MAWAJEDI SHIKPOHKT AND MAHKAMAT SHOLE v. THE NETHERLANDS

The applicants , Mr PERSON Mawajedi Shikpokht and PERSON GPE , are NORP nationals who were born in DATE and DATE respectively and currently live in GPE ) . They are husband and wife . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by Mr R.A.A. PERSON and PERSON , both of ORG .

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

The facts regarding Ms Mahkamat Sholeh are stated by the applicants as follows :

Ms Mahkamat Sholeh was born into a family that opposed the NORP revolution in GPE from the outset . Her father was put to death when she was DATE . Her mother then married an activist of the NORP political organisation PERSON ( “ Path of GPE ) , a Mr PERSON ( or PERSON ) , referred to hereinafter as Ms Mahkamat Sholeh 's stepfather .

In DATE Ms Mahkamat Sholeh 's stepfather received a DATE prison sentence . Her mother too was imprisoned ; she and her mother were forced to spend a year in prison .

Ms Mahkamat Sholeh 's stepfather was granted conditional release in DATE . He resumed his covert political activities .

In DATE Ms Mahkamat Sholeh 's stepfather went into hiding after learning that his name appeared on a hit list . She then took over his political activities . These included distributing written materials ( books and pamphlets ) and organising political meetings . She also wrote such materials herself .

At this time Ms Mahkamat Sholeh was living in her parents ' house , her husband Mr Mawajedi Shikpokht having been conscripted for military service .

DATE before she eventually left GPE she was beaten unconscious by a group of students .

Ms Mahkamat Sholeh started receiving threats by telephone . On DATE she received an anonymous threat , written on a yellow sticky note left on the front door , warning her to cease her activities . She went into hiding .

On DATE Ms Mahkamat Sholeh 's parents ' house was searched . Ms Mahkamat Sholeh , who had been out of the house at the time , was informed of this by her mother who by then had also gone into hiding and who had been informed by a neighbour .

DATE Ms Mahkamat Sholeh left GPE with a “ travel agent ” .

Ms Mahkamat Sholeh entered the GPE on DATE . On DATE she lodged a request for asylum .

On DATE the Deputy Minister of Justice ( ORG ) rejected this request .

On DATE Ms Mahkamat Sholeh lodged an objection ( bezwaarschrift ) against this decision to the Deputy Minister .

A hearing before a board of officials took place on DATE . On DATE the Deputy Minister dismissed the objection . It is stated in the decision that Ms Mahkamat Sholeh had not been able to provide consistent information on the written threat which she had received or the raid on her parents ' house . It was also considered inconsistent that students had themselves set a date for an illegal meeting and asked Ms Mahkamat Sholeh whether it was convenient for them to visit her ; that she was unable to provide details on most of the books and other written materials which she had kept hidden ; and that she was trusted to undertake covert activities for PERSON despite not actually being a member of that movement ; and the fact , as stated , that she had had access to the hit list with her stepfather 's name on it .

The facts regarding Mr Mawajedi Shikpokht are stated by the applicants as follows :

During his military service Mr ORG worked as a prison officer .

CARDINAL of the prisoners , PERSON , was an important member of ORG party , a movement seeking territorial independence for the NORP province of GPE . PERSON persuaded PERSON ORG to smuggle letters out of prison for him . This Mr ORG Shikpokht did until DATE , when he learned from another prisoner that PERSON had been placed in solitary confinement .

On DATE Mr ORG learned that PERSON had revealed certain names under torture . Mr PERSON then deserted .

Mr ORG Shikpokht entered the GPE on DATE . On DATE he lodged a request for asylum .

On DATE the Deputy Minister of ORG rejected this request .

On DATE Mr ORG lodged an objection against this decision to the Deputy Minister .

A hearing before a board of officials took place on DATE . On DATE the Deputy Minister dismissed the objection . It is stated in the decision that Mr ORG story was not worthy of credence , the less so since he apparently knew very little of PERSON or his activities for ORG party , could not even be certain that PERSON had divulged his name to the authorities and knew very little of his wife 's covert activities . Moreover , he had apparently left GPE by air from GPE airport , where checks on departing passengers were particularly stringent .

The applicants both lodged appeals with ORG of GPE on DATE , at the same time lodging an application for a provisional order restraining the respondent ORG from deporting them to GPE .

A hearing was held on DATE .

