for brandy . The bottles are produced by the PERSON glass factory on the basis of contracts with ORG The glass factory could not lawfully sell such bottles to anyone without the consent of the owner of the registered bottles , ORG

In TIME of CARDINAL November CARDINAL at TIME PERSON was leaving for work when he was approached by CARDINAL masked men who grabbed him by the hands . A third man introduced himself as an officer of ORG ( “ the NORP ” ) and handed ORG a summons to appear at the ORG . A fourth man filmed the event . Sequences of the film were later shown on the national television channel . According to the Government , the applicant was arrested at CARDINAL a.m.

S.L. was forced into a car and driven to the ORG , where he was allegedly informed that he needed a lawyer and that his arrest had been ordered by the highest leadership of GPE . Since he did not have his diary , PERSON could not call his lawyer . Despite his insistence on being assisted by the lawyer of his choice , his request was rejected and he was offered the services of a lawyer appointed by the investigator .

According to ORG , he could not freely discuss his case with that lawyer , since a masked man and the investigator were present at their discussion , which took place in the investigator 's office .

S.L. was then informed that he was charged with large - scale fraud . He was formally recognised as a suspect on DATE and placed in the ORG remand centre . Investigation no . DATE was the only investigation referred to in the record of ORG 's arrest .

All his subsequent meetings at the ORG with the lawyer chosen by him were held in the lawyer - client room , where they were separated by a glass wall and allegedly had to shout to hear each other . In the lawyer - client meeting room of the LOC detention centre the space for detainees is separated from the rest of the room by a door and a window . The window is made of CARDINAL plates of glass . Both plates have small holes pierced with a drill ; however the holes do not coincide , so that nothing can be passed though the window . Moreover , there is a dense green net made either of thin wire or plastic between the glass plates , covering the pierced area of the window . There is no space for documents to be passed between the lawyer and his client . PERSON and his lawyer allegedly could not work with documents properly and felt that there was a risk of being overheard by the ORG officers .

On DATE ORG 's car was stopped by masked men at about the same time as his father was being arrested . ORG was forced into a car and driven to the ORG . His request to allow him to come to the ORG in accordance with the summons which had just been handed to him ( and which did not indicate the time he was expected at the ORG ) was ignored . The event was filmed . According to the Government , the applicant was arrested at TIME

At the ORG he was informed that he needed a lawyer . He called a colleague and asked him to call his lawyer . When the lawyer arrived , they were unable to confer in private and had to discuss matters in the investigator 's office , in the presence of the investigator and a masked man .

After he had made statements to the investigator ORG was formally recognised as a suspect and placed in the ORG remand centre .

All his subsequent meetings with his lawyer at the ORG were held in the meeting room , where they were separated by the glass partition and could not work with documents properly and where there was a risk of being overheard by the ORG officers .

The minutes of each of the applicants ' arrest reproduced , inter alia , the text of LAW ( see paragraph CARDINAL below ) with place reserved for notes in respect of each potential ground for arrest . The only such ground which was filled in was that

“ eyewitnesses identified [ each applicant ] directly as having committed the crime punished under LAW of LAW ” .

Both applicants challenged the record of their arrest in court as unlawful . They submitted that they had not been identified by any witness as having committed a crime . The prosecution asked the court to remand the applicants in custody . It relied on the materials gathered within the framework of criminal investigation no . DATE in respect of both applicants , according to which they were suspected of large - scale fraud at a ORG - owed company which ORG had administered until DATE .

On DATE the investigating judge of ORG adopted CARDINAL decisions , rejecting the prosecutor 's request for the applicants to be remanded in custody . The court found that , even though the applicants were suspected of having committed a serious crime and the proceedings had been initiated in accordance with the law , no evidence had been submitted in either of the CARDINAL case files as to the alleged danger of the applicants ' absconding or committing further crimes . No eyewitness statement was submitted to the court identifying the applicants as the authors of a crime . In addition , they had permanent residence in PERSON and families , and PERSON was seriously ill and needed permanent medical assistance .

NORP The court also found that the prosecution had submitted incomplete materials gathered within the framework of criminal investigation no . DATE and that the latter had not been joined to investigation no . DATE , which was the basis for the prosecutor 's request .

The court did not order any restriction on the applicants ' freedom of movement , and they were released immediately . ORG underwent a surgical operation on DATE and left the hospital on DATE .

On DATE the prosecution appealed , invoking , inter alia , the failure of the court to take into account the materials gathered within the framework of criminal investigation no . DATE .

On DATE the ORG accepted the prosecution 's appeal and quashed the lower court 's decision in respect of PERSON , remanding him in custody for DATE . This decision was final . On DATE the same court adopted a similar decision in respect of ORG

The court gave similar reasons for remanding each of the applicants in custody , namely :

“ [ each applicant ] is accused of committing a very serious offence and there is a risk of influencing witnesses and of absconding ” .

The court added that the investigating judge should have refrained from examining the case of ORG , whom he had represented in a previous criminal investigation . That decision was final .

On DATE the applicants and PERSON left the country . PERSON left for GPE , where he requested and obtained asylum and was granted NORP citizenship on DATE . ORG left for GPE and PERSON left for GPE . On DATE the applicants were officially indicted .

On DATE the NORP authorities asked the relevant NORP authorities to extradite ORG Having requested additional explanations and documents from the GPE authorities , on DATE ORG rejected that request . The court found that the documents submitted by ORG had not revealed a well - founded accusation that ORG had committed a crime . The materials showed that other persons , including ORG 's father , had been accused of having committed fraud . The court also found from the documents at its disposal that during the period under investigation and until DATE ORG had been a student and had not held a management position in any of the companies mentioned in the criminal file . As confirmed by the NORP authorities , ORG did not have the right to sign any documents in the name of ORG , which directly contradicted the assertion made by the NORP prosecutors that he had been the director of that company in DATE . No evidence was submitted to the court that ORG had assisted in any manner in the alleged perpetration of the crime .

On DATE ORG upheld the decision of the lower court . The court stressed that the materials submitted mentioned ORG as an accomplice , without giving details , but essentially concerned his father .

On an unknown date the NORP authorities asked the relevant NORP authorities to extradite PERSON On DATE the NORP authorities replied that they could not extradite PERSON as he was a NORP citizen .

According to the respondent Government , on DATE the criminal investigation against the applicants was suspended since their whereabouts could not be established and since the investigation could not be finished in the applicants ' absence .

In a letter dated DATE , the ORG informed ORG that the applicants had been informed of the charges against them as part of investigation no . DATE . Since the CARDINAL other investigations had been initiated not against the applicants personally but against “ persons with decision - making power ” at ORG , it was not necessary to inform the applicants of those investigations . In a letter addressed to ORG in DATE ORG stated that the applicants had been informed of the subject - matter of investigation no . DATE . They were not informed of the CARDINAL other criminal investigations , given that only the person or authority which had asked for the initiation of the investigations was to be informed under the law .

The relevant domestic law has been set out in ORG v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) , and NORP v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE ) .

