Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

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

On DATE the applicant was running errands with his friends when the police stopped his car . They suspected him of drunken driving and tested him for alcohol and drugs on the spot . The alcohol test was negative , but the drug test was positive for amphetamines and cannabis . The applicant was taken to a laboratory for blood and urine tests as well as for a clinical test .

On the same date the applicant was also questioned as a suspect by the police at the police station . A temporary driving ban was imposed and his driver ’s licence was confiscated .

Subsequently , on DATE , the laboratory tests showed no trace of drugs in the applicant ’s blood or urine .

On DATE the driving ban was lifted by the police and the applicant ’s driver ’s licence was returned to him . An appeal against this decision lay to ORG .

On DATE the police decided to terminate the pre - trial investigation in the matter . On CARDINAL DATE the police concluded that the applicant had not committed any crime .

According to LAW of LAW ( pakkokeinolaki , tvångsmedelslagen , Act no . PERSON , as amended by Act no . CARDINAL ) , a bodily search including the taking of bodily samples ( henkilönkatsastus , kroppsbesiktning ) can be made on a person suspected on reasonable grounds of , inter alia , drunken driving or drug abuse .

According to LAW , the provisions concerning search of LOC are mutatis mutandis applied to the bodily search . If the bodily search is thorough , it needs to be conducted in a location intended for that purpose . If the bodily search is conducted by a person other than medical personnel , a witness should be present , if possible . An examination requiring medical expertise can only be conducted by a medical doctor . The bodily search can not be conducted by a person of the opposite sex to the person searched , unless he or she is a member of the medical personnel . The only exception is the taking of a saliva sample for a DNA - test . Persons of the opposite sex , except the guardian of a minor , may not be present , unless the bodily search concerns taking blood or saliva samples or clinical examination of the state of intoxication . The bodily search may not cause significant inconvenience to the person to be searched .

An official with the power of arrest shall decide on a bodily search and giving of bodily samples . However , a police officer may carry out such measures without a warrant in urgent cases .

According to section CARDINAL , subsection CARDINAL , of the LAW anyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be punished and that the public organisation , official or other person in charge of a public function be held liable for damages , as provided for in more detail by an LAW .

LAW , section CARDINAL , subsection CARDINAL , of LAW ( rikoslaki , strafflagen , as modified by Act no . CARDINAL/CARDINAL ) , provides that if a public official , when acting in office , intentionally in a manner other than that provided above in this LAW violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions , and the act , when assessed as a whole , taking into consideration its detrimental and harmful effect and the other circumstances connected with the act , is not a petty offence , he shall be sentenced for violation of official duties to a fine or to imprisonment for a maximum period of DATE .

LAW , section CARDINAL , of LAW ( as modified by Act no . CARDINAL/CARDINAL ) provides that if a public official , when acting in office , through carelessness or lack of caution , in a manner other than that referred to in DATE , subsection CARDINAL , violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions , and the act , when assessed as a whole , taking into consideration its detrimental and harmful effect and the other circumstances connected with the act , is not a petty offence , he shall be sentenced for negligent violation of official duties to a warning or to a fine .

According to LAW , section DATE , of LAW ( laki oikeudenkäynnistä rikosasioissa , lagen om rättegång i brottmål , as modified by Act no . CARDINAL/CARDINAL ) , an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges .

Under LAW and CARDINAL of LAW ( vahingonkorvauslaki , skadeståndslagen , Act no . CARDINAL ) proceedings may be brought against the ORG in respect of damage resulting from fault or negligence by its employees in the performance of their duties .


Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant , who was DATE at the time , was taken into custody by policemen from ORG on suspicion of membership of an illegal armed organisation , namely the ORG ( ORG ) . In her police statements dated CARDINAL and DATE respectively , the applicant accepted the charges against her . During her interrogations , the applicant did not have the assistance of a lawyer .

On DATE the applicant was brought before the ORG public prosecutor and subsequently before the investigating judge . She was interrogated in the absence of a lawyer by the public prosecutor and the investigating judge respectively and denied the allegations against her . Taking into account the seriousness of the allegations , the judge ordered that the applicant be placed in detention on remand . The applicant was then allowed to have access to a lawyer .

By an indictment dated DATE , the public prosecutor at ORG initiated criminal proceedings against the applicant and CARDINAL other accused . He accused the applicant of being a member of the ORG and accordingly called for her to be sentenced pursuant to LAW .

The trial commenced before ORG . In the subsequent CARDINAL hearings , the court refused to release the applicant on account of the nature of the alleged offence and the state of evidence .

On DATE ORG concluded that the applicant was a member of the ORG and accordingly sentenced her to DATE and CARDINAL months’ imprisonment pursuant to LAW .

On DATE ORG quashed the judgment of the first - instance court .

On DATE the applicant was released pending trial .

NORP On DATE the court rendered its judgment and sentenced the applicant to DATE and QUANTITY months’ imprisonment pursuant to LAW . In convicting the applicant , ORG had particular regard to the applicant ’s police statements .

On DATE ORG upheld the judgment of ORG .


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . On DATE the applicant made a request for reconsideration and was subsequently advised that he did not have a right of appeal . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


No violation of Art. 8;Remainder inadmissible

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in Stjørdal . Together with PERSON , she has a son A , who was born on DATE . From another relationship she also has a son , B ( born in DATE ) . Both children have been in foster care since DATE . The present application relates to a decision of CARDINAL DATE by the NORP and Northern Trøndelag County ORG ( hereinafter “ the ORG ” ) to deprive the applicant and PERSON of parental responsibilities in respect of A and to authorise his adoption . The proceedings before ORG had been brought by the child welfare services following an initiative by PERSON

The taking into care of CARDINAL as an emergency measure on CARDINAL DATE , then on a permanent basis on DATE - had been decided on the grounds both of suspicion that he had been subjected to ill - treatment and of his parents ' drug abuse problems ( a decision by ORG which ORG upheld on DATE , whilst limiting the applicant 's contact with TIME four times a year ; these measures became final after the applicant had withdrawn her appeal to FAC in part due to a worsening of her drug abuse problem ) . The measure had been taken in light of A 's hospitalisation in DATE , after PERSON had found him unconscious in his bed and had resuscitated him . A had arrived unconscious at the hospital and had been placed in intensive care . The examinations , in which large amounts of liquid had been found in his brain , had required operations on A involving the placement of a drain in his brain . Suspecting that A had repeatedly been subjected to ill - treatment , the hospital reported both parents to the police . Because of this suspicion and the parents ' appearing intoxicated at the hospital , the child welfare authorities were contacted .

In view of the state of the evidence , the police subsequently decided to discontinue the investigation in respect of both parents .

Although a vulnerable child due to trauma in early life , A developed well in foster care , first with PERSON and PERSON and then , from DATE , when he was DATE and DATE , with PERSON and PERSON , whom he considered his psychological parents and with whom he developed particularly strong links .

At the same time as A , B was taken into public care and was placed with the applicant 's father and his cohabitant partner , who later became his foster parents . They protested against A being placed in a different foster home from his brother .

The child welfare services had had contact with the applicant because of concerns about hers and PERSON 's drug abuse as DATE . The extent of the applicant 's drug abuse before ORG 's birth was uncertain but , according to her , she had started using heroin after A was taken into care in DATE . Since DATE she had spent periods of varying duration in detoxification centres . In DATE she started methadone treatment ( medically based rehabilitation ) . She lived with her mother and received disability benefit , then got a new cohabitant , with whom she set up a renovation business and worked in addition to receiving disability benefit .

From the time A was compulsorily taken into care in DATE until DATE , the applicant attended CARDINAL of the CARDINAL visits that had been arranged for her to have contact with A. For DATE no visits took place , because of her drug abuse problem . From the autumn of DATE contact visits resumed and the applicant , with her mother , also spent TIME at the foster home . The applicant , her mother and the foster parents agreed that contact functioned very well in DATE . There was also regular access in DATE , including in DATE at the farm where the applicant lived . The applicant , her mother and B spent DATE of CARDINAL to DATE at the foster home .

On DATE the foster parents travelled with A to GPE for him to meet PERSON The applicant was prevented from taking part as she was undergoing detoxification before starting methadone treatment .