On DATE the Provisional Measures Judge ( PERSON ) of ORG of GPE , sitting in GPE , dismissed both the application for a provisional measure and the appeals in a single decision . Its reasoning echoed that of the Deputy Minister in each of the CARDINAL cases , which was found not to be arbitrary or unreasonable .

In the domestic proceedings Ms Mahkamat Sholeh submitted the following documents , copies of which are contained in the ORG 's file :

“ List of the CARDINAL people who became the subject of ' investigation ' ” ( stated to be a hit list ) . The name of Ms GPE stepfather appears on this list as number CARDINAL .

“ Statement concerning Atefeh GPE ” by PERSON , dated DATE . This document describes Ms GPE stepfather as a PERSON activist and PERSON GPE herself as a sympathiser . It asks the GPE authorities to take her asylum request seriously .

“ Letter of GPE ” dated DATE . This is a very short letter in NORP , on commercial notepaper bearing an address in GPE , stating that the signatory knew Ms GPE stepfather and was aware of his political activities .

“ About PERSON by PERSON and PERSON , dated DATE . The signatories of this document state that they are members resident in GPE of PERSON and NORP 's PERSON ( Minority ) , respectively . They express support for Ms Mahkamat Sholeh 's asylum request based on her relationship with her stepfather and her own , unspecified , political activities “ both at home and abroad ” .

“ Statement concerning Atefeh PERSON ( sic ) ” by Mr M. PERSON , dated DATE . PERSON is a GPE national of NORP origin and himself a former member of the NORP left - wing opposition who knew PERSON GPE and her family in prison in DATE . The statement , in NORP , expresses fears for Ms Mahkamat Sholeh 's life based on her belonging to that particular family .

Letter “ regarding the asylum case of PERSON ” from Ms PERSON , representative of Workers Left Unity – GPE , dated DATE . The letter was sent by fax apparently from the mechanical engineering department of ORG ( the sender 's imprint reads “ ORG Uni ” ) . The letterhead of the organisation gives an an address in “ Gutenberg ” ( presumably GPE ) , GPE . It is stated that the applicant 's stepfather was a PERSON activist and was imprisoned both by the former regime and by the NORP regime . Ms Mahkamat Sholeh herself spent her early childhood in prison with her mother in DATE . She is stated to have been active against the NORP regime , distributing leaflets and pamphlets , and to have been under surveillance and forced to flee GPE on account of her family connections . The letter expresses concern about Ms Mahkamat Sholeh 's possible fate if she returns to GPE and supports her asylum request .

Copies of correspondence between Ms Mahkamat Sholeh and her stepfather exchanged when the latter was still in prison .

A letter from ORG ( ORG ) – a private organisation that funds political refugees who wish to pursue higher education DATE agreeing to give Ms Mahkamat Sholeh financial support for study purposes .


Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Pecuniary and non-pecuniary damage - award

Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE . She was married to a NORP national , Mr PERSON , who died in DATE . In DATE they had a son , Mr PERSON , who died on DATE after being shot by the police on DATE .

CARDINAL sets of criminal proceedings were opened against Mr Karandja on unspecified dates in DATE . In the first set he was charged , together with CARDINAL others , with breaking into a car on DATE and stealing CARDINAL pairs of stockings with a total value of MONEY ( equivalent at the material time to MONEY ) . In the second set he was charged with driving a car without a valid licence on DATE . He has not been convicted of other offences and there is no indication that other charges have ever been lodged against him .

On DATE the ORG revoked Mr PERSON 's earlier release on bail and ordered his pretrial detention . As a result , he was put on the list of persons wanted by the police .

Mr PERSON was arrested on DATE . He was placed in a cell in the Third FAC in GPE . After TIME the police tried to transfer him to FAC . However , the escort brigade refused to take him in their custody because it was late and at TIME he was returned to the police station . The onduty officers – Chief PERSON and Captain V.S. – placed Mr PERSON in a cell on the third floor of the station . The Chief Sergeant searched him , but did not handcuff him because he looked “ calm and was not boisterous ” . Mr PERSON 's shoe laces were removed and the door of the cell was closed .

At TIME to open the door of the cell , apparently by forcing CARDINAL the chains which was keeping it closed , rammed Chief PERSON with it , and ran down the stairs and out of the building . Once outside , he continued to run down the streets adjacent to the police station . The Chief Sergeant chased after him .

The escape from the police station was witnessed by ORG and Captain PERSON However , neither they nor any other officers assisted Chief PERSON in the chase .