In addition , Article CARDINAL of LAW reads as follows :

“ Article CARDINAL . FAC for arresting a person suspected of having committed a crime

( CARDINAL ) The Investigating authority has the right to arrest a person suspected of having committed a crime which is punished by law with DATE imprisonment only in the following cases :

CARDINAL ) NORP if he was caught in the act ;

CARDINAL ) NORP if an eyewitness , including the victim , point directly at him as having committed the crime ;

CARDINAL ) NORP if clear signs of a crime are discovered on his body or clothes , or in his house or vehicle .

( CARDINAL ) NORP In other situations where there are reasons to believe that the person committed a crime he can only be arrested if he tried to abscond or has no permanent residence or if his identity could not be established . ... ”

“ Article CARDINAL . Grounds for taking preventive measures .

Preventive measures may be taken by the investigating authority or the court only if there are reasonable grounds to believe that the suspect or accused could abscond from the investigating authority or the court , prevent the verification of truth in the criminal proceedings or reoffend ; they can also be taken by a court in order to ensure enforcement of a sentence .


Violation of Article 5 - Right to liberty and security;Violation of Article 8 - Right to respect for private and family life

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was arrested by the police on suspicion of having committed several burglaries and robberies together with several accomplices .

On DATE ORG ( PERSON ) decided to place the applicant in pre - trial detention on the basis of a reasonable suspicion that he had committed the offences . The court also considered that , given the likely severity of the penalty , it was probable that the applicant would interfere with the course of proceedings and he might go into hiding . Moreover , the court considered that there was a risk that the applicant would bring pressure to bear on witnesses or his accomplices .

On DATE and DATE ORG ( PERSON ) extended the applicant ’s detention , finding that the original reasons for it were still valid . The court referred also to the risk of his absconding , considering that the applicant rarely stayed at his official place of residence and “ had been avoiding contact with the police officers , who were looking for him ” .

On DATE ORG ( FAC ) , upon an application from ORG ( Prokurator Okręgowy ) , further extended the applicant ’s pretrial detention .

Subsequently , the applicant and CARDINAL co - accused were indicted before ORG ( PERSON ) .

On DATE ORG extended the applicant ’s pre - trial detention . In a very brief reasoning the court stated that there was a reasonable suspicion against the applicant and that , given the likely heavy sentence and the fact that the applicant had acted in a criminal group , only his detention could secure the proper course of the proceedings .

Subsequently , as the length of the applicant ’s detention had reached the statutory time - limit of DATE laid down in LAW of LAW ( Kodeks postępowania karnego ) , ORG applied to ORG for the applicant ’s detention to be extended beyond that term .

On DATE , DATE and DATE ORG extended the applicant ’s detention and that of his CARDINAL coaccused . The court relied on the existence of a reasonable suspicion that the applicant had committed the offences with which he had been charged . Moreover , the court referred to the nature of the offences and the risk that , given the likely severity of the penalty , the applicant would obstruct the proceedings or go into hiding . Lastly , ORG examined the course of the proceedings before the trial court and found that their length had not been excessive , bearing in mind the number of accused involved and complexity of the case . It also stated that despite the fact that hearings had been held several times per week , CARDINAL witnesses still had to be heard .

On DATE and DATE ORG further extended the applicant ’s detention in CARDINAL decisions . Both decisions repeated the same grounds for the applicant ’s detention : the reasonable suspicion against him , the severity of the likely sentence and the need to secure the proper conduct of the proceedings . ORG stressed that it expected the trial court to finish the proceedings soon , in particular given the length of time the accused had spent in detention so far . In the second of the above - mentioned decisions the court established that , although the applicant’

The applicant ’s numerous requests for release during his pretrial detention were to no avail .

On DATE the ORG convicted the applicant and sentenced him to seven years’ imprisonment . The applicant appealed against the judgment .

On CARDINAL DATE ORG dismissed the applicant ’s appeal . The court upheld the judgment in respect of CARDINAL accused and quashed it as regards CARDINAL others .

On DATE the applicant sent his first letter to the ORG indicating his intention to lodge an application . The top right corner of the letter bears a red stamp “ censored ” ( cenzurowano ) . The envelope in which the letter was delivered bears signs of opening after having been sealed : its left side has been cut open and then resealed with sellotape . The envelope also bears the stamp of ORG and a handwritten note : W[rocła]W R[egional ] C[ourt ] .

On DATE the applicant sent a letter to the ORG . The envelope in which the letter was delivered bears a stamp “ FAC DATE ” and a blue stamp “ Censored ” ( ocenzurowano ) .

The relevant domestic law and practice concerning the imposition of pre - trial detention ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

NORP The relevant domestic law concerning the censorship of ORG correspondence is set out in the ORG ’s judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .


The applicant , PERSON , is an NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON Suppan , a lawyer practising in GPE .

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

At the material time the applicant was Deputy Prime Minister of GPE in a coalition Government formed by the NORP ORG ( ORG ) and the applicant ’s party , namely ORG ( Österreichische Volkspartei ) . In the DATE election campaign the applicant had been nominated by his party as candidate for the office of Prime Minister .

In DATE the NORP ORG and ORG distributed stickers showing a picture of the applicant ’s face CARDINAL overlapped by the face of Mr PERSON , the leader of ORG ( ORG ) , headed by the following text : “ The social security slashers and the education snatchers share a common face ” ( “ PERSON ” ) .

On DATE the applicant brought proceedings under section CARDINAL of LAW ) .

On DATE ORG ( ORG ) granted the applicant ’s request for a preliminary injunction prohibiting the defendants from publishing and disseminating the applicant ’s picture , in the event that his legitimate interests were thereby injured , firstly , in that the accompanying text alleged that he was a “ social security slasher ” and an “ education snatcher ” or , secondly , in that his face was distorted by being overlapped with the face of a politician of an opposing party , that of PERSON .

In its reasoning , ORG noted that section CARDINAL of LAW protected anyone against abuse of his or her picture in public . A person in the public eye , in particular one who had entered the public arena of his or her own motion , was not protected in this public capacity . The applicant had put himself at the centre of his party ’s election campaign . As his party ’s top candidate , he could be regarded as endorsing its positive statements and had to accept being the target of its GPE criticism . Thus , the use of his picture by political opponents was not in itself contrary to section CARDINAL of LAW . However , while the applicant had to accept admissible criticism directed against the party represented by him , an infringement of his legitimate interests was conceivable regarding attacks on his privacy or personal disparagement which went beyond the limits of acceptable criticism . This consideration applied in particular where his picture was used in a distorted manner . In the present case , the applicant did not have to accept the distorted use of his picture “ melted ” with the picture of a political opponent .

Further , ORG examined whether the publication of the applicant ’s picture in the context of the impugned statement “ The social security slashers and the education snatchers share a common face ” was unlawful . It found that the combination of the applicant ’s picture with disparaging expressions suggesting that he was insensitive to social needs and was stealing educational opportunities violated his legitimate interests .

On DATE ORG dismissed the objection ( Widerspruch ) of the defendants .