In its decision of DATE to deprive the applicant of her parental responsibilities in respect of A and to authorise his adoption by his foster parents , ORG gave , inter alia , the following reasons :

“ [ A. ] has been described to ORG as a boy with many good qualities . He is described as cheerful , sociable , sensitive , imaginative , thoughtful and philosophical . At the same time , he is a boy who has a background that makes him especially vulnerable and with special care needs . It should be noted that [ A ] was born prematurely and during DATE of his life experienced serious neglect which , inter alia , resulted in his sustaining brain damage . He has several times experienced close relationships being broken up , first having to move from his parents to the emergency foster home and then on to the foster home . [ A ] 's development in the foster home has been very positive and DATE his functioning is normal for a person of his age . In his assessment of [ A ] 's vulnerability , the appointed expert [ Z ] stated as follows on page CARDINAL :

' ... Nevertheless , it will continue to be necessary for DATE to come to take account of the fact that he is a high - risk child in every area , in other words that he may react more strongly than normal to new pressures and one must expect that his development could be more vulnerable to stress and strain from everyday life . He will therefore continue to need care providers who are more sensible , responsible and loving than would be the case for a normal child . '

Psychologist [ Z ] expanded on this to ORG and reiterated his assessment . He considered that [ A ] had a conditional sense of security , meaning that he functioned well as long as he knew he was safe . [ A ] 's insecurity manifested itself in the fact that he was concerned about whether or not he would remain with his foster parents . Psychologist [ Z ] was of the opinion that [ A ] was unusually concerned with this issue and that he expended energy on keeping this subject at arm 's length . His vulnerability to further negative developments meant that he would be continuously dependent on the presence of secure adults who he knew would be there for him . He was dependent on the calm and structure provided by the foster parents .

The expert 's assessment has been emphasised by the statements given by the case officer of ORG , the foster parents , the supervisor and a teacher . The descriptions of [ A ] received by ORG show that he needs a great deal of calm and predictability and that he is particularly vulnerable to stress . He needs a great deal of time to do things at his own pace . He is a thoughtful and philosophical boy who is absent - minded , remote and dreamy . It is precisely because his character is not superficial that ORG is concerned about the strain caused by uncertainty about the future . Generally , foster children need reassurance . However , ORG finds that this is a very prominent feature in [ A ] and that it takes a form that is harmful to him . The supervisor told ORG about a contact visit in [ X ] with his maternal grandfather and [ B ] at which the foster parents had not been present . [ B ] had then told [ A ] that [ the applicant ] was his mother . Although [ A ] already knew this , he crept behind a chair and hid . When they returned to T , the foster parents were waiting for them . The supervisor 's description of [ A ] 's reunions with the foster parents was an intense description of the way in which [ A ] clung to his foster father and how he sought assurances that he would be staying with them . The foster parents had stated that both before and after contact visits , [ A ] needed constant reassurance that they would always love him and that he would always live with them .

In ORG assessment , [ A ] 's need to know that he would always remain in the foster home has not been met to a satisfactory degree . There has been continuous conflict in relation to [ A ] 's placement . It is understandable that the mother 's family should react to the placement . However , the approach used towards [ A ] 's foster parents have not been in [ A ] 's best interest . Letters and cards have been written and cooperation between the maternal grandfather and his cohabitant and the foster parents has been strained ; it is ORG understanding that this conflict is still ongoing , although it is no longer as pronounced . The maternal grandfather and his cohabitant openly express a negative attitude towards the foster parents and have difficulty in appreciating that they are contributing to the conflict . The mother and maternal grandmother have gradually come to work well with the foster parents on the question of contact visits , but express a sceptical attitude towards the foster parents on the subject of contact even when adoption is only a possibility . ORG also finds that the mother and her family envision the return of [ A ] in the longer term . ORG was told that this question had been put on hold . It was impossible for ORG to elicit an acknowledgment that [ A ] would remain in the foster home until he reached DATE .

ORG opinion , having heard the evidence , is also supported by [ the applicant 's lawyer ] PERSON response of DATE , from which it is apparent that it is not possible to establish with certainty that the applicant will never be in a position to care for the child . It would be most unsatisfactory for [ A ] and his foster parents to have this question hanging over them at all times . ORG finds that the foster parents too must be safeguarded in relation to the unpredictability of what might happen , because A picks up on their uncertainty . He expressed to psychologist [ Z ] that it was his wish that the foster parents should take all decisions in his life . ...

ORG considers that [ A ] 's need for security and secure ties to the foster family are more important than maintaining contact with a father and a mother whose lives are very unstable . There has been no improvement in the circumstances of the lives of the father and the mother over DATE . In the assessment of ORG the foster parents are undoubtedly best placed to make the choices that are right for [ A ] DATE and in the future . An adoption would also provide [ A. ] with the necessary assurance that there would be no future proceedings in relation to returning him to the parents . [ A ] is a very vulnerable boy who needs the security that the foster home and the environment around it represent for him . This , combined with an open question about future proceedings to return [ A ] , the level of conflict between the mother 's family , in particular the maternal grandfather and his cohabitant , and the foster parents and the conflict between [ A ] 's mother and father , induce ORG to draw the conclusion that there are strong grounds for granting consent to adoption . ”

The applicant lodged an appeal against ORG decision of DATE at ORG , which by a judgment of DATE upheld the decision .

On a further appeal by the applicant ORG , sitting with CARDINAL judges and CARDINAL lay members , including CARDINAL psychologists , and after hearing the applicant , PERSON , a representative of the GPE , expert Z , a guardian representing CARDINAL witnesses , unanimously overturned ORG judgment on DATE .

The High Court observed that the removal of parental responsibilities and adoption would entail severing ORG 's ties to his biological origins . These were particularly far - reaching measures that would have irreversible consequences and ought to be supported with strong reasons .

The High Court found no reason to doubt that the condition in section CARDINAL - CARDINAL(CARDINAL)(a ) of LAW , that it was probable that the parents would permanently be unable to provide proper care for A , had been fulfilled . The applicant had also conceded that this was the case .

Nor did ORG doubt that the condition in section CARDINAL - CARDINAL(CARDINAL)(c ) had been met , namely that the foster parents were fit to bring up A as their own child .

NORP The central issue was whether adoption would be in A 's best interest as required by section CARDINAL - CARDINAL(CARDINAL)(b ) . Under any circumstance , in order for adoption to be authorised it ought to be in the child 's best interest . Moreover , the measure should not be incompatible with LAW .

In this regard , ORG noted the various factors pertaining to ORG 's attachment to his foster parents and the foster home environment , notably that he had been with his foster parents since he was DATE and DATE , that he considered them as his psychological parents , called them “ mama ” and “ papa ” , and that he did not consider himself different because he was a foster child . In the same way as a child would benefit from favourable conditions of upbringing , it would be in A 's best interest too to grow up in a well - functioning home such as his foster home . He was also a very vulnerable child with a particular need for foreseeability , framework and structure . These considerations alone suggested that he would benefit from adoption , in that he would be ensured an upbringing under particularly favourable conditions .

The High Court observed that A had had contact with his biological family , namely his paternal grandmother and great - grandmother , his mother ( “ mama PERSON ” ) , his brother and his maternal grandmother and grandfather . He knew them well and knew that they were his biological family . In the same way as he had expressed a definite wish to live in the foster home he had stated that he wished to have contact with the applicant and his brother B.

The High Court noted that since DATE , when the applicant had started methadone treatment , there had been several positive contacts between the applicant , B and A. Previously there had been long interruptions of contact , partly because of the applicant 's drug abuse , but also because of a lack of coordination and facilitation on the part of the child welfare services . The fact that , despite this , there had been so many instances of contact , not least in DATE when CARDINAL contact visits had been arranged , ought to a large extent be ascribed to the foster parents , who had actively contributed to the facilitation of contact . In DATE only CARDINAL meeting with the applicant had taken place . However , while awaiting methadone treatment she had been prescribed the drug Dolcontin . In DATE she had been unable to take part in contact visits while undergoing detoxification before starting the methadone treatment . Since DATE , the contact visits had been drug free .

As regards the LOC 's concern that the applicant and her family , especially her father , had conducted a major battle against the child welfare services and against A 's placement in the foster home , ORG observed the following . The pressure did not subside until the adoption case was opened . According to the GPE there had been reason to believe that there would be new pressures aimed at the foster parents unless adoption was authorised . ORG agreed that in so far as the family had acted directly against the foster parents and children , this was blameworthy and an undesirable situation . ORG had nonetheless based itself on the applicant 's statement that , despite her preference that the boys be brought up together , she agreed that A was doing very well in the foster home . She had no wish to change this situation . ORG found that such an attitude on her part contributed to the creation of a secure environment for A in his care situation . ORG further found reason to rely on the applicant 's statement in court that she to a greater extent than before would be able to confront her father in respect of his initiatives regarding A 's placement .

The High Court further observed that both the child welfare services and the foster parents regarded it as desirable and positive for A 's development that his contact with the applicant and the remainder of his biological family be maintained after any adoption . Before the High Court the foster parents had expressed that they were prepared to allow as much contact as would be natural . ORG found no reason to doubt this and emphasised that it was largely thanks to them that A had had contact with the biological family at a level which went beyond the minimum .

The High Court reiterated that ORG had on several occasions emphasised that the relationship between the child and its biological parents ought to carry great weight in the wider discretionary assessment . In both of the judgments reported in PERSON , DATE and PERSON , DATE , ORG had concluded , each time by a majority , that adoption should not be authorised . In both cases it had been deemed desirable that contacts between mother and child be maintained .

The last - mentioned judgment had contained reasoning which could be transposed to the present case . A had an established attachment to his mother and brother which ought to be continued . The applicant had previously been a heavy drug abuser and had currently started rehabilitation , which according to experience would be long and difficult and involved a risk of relapse . That risk would increase if adoption were to be authorised , especially in the period after such an authorisation . During DATE in which the applicant had been drug - free she had developed positively . She currently lived with a cohabitant in their own house ; the couple had registered their own company and were working legally in addition to receiving a disability pension .