The chase continued down FAC . When Mr PERSON reached the intersection with FAC , where he attempted to cross , Chief PERSON , according to his later statement , drew out his handgun and fired a warning shot in the air . Mr Karandja did not stop , dodged the traffic , crossed the boulevard and continued to run towards the city centre . Chief PERSON continued the chase and ran down FAC . According to his later statement , he carried on shouting at Mr Karandja to stop and fired CARDINAL more warning shots in the air . Mr PERSON then turned down FAC , followed by Chief PERSON who ran after him in the middle of the street .

NORP Before turning into FAC , Mr Karandja was spotted by QUANTITY officers , Chief PERSON and GPE , who were in a patrol car travelling from the opposite direction . The officers later stated that they had seen Mr PERSON running towards them and then turning into FAC . They also stated that they had seen Chief PERSON running after him , shouting at him to stop , and firing CARDINAL or CARDINAL times in the air . The patrol car followed the CARDINAL of them down FAC .

Somewhere around that time , the chase was witnessed by Chief Sergeant A.V. who was going to the police station to take up his night patrol duty and by Lieutenant PERSON who was on his way to take up TIME duty in another police department . Neither of them joined in the chase and the CARDINAL men instead headed to police station to report the event .

NORP The chase continued down FAC with Mr Karandja being pursued by Chief PERSON and the patrol car . It is unclear whether Chief PERSON was aware that a patrol car was behind him because it had apparently not switched on its siren and flashing light .

When Mr Karandja reached the intersection with PERSON Street , where excavation works for the city 's future underground had begun , Chief PERSON fired in his direction . The bullet hit the back of Mr PERSON 's head and he fell to the ground . Chief PERSON went over to him , closely followed by Captain PERSON and Chief PERSON , who then returned to the patrol car to report the event , before going back to preserve the scene . Several passersby also gathered around Mr PERSON 's body .

Within TIME of the shooting a police car arrived and Mr PERSON was taken to the emergency ward of ORG . He arrived there , unconscious , at TIME Despite an emergency brain operation , he died DATE at TIME on DATE .

Having been notified about the incident , TIME and TIME on DATE an onduty investigator from ORG inspected the scene of the shooting and the cell in which Mr PERSON had been kept . He drew a sketch and took photographs , but did not try to identify the distance between Mr PERSON and Chief PERSON at the time of the shooting . He seized : ( a ) a spent cartridge found at an unspecified location in FAC by Captain PERSON who had been sitting with his son in a café close to the scene ; ( b ) acetonedrenched swabs of Chief PERSON 's hands ; ( c ) handcuffs from the cell ; and ( d ) the broken chain of the cell door . He then interviewed Captain PERSON and ordered an expert examination of Chief PERSON 's handgun . The Sergeant made a written statement in which he said that he had been aiming for Mr PERSON 's legs .

On DATE a blood sample was taken from Chief PERSON A subsequent test found no presence of alcohol or other intoxicating substances in his blood .

On DATE a forensic expert performed an autopsy on Mr PERSON 's body . He found that the cause of death was “ a gunshot wound to the head and damage to the brain ” . The report also noted that there were bruises on his face and knees , which were attributed to his fall , face first , after being shot .

On DATE ORG refused to open a preliminary investigation into the incident , finding that Chief PERSON had acted in line with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW ( see paragraph CARDINAL below ) . He had used his firearm after giving a warning in order to prevent a detainee from escaping . His act was therefore not criminal .

On an appeal by the applicant , on DATE the Chief Military Prosecutor 's Office set that decision aside , finding that the opening of a preliminary investigation in such circumstances was mandatory . Accordingly , on DATE the ORG opened an investigation and on DATE sent the case file to a military investigator .

On DATE , CARDINAL , DATE and DATE , CARDINAL May and CARDINAL DATE the investigator interviewed PERSON and GPE , ORG , CARDINAL other officers from the police station , Chief PERSON , GPE , and GPE , CARDINAL civilians who lived on FAC who had not witnessed the chase or the shooting , Lieutenant PERSON , and Chief PERSON who said that when he had fired the fatal shot his intention had been to aim low and possibly hit PERSON PERSON 's knees .