On DATE ORG ( Oberlandesgericht ) , upon the GPE appeal , confirmed the preliminary injunction order as to the prohibition to publish a distorted picture of the applicant , but lifted it as regards the prohibition to publish it accompanied by the incriminated text .

ORG confirmed that the applicant did not have to accept the publication of his distorted picture overlapped with the picture of a political opponent . However , as to the accompanying text , it found that the expressions “ social security slashers ” and “ education snatchers ” , though being blunt , were no more than the usual graphic wording applied in an election campaign . The average citizen would conclude that the applicant advocated reducing social assistance and making budgetary cuts in the education system . The statement could not be understood as to contain an allegation of theft within the meaning of LAW , nor did it suggest that the applicant was generally insensitive to social needs .

On DATE ORG , upon the GPE appeal on points of law , quashed ORG decision and dismissed the applicant ’s request for a preliminary injunction .

ORG observed that , when examining whether the publication of a picture violated legitimate interests within the meaning of section CARDINAL of LAW , it had to be taken into account whether the person concerned was well - known . However , even where a well - known politician was concerned , there were limits to the admissible publication of his picture . Such limits applied where the publication intruded on a politician ’s privacy , where his picture was distorted or where it was accompanied by a text which connected him with events with which he had nothing to do or attributed political convictions to him which he did not hold .

ORG confirmed the appellate court ’s view that section CARDINAL of LAW did not prohibit the publication of the applicant ’s picture in the context of the allegation that he was a social security slasher and an education snatcher . The impugned statement was - contrary to the applicant ’s view - not a statement of fact but a value judgment . The dividing line between statements of fact and value judgments depended on the context in which the statement was made and the impression it conveyed . In general , the public would understand attributions of negative intentions to CARDINAL politician by his political opponents as value judgments . Whether measures proposed in the interest of consolidating the budget were perceived as slashing social security or , on the contrary , as preserving a sound economic basis for the social security system , was indeed a value judgment .

ORG went on to say that political debate and the shaping of public opinion was sometimes impossible without having recourse to graphic wording . It recalled that political debate was protected by the right to freedom of expression as guaranteed by LAW . Referring to the case - law of ORG , ORG recalled that the limits of acceptable criticism were wider for a politician than for a private individual . A politician inevitably and knowingly laid himself open to close scrutiny of his every word and deed by journalists , the public at large and his political opponents . Thus , as his party ’s top candidate , the applicant had to accept that his political opponents used disparaging words to describe his political aims .

As to the question of whether the publication of the applicant ’s picture overlapping with Mr PERSON ’s was contrary to section CARDINAL of LAW , ORG contested the appellate court ’s view . It was clear to every onlooker that the faces of CARDINAL leading politicians had been combined by way of photomontage . The picture showed the applicant as he had presented himself in the election campaign without making his features ugly or repulsive . The sticker simply conveyed the political message that the applicant advocated the same policy as Mr PERSON on social security and education issues . This was the “ common face ” of the defendant ’s CARDINAL most important opponents . On the whole , this was an admissible political statement rather then a personal disparagement of the applicant .

In the subsequent main proceedings , ORG held a hearing on DATE . The applicant ’s counsel submitted that the sticker at issue suggested to the general public not only that the applicant ’s future political intention was to reduce social security or educational opportunities but that he had already taken such measures . He requested that a member of the applicant ’s party be heard as a witness . The court dismissed the request , finding that the matter was ready for decision .

ORG , referring to ORG reasoning , dismissed the applicant ’s request that the defendants be prohibited from publishing his picture in the event that his legitimate interests were thereby injured , firstly , in that the accompanying text alleged that he was a “ social security slasher ” and an “ education snatcher ” or , secondly , in that his face was distorted by being overlapped by the face of a politician of an opponent party , in particular PERSON .

On DATE ORG dismissed the applicant ’s appeal . As to the applicant ’s complaint that the witness requested by him had not been heard , the court found that the question of what impression was conveyed by the sticker at issue was a matter of legal assessment to be carried out by the court .

On DATE ORG dismissed the applicant ’s appeal on points of law . It found that the applicant ’s submissions in the main proceedings did not raise any relevant new facts as compared to the preliminary injunction proceedings .

Section CARDINAL of LAW , insofar as relevant , reads as follows :

“ ( CARDINAL ) Images of persons shall neither be exhibited publicly , nor disseminated in any other way in which they are made accessible to the public , where the legitimate interests of the person in question , or in the event they have died without having authorised or ordered publication , of a close relative would be injured . ”


No violation of Art. 8;No violation of P1-1

ORG Mr PERSON Barreto , a NORP national born in DATE , is an office worker . He married in DATE and he and his wife have CARDINAL child , born on DATE .

ORG When the applicant was still single he lived with his parents . Since his marriage he has lived in a house rented by his parents - in - law . CARDINAL of his wife 's brothers and CARDINAL of her aunts have also lived there at various times in that period . The house , in GPE ( Madeira ) , has QUANTITY bedrooms , a kitchen , a living - cum - dining room and a basement .

ORG In DATE Mr PERSON inherited from his parents a house also situated in GPE . This house , which has been let for residential use to GPE since DATE , has CARDINAL bedrooms , a kitchen and a bathroom . The rent , which had initially been fixed at QUANTITY ( PTE ) , was PTE CARDINAL at the time when the proceedings began .

ORG On DATE the applicant and his wife brought proceedings against GPE and his wife in ORG . Relying on Articles DATE and DATE of LAW , they asked the court to terminate the lease on the ground that they needed to occupy the property as their own home .

ORG found against the applicant and his wife on CARDINAL DATE . It held that CARDINAL of the statutory requirements for termination had not been satisfied , since the applicant had not established facts which proved a real need to occupy the house himself .

The reasons given by the judge included the following considerations :

" A landlord 's need to terminate a lease must be assessed mainly in the light of his family circumstances , his living conditions and/or his occupational status at the time when the action is brought or foreseeable in the immediate future .

In that connection , the following facts have already been established : that ' since his marriage , in DATE , Mr PERSON has lived with his parents - in - law in the Travessa do PERSON , [ Funchal ] ' ; that ' PERSON 's parents , PERSON and PERSON and their son , one of PERSON brothers and CARDINAL of her aunts ... lived in the house ' ; that ' the plaintiffs ' house has CARDINAL bedrooms , a kitchen and a bathroom ' ; that ' the house where the plaintiffs live has CARDINAL bedrooms on the first floor , a kitchen and a living - cum - dining room on the ground floor and a basement ' ; that ' Mr PERSON parents - in - law , who are at present the sole occupants , with PERSON and PERSON and their son , of the house in the Travessa do PERSON , are resigned to the presence in their house of the plaintiffs and their son , since they have nowhere else to live ' ; and that ' the plaintiffs both work in GPE ' .

It should be noted that PERSON CARDINAL aunts and her brother no longer live in the house where the plaintiffs are now living and that this has increased the available living space and privacy that all human beings need . The plaintiffs ' living conditions are better now than they were when the action was brought , since they even have a bedroom for their son .