In the first - mentioned judgment it had also been the case that the children had a need for contact with their mother . The ORG majority had held that authorising adoption was questionable in that it would leave it to the adoptive parents to decide on contact . This ruling , ORG pointed out , had been a clear invitation to consider whether the law should be amended so as to confer a right to contact between children and biological parents after an adoption had been effected without the parents ' consent . On this point ORG quoted the conclusion of ORG . CARDINAL to the NORP [ ORG ] in CARDINAL DATE , point CARDINAL.CARDINAL.CARDINAL :

“ ORG monitors thoroughly any developments regarding these issues and assesses continuously whether there are reasons for amending the LAW . In the view of the Ministry , there is nonetheless insufficient basis for making such amendments at present . An adoption under section CARDINAL of LAW is a particularly far - reaching measure and one should be cautious about making amendments that could lead to an increase in the number of such adoptions . In the report referred to it is maintained that authorisation of adoption under LAW should not be granted in cases in which it is considered to be beneficial for the child to maintain contact with his or her biological parents . ORG shares this view and is concerned as to how best to ensure that consent to adoption not be granted where contact with the biological parents is desirable . The Ministry is considering whether guidelines for such situations should be introduced . ”

In light of the above , ORG held that as a main rule adoption should not be authorised when continued contact between a child and its biological parents was desirable . The reasons adduced for A 's adoption were insufficient to justify a departure being made from this main rule in the instant case .

GPE , joined by PERSON , appealed to ORG against ORG assessment of the evidence and application of the law .

ORG appointed CARDINAL experts . PERSON , a specialist in clinical psychology , submitted a report whilst the other expert withdrew .

On DATE the ORG unanimously upheld ORG judgment , disagreeing with ORG interpretation and application of the law .

Mrs Justice PERSON 's reasoning , which the other four Justices on the panel endorsed in the main , could be summarised as follows .

It was undisputed that the foster parents fulfilled the condition in section CARDINAL - CARDINAL(CARDINAL)(c ) of LAW that they had been shown to be suited to raise the child as their own .

However , unlike before the lower courts , before ORG the applicant argued that it was not probable that she was permanently unable to provide proper care for A for the purposes of section CARDINAL - CARDINAL(CARDINAL)(a ) ; she only conceded that the alternative ground for authorising adoption under that provision , namely A 's attachment to the foster home , had been fulfilled .

In this regard PERSON Justice PERSON observed that both parents had a long history of drug abuse problems . The applicant had been on a rehabilitation scheme since DATE and had been drug - free during the entire treatment . She had established an individual enterprise with her current cohabitant , had obtained a driving licence and had plans to pursue studies . Despite this positive development , the court - appointed expert had stated a clear opinion to the effect that the applicant was unable to provide A with proper care . PERSON , like ORG , found no reason to doubt either that the condition of inability to provide care was fulfilled . And PERSON had at no time alleged that he was capable of providing care for his son . Over DATE he had spent several periods in prison for drug offences and violent assault .

Mrs Justice Coward found no doubt that the further condition in section CARDINAL - CARDINAL(CARDINAL)(c ) , that the foster parents be able to raise A as their own child , had been fulfilled . Only positive remarks had been made about them by the experts and by the lower courts . Nothing had emerged before ORG which weakened these observations made by ORG :

“ [ Mr and PERSON had been described as caring , resourceful , generous and warm people who had a solid network . They had contributed to A 's maintaining contact with his biological family . Over DATE they had also contributed to contact being arranged beyond the minimum level and ... in connection with [ the applicant 's ] own home at [ X ] . They had both appeared and given statements before ORG which bore out the way they had been described by other courts . ORG relies on their assurances that they love A as their own child , that they only wish the best for him and that as far as they are concerned A should stay with them . ”

NORP The central issue was whether authorising adoption would be justified in A 's best interest ( section CARDINAL - CARDINAL(CARDINAL)(b ) ) . PERSON observed :

“ ( CARDINAL ) As regards the general meaning of this condition , it has been stated in several ORG judgments that , in order for an authorisation of adoption to be granted against the will of the biological parents , there must be pressing reasons . Moreover , it is clear that the decision must be based on a concrete assessment of the individual case . However , the assessment must also be based on general experience , including experience from research into child psychology or child psychiatry .

( CARDINAL ) The relationship between general experience and special considerations has been discussed in a number of ORG judgments . In its judgment reported in PERSON , DATE it held at page CARDINAL that the decision on the deprivation of parental responsibilities

' ... must depend on an overall and concrete assessment of the competing interests . Some of these considerations are of a general nature , namely considerations that normally — but to varying degrees — apply in cases of this type , whereas other considerations are particular to the case . In my view , there is only limited scope for drawing up general principles on how these considerations should be balanced against one another . '

( DATE ) In GPE , DATE ( CARDINAL ) , ORG held that :

' Thus , it is mainly the general empirical doctrine , that long - term foster relationships are best served by a transition to adoption , that militates in favour of adoption in this case . As a starting point , general assumptions — based on comparative investigations into how foster children who have been adopted have fared in comparison with children who have not been adopted or who have been returned to their biological parents — can not be entirely decisive in a specific instance . Such general considerations will , to varying degrees , need to be supplemented by specific and individual circumstances . In the present case , such circumstances appear to be present only to a limited extent . '

( CARDINAL ) In my view , no clear distinction can be drawn between general experience and individual considerations : general experience may be formed with greater or lesser degrees of nuance , for example , on the basis of the child 's age when placed in the foster home and the duration to date and future duration of the placement . In this case , the expert had stated that according to general experience a foster home was not to be preferred for long - term placement of a child who had come to the foster home before it had established ties to a biological parent ; in such instances adoption would offer the best solution for the child 's development . In my view , a general but nuanced experience of this nature must carry considerable weight . In any event , individual factors — for or against adoption — must be assessed against general experience .

( CARDINAL ) Moreover , in PERSON , DATE ( DATE on the basis of the case - law of ORG there appears to be a requirement that authorisation of adoption against the will of the parents should be granted only ' in exceptional circumstances ' . Reference has in particular been made to the first case of PERSON v. GPE [ PERSON v. GPE , DATE , Reports of Judgments and Decisions DATE ] . Of course , doubt can be raised about whether such a requirement in fact follows from the case - law of ORG , inter alia in view of the admissibility decision on DATE in the second case of PERSON v. GPE [ PERSON v. GPE ( dec . ) CARDINAL , CARDINAL.CARDINAL.CARDINAL ] . I , at least , find it unclear what such a requirement should entail ; a long - term foster home placement would normally occur precisely when the child would be in a situation that would otherwise be characterised as exceptional . In my view , from the case - law of ORG hardly anything more could be deduced than that an adoption requires particularly weighty reasons .

( CARDINAL ) After adoption , the biological parents would no longer have a legal right to contact . Against this background , ORG held that as a main rule authorisation for adoption should not be granted if contact with the biological parents is desirable . Particular reference is made to ORG . CARDINAL to the NORP [ ORG ] in CARDINAL DATE , page CARDINAL , where a discussion concluded as follows :

' In the report referred to it is maintained that authorisation of adoption under LAW should not be granted in cases in which it is considered to be beneficial for the child to maintain contact with his or her biological parents . ORG shares this view and is concerned as to how best to ensure that consent to adoption not be granted where contact with the biological parents is desirable . The Ministry is considering whether guidelines for such situations should be introduced . '

( CARDINAL ) I attach little weight to this statement . It was not made in connection with the legislative procedure and accordingly has little value as a source of law . Moreover , the statement is lacking in nuance so that it is by no means clear that it is intended to apply to situations in which it is assumed that contact will continue after an adoption . Neither the wording of the LAW nor the ORG case - law suggests that adoption should be ruled out if contact with the biological parents is desirable . It is true that in CARDINAL judgments dealing with issues under the DATE LAW — reported in GPE , CARDINAL- CARDINAL and PERSON , DATE — ORG refused to authorise adoption in CARDINAL such cases . However , neither of these judgments , which were both rendered with dissenting opinions ( DATE ) , concluded that adoption was precluded in law in such cases . In the DATE judgment , the majority raised strong doubts as to whether contact would in fact take place after an adoption . The issue of contact was viewed as an element in the overall assessment of the best interests of the child .

( DATE ) As regards the points of departure in law , I am otherwise in agreement with the GPE that it follows from section CARDINAL of LAW and LAW that the child 's own wishes are of importance .

( CARDINAL ) Moreover , it is not clear to me that the case - law under LAW makes any contribution to the resolution of a case such as the present one beyond what follows from the case - law of ORG . Decisions in which ORG has found adoption to be incompatible with the Convention have concerned cases with very little in common with this case . Moreover , the aforementioned admissibility decision in the second PERSON case indicates that ORG too attaches weight to the child 's own wishes and the child 's special need for secure and calm conditions to prevail in the foster family .