In the meantime , on CARDINAL DATE the investigator asked a forensic expert to determine the cause of Mr PERSON 's death , the presence of any injuries on his body , the distance from which the shot had been fired and the presence of any handcuff marks . In his report the expert said that PERSON PERSON had died from a gunshot wound in the back of his head which had fatally injured his brain . The rest of his injuries were bruises which could have occurred when he had fallen to the ground . It was impossible to determine the distance from which the shot had been fired because the surgical operation had obliterated any marks on his head . However , the fact that the medical doctors had not noted any gunpowder residue near the wound could be interpreted as meaning that the shot had not been fired from a close distance . There were no clear handcuff marks .

On DATE the investigator asked experts to say whether the swabs of Chief PERSON 's palms contained gunpowder residue , and whether the spent cartridge submitted by Captain PERSON had come from the Chief PERSON 's handgun . The swab test , conducted on DATE , found no gunpowder residue in the swabs . The handgun test , conducted on CARDINAL DATE , found that the cartridge had come from the Chief Sergeant 's handgun .

Having finished his work on the case , on DATE the investigator proposed discontinuing the investigation . In his view , Chief PERSON , by using his firearm , had strictly complied with his duties . His decision to do so had been in line with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW ( see paragraph CARDINAL below ) , as he had simply had no other means of stopping Mr Karandja from fleeing . The Sergeant 's earlier decision not to handcuff Mr PERSON had also been in line with the relevant instructions .

On DATE the Sofia Regional Military Prosecutor 's Office found that the investigator had not sought to identify Mr PERSON 's nextofkin with a view to allowing them to acquaint themselves with the case file and to bring , if they so wished , civil claims . It referred the case back to the investigator , instructing him to rectify that omission .

Although the investigator did not comply with those instructions , on DATE the ORG decided to discontinue the investigation , repeating the reasons given by the investigator on DATE almost verbatim .

On DATE the applicant appealed to ORG . She said that the investigation had failed to gather evidence about the breaking of the chain of the cell door and the way in which that door had been opened . She complained that the only witnesses interviewed were police officers and that no medical expert report had been obtained to assess the various injuries sustained by Mr Karandja . She also claimed that there were inconsistencies in the investigation 's findings because it had concluded that Mr PERSON had escaped from the cell without the assistance of any tools . Lastly , she complained that she had not been allowed to consult the case file .

On DATE ORG upheld the discontinuance . It noted that the investigator had carried out a reconstruction of Mr PERSON 's escape and had found that it was possible to loosen the chain and open the door in the way he had specified . The expert medical report had clarified the injuries which had led to Mr PERSON 's death and the distance from which the shot had been fired . The applicant did not specify which other eyewitness she wished to have interviewed . It was true that she was not given an opportunity to consult the case file , but in the event that was not problematic because she was informed of the discontinuance and was able to appeal against it .

On DATE the applicant appealed to ORG , reiterating the arguments raised in her previous appeal .

On DATE ORG set the discontinuance aside , citing the investigator 's failure to comply with the instructions to identify Mr PERSON 's nextofkin – the applicant – and give her the opportunity to acquaint herself with the case file and to bring , if she so wished , a civil claim .

On DATE the case was assigned to another investigator . On DATE he interviewed the applicant in her home and allowed her to acquaint herself with the case file .

On DATE the investigator proposed discontinuing the investigation , giving the same reasons as those given by the previous investigator on CARDINAL DATE ( see paragraph CARDINAL above ) .

On DATE the Sofia Regional Military Prosecutor 's Office referred the case back to the investigator . It noted that he had interviewed the applicant in the absence of her counsel .

On DATE the investigator interviewed the applicant in her home , in the presence of her newly - retained counsel , and allowed the CARDINAL of them to acquaint themselves with the case file .

On DATE the investigator proposed discontinuing the investigation , giving the exact same reasons as previously ( see paragraph CARDINAL above ) .

On DATE the ORG referred the case back to the investigator . It noted that he had not given the applicant and her counsel a proper opportunity to acquaint themselves with the case file and make any objections .

The applicant 's counsel was allowed to consult the case file on DATE . On DATE he filed an objection , pointing out that vital investigative steps – such as witness interviews and the commissioning of an expert medical report DATE had been taken DATE after the incident . It was also striking that despite the small area in which the chase had taken place and the number of shots fired , CARDINAL cartridge had been found . The positions of other officers present near the scene were not elucidated , which made it impossible to determine whether it had been possible to apprehend Mr Karandja without using firearms . Since under the applicable law , firearms could be used only “ as a means of last resort ” , it was essential to clarify those facts . There were also discrepancies in the investigation 's findings , the chief CARDINAL being the assumption that Chief PERSON had fired several warning shots and the fatal shot , and the fact that the swab test had come out negative .

