Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in Bad PERSON ( GPE ) .

At about the age of DATE or CARDINAL the applicant began to be aware of his sexual orientation . While other boys were attracted by women , he realised that he was emotionally and sexually attracted by men , in particular by men who are older than himself . At DATE he was sure of his homosexuality .

The applicant submits that he lives in a rural area where homosexuality is still taboo . He suffers from the fact that he can not live his homosexuality openly and - until he reached DATE - could not enter into any fulfilling sexual relationship with an adult partner for fear of exposing that person to criminal prosecution under LAW ) , of being obliged to testify as a witness on the most intimate aspects of his private life and of being stigmatised by society should his sexual orientation become known .

Any sexual acts with persons DATE are punishable under ORG CARDINAL and CARDINAL of LAW .

Article CARDINAL of LAW , in the version in force at the material time , read as follows :

“ A male person who after attaining DATE fornicates with a person of the same sex who has attained DATE but not DATE shall be sentenced to imprisonment for DATE . ”

This provision was aimed at consensual homosexual acts , as any sexual act of adults with persons DATE are punishable under LAW if the adult abuses a position of authority ( parent , employer , teacher , doctor , etc . ) . Any sexual acts involving the use of force or threats are punishable as rape , pursuant to LAW , or sexual coercion pursuant to LAW . Consensual heterosexual or lesbian acts between adults and persons DATE are not punishable .

Offences under LAW were regularly prosecuted , an average of QUANTITY criminal proceedings being opened per year , out of which a third resulted in a conviction . As regards the penalties applied , a term of imprisonment usually exceeding DATE was imposed in PERCENT of the cases , of which PERCENT were not suspended on probation . According to information given by the Federal Minister for ORG in reply to a parliamentary request , in DATE CARDINAL persons were serving a term of imprisonment based only or mainly on a conviction under LAW and CARDINAL others were held in detention on remand in proceedings relating exclusively to charges under LAW .

On DATE , following ORG judgment of DATE ( see below ) , ORG decided to repeal LAW . In addition , it introduced LAW , which penalises sexual acts with a person DATE if that person is for certain reasons not mature enough to understand the meaning of the act and the offender takes advantage of this immaturity or if the person DATE is in a predicament and the offender takes advantage of that situation . Further Article PERSON penalises inducing persons DATE to engage in sexual activities by payment . Article CARDINALb applies irrespective of whether the sexual acts at issue are heterosexual , homosexual or lesbian . The above amendment , published in ORG ( ORG ) no . CARDINAL/CARDINAL , entered into force on DATE .

In a judgment of PERCENT , ORG found that LAW was compatible with the principle of equality under constitutional law and in particular with the prohibition on gender discrimination contained therein . That judgment was given upon the complaint of a person who subsequently brought his case before the Commission ( PERSON GPE , no . CARDINAL/CARDINAL , Commission decision of CARDINAL DATE , unreported ) .

The relevant passage of ORG judgment reads as follows :

“ The development of the criminal law in DATE has shown that the legislature is striving to apply the system of criminal justice in a significantly more restrictive way than before in pursuance of the efforts it is undertaking in connection with its policy on the treatment of offenders , which have become known under the general heading of " decriminalisation " . This means that it leaves offences on the statute book or creates new offences only if such punishment of behaviour harmful to society is still found absolutely necessary and indispensable after the strictest criteria have been applied . The criminal provision which has been challenged is included in the group of acts considered unlawful in order to protect - to an extent thought to be unavoidable - a young , maturing person from developing sexually in the wrong way . ( ' Homosexual acts are only offences of relevance to the criminal law inasmuch as a dangerous strain must not be placed by homosexual experiences upon the sexual development of young males ... ' PERSON in NORP / PERSON ( publishers ) , GPE commentary to LAW , DATE , para . CARDINAL on Article CARDINAL ... ) . Seen in this light , it is the conviction of ORG that from the point of view of the principle of equality contained in section CARDINAL para . CARDINAL of LAW and LAW those legislating on the criminal law can not reasonably be challenged for taking the view , by reference to authoritative expert opinions coupled with experience gained , that homosexual influence endangers maturing males to a significantly greater extent than girls of the same age , and concluding that it is necessary to punish under the criminal law homosexual acts committed with young males , as provided for under LAW . This conclusion was also based on their views of morality , which they wanted to impose while duly observing the current policy on criminal justice which aims at moderation and at restricting the punishment