Moreover , the plaintiffs did not succeed in proving , as the onus was on them to do , that the relations between themselves and PERSON parents were permanently strained and conflictual . What is certain , however , is that no link whatsoever has been established between their son 's illness and their living conditions in that house .

It might be said - and after all it has been proved that the plaintiffs live with PERSON PERSON parents , ' who are resigned to the presence in their house of the plaintiffs and their son , since they have nowhere else to live ' - that in view of the adage ' When a man marries he needs a house ' , cited by Mr PERSON in his first application , the existence of a marriage should be sufficient to establish a need to recover possession of the rented property in order to live there .

However , each case is unique . Regard being had to the facts found to have been established and those asserted by the plaintiffs in support of their claims , but not established , and given that the concept of the need to occupy must be interpreted as a state of necessity , to be objectively assessed on the basis of a reasonable criterion , in the light of everyday experience , it can not be denied that the facts as a whole do not support the conclusion that the plaintiffs need the property in question in order to live there .

Their living conditions would certainly be better and more comfortable in the house let to the defendants , but the real need required by case - law does not exist , nor is this a case where it is absolutely necessary or essential for the plaintiffs to recover possession of the accommodation .

It follows that , although the other conditions in Article DATE of LAW have been satisfied , the plaintiffs ' application must be considered inadmissible , since they have not established that they are entitled to terminate the lease under Article CARDINAL para . CARDINAL ( a ) .

In conclusion , without finding it necessary to add any further considerations , I declare unfounded , for lack of evidence , the present action for termination of the lease and eviction of the tenant ( processo especial de despejo ) , and find against the plaintiffs ... "

ORG On DATE Mr PERSON appealed against this judgment to ORG . Referring to the underlying intention of the legislation concerning the right to terminate a lease , he argued that he and his family had the right to live in a home they did not have to share with anyone .

ORG On DATE ORG upheld the impugned judgment . It held that the house of the applicant 's parents - in - law was large enough for all the people who lived in it , including the applicant , his wife and his son . There was therefore no real need for Mr PERSON to live in the house he owned .

ORG gave the following reasons for its decision :

" In order to establish need , plaintiffs must cite specific facts which , once proved , establish the existence of a real , serious and present need , adducing weighty rather than purely hypothetical arguments . It is not sufficient to desire , to wish or to claim .

In order to be able to exercise their right [ to terminate the lease ] , the applicants must adduce evidence of those facts ( Article CARDINAL para . CARDINAL of LAW ) .

... it is established that :

( a ) the house where the plaintiffs live has CARDINAL bedrooms on the first floor , a kitchen and a living - cum - dining room on the ground floor and a basement ;

( b ) at present that house is occupied by Mr PERSON parents - in - law , the plaintiffs and their son , that is CARDINAL people altogether ; and

( c ) Mr PERSON parents - in - law are resigned to the presence in the house of the plaintiffs and their son .

As the house has CARDINAL bedrooms , the plaintiffs can occupy CARDINAL room and their son another .

The house has enough bedrooms for all the members of the family to be able to live there .

Each couple has a bedroom and the plaintiffs ' son has his . And there is still CARDINAL bedroom left over .

The judgment must reflect the situation at the conclusion of the evidence and argument ( Article CARDINAL para . CARDINAL of the Code of Civil Procedure ) .

Since it has not been proved that the plaintiffs are in a precarious situation , the fact that they live with PERSON parents , albeit by their favour , is manifestly insufficient to prove the need required by LAW ... Moreover , the plaintiffs have not proved that there was tension which made it intolerable for them all to live in the same house .

Derogation from the general principle and eviction of the tenant for the benefit of the landlord are possible only where it appears to be absolutely necessary , for weighty reasons , for the landlord to live in the property ( LAW ) .

In the light of the foregoing considerations , and because the plaintiffs have not proved need as set out above and as this court interprets it , the appeal is inadmissible and the judgment is upheld . "

ORG No appeal lay against the above judgment .

ORG The following is a translation of the main provisions of LAW applicable at the material time to the termination of tenancy contracts on residential property :

... A landlord shall not have the right to terminate a [ tenancy ] contract , which shall be tacitly renewed unless terminated by the tenant in accordance with LAW . "

ORG A landlord may seek termination of a [ tenancy ] contract on its expiry in the following cases :

( a ) when he needs ( necessite ) the property in order to live there or to build his home there .

ORG The right of a landlord to seek the termination of a [ tenancy ] contract in order to occupy the property as his home shall be subject to the following conditions :

( a ) he must have owned ... the property for DATE or have acquired it by inheritance , in which case this qualifying period shall not apply ;

( b ) he must not have been in occupation of another residence in the area where the property covered by the [ tenancy ] contract is situated , either as owner or tenant , for DATE ; and

( c ) he must not previously have sought to terminate the contract .

ORG According to established case - law ( ORG judgments of DATE and CARDINAL DATE ) , a landlord 's right to terminate a lease in order to occupy the property as his home may be exercised only when , in addition to the conditions laid down in DATE LAW , the condition laid down in Article CARDINAL para . CARDINAL ( a ) , namely the landlord 's real need to live in the property , has been satisfied .

ORG These rules were amended by the legislative decree of DATE , but this did not introduce any fundamental change regarding the possibility of termination .


Preliminary objections dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-1;Violations of Art. 5-4;Non-pecuniary damage - award

Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Isabelle Berro-Lefèvre;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Margarita Tsatsa-Nikolovska;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

The applicant was born in DATE . At the date the application was lodged , he was living in GPE .

On DATE the applicant was arrested .

On DATE ORG ordered his detention on remand after hearing representations from him . The applicant was assisted from this point on by counsel . In a detention order running to CARDINAL pages , ORG found that there was a strong suspicion that the applicant had evaded taxes on CARDINAL occasions DATE and DATE , an offence punishable under various provisions ( which were specified in detail ) of LAW , LAW , LAW and ORG Taxes . He had been working as a self - employed commercial agent for CARDINAL different firms in GPE ( whose names were listed in detail in the order ) since DATE . He had also been running a telephone service since DATE ; in DATE a company , TMA GPE , had paid him commission amounting to MONEY ( ORG ) . The court found on the basis of the documents before it that there were grounds for suspecting the applicant of having evaded turnover taxes of MONEY ( ORG ) , income taxes of ORG CARDINAL and trade taxes of EUR CARDINAL .

Noting that the applicant , who had availed himself of the right to remain silent , was strongly suspected of tax evasion on the basis of business records that had been seized when his home was searched , ORG decided that he had to be placed in pre - trial detention because of the danger of collusion ( GPE – see LAW no . CARDINAL of LAW , cited in paragraph CARDINAL below ) . It also noted that the documents seized were incomplete , so that there was a risk that the applicant , if released , might destroy the missing documents or conceal further business transactions and accounts .

On DATE the applicant , represented by counsel , lodged an application for review of his detention order ( GPE ) with ORG . His counsel also requested access to the case file , which he argued he had a right to inspect in order to apprise himself of all the facts and evidence on which the detention order and , in particular , the strong suspicion that an offence had been committed were based . He also pointed out that domestic law prohibited ORG from considering facts and evidence to which defence counsel had been refused access pursuant to LAW ( see paragraph CARDINAL below ) .