( CARDINAL ) Having conducted a review of the situation in law , I will now move on to the assessment of the present case .

( CARDINAL ) This case concerns a foster home placement that has already been of considerable duration and is intended to continue for DATE , and has no ' connection ' in a narrow sense to his biological parents . I refer to the passages quoted from the expert witness 's report on the subject of the discussion of [ the applicant 's ] ability to care for the child . The general experience outlined by the court - appointed expert is that in such cases adoption would be better for the child than a continuing foster home arrangement .

( CARDINAL ) That the general experience is also pertinent to our case is in my view apparent from a number of intertwined elements . As a result of what [ A ] underwent during DATE of his life , he is a vulnerable child . He was born DATE prematurely , experienced serious neglect and was severely ill - treated on several occasions to the degree that he sustained cerebral haemorrhage . In addition , he underwent the strains of being moved several times during DATE of his life . He has a need for security , including certainty that he belongs to his foster parents . CARDINAL problem in this context is that [ the applicant 's ] wish has been that [ A ] should live with her father and his cohabitant , and there has been considerable unrest around the placement with the foster parents . It is hard to ignore the possibility that the biological family , particularly [ A ] 's father and his cohabitant , will play a part in creating further unrest around [ A ] if he is not adopted .

( CARDINAL ) A sense of belonging is important to [ A ] DATE and could become even more important to him during his teenage DATE , when he will have to deal , inter alia , with the fact that his biological parents have been involved in drug abuse and that his father has also been involved in crime . I refer to the court - appointed expert 's comments on this point :

' [ A ] is generally described as a confident child , although I also found him to be rather small and careful . It is worth noting the supervisor 's statement that she as a nurse continued to view him as a vulnerable child about whom she was concerned , but that her worries did not materialise for as long as he remained with his foster parents . I share this view : his , in part , dramatic start in life as a premature baby and the subsequent neglect in the care and life - threatening ill - treatment he suffered made him vulnerable , but it is only when he is under pressure that this vulnerability manifests itself . In this context , the identity of the person(s ) responsible for the ill - treatment is not of significance . What matters is his experience .

Notwithstanding his current sense of security within the foster family , adoption would offer an extra element of protection . He may well need this in DATE since , in psychological terms , the teenage years are a period in which early problems and experiences more readily come to the surface and need to he tackled . With time , he would also need to tackle issues of drug abuse and crime . I would also strongly emphasise the importance of absolute emotional security when he is told / becomes aware that his mother and his father were both heavy drug users , that they are on methadone , that he has been exposed to gross ill - treatment and that his parents are suspected of this ill - treatment , and that his father has served a total of DATE in prison . This will need to be integrated in his self- perception / identity . '

( CARDINAL ) The parties disagree about the extent to which [ A ] himself wishes to be adopted . As has already been noted , the wishes of the child must be an element in the overall assessment of the best interests of the child . It is , of course , not easy for a DATE to grasp the difference between being adopted and being in a foster home . However , [ A ] had at least said to the court - appointed expert that he wanted his foster parents to decide everything , including when he should see his mother and CARDINAL - brother , and accordingly that ORG should not have anything to do with the question of contact . And I agree with the expert that in [ A ] 's situation it might be natural to view this as an expression of a wish to be adopted .

( CARDINAL ) This leads on to the question of contact with the biological family . There is no disagreement that contact is desirable , particularly with [ A ] 's mother and CARDINAL - brother . In the event of adoption , the biological parents would no longer have any legal right of contact , and this could militate against adoption , as can be seen above in the discussion of the legal points of departure . However , in the present case the foster parents have granted the biological family contact far beyond their legal entitlement , both in terms of the persons involved and the extent of the contact . In earlier periods , [ the applicant ] was unable to take part in contact visits . However , the foster parents can of course not be blamed for this . G , who had also been granted contact rights , has not wished to exercise this right as long as his life was burdened by drugs and crime . His mother and grandparents , however , have established a good relationship with the foster parents and keep in contact with them and with [ A ] .

( CARDINAL ) [ The applicant ] has raised doubts as to whether the foster parents would continue to be open to contact in the event of an adoption . ORG , ORG , ORG and the experts who interviewed the foster parents have been in no doubt that this openness to permitting contact will continue ; ORG found this to be the case ' with great certainty , bordering on absolute certainty ' . I agree that this must be accepted and , accordingly , that the fact the legal right to contact will cease to apply in the event of an adoption will not constitute a major factor in the assessment of [ A ] 's best interests .

( CARDINAL ) Despite this , [ the applicant ] might feel concern about the question of contact , and [ A. ] 's adoption would at the very least be emotionally difficult for her . She submitted that this might adversely affect [ A ] . I consider that this argument against adoption does not outweigh the factors suggesting that adoption would be in [ A. ] 's best interest . I also refer to [ the applicant 's ] contact person in the methadone project , who stated that she now ' has mature strategies for handling adversity ' .

( CARDINAL ) Finally , I would point to the fact that it is apparent that PERSON is now in favour of [ A. ] 's being adopted by the foster parents . Both ORG and ORG found that this view had been reached after a full assessment of the best interests of the boy , and I see no reason to doubt this .

( CARDINAL ) As will be apparent from the comments above , my view is that ORG decision to deprive the parents of parental responsibilities and to authorise adoption ought to be upheld . I will quote the expert 's closing remarks on what message society would convey to [ A ] through ORG judgment : authorisation to adopt entails ' acknowledging his full right to be the child of his parents ' :

' A decision that he should remain a foster child would tell him that the people with whom he has always lived and who are his parents and with whom he established his earliest ties and sense of belonging should remain under the control of ORG — the public authorities — and that they are not viewed by society as his true parents but rather as foster parents under an agreement that can be terminated . His biological parents , who abused drugs and may have exposed him to serious ill - treatment and with whom he has established no ties , continue to be regarded by society as his true parents whose rights must be protected . If the outcome is that authorisation is granted for adoption to proceed , the message communicated to him would be that the injustice he suffered as an infant would be remedied in the only way that remains possible , that is to say by acknowledging his full right to be the child of his parents . ' ”

After the meeting arranged on DATE described under sub - heading CARDINAL above , several visits were arranged for the applicant and A to have contact .

From DATE the applicant and her mother visited A at Mr and PERSON home . On DATE and CARDINAL DATE A visited the applicant , his brother B and members of the applicant 's family . From DATE the applicant and B visited A.

NORP On DATE ( which was the correct date according to the applicant ) there was a contact visit to celebrate her mother 's birthday . From CARDINAL to DATE the applicant , her mother and B visited A.

From DATE the applicant and B visited CARDINAL From DATE A visited the applicant . B and the applicant 's mother were also present .

DATE A went to watch B competing in a cross - country race . PERSON due to pregnancy , the applicant was unable to attend . On DATE A attended the baptism of his new brother ( “ C. ” , born on CARDINAL DATE ) .

A has in addition maintained contact with the applicant through telephone calls and SMS messages .

Section CARDINAL of LAW DATE ( lov om barneverntjenester ) provided in relevant parts :

“ If ORG has made a care order , the ORG may also decide that the parents shall be deprived of their parental responsibilities . [ ... ]

When an order has been made depriving the parents of parental responsibilities , ORG may give its consent for a child to be adopted by persons other than the parents .

Such consent may be given if

( a ) it must be regarded as probable that the parents will be permanently unable to provide the child with proper care or the child has become so attached to persons and the environment where he or she is living that , on the basis of an overall assessment , it is determined that removing the child may lead to serious problems for him or her and

( b ) NORP adoption would be in the child 's best interests and

( c ) the applicant adoptive parents have been the child 's foster parents and have shown themselves fit to bring up the child as their own and

( d ) the conditions for adoption under LAW have been fulfilled . ”


Violation of Art. 11;Violation of Art. 13;Violation of Art. 14

The applicants , a group of individuals and ORG ( of whose executive committee the first applicant is also a member empowered to act on its behalf in the present case ) , wished to hold , within the framework of Equality Days organised by the ORG and planned for CARDINAL DATE , an assembly ( a march ) in GPE with a view to alerting public opinion to the issue of discrimination against minorities – sexual , national , ethnic and religious – and also against women and disabled persons .

On DATE the organisers held a meeting with the Director of ORG . During this meeting an initial agreement was reached as to the itinerary of the planned march .

On CARDINAL DATE Mr PERSON obtained an instruction of ORG on “ requirements which organisers of public assemblies have to comply with under LAW ” should the assembly be regarded as an “ event ” ( impreza ) within the meaning of LAW of that Act .

On DATE the organisers applied to ORG for permission to organise the march , the itinerary of which would lead from the ORG buildings ( PERSON ) to FAC ( GPE ) in the centre of GPE .

On DATE the Traffic Officer , acting on behalf of the Mayor of GPE , refused permission for the march , relying on the organisers ' failure to submit a “ traffic organisation plan ” ( “ projekt organizacji ruchu ” ) within the meaning of LAW ( a ) of FAC , which they had allegedly been ordered to submit .