On DATE the investigator overruled the objection , saying that the delay had not been the fault of the investigating authorities ; they had started to work on the case shortly after the prosecuting authorities had instituted the proceedings , had accepted all previous investigative actions , had conducted interviews , and had taken further investigative steps to elucidate the facts . Firearms had been used as a means of last resort to arrest Mr Karandja .

On DATE the investigator again proposed discontinuing the investigation , giving the exact same reasons as previously ( see paragraph CARDINAL above ) .

On DATE the Sofia Regional Military Prosecutor 's Office decided to discontinue the investigation , repeating the reasons given by the investigator almost verbatim and adding that the situation fell within the ambit of Article CARDINALa of LAW ( see paragraph CARDINAL below ) .

On DATE ORG confirmed the discontinuance , repeating almost verbatim the reasons given by GPE .

In a final decision of CARDINAL DATE ORG also confirmed the discontinuance . It fully agreed with the prosecuting authorities ' conclusion that Chief PERSON 's actions had been in line with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act and fell within the ambit of LAW ( see paragraphs CARDINAL and DATE below ) . It also noted that the Sergeant had aimed at Mr PERSON 's legs and had shot him in the back of the head only because of the increasing distance between them and speed of the chase .

Section CARDINAL of the DATE LAW , as in force at the material time , provided , in so far as relevant :

“ ( CARDINAL ) The police may use firearms as a means of last resort :

after giving a warning , to prevent the escape of a person duly detained for having committed a publicly prosecutable offence .

( CARDINAL ) When using firearms the police are under a duty to protect , as far as possible , the life of the person against whom they use force ... ”

The wording of section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) of the DATE ORG , which superseded the above provision in DATE , was identical . The wording of section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) of the DATE Ministry of Internal Affairs Act , currently in force , repeats verbatim that of section CARDINAL(CARDINAL)(CARDINAL ) and ( QUANTITY ) of LAW .

Article DATE § CARDINAL of the DATE LAW , added in DATE , provides that causing harm to a person while arresting him or her for an offence is not punishable where no other means of effecting the arrest exist and the force used is necessary and lawful . According to LAW , the force used is not necessary where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary .

Under LAW , as in force until DATE , the discontinuance of a preliminary investigation could be challenged before a more senior prosecutor .

On DATE that Article was amended to provide for a system of automatic control of the discontinuance : after the discontinuance the prosecutor had to send the file and his decision to the immediately superior prosecutor 's office , which could confirm , modify or quash it . If it confirmed the decision , it had to forward the file to the appropriate court , which had to review the matter in private . The court 's decision was final . No provision was made for those concerned to be notified of the discontinuance .

Following a further amendment of that Article in DATE , the discontinuance of preliminary investigations became subject to judicial review . DATE Code of Criminal Procedure maintained that position in Article CARDINAL § § DATE .


Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) read in the light of Article 11 - (Art. 11) Freedom of assembly and association

András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre

The applicant was born in DATE and lives in Szekszárd .

The applicant , a retired senior police officer , was at the material time the chairperson of ORG . DATE and DATE she published a number of writings on ORG website , which was effectively under her editorial control , concerning outstanding remunerations due to police staff , alleged nepotism and undue political influence in the force , as well as dubious qualifications of senior police staff .

The applicant was indicted for instigation to insubordination . On CARDINAL DATE LAW of ORG found her guilty as charged and sentenced her to a fine and demotion . The court did not sustain the applicant ’s defence according to which the publication of such allegations belonged to the core of a trade union ’s activities . It held that those allegations were capable of causing insubordination and as such were hardly or not at all susceptible to any proof of their veracity .