On DATE ORG informed the applicant 's counsel that he was being refused access to the case file pursuant to LAW as it would jeopardise the purpose of the investigation . It added , however , that the public prosecutor in charge of the case was prepared to inform counsel orally about the facts and evidence at issue . The applicant 's counsel did not take up that offer .

On DATE the ORG heard representations from the applicant and his defence counsel . The applicant argued that there was no risk of collusion or of his absconding . Should the court nevertheless consider that he might abscond if released he was ready to comply with any conditions imposed by the court , such as handing over his identity papers . The applicant 's counsel complained that he had still not had access to the case file .

By an order of DATE , ORG , which had before it the case file of the proceedings , upheld the detention order . It found that there was still a risk that , if released , the applicant would tamper with factual evidence or interfere with witnesses . The applicant had consistently sought .

Following the applicant 's appeal , which was lodged on DATE and was followed up by detailed reasons on DATE , ORG informed the applicant in a letter dated DATE that it considered that the risk of his absconding could serve as a ground for his continued detention . As to his counsel 's request for access to the case file , it stated that he should be informed orally about the content of the file in the first instance .

In a letter dated DATE , the applicant contested that view . He claimed , in particular , that in his case mere oral information about the content of the case file would not be sufficient .

On DATE , after hearing representations from ORG and considering the case file , ORG dismissed the applicant 's appeal against ORG decision dated DATE . It found that there was a strong suspicion that the applicant had evaded income , turnover and trade taxes . Furthermore , there was a danger of his absconding within the meaning of LAW no . CARDINAL of LAW ( see paragraph CARDINAL below ) , as the applicant had connections in foreign countries and faced a heavy sentence .

In view of defence counsel 's refusal to accept the offer made by ORG to explain the content of the case file orally , ORG found that it was impossible to assess whether the information given in this manner would be sufficient . At that stage of the proceedings , however , counsel for the defence could not claim to be entitled to unlimited access to the complete case file .

ORG decision was served on the applicant 's counsel on DATE .

On DATE the applicant , represented by counsel , lodged a further appeal against the detention order . He again claimed that he had a constitutional right to be given access to the facts and evidence on which the detention order was based .

On DATE ORG decided , without giving further reasons , not to vary its decision of CARDINAL DATE . On DATE ORG , which was in possession of the case file , drafted a report which was sent to ORG with the file DATE .

On DATE ORG , in its submissions to ORG , stated that it was not prepared to give the applicant access to the case file as it was sufficient for the applicant to be notified of ORG overview of the amount of his income and amount of the taxes evaded in DATE in question . The submissions and the case file reached ORG on DATE .

On DATE the applicant sent further observations to ORG .

On DATE the applicant , who had been sent the submissions of ORG on DATE , contested its arguments . He stated that the overview in question was merely a conclusion of ORG the merits of which he could not examine without having access to the documents and records on which it was based .

On DATE ORG , on the applicant 's further appeal , quashed ORG decision dated CARDINAL DATE and ORG decision dated DATE upholding the applicant 's detention and remitted the case to ORG .

ORG , which had the investigation file before it , found that the detention order issued by ORG on DATE did not comply with the statutory requirements and that the decisions taken in the judicial review proceedings by ORG on DATE and by ORG on DATE ( but not the detention order of DATE itself ) therefore had to be quashed . It noted that LAW no . CARDINAL of LAW ( see paragraph CARDINAL below ) required the facts that established strong suspicion that the accused had committed an offence and that formed the basis for his detention to be set out in the detention order . Moreover , in order to comply with the constitutional rights to be heard and to a fair trial , the facts and evidence on which the suspicion and the reasons for the defendant 's detention on remand were based had to be described in sufficient detail to enable the accused to comment on them and defend himself effectively . The facts and evidence had to be set out in greater detail in the detention order in cases in which defence counsel had been denied access to the case file under LAW CARDINAL § CARDINAL of LAW .

ORG noted , however , that in its decisions on the applicant 's detention ORG had confined itself to noting that the applicant was strongly suspected of tax evasion “ on the basis of the business records seized when his home was searched ” when it should , at minimum , have summarised the results of the evaluation of those records in order to enable the accused to oppose the decision on detention by making his own submissions or presenting evidence . This defect had not been remedied in the course of the subsequent decisions on the applicant 's continued detention . As counsel for the defence had also been refused access to the case file under LAW , these defects amounted to a denial of the right of the accused to be heard .

ORG declined to take its own decision on the applicant 's detention under LAW ( see paragraph CARDINAL below ) or to quash the detention order of ORG . Referring to the civil courts ' case - law on that issue ( namely , CARDINAL decisions of ORG , no . CARDINAL Ws CARDINAL/CARDINAL and no . CARDINAL Ws CARDINAL/CARDINAL , and to a decision of ORG , no . CARDINAL GPE DATE see paragraph CARDINAL below ) it considered that ORG detention order was defective in law ( rechtsfehlerhaft ) , but not void ( unwirksam ) . The defect could be remedied in the course of the judicial review proceedings ( see ORG , no . CARDINAL GPE DATE , and ORG , no . CARDINAL GPE CARDINAL/CARDINAL DATE paragraph CARDINAL below ) . It stated that it would only quash a detention order if it was obvious that there was either no strong suspicion that the accused had committed an offence or that there were no reasons for the arrest , but that that was not the position in the applicant 's case . It was for ORG to inform the accused of the grounds on which he was suspected of having committed an offence and to hear representations from him on that issue ( see also ORG , no . CARDINAL GPE CARDINAL/CARDINAL , cited at paragraph CARDINAL below ) . Should ORG persist , in the interest of its investigations , in not informing the accused of the reasons for his detention , the detention order would have to be quashed .

As a consequence , the applicant remained in custody .

On DATE ORG requested ORG to issue a fresh , amended detention order against the applicant .

On DATE the ORG again heard representations from the applicant , his defence counsel , ORG and an official in charge of investigations at ORG on the applicant 's application for judicial review of the detention order . The applicant 's counsel was given copies of CARDINAL pages of the voluminous case file containing the overview by ORG of the amount of the applicant 's income and of the taxes he was alleged to have evaded DATE . Relying on the applicant 's rights to be heard and to a fair trial , the applicant 's counsel complained that he had not been granted access to the case file before the hearing .

NORP ORG then issued a fresh order , running to CARDINAL pages , for the applicant 's detention . It stated that there was a strong suspicion that the applicant had evaded taxes on CARDINAL occasions DATE and DATE . Listing in detail the applicant 's income from his various activities as a self - employed commercial agent for CARDINAL different firms and as marketing director of the TMA GPE company and the amounts of tax payable in DATE in question , ORG found that there was a strong suspicion that he had evaded turnover taxes of ORG , income taxes of ORG , solidarity taxes of ORG and trade taxes of DEM CARDINAL,CARDINAL . It based its suspicion on documents whose content was explained by a tax official present at the hearing , witness statements of the owners of the firms the applicant was working for , the applicant 's contracts of employment and wage slips and commission statements that had been issued by the firms .