On DATE the applicants informed the Mayor of GPE about stationary assemblies they intended to hold on DATE in CARDINAL different squares in GPE . CARDINAL of these assemblies were intended to protest about discrimination against various minorities and to support actions of groups and organisations combating discrimination . The other CARDINAL planned assemblies were to protest about discrimination against women .

On DATE the Mayor issued decisions banning the stationary assemblies to be organised by PERSON , PERSON , PERSON Kliszczyński , PERSON , Mr PERSON , and another person , PERSON N. ( who is not an applicant ) , who are active in various nongovernmental organisations acting for the benefit of persons of homosexual orientation . In his decision the Mayor relied on the argument that assemblies held under the provisions of LAW of DATE ( LOC o zgromadzeniach ) had to be organised away from roads used for road traffic . If they were to use roads , more stringent requirements applied . The organisers wished to use cars carrying loudspeakers . They had failed to indicate where and how these cars would park during the assemblies so as not to disturb the traffic , and how the movement of persons and these cars between the assembly sites would be organised .

NORP Moreover , as a number of requests had been submitted to organise other assemblies on DATE the tenor of which ran counter to the ideas and intentions of the applicants , permission had to be refused in order to avoid any possible violent clashes between participants in the various demonstrations .

On DATE the municipal authorities , acting on the Mayor 's behalf , allowed the CARDINAL planned assemblies concerning discrimination against women to be held as requested by the applicants .

On DATE the same authorities permitted CARDINAL other demonstrations to be held on DATE . The themes of these assemblies were as follows : “ For more stringent measures against persons convicted of paedophilia ” , “ Against any legislative work on the law on partnerships ” , “ Against propaganda for partnerships ” , “ Education in NORP values , a guarantee of a moral society ” , “ NORP respecting PERSON 's and nature 's laws are citizens of the first rank ” , “ Against adoption of children by homosexual couples ” .

On DATE , despite the decision given on DATE , the march took place . It followed the itinerary as planned in the original request of CARDINAL DATE . The march , attended by CARDINAL people , was protected by the police .

In addition to the march , CARDINAL stationary assemblies were held on DATE under permission granted by the Mayor on DATE ( see paragraphs DATE above ) .

On DATE the applicant ORG appealed to ORG against the decision of DATE refusing permission for the march . It was argued that the requirement to submit “ a traffic organisation plan ” lacked any legal basis and that the applicants had never been requested to submit such a document prior to the refusal . It was also argued that the decision amounted to an unwarranted restriction of freedom of assembly and that it had been dictated by ideological reasons incompatible with the tenets of democracy .

On DATE the ORG quashed the contested decision , finding that it was unlawful . ORG observed that under the applicable provisions of administrative procedure the authorities were obliged to ensure that parties to administrative proceedings had an opportunity of effectively participating in them . In the applicant 's case this obligation had not been respected in that the case file contained no evidence that the applicant ORG had been informed of its procedural right to have access to the case file .

The ORG 's decision further read , inter alia :

“ In the written grounds of the decision complained of , the firstinstance authority refers to the fact that no traffic organisation plan is to be found in the case file . Under section CARDINAL ( a ) item CARDINAL ( CARDINAL ) an organiser of a demonstration is obliged to develop such a plan in cooperation with the police if he or she is required to do so by the authority . However , in the case file there is no mention that the organisers were obliged to submit such a plan . ( ... ) The document on the procedure for obtaining permission to organise an event which was served on the organisers contained no information on such an obligation either .

Having regard to the fact that the organisers ' request concerned a march to be held on DATE and that the appeal was received by ORG [ together with the case file ] on DATE , the proceedings had already become devoid of purpose by that latter date . ”

On DATE the applicants appealed to the NORP Governor against the Mayor 's refusals of DATE of permission to hold several of the planned assemblies . They argued that the assemblies were to be entirely peaceful and that banning them breached their freedom of assembly guaranteed by LAW . They submitted that the assemblies did not pose any threat to either public order or morals . They contested the argument relied on in the decision that they were required to submit a document on the planned itinerary between the places where the assemblies were to be held , arguing that they only intended to organise stationary assemblies , not any movement of persons between them , and that they should not be held responsible for the organisation or supervision of such movement .

On DATE the NORP Governor quashed the contested DATE refusals of authorisation to hold the assemblies .

It was first observed that these decisions breached the law in that the parties had been served only with copies of the decisions , not with originals as required by the law on administrative procedure . It was further noted that the Mayor had informed the media of his decisions before they had been served on the applicants , which was manifestly in breach of the principles of administrative procedure .

It was further observed that LAW was a guarantee of freedom of assembly in respect of both the organisation of and participation in assemblies . The LAW clearly guaranteed freedom of assembly , not a right . It was not for the ORG to create a right to assembly ; its obligation was limited to ensuring that assemblies were held peacefully . Thus the applicable law did not provide for any permit for the holding of an assembly .

The Governor noted that the requirement to submit a permit to occupy a part of the road , based on the provisions of LAW , lacked any legal basis in the provisions of LAW . The Mayor had assumed that the demonstration would occupy a part of the road , but had failed to take any steps to clarify whether this had really been the organisers ' intention , which he was obliged to do by law .

It was further observed that a decision banning an assembly had to be regarded as a method of last resort because it radically restricted freedom of expression . The principle of proportionality required that any restriction of constitutionally protected freedoms be permitted only in so far as it was dictated by the concrete circumstances of a particular case .

The Governor noted in this connection that the Mayor 's reliance on the threat of violence between the demonstrations organised by the applicants and the counterdemonstrations planned by other persons and organisations for DATE could not be countenanced . It was tantamount to the administration endorsing the intentions of organisations which clearly and deliberately intended to breach public order , whereas protecting the freedom of expression guaranteed by LAW should be an essential task of the public powers .

He then discontinued the proceedings as they had become devoid of purpose , the assemblies having taken place on DATE .

“ PERSON : LAW says that freedom of assembly can be restricted only if a demonstration might entail a danger to life or limb , or a major danger to property . Did the organisers of the march write anything in their application that indicates that there is such a danger ?

Mayor of GPE : NORP I do n't know , I have n't read the application . But I will ban the demonstration regardless of what they have written . I am not for discrimination on the ground of sexual orientation , for example by ruining people 's professional careers . But there will be no public propaganda about homosexuality .

PERSON What you are doing in this case is precisely discrimination : you are making it impossible for people to use their freedom only because of their particular sexual orientation .

MoW : I do not forbid them to demonstrate , if they want to demonstrate as citizens , not as homosexuals .

PERSON Everything seems to suggest DATE like DATE the Governor will quash your prohibition . And if the organisers appeal to the administrative court , they will win , because preventive restrictions on freedom of assembly are unlawful . But the appeal proceedings will last some time and the date for which the march is planned will pass . Is this what you want ?

MoW : We will see whether they win or lose . I will not let myself be persuaded to give my permission for such a demonstration .

PERSON Is it right that the exercise of people 's constitutional rights should depend on the views of the powers that be ?

MoW : In my view , propaganda about homosexuality is not to the same as exercising one 's freedom of assembly . ”

Article CARDINAL of the LAW reads :

Freedom of peaceful assembly and participation in such assemblies shall be ensured to everyone . Limitations upon such freedoms may be imposed by statute .

Article CARDINAL § CARDINAL of the LAW , which entered into force on DATE , provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or other normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

Article CARDINAL of the LAW , insofar as relevant , provides as follows :

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published without delay .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...

Pursuant to section CARDINAL of the DATE LAW , everyone has the right to freedom of peaceful assembly . A gathering of CARDINAL persons , called in order to participate in a public debate or to express an opinion on a given issue , is to be regarded as an assembly within the meaning of the Act .

Under LAW , freedom of assembly can be restricted only by statute and where it is necessary for the protection of national security or public safety , for the protection of health or morals or for the protection of the rights and freedoms of others .

All decisions concerning the exercise of freedom of assembly must be taken by the local authorities in the municipality where the assembly is to be held . These decisions can be appealed against to the Governor .

Under LAW , the municipality must be informed by the organisers of the intention to hold a public gathering in the open air for an indeterminate number of persons . Under section CARDINAL such information must be submitted to the municipality not earlier than DATE before the planned date of the demonstration and not DATE before it . The information must include the names and addresses of the organisers , the aim and programme of the demonstration , its place , date and time as well as information about the itinerary if the demonstration is intended to proceed from CARDINAL place to another .

Pursuant to section CARDINAL the municipality shall refuse permission for the demonstration if its purpose is in breach of the LAW itself or of provisions of LAW , or if the demonstration might entail a danger to life or limb , or a major danger to property .

A first - instance refusal of permission to hold a demonstration must be served on the organisers within DATE of the date on which the relevant request was submitted and not DATE before the planned date of the demonstration . An appeal against such a refusal must be lodged within DATE of the date of its service . NORP The lodging of such an appeal does not have a suspensive effect on the refusal of permission to hold the demonstration .