ORG based its judgment inter alia on the following statements published by the applicant on the Internet :

( CARDINAL ) “ The staff are regularly required to work overtime without remuneration ... ” “ For DATE , clearly due allowances have not been paid to low - ranking staff ... ” “ Currently it is almost a prerequisite of becoming a senior police officer to have a political background or to be a relative or a descendant of other senior police officers . ” “ The senior police ORG obvious violations of the law set a bad example for the force . ” “ This is typical of senior police officers : they commit violations and infringements , and then , if we point this out , their reaction is striking back without any principles , suing and accusing of incitement in order to counter our suggestions to renew and clean up the force . ” “ Why are we wondering at the infringements of police officers if law - breaking and tyrannising senior police officers go unpunished ? ”

( CARDINAL ) “ The uninhibited infringements of the law committed by senior police officers placing themselves above the law go unpunished , and what is more , they are even decorated when , on order of the political authority in power , CARDINAL , CARDINAL of discontented and underprivileged people are beaten by jaded police officers on the streets . ” “ The ‘ Tettrekész’ ORG commiserates with those NORP citizens whose human dignity and human rights were violated and affronted by acts of a prostituted leadership and of our criminal ‘ colleagues’ and apologises for that . ”

( CARDINAL ) “ Police staff are getting more and more underprivileged and humiliated by their own leaders . ” “ Some senior police officers are active in trying to obtain that average citizens be punished rather than ‘ served and ORG by the police officers on the streets . ” “ Some well - paid senior police officers unprofessionally incite ordinary citizens and police officers against each other . ” “ We constantly request the review of the often unprofessional selection procedure of senior police officers , but to no avail , because there is apparently no need for a citizen - friendly police . ”

( CARDINAL ) “ The senior police officers again demonstrated that they were incapable of upholding the public order in a party - neutral and politically neutral way ... It is proven again that the NORP Police ’s primary objective is first and foremost not to maintain public order for the taxpaying citizens but to uphold the reign of current political leaders who have led GPE into economic and moral distress . ” “ The reputation of the Police has reached previously unseen depths because of the acts of the unprofessional and anti - national senior police officers non - complying with the spirit of the police oath . ” “ It is obvious that the ORG ’s core leadership is , in an unacceptable way , politically committed to the government of the country and that of the capital . ”

( CARDINAL ) “ The Head of the National Police Department is demonstrating DATE that he is much more able to write obscene poems than to lead the Police ; moreover , he is considerably much better in being an obstacle to the work of ‘ Tettrekész’ ORG and in managing a police pop band than in cooperating with a representative trade union of the Police with the highest number of police officer members . ” “ A chaotic and highly unprofessional leadership is ruining the rest of the Police ’s reputation from DATE . ”

On DATE the Military Bench of ORG upheld the applicant ’s conviction under section CARDINAL of LAW . It held that the publication of the documents by the applicant had gone beyond her freedom of expression , given the particularities of the armed body to which she belonged . In the court ’s opinion , the views contained in the documents constituted CARDINAL - sided criticism whose truthfulness could and should not be proven .

Act No . XX of DATE on LAW ( as in force at the material time ) provides as follows :

“ ( CARDINAL ) In GPE everyone shall have the right to good reputation , the inviolability of his home , and the protection of privacy and personal data . ”

“ ( CARDINAL ) In GPE everyone shall have the right to freedom of expression and to receive and impart information of public interest . ”

Act no . ORG of DATE on the ORG of Members of ORG provides as follows :

“ ( CARDINAL ) Members of professional staff of the police force and of the civilian national security services shall not be members of a political party and shall not engage in political activities .

( CARDINAL ) Members of professional staff shall not hold a position in a political party and shall not undertake public appearance in the name or interest of a political party , apart from standing as a candidate in parliamentary , NORP or municipal elections .

( CARDINAL ) Members of professional staff shall not engage in political activities at the place of service or while performing service tasks .

( CARDINAL ) Except for the case regulated under LAW , members of professional staff shall not criticise , or express an opinion about , a measure or order received unless they do so within the scope of their activities securing rights and interests ; moreover , they shall not make statements injurious to the order and discipline of the service and shall not express a private opinion in official proceedings by using media publicity .

( CARDINAL ) Members of professional staff shall not produce or disseminate publications harmful to the order and discipline of the service and shall not place such posters , announcements or emblems anywhere .

( CARDINAL ) Announcements of the professional members’ representation organisations falling within their scope of activities may be published in the locally customary manner . ... ”

“ ( CARDINAL ) For the purposes of this LAW , “ trade union ” shall mean any representation organisation DATE irrespective of its actual designation – of members of professional staff , whose aim is the representation and protection of the service - related interests of members of professional staff .