ORG further found that there was a risk of the applicant 's absconding ( a ground for detention under LAW CARDINAL § CARDINAL no . CARDINAL of LAW ) as he faced a lengthy prison sentence which could possibly no longer be suspended on probation , had not notified the authorities of his place of residence for DATE and had claimed that he was living in the GPE .

By an order of DATE , ORG decided to suspend the execution of the detention order on condition that the applicant ( who in the meantime had complied with his duty to inform the authorities of his address ) informed the court of every change of address , complied with all summonses issued by the court , ORG and the police , and reported to the police CARDINAL times a week . However , the district court did not order the applicant 's immediate release as ORG had immediately lodged an appeal .

On DATE , after hearing representations from the applicant and ORG , ORG dismissed the applicant 's appeal against the detention order . It likewise dismissed the appeal lodged by ORG against the decision to suspend the execution of the detention order on the additional conditions that the applicant hand over his identity papers to ORG and deposit ORG CARDINAL as security .

Having deposited the security , the applicant was released from prison on DATE .

On DATE the applicant lodged a further appeal against ORG decision , complaining that his counsel had still not been granted access to the case file .

By a letter dated DATE , ORG granted the applicant 's counsel access to the case file . It stated that it had intended to send the file to him at an earlier date , but that this had not been possible as the file had been at ORG and had only recently been returned to ORG . The applicant 's counsel received the file for inspection on LAW November CARDINAL . The applicant withdrew his further appeal on LAW December CARDINAL .

On DATE the applicant lodged a complaint with ORG against the decision of ORG dated DATE and the detention order issued by ORG on DATE . In his submission , his rights to liberty , to be heard in court and to be informed promptly by a judge of the reasons for his detention on remand as well as his rights to be heard within a reasonable time and to a fair trial as guaranteed by LAW had been violated . He argued in particular that his right to liberty , the deprivation of which was only constitutional if it was in accordance with the law , had been breached by his illegal detention on the basis of a void detention order . The complete refusal to allow his defence counsel access to the case file pursuant to LAW CARDINAL of LAW had violated his right to be heard in court , as guaranteed by LAW ( see paragraph CARDINAL below ) , and his right to liberty under LAW of LAW ( see paragraph DATE below ) . The impugned decisions disregarded both the case - law of ORG and the ORG 's case - law as laid down in its judgments of CARDINAL DATE in the cases of PERSON , PERSON v. GPE and GPE . ORG refusal to quash the detention order and its decision to remit the case to ORG instead had also breached his right to a fair hearing within a reasonable time .

On DATE and DATE the applicant extended his constitutional complaint to include the decisions of ORG dated DATE and the decision of ORG dated DATE .

On DATE ORG , without giving further reasons , declined to consider the applicant 's constitutional complaint against the detention orders issued by ORG on DATE and DATE , the decision of ORG dated DATE and the decision of ORG dated DATE .

On DATE the ORG convicted the applicant on CARDINAL counts of tax evasion and sentenced him to a total of DATE and DATE imprisonment suspended on probation . It found that the applicant , who had confessed to the offences , had evaded turnover taxes of DEM CARDINAL , income taxes of ORG and trade taxes of ORG CARDINAL .

Articles CARDINAL et seq . of the Code of Criminal Procedure ( Strafprozessordnung ) concern detention on remand . Pursuant to Article CARDINAL § CARDINAL of the Code , a defendant may be detained on remand if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him . Grounds for arrest will exist where certain facts warrant the conclusion that there is a risk of his absconding ( LAW no . CARDINAL ) or of collusion ( LAW no . CARDINAL ) .

According to LAW and CARDINAL of LAW , detention on remand is ordered by a judge in a written detention order . The detention order identifies the accused , the offence of which he is strongly suspected , including the time and place of its commission , and the grounds for the arrest ( nos . CARDINAL of LAW ) . Moreover , the facts establishing the grounds for the strong suspicion that an offence has been committed and for the arrest must be set out in the detention order unless national security would thereby be endangered ( LAW no . CARDINAL ) .

Under LAW , remand prisoners may at any time seek judicial review ( GPE ) of a decision to issue a detention order or ask for the order to be suspended . They may lodge an appeal under LAW ) against a decision ordering their ( continued ) detention and a further appeal ( PERSON ) against ORG decision on the appeal ( LAW ) . Decisions on a person 's pre - trial detention have to be taken speedily ( compare , among many others , ORG , no . CARDINAL GPE CARDINAL/CARDINAL , decision of DATE , PERSON ) DATE , p. CARDINAL ) . As a rule , pre - trial detention must not continue for DATE ( see LAW ; compare ORG , no . CARDINAL BvR CARDINAL/CARDINAL , decision of DATE ) .

The consequences of a court 's finding in the course of judicial review proceedings that a detention order is flawed will depend on the nature of the defect found . Certain formal defects , in particular a failure to set out in sufficient detail in the order the facts establishing the grounds for strong suspicion that an offence has been committed and for the arrest , as required by LAW no . CARDINAL of LAW , will make the order defective in law ( rechtsfehlerhaft ) , but not void ( unwirksam / nichtig ) ( see , inter alia , ORG , no . CARDINAL Ws CARDINAL/CARDINAL , decision of CARDINAL DATE , ORG für ORG ( ORG ) DATE , pp . CARDINAL ; and ORG , no . CARDINAL GPE CARDINAL/CARDINAL , decision of DATE , StV DATE , p. CARDINAL ) . Such defects may therefore be remedied by the appeal courts in the course of the judicial review proceedings by either quashing the defective order or replacing it with a fresh , duly reasoned order ( compare , inter alia , ORG , no . CARDINAL Ws CARDINAL/CARDINAL , decision of CARDINAL DATE , NStZ DATE , pp . CARDINAL with further references ; ORG , no . CARDINAL GPE DATE , decision of DATE , ORG für PERSON ( ORG ) DATE , p. CARDINAL ; ORG , no . CARDINAL GPE CARDINAL/CARDINAL , decision of DATE , StV DATE , pp . CARDINAL ; and ORG , no . CARDINAL Ws CARDINAL/CARDINAL , decision of DATE , StV DATE , p. CARDINAL ) . A defective detention order thus remains a valid basis for detention until the defect is remedied . On the contrary , detention on the basis of a detention order which is void owing to a serious and obvious defect is unlawful ( see paragraph CARDINAL ) .