A decision given by the appellate authority must be served on the organisers within DATE of the date on which the appeal was submitted .

Under LAW of LAW of DATE , as amended in DATE , the organisers of sporting events , contests , assemblies and other events which may obstruct road traffic are obliged to obtain permission for the organisation of such assemblies .

Under LAW read together with LAW DATE ( a ) of the LAW , organisers of such events are obliged to comply with various administrative obligations specified in a list contained in that provision and numbering CARDINAL items , including the obligation to submit a traffic organisation plan to the authorities .

These provisions were repealed as a result of the judgment of ORG , referred to below .

In its judgment of DATE ORG examined a request submitted to it by the ORG to determine whether the requirements imposed on organisers of public events by the provisions of LAW were compatible with the LAW in so far as they impinged on freedom of assembly , or whether they amounted to an excessive limitation of that freedom .

The Constitutional Court observed that the essence of the constitutional problem was whether the requirements imposed by section CARDINAL of the Act were compatible with freedom of expression as formulated by the LAW and developed by LAW . It noted that DATE LAW was based on the premise that the exercise of this freedom did not require any authorisations or licences issued by the ORG . As it was a freedom , the ORG was obliged to refrain from hindering its exercise and to ensure that it was enjoyed by various groups despite the fact that their views might not be shared by the majority .

Accordingly , LAW provided for a system based on nothing more than the registration of the proposed assembly .

The court observed that subsequently , when it enacted LAW , the legislature had incorporated various administrative requirements which were difficult to comply with into the procedure created for the organisation of sporting events , contests and assemblies , thus replacing the registration system by a system based on permission . In so doing , it placed assemblies within the meaning of LAW on a par with events of a commercial character or organised for entertainment purposes . This was incompatible with the special position that freedom of expression occupied in a democratic society and rendered nugatory the special place that assemblies had in the legal system under LAW and LAW . The court also had regard to the fact that the list of requirements imposed by LAW contained CARDINAL sundry administrative obligations . The restrictions on freedom of assembly imposed by that Act were in breach of the requirement of proportionality applicable to all restrictions imposed on the rights guaranteed by LAW .

The court concluded that CARDINAL of LAW was incompatible with the LAW in so far as it applied to assemblies .


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicants were born in DATE , DATE , DATE , DATE and DATE respectively and live in ORG .

As the facts of the case are in dispute between the parties , they will be set out separately . The facts as presented by the applicants are set out in section B below ( paragraphs CARDINAL ) . The Government ’s submissions concerning the facts are summarised in section C below ( paragraphs LAW ) . The documentary evidence submitted by the applicants and the Government is summarised in section D ( paragraphs CARDINAL - CARDINAL ) .

On DATE the applicants took part in International Women ’s Day celebrations in the city of ORG , during which a group comprising CARDINAL of police officers formed a cordon around the crowd . The police chief warned the participants that no prior permission had been obtained for the gathering .

The first applicant , PERSON , who was a spokesperson for ORG , told the police chief that they were exercising their constitutional right and that the applicable legislation required no prior permission .

Police officers then dragged a number of persons , including CARDINAL of the applicants , into waiting police vehicles . In the course of so doing , the police officers sprayed the crowds with tear gas and hit some of them , including the CARDINAL applicants .

The second applicant , PERSON , was not arrested . She was not beaten up , but was sprayed with tear gas . She was accompanied by her DATE daughter and her mother , both of whom were also sprayed with tear gas .

The ill - treatment continued in the police vehicles . Male police officers started squeezing the arms and legs of the detained women . When the women told the police officers that they had no right to behave like that and asked for female police officers to accompany them , they were sworn at . The episode in the police vehicles lasted for TIME .

NORP The CARDINAL applicants were then taken to a police station and subsequently to ORG for a medical examination . According to the medical reports drawn up DATE , the CARDINAL applicants who had been hit by the police officers had a number of injuries on their bodies , rendering them unable to work for periods of DATE .

DATE the CARDINAL applicants were released from police custody .

On DATE the applicants took part in International Women ’s Day Celebrations in ORG where CARDINAL different groups of demonstrators were carrying placards , flags and posters , and holding demonstrations which hindered the flow of traffic .

A group of police officers tried to convince the group to disperse , and requested them to hold their demonstrations without impeding the circulation of the traffic . A police chief warned the participants that no prior permission had been obtained for the gathering , but told them that they could carry on with their demonstration on the pavement and walk in an orderly manner without violating public order . Nevertheless , the group , including the applicants , refused to disperse and continued with their demonstration .

NORP The police chief made several unsuccessful attempts to tell the participants that the manner in which they were conducting their demonstration was unlawful because they were impeding the flow of traffic . The police chief also told the participants that they could leave their placards – which were too large – and walk on the pavement ; the placards would be returned to them later .

The group insisted on blocking the street and continued with their demonstration . In spite of the police ORG warnings and efforts , the group shouted slogans and continued to protest . Meanwhile , CARDINAL police officers formed a cordon around the participants who had been giving orders to the rest of the demonstrators . The demonstrators inside the police cordon continued to protest , saying that they would not end the illegal demonstration even if they were arrested .

Police officers then put a number of persons , including CARDINAL of the applicants , into the waiting police vehicles by force which could not be considered disproportionate . They were taken to the ORG . On the way to the court house the applicants insulted the police officers present in the vehicle and tried to provoke them . However , the police officers kept their calm . Female demonstrators were accompanied by female police officers in the vehicle .

The remaining members of the group who had not been arrested continued with their demonstration and read out their press release after having complied with the police ORG request to fold their placards and walk on the pavement .

The Government submitted the video footage of the incident to the ORG , and argued that the footage supported their submissions summarised above .

The following information emerges from the documents submitted by the parties .

According to a report signed by CARDINAL police officers , at TIME on DATE , police received intelligence that a number of non - governmental organisations were planning to gather at the junction of FAC with a view to marching from there to the square outside the post office . The police put in place all necessary security measures at the junction at TIME and the demonstrators began arriving at TIME .

The police officers unsuccessfully urged the demonstrators not to march with their placards to the square , where a press release was scheduled to be read out . When the demonstrators ignored the police and started marching , thus blocking a main road , the police officers had to use force to arrest the applicants DATE with the exception of the second applicant , PERSON – and QUANTITY other demonstrators because they resisted arrest and insulted the police officers .

According to another police report drawn up on DATE , the arrested persons behaved in a rowdy manner while they were being transported to the court house in a vehicle . They also insulted the police officers present in the vehicle by shouting things such as “ Who do you think you are ? You have no right to behave like this . Shame on you , are you going to tell your children that you are torturers ? ” .

The Government submitted to the ORG the video footage of the incidents recorded by police officers . However , the part where the police officers used force and arrested the applicants does not feature in the footage . The footage begins with the police officers trying to persuade the demonstrators to leave their placards behind , and then resumes with the demonstrators protesting against the use of force by the police officers and asking for their arrested friends to be released .

It can be seen from the footage that before they were arrested the applicants drew the police ORG attention to a circular issued by ORG on DATE . In the circular , a copy of which was made available to the ORG by the applicants , the ORG urges police officers to respect certain rights and freedoms , including freedom of expression and assembly , and reminds them that those rights and freedoms can only be restricted in limited circumstances . In the circular , police officers are also urged to show restraint when faced with demonstrations , and to use their powers to promote the rights of civil society .

On DATE the four arrested applicants were examined by doctors at the local branch of ORG . The details of their injuries , as noted in the medical reports , are as follows :

PERSON : CARDINAL ecchymosed areas measuring CARDINAL , and grazes on both forearms and on the left hand . Her injuries prevented her from working for DATE .

PERSON : an ecchymosed area measuring QUANTITY x QUANTITY on the inside of the right arm , which prevented her from working for DATE .

PERSON : CARDINAL ecchymosed areas , each measuring QUANTITY , on the forehead , and CARDINAL ecchymosed grazes on CARDINAL of the fingers of the right hand and on the right forearm , measuring CARDINAL x CARDINAL and CARDINAL x QUANTITY respectively . These injuries prevented Mr Bozay from working for DATE .

PERSON : PERSON told the doctor that she had been hit on the nape of the neck and that her hair had been pulled . The doctor observed CARDINAL ecchymosed areas measuring CARDINAL x CARDINAL and CARDINAL x QUANTITY on the insides of both arms , which prevented her from working for DATE .

On DATE , at CARDINAL TIME , the first applicant , PERSON , was examined by another doctor at ORG , who observed CARDINAL ecchymosed areas measuring QUANTITY on her arms , and various other ecchymosed areas on her knee and hand . According to the doctor , the injuries had been caused CARDINAL TIME previously .

On DATE the second applicant , PERSON , lodged an official complaint with the prosecutor against the police officers who , she alleged , had sprayed her and her daughter with tear gas . On the same day PERSON orally informed the prosecutor that she would recognise the police officer who had sprayed her and her daughter with tear gas . When , DATE , she was asked by the investigating police officer whether she would be able to identify the police officer responsible , she stated that she had only seen him once and then only for TIME , but that had they asked her immediately after the incident she would have been able to recognise him .