( CARDINAL ) The trade union shall be entitled to

a ) operate within the armed forces and to involve its members in its activity ;

b ) provide information for the members of professional staff about their rights and duties affecting their financial , social , cultural , living and service conditions ;

c ) represent its members vis - à - vis the organisational unit or before state organs in respect of issues affecting their service relationship or – upon authorisation – before a court or other authority or body in respect of issues affecting their living- and service conditions .

( CARDINAL ) The trade union shall have the right to exercise the following rights vis - à - vis the organisational unit :

a ) may request information on any issues related to members of professional staff ’s service - related financial , social and cultural interests ;

b ) may communicate its position and opinion on the commander ’s ( head ’s ) measure ( decision ) concerning an issue falling under point a ) to the commander in charge of the unit and may initiate consultations in such matters ;

c ) may , during official working TIME or DATE in justified cases – in service TIME check observance of the rules governing service and working conditions DATE including healthy and safe service performance DATE and may request information and data on the implementation of those rules , which information and data shall be provided for the trade union . Such checks may not endanger or hinder the performance of the service tasks .

( CARDINAL ) The trade union may draw the attention of the head of the organ in charge of the implementation of the rules to the shortcomings and omissions perceived in the course of the check . If the head fails to take the necessary action in due time , the trade union may institute appropriate proceedings . The body having conducted the proceedings shall be obliged to inform the trade union of the findings of the proceedings .

( CARDINAL ) The rights specified under subsections ( CARDINAL)-(CARDINAL ) shall , in respect of issues falling into the supervisory bodies’ scope of direction , be vested in the representative trade union within the given organisation . ... ”

“ ( CARDINAL ) While performing their service , members of professional staff shall be obliged to execute the orders of a supervisor or the instructions of a superior officer , unless they would commit a criminal offence thereby .

( CARDINAL ) Except for the case specified in subsection ( CARDINAL ) , members of professional staff may not refuse the execution of an unlawful order . Where , however , the unlawful nature of the order was recognised , it shall immediately be drawn to the superior officer ’s attention . If the supervisor upholds his order or the superior officer upholds his instruction , it must – upon request – be given in writing . Liability for the execution of an unlawful order or provision shall be borne solely by the issuer of the order or the instruction . ... ”

“ ( CARDINAL ) Members of professional staff or – upon their authorisation and on their behalf– a representation organisation or an attorney at law may file a service complaint if they find prejudicial a service - related decision , measure or their omission , not regulated under LAW of this LAW .

( CARDINAL ) A service complaint against an employer ’s measure in connection with the termination of the service relationship , establishment of conflict of interest , or the unilateral modification of the service relationship by the armed forces affecting the member ’s position , shall be filed by the member of professional staff within DATE from the communication of the employer ’s measure . In other cases service complaints shall be filed within the period of limitation applicable to the enforcement of the claim at issue .

( CARDINAL ) The complaint shall be filed with the supervisor who took ( omitted to take ) the decision and who shall – in case he fails to grant it – transfer the case , together with the case files , to the supervisor - commander without delay . Unless specified otherwise under the law , the supervisor - commander shall decide on the complaint within DATE and shall communicate his decision to the complainant . This time limit may be extended on CARDINAL occasion for DATE .

( CARDINAL ) No person shall be restricted in exercising his right to file a complaint . No complainant shall suffer any detriment in case his complaint is found ill - founded , except where intentional infringement of discipline , regulatory offence , or a criminal offence has been committed .

( CARDINAL ) The exercise of the right of complaint specified in another law shall not be affected by LAW . ”

“ ( CARDINAL ) A first instance decision related to the service relationship and taken in proceedings conducted within the armed forces may – unless this LAW provides otherwise – be challenged by a member of professional staff by filing a complaint ... or an appeal ... against the decision within DATE from its service .

( CARDINAL ) Appeal against a decision brought in relation with the service obligations of a deceased member of professional staff may be lodged by a close relative .

( CARDINAL ) The complaint or appeal shall – unless this LAW provides otherwise – be determined within DATE by the service supervisor or the organ designated by the minister . This time - limit may be extended on CARDINAL occasion for DATE . ”

Act No . IV of DATE on LAW provides as follows :

“ ( CARDINAL ) Anyone who incites discontent among soldiers towards a

superior , a command or in general towards the order of service or discipline , is guilty of a misdemeanour punishable by imprisonment of DATE .

( CARDINAL ) The punishment shall be imprisonment for DATE if :

a ) the incitement is committed in the course of the performance of service ;

b ) the incitement entails considerable disadvantage for the service or discipline . ”