ORG gave the following reasons for the distinction between void and defective court decisions :

“ Only in rare , exceptional cases can a court decision be considered void in its entirety , with the consequence that it is legally irrelevant ( see ... ) . This is a consequence of the requirements of legal certainty and its corollary , the authority of court decisions , as well as of the overall structure of criminal proceedings with its system of legal remedies designed to correct defective decisions . Considering a court decision ... as legally irrelevant means that anyone may claim that it is null and void at any stage of the proceedings , even after it has become final ... In the case of decisions which can be challenged by an appeal , the statutory rules – formalities and time - limits – become inoperative if the decisions are deemed legally irrelevant . Such consequences , which run counter to the overall order of the law of criminal procedure , may be drawn from the defectiveness of a court decision only , if at all , where it would be unthinkable for the legal community to recognise ( at least provisionally ) its validity . This will occur if the extent and gravity of the defect are such that the decision blatantly contradicts the spirit of LAW and key principles of our legal order ( see ... ) . From the perspective of legal certainty , the assumption that a decision is null and void presupposes , in addition , that the serious defect is obvious ” ( see ORG , no . CARDINAL BJs CARDINAL , decision of DATE , ORG ( ORG ) DATE , p. CARDINAL with further references ; compare also ORG , no . TIME , decision of CARDINAL DATE , NStZ DATE , p. CARDINAL )

As regards the consequences of a finding by a court of appeal , on a further appeal by the detainee , that a detention order is flawed , LAW lays down that if the appeal court considers the appeal against the ( continued ) detention well - founded , it must take the necessary decision in the case at the same time . The court of appeal thus decides the merits of the case in the lower courts ' stead ( see , for instance , ORG , no . CARDINAL Ws CARDINAL/CARDINAL , decision of CARDINAL DATE , ORG , p. CARDINAL ) .

However , the courts of appeal have developed exceptions to the rule laid down in LAW . In certain limited circumstances , a case may exceptionally be remitted to the court of first instance if there has been a procedural defect which the court of appeal can not properly remedy itself ( see ORG , no . CARDINAL Ws CARDINAL/CARDINAL , decision of DATE , NStZ DATE , pp . CARDINAL - CARDINAL ; and ORG , no . CARDINAL Ws CARDINAL/CARDINAL , decision of DATE , ORG , pp . DATE ) . In particular , a court of appeal may remit the case to the district court instead of taking its own decision on the merits if a detention order does not comply with the duty to set out the grounds for suspecting the accused of an offence and if , in addition , the prosecution refused access to the case file . The explanation for this is that , in such cases , the defective reasoning effectively amounts to a breach of the duty to hear representations from the defendant . It was the district court which had jurisdiction to inform the accused for the first time of the grounds for suspecting him of an offence and to hear representations from him ( see ORG , no . CARDINAL GPE CARDINAL/CARDINAL , decision of DATE , StV DATE , pp . CARDINAL - CARDINAL ) . The duty to expedite proceedings in which the suspect is in detention does not warrant a different conclusion as only a remittal of the case will enable him to avail himself effectively of his right to be heard ( see ORG , no . CARDINAL GPE CARDINAL/CARDINAL , decision of CARDINAL October CARDINAL , StV DATE , p. CARDINAL ) .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure provides that defence counsel is entitled to consult the file which has been or will be presented to the trial court , and to inspect the exhibits . Paragraph CARDINAL of this provision allows access to part or all of the file or to the exhibits to be refused until the preliminary investigation has ended if the investigation might otherwise be at risk . At no stage of the proceedings may defence counsel be refused access to records concerning the examination of the accused , acts in the judicial investigation at which defence counsel was or should have been allowed to be present or expert reports ( LAW of the said LAW Pending the termination of the preliminary investigation , it is for ORG to decide whether to grant access to the file or not ; thereafter it is for the president of the trial court ( LAW ) . An accused who is in detention is entitled by virtue of LAW of LAW to seek judicial review of a decision of ORG to refuse access to the file . Pursuant to that provision , the regional court for the district where ORG is located has jurisdiction to hear applications for judicial review ; its decisions are not subject to appeal .

According to LAW every person involved in proceedings before a court is entitled to be heard by that court ( PERSON auf rechtliches PERSON ) .

Article CARDINAL § CARDINAL of LAW provides that every person provisionally detained on suspicion of having committed a criminal offence must be brought before a judge DATE following his arrest ; the judge must inform him of the reasons for the arrest , hear representations from him and give him an opportunity to raise objections . The judge must then , without delay , either issue a written detention order setting out the grounds therefor or order the detainee 's release .


Violation of Art. 5-1+5-3;Violation of Art. 6-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicants , PERSON ( “ GPE ” ) and PERSON ( “ FAC ) are twin sisters . They are NORP nationals , who were born in DATE and live in GPE .

On DATE criminal proceedings were initiated against the applicants on suspicion of defrauding a GPE bank on a credit matter . The prosecution 's case was that the applicants acted together to obtain a loan in the bank on the security of a flat which did not in fact belong to them .

On DATE , according to the applicants , on DATE , according to the ORG , GPE was arrested and remanded in custody . DATE , on DATE , she was charged with large - scale concerted fraud .

On DATE the proceedings against ORG were discontinued .

Following GPE 's arrest , her lawyer lodged an application for release with the Tverskoy District Court of GPE . On DATE the court held that it was too late to examine the application for release as by that time the preliminary investigation had finished .

On DATE the investigating authorities sent GPE 's case to ORG for trial .

On DATE the Tverskoy District Court found that the evidence gathered against GPE , although serious , did not embrace all offences possibly committed by her . The court also found that the proceedings against PERSON should not have been stopped because there had been evidence of her involvement in the offence too . It was decided to remit the case against GPE for further investigation . The court of its own motion re - instituted criminal proceedings against GPE and joined them to GPE 's case . It was furthermore ordered that GPE should stay in detention , and that FAC , at large at the moment , should be imprisoned as soon as the police established her whereabouts .

Both applicants lodged appeals against the decision of DATE , but on DATE ORG disallowed them .

NORP Since GPE continued to hide from the investigating authorities , it was decided to sever her case from that of her sister and to stay it . The term of GPE 's detention was extended .

On DATE ORG of GPE ordered that GPE should be released from custody because the extension of her detention had been unlawful and because of her poor health . She was released conditionally under the undertaking not to leave her permanent residence .

On DATE the case against GPE was for the second time sent to ORG for trial .

On DATE , the police arrested PERSON and took her into custody . The proceedings against her were resumed .

The second examination of the case against GPE by ORG took place on DATE . The court noted that ORG had by that time been arrested , and that given close factual links between the offences imputed to the sisters , the proceedings against them should be joined . The court also noted that GPE had not had sufficient opportunity to familiarise herself with the prosecution file before the hearing . As a result , the case against GPE was joined to that against GPE and remitted for further investigation .

On DATE GPE was imprisoned on the ground of the gravity of the accusation .

NORP The decision of DATE became final on CARDINAL DATE after it had been upheld on appeal by ORG .

On DATE the ORG granted PERSON 's application for release from custody because the investigating authorities had not submitted convincing material to justify her continued detention . The investigating authorities appealed against this decision , and on DATE ORG allowed the appeal . However , by that time PERSON had already left the prison .

On CARDINAL DATE ORG considered that the case against PERSON should be returned to the investigating authorities to be joined with the case against GPE

On DATE , PERSON was arrested and detained .

On DATE GPE was released from prison because the investigation had finished and because the detention period set by ORG had expired .