On DATE the remaining CARDINAL applicants lodged an official complaint with the prosecutor against the police officers allegedly responsible for the ill - treatment . They complained , inter alia , that they had been beaten up and assaulted while exercising their right to freedom of expression and assembly . They also referred to Articles CARDINAL and CARDINAL of the Convention .

On DATE a police chief in ORG sent a verbatim transcription of the video footage of the incidents to the ORG prosecutor .

DATE and DATE the ORG prosecutor took statements from CARDINAL police officers who had been on duty on DATE of the incidents . A police chief told the prosecutor that female demonstrators had attacked the police and that the police had had to use force in response . He maintained that the force used by the police had been proportionate .

CARDINAL of the police officers told the prosecutor that the demonstrators had blocked the street and that the police had had to arrest them . While they were arresting the demonstrators there had been scuffles and the demonstrators had attacked the police officers with sticks . The police officers had had to use force , as a result of which the demonstrators might have suffered minor injuries .

The remaining thirteen police ORG statements concerned solely the complaints made by the applicants regarding the alleged assaults by male police officers on their way to the court house . These officers denied that the demonstrators had been assaulted in the police vehicles . They also added that the arrested persons had been accompanied by female officers in the vehicles .

On DATE the prosecutor examined the video footage submitted to his office by the police , and recorded his findings in a report . In the opinion of the prosecutor , the demonstrators had tried to break the police cordon and march . The police officers had not behaved in an arbitrary manner and the use of force by them had not been excessive .

On CARDINAL DATE the NORP prosecutor decided not to prosecute the police officers . In his decision the prosecutor stated that the second applicant , PERSON , had been unable to recognise the police officer who had sprayed her with tear gas . The prosecutor stated that the applicants had gathered in the area without having sought prior permission . In dispersing the unauthorised demonstration , the police officers had been impelled to resort to the use of force in order to apprehend the applicants because they had resisted arrest and insulted them . In the opinion of the prosecutor , other than the applicants’ unsubstantiated allegations , there was no evidence justifying the prosecution of the police officers .

The applicants lodged an objection against the prosecutor ’s decision . They argued , in particular , that although they had not resisted arrest , the police officers had proceeded to arrest them by using force . The applicants also maintained that they had tried to exercise their right to freedom of expression , which was guaranteed by the LAW as well as by LAW . They also pointed out that , according to the applicable legislation , no prior permission was necessary to hold demonstrations . Moreover , the police officers had acted contrary to the circular issued by ORG ( see paragraph CARDINAL above ) , and their actions had also been in breach of LAW .

The objection filed by the applicants was rejected by ORG on DATE . That decision was communicated to the applicants in DATE .

On DATE CARDINAL of the applicants – that is , all the applicants with the exception of the second applicant , PERSON – were questioned by the NORP prosecutor as suspects . They told the prosecutor that before they could even begin their demonstration the police had arrested them without warning and , in the course of doing so , had hit them . They denied that they had insulted the police officers . Lawyers representing the applicants told the prosecutor that the arrests had been arbitrary and in breach of their GPE fundamental rights and freedoms under the LAW , including the prohibition of torture . The lawyers added that their clients had been exercising their democratic rights and had not committed any offences .

On DATE , the ORG prosecutor filed an indictment with ORG and brought criminal proceedings against the CARDINAL applicants , as well as against CARDINAL persons who had been arrested together with the applicants , for insulting the police officers and contravening LAW ( Law no . CARDINAL ) .

On DATE the ORG of First Instance acquitted the CARDINAL applicants and the remaining defendants . It held that there was no evidence to show that the CARDINAL applicants had put up resistance against the police officers .


Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of opinion of people;Stand for election);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

He stood in the elections to ORG November CARDINAL as an independent candidate . He was registered as a candidate by ORG ( “ the ConEC ” ) for the single - mandate ORG No . DATE .

On DATE the ConEC held a meeting in the applicant ’s absence and decided to apply to ORG with a request to cancel the applicant ’s registration as a candidate owing to reports of his engaging in activities incompatible with the requirements of Articles CARDINAL - CARDINAL.CARDINAL of LAW . The ConEC relied on the following grounds .

Firstly , it noted that it had received a written complaint from a voter ( DATE ) claiming that the applicant had given him money ( in the amount of MONEY ) and asked him to promote the applicant ’s candidacy among the population , offer money to voters in exchange for their votes , and disrupt his main opponent ’s campaign .

Secondly , it noted that it had received complaints from a number of voters and from another candidate ( PERSON ) that the applicant had regularly insulted his opponents and the government in his campaign speeches and publications and physically disrupted his GPE meetings with voters . In particular , CARDINAL of the complaints by voters , sent to the ConEC by telegram , stated , in its entirety , as follows :

“ [ The applicant ] and his supporters insult the current government and use offensive language in respect of other candidates , we ask you to take the necessary measures . ”

Another telegram by a voter stated , in its relevant part , as follows :

“ ... during his meeting with voters in our village , [ the applicant ] , instead of speaking about his election platform , insulted and spread calumnious rumours about [ CARDINAL other ] candidates ; such a candidate should be disqualified from the election if his actions are contrary to the election law , and what good can [ the applicant ] bring to the population , to the ORG ; his candidacy should be cancelled ... ”

There were several other hand - written letters or telegrams with a similar content .

NORP The complaint by the candidate PERSON stated that the applicant insulted him at all his meetings with voters , using offensive language . PERSON further stated that on DATE a large group of the applicant ’s supporters , including his brother , had forcibly broken into a meeting room where ORG was holding a campaign meeting with voters , disrupted the meeting , caused disorder and insulted PERSON using obscene language .

Another complaint was submitted by several highly - ranked members of the local branch of ORG ( “ the ORG ” – the ruling party , which , it appears , supported candidate PERSON in the election in question ) . They noted that the applicant ’s supporters had disrupted ORG meeting and subsequently “ made for the streets and attempted to disrupt the peace and quiet of the town ’s population ” .

According to the applicant , on DATE GPE wrote a letter to the ConEC retracting his previous accusations against the applicant and explaining that he had made those statements owing to a personal disagreement with CARDINAL of the applicant ’s supporters and under the influence of emotion in the heat of the moment . In DATE , GPE wrote similar letters to various electoral commissions and courts , retracting his accusations . According to the applicant , he also attempted to attend ORG hearing concerning his disqualification ( see below ) .

It appears that , on DATE , ORG of the Shamakhi Region commenced a criminal inquiry into allegations that on DATE the applicant ’s brother had resisted a police officer who was trying to restore order at a meeting of ORG with voters , which had allegedly been disrupted by the applicant ’s supporters . No information is available about the outcome of this inquiry .

ORG examined the ConEC ’s request at a hearing held on DATE . According to the applicant , although the hearing was officially scheduled to commence at TIME , it actually took place at TIME He had not received a written summons and was informed of the hearing orally only at TIME on DATE , TIME before the hearing . It was the first time he had been officially informed of the ConEC ’s request of DATE and that ORG was considering the issue of his disqualification .

During the hearing , the applicant denied all the accusations against him , arguing that they had not been duly proved and , in any event , could not be a basis for cancelling his registration as a candidate . He noted that GPE had retracted his accusations against him and had admitted that they had been false . He further noted that he had not been summoned to the ConEC meeting of DATE and that the ConEC ’s decision had not been made available to him . Lastly , he denied the accusation that his supporters had interfered with ORG ’s meeting with voters .

Having examined the written evidence submitted by the PERSON , which consisted mainly of copies of the above - mentioned written complaints by several voters , ORG and local ORG members , ORG considered that that evidence was sufficient to find that the applicant had breached the requirements of Articles CARDINAL , CARDINAL and CARDINAL of LAW , and it therefore cancelled his registration as a candidate .

The applicant appealed . Among other things , he complained that he had not been informed of the PERSON meeting of DATE and that neither the ConEC decision nor any case materials had been officially made available to him prior to ORG ’s hearing . He further noted that it was in any case unclear from the relevant documents ( which had been made available to him subsequently ) whether the said PERSON meeting had taken place on CARDINAL or DATE , because the documents were contradictory and “ falsified ” . He claimed that all the alleged evidence against him had been fabricated in DATE and that the allegations of his alleged wrongdoings were false and based on lies . He further complained that ORG had not heard any of the complainants . As to the “ complaints by voters ” , the court had not even attempted to verify whether they had been authored by existing persons . Moreover , despite the fact that GPE had sent a retraction of his accusations to the ConEC and ORG and had personally attended the hearing , the court had refused to hear him .

On DATE ORG dismissed the applicant ’s appeal and upheld ORG judgment of DATE . It found that ORG had not committed any breaches of substantive or procedural law and that the applicant ’s arguments were not supported by the material in the case file .

According to LAW , the election programmes of candidates , and their pre - election speeches and campaign materials distributed through the media , must not contain statements inciting to the capture of ORG power by force , change to the constitutional system by force , or violations of the country ’s territorial integrity , or statements insulting the honour and dignity of citizens .

Article CARDINAL of the Electoral Code prohibits candidates from abusing the right to campaign in the media by inciting social , racial , ethnic or religious hatred and hostility .

Article CARDINAL of LAW of DATE provides as follows :

“ CARDINAL . Candidates ... are prohibited from gaining the support of voters in the following ways :

CARDINAL.CARDINAL.CARDINAL . giving money , gifts and other valuable items to voters ( except for badges , stickers , posters and other campaign materials having nominal value ) , except for the purposes of organisational work ;

CARDINAL.CARDINAL.CARDINAL . NORP giving or promising rewards based on the voting results to voters who were involved in organisational work ;

selling goods on privileged terms or providing goods free of charge ( except for printed material ) ;

CARDINAL.CARDINAL.CARDINAL . providing services free of charge or on privileged terms ;

CARDINAL.CARDINAL.CARDINAL . influencing the voters during the pre - election campaign by promising them securities , money or other material benefits , or providing services that are contrary to the law . ”

According to Articles CARDINAL , CARDINAL and CARDINAL of LAW , the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by ORG MONEY of the Code .

Complaints concerning decisions of electoral commissions must be examined by the courts within DATE ( unless the Electoral Code provides for a shorter period ) . The period for lodging an appeal against a court decision is also DATE ( Article CARDINAL ) .

LAW sets out rules for the examination of applications concerning the protection of electoral rights ( or the right to participate in a referendum ) . According to LAW , such applications must be submitted directly to the appellate courts in accordance with the procedure established by LAW .

Applications concerning the protection of electoral ( referendum ) rights must be examined within DATE of receipt , except for applications submitted on DATE or the day after DATE , which must be examined immediately ( Article CARDINAL ) . The court must hear the case in the presence of the applicant , a representative of the relevant electoral commission and any other interested parties . Failure by any of these parties to attend the hearing after due notification does not preclude the court from examining and deciding the case ( Article CARDINAL ) .

The appellate court ’s decision can be appealed against to the higher court ( the cassation court ) within DATE . This appeal must be examined within DATE , or immediately if submitted on DATE or DATE . The decision of the cassation court is final ( Article CARDINAL ) .


CASE OF VERLAGSGRUPPE NEWS GMBH v. AUSTRIA (No. 2)

Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant is a limited liability company with its registered seat in GPE . It is the owner and publisher of the DATE magazine News .

On DATE the applicant published an article in News in which it reported about pending investigations on suspicion of large scale tax evasion against PERSON , the managing director of a well - known enterprise producing pistols . The article was accompanied by a picture of PERSON

NORP The report informed the reader that PERSON premises had been searched in TIME of DATE . He was suspected of having evaded taxes of MONEY ( MONEY ) . The article stated that News was in the possession of numerous documents ( letters from PERSON lawyers , a court file from GPE , costs calculations and lists of clients of the PERSON company , etc . ) concerning this suspicion which it claimed to have obtained through its own intense research . The most important documents were letters from PERSON lawyers from which it followed that an attempt to murder PERSON had taken place in GPE in DATE , which had not come to the attention of the NORP authorities or of the media at the time . The attempt had possibly been made at the instigation of CARDINAL of PERSON business partners who , according to his lawyer , had acted as a trustee for him . The article then assumed that the attempt was somehow linked to PERSON network of companies which had been scrutinised by the tax authorities . It quoted an anonymous tax official as saying that according to the investigations dubious companies with a seat abroad had issued invoices for “ organisational services ” to the PERSON company in order to reduce its gains in GPE . Still according to that tax official the complex structure of interrelated companies had been chosen to dissimulate the fact that PERSON was their owner and to avoid the legal consequences of that fact . The article finally said that PERSON also had close links with ORG ( ORG ) , of which it gave a few examples , and that thus , the case also had a political dimension .

Subsequently PERSON ( “ the claimant ” ) brought proceedings under LAW ) against the applicant company , requesting that the latter be prohibited from publishing his picture in connection with reports both on the pending tax evasion proceedings against him and on the attempted murder .

On DATE ORG ( ORG ) , granting the request in part , issued a preliminary injunction ( einstweilige GPE ) against the applicant company prohibiting it from publishing a picture of the claimant in the context of reports on charges of tax evasion against him , in so far as he was not described as a suspect , but as having committed the offence , until a final decision would be taken in the main injunction proceedings .

NORP The court noted that , when assessing whether a person was entitled to protection of his or her picture under LAW in the context of criminal proceedings , the respective interests had to be balanced in the light of the criteria developed in Sections ORG and CARDINAL of LAW ( Mediengesetz ) . The court noted that the applicant was a business magnate . His enterprise was the market leader in equipping police forces with pistols . Although the claimant was well - known in professional circles he was not known to the public at large and his picture had only been published in arms producers ' magazines so far . Nevertheless , the subject - matter , namely tax evasion proceedings pending against an industrial magnate whose enterprise was well - known and prestigious in GPE , was of public interest . Referring to Section CARDINAL § CARDINAL ( CARDINAL ) of LAW , the court considered that the public interest in receiving such information outweighed the claimant 's interest in the protection of his identity . The court concluded that reporting on this topic and publishing the claimant 's picture was in principle allowed , as long as it did not violate his right to be presumed innocent ( LAW of LAW ) as was the case for the passage of the article quoting the tax official which described the suspicion against Mr PERSON as if it were already proven .

Referring to Section CARDINAL § CARDINAL ( CARDINAL ) of LAW , the court dismissed the claimant 's request that the applicant company be prohibited from publishing his picture in the context of reports on the attempted murder of which he had been the victim . It found that there was a public interest in the reporting which was not outweighed by the claimant 's interest in the protection of his identity , since the report did not interfere with his strictly private life or lead to his public exposure .

On DATE ORG ( Oberlandesgericht ) upheld this decision .

On DATE ORG ( Oberster Gerichtshof ) , allowing the claimant 's appeal in part , widened the scope of the preliminary injunction to the extent that the applicant company was prohibited from publishing any pictures of the claimant in the context of reports on the tax evasion proceedings pending against him , irrespective of the accompanying text .

The court found that the lower courts had failed to take into account the nature of the offence which was at stake , when applying the above - mentioned provisions of LAW . It noted , in particular , that the claimant was a suspect of tax evasion , which was a lesser indictable offence ( PERSON ) , within the meaning of LAW ) of LAW , in which case the claimant 's legitimate interests were injured by a disclosure of his picture . In such cases , the claimant 's interest in a protection of his picture prevailed over the public interest in its publication .

ORG 's interest not to have his picture published in the context of reports on pending tax evasion proceedings against him outweighed the public interest to receive such information . In that context the court noted in particular that the investigations for tax evasion were not public and the officials of the tax authorities were bound by the fiscal secret . Thus , there was no public interest in receiving such information together with the picture of the suspect , irrespective of the manner in which the applicant had obtained the information . Even if the applicant had managed to obtain information on the tax evasion proceedings without inciting officials to breach the fiscal secret , the information was meant to be secret and there was no legitimate public interest in receiving it .

ORG decision was served on the applicant on DATE .

Section CARDINAL of LAW , in so far as relevant , reads as follows :

“ ( CARDINAL ) Images of persons shall neither be exhibited publicly , nor in any way made accessible to the public , where injury would be caused to the legitimate interests of the persons concerned or , in the event that they have died without having authorised or ordered publication , those of a close relative . ”

Starting with its judgment of DATE ( CARDINAL Ob CARDINAL/CARDINAL , PERSON , CARDINAL ) ORG has consistently held that , in the context of reports on criminal proceedings , Section CARDINAL pf LAW has to be interpreted in the light of LAW of LAW .

NORP The relevant provisions of LAW read as follows :

“ ( CARDINAL ) Where publication is made , through any medium , of a name , image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who

NORP has been the victim of an offence punishable by the courts , or

NORP is suspected of having committed , or has been convicted of , a punishable offence ,

and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person 's position in society , of some other connection with public life , or of other reasons , the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered . The award of damages shall not exceed CARDINAL ; additionally , Section CARDINAL ( CARDINAL ) , second sentence , shall apply .

( CARDINAL ) ORG interests of the victim shall in any event be injured if the publication

NORP in the case of subsection ( CARDINAL ) CARDINAL is such as to give rise to an interference with the victim 's strictly private life or to his or her exposure ,

NORP in the case of subsection ( CARDINAL ) CARDINAL relates to a juvenile or merely to a lesser indictable offence ( PERSON ) or may disproportionately prejudice the victim 's advancement . ... ”

“ ( CARDINAL ) Where a person who is suspected of having committed a punishable offence but has not been finally convicted is portrayed in a medium as guilty , or as the offender and not merely a suspect , the victim shall have a claim in damages against the owner of the medium ( publisher ) for the injury suffered . The award of damages shall not exceed QUANTITY ; additionally , Section CARDINAL ( CARDINAL ) , second sentence , shall apply . ... ”

Pursuant to LAW ) lesser indictable offences are all offences punishable with DATE imprisonment .