Shortly afterwards , on DATE , PERSON was also released . Both applicants signed an undertaking not to leave their permanent residence .

On DATE the investigating authorities handed over the case file they had prepared to ORG . On DATE the judge who had accepted the case for consideration ruled that the applicants should be remanded in custody pending trial in view of the gravity of the accusations and “ the applicants ' character ” .

On DATE ORG examined an application lodged earlier by PERSON The court ruled that LAW was unconstitutional as far as it empowered criminal courts to initiate of their own motion criminal prosecution of third persons not being party to the original proceedings , to apply measures of restraint and to order further investigations . The court held that by initiating criminal proceedings the courts in essence assumed prosecutorial functions in violation of the principle of the separation of powers .

Based on the judgment of ORG , on an unspecified date , the acting president of ORG lodged an application for supervisory review of the applicants ' case .

On DATE the Presidium of ORG granted the application . The decisions of DATE and DATE were quashed in respect of GPE The decision of DATE was quashed in respect of both applicants . The decisions of CARDINAL and DATE and DATE were also quashed . The case against the applicants was sent for further investigation . PERSON was released , but her sister remained in prison .

On DATE the Prosecutor of the LOC re - instituted criminal proceedings against FAC case against PERSON was joined to that of GPE

On DATE the investigation of the applicants ' case was finished . On DATE the prosecution file and indictment were submitted to ORG . DATE , GPE was released because of the expiry of the custody period .

The examination of the applicants ' case was scheduled for DATE . However , the hearing did not take place because the applicants had failed to appear even though they had been several times summoned for the service of the indictment .

The hearing was adjourned until DATE but it again failed to take place since the applicant had not appeared before the court .

As the applicants persistently avoided the court proceedings and did not live at their permanent address , on DATE ORG ordered their arrest . The proceedings were stayed until the applicants were arrested .

On DATE the applicants were arrested and detained . The court proceedings resumed and on DATE the court extended the custody period for a further DATE .

On DATE the ORG found the applicants guilty and sentenced GPE to DATE imprisonment with forfeiture of her estate , and GPE to DATE imprisonment with forfeiture of her estate .

On DATE ORG annulled the judgment , closed the proceedings and discharged the applicants from serving the sentence under the statute of limitations .

The applicants were released in the courtroom .

When the investigating authorities were arresting GPE on DATE , they withheld her national identity paper – the “ internal passport ” . The passport was enclosed in the case file at ORG . GPE made several unsuccessful attempts to recover the document , filing complaints to courts and prosecutors of various instances .

The lack of passport made GPE 's everyday life difficult . In DATE and DATE ORG and a law firm both refused to employ her because she did not have a passport . In DATE a GPE clinic informed GPE that free medical care could only be provided to her if she presented an insurance certificate and her passport . For the same reason , in DATE ORG refused to install a telephone line in GPE 's home . On DATE ORG notified GPE that she needed to verify her identity , for example , with a passport , if she wished to obtain notarial acts . On DATE ORG was refused the registration of her marriage . On DATE she was stopped by a police patrol for an identity check . As she was unable to produce the passport , she was taken to a police station and had to pay an administrative fine .

On DATE ORG requested ORG to return the passport .

On an unspecified date the President of the Tverskoy District Court informed GPE that the passport could be made available to her for certain purposes . But it should nonetheless remain in the case file because otherwise the authorities would not be able to tell GPE from her twin sister , who was in hiding .

On DATE the President of the ORG confirmed that the passport should be retained in the case file .

On DATE a police patrol came to the applicants ' home to escort GPE to a court hearing . Both applicants were at home . Perplexed by their almost identical appearance , the police demanded that the applicants identify themselves or produce identity papers . Having met a refusal , and knowing that PERSON was also being looked for by the police , the patrol decided to arrest both applicants and took them to a police station .

On DATE , the investigation officer in charge of GPE 's case returned the passport to her .

“ No one may be arrested otherwise than on the basis of a judicial decision or a prosecutor 's order . ”

“ When there are sufficient grounds for believing that an accused person may evade an inquiry , preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity , as well as in order to secure the execution of a sentence , the person conducting the inquiry , the investigator , the prosecutor or the court may apply one of the following preventive measures in respect of the accused : a written undertaking not to leave a specified place , a personal guarantee or a guarantee by a public organisation , or placement in custody . ”

Article CARDINAL - Order and decision on the application of a preventive measure

“ Upon application of a preventive measure a person conducting an inquiry , an investigator or a prosecutor shall make a reasoned order , and a court shall give a reasoned decision specifying the criminal offence which the individual concerned is suspected of having committed , as well as the grounds for choosing the preventive measure applied . The order or decision shall be notified to the person concerned , to whom at the same time the procedure for appealing against the application of the preventive measure shall be explained .

A copy of the order or decision on the application of the preventive measure shall be immediately handed to the person concerned . ”

“ Placement in custody as a preventive measure shall be effected in accordance with the requirements of LAW concerning criminal offences for which the law prescribes a penalty in the form of deprivation of freedom for a period of DATE . In exceptional cases , this preventive measure may be applied in criminal matters for which a penalty in the form of deprivation of freedom for a period of DATE is prescribed by law . ”

“ A period of detention during the investigation of offences in criminal cases may not last longer than DATE . This time - limit may be extended by DATE by a district or municipal prosecutor ... if it is impossible to complete the investigation and there are no grounds for altering the preventive measure . A further extension DATE from DATE of placement in custody may be effected only in cases of special complexity by a prosecutor of a subject of GPE ...

An extension of the time - limit for such detention beyond DATE shall be permissible in exceptional cases and solely in respect of persons accused of committing serious or very serious criminal offences . Such an extension shall be effected by a deputy of ORG ( up to one year ) and by ORG ( DATE ) . ”

LAW or modification of a preventive measure

The cancellation or modification , by the person conducting the inquiry or by the investigator , of a preventive measure chosen on the prosecutor 's instructions shall be permissible only with the prosecutor 's approval . ”

“ If the accused is kept in custody , the question of setting a date for a court hearing must be decided DATE after the case reaches the court . ”

“ The examination of a case before the court must start DATE as from the fixing of a hearing date . ”

Section CARDINAL of the Rules regarding the passport of a citizen of GPE adopted by LAW . CARDINAL of DATE provides that the passport of a citizen represents the basic document proving the citizen 's identity on the territory of GPE .

Pursuant to LAW , the passport shall contain information about the citizen 's residence , liability to military service , marital status , minor children , issue of other identity documents .

Section CARDINAL provides that the passport of convicted persons and persons remanded in custody shall be seized by investigating authorities or a court and adduced to the case file . When the citizen is released , the passport shall be returned .

Article CARDINAL of LAW of DATE establishes that residing without a valid passport or residential registration shall be punishable with an official warning or a fine .

ORG No . CARDINAL of DATE , concerning the rules of residential registration , establishes a fine of CARDINAL times the minimum wage if residential registration can not be shown , and CARDINAL times the minimum wage in case of repeated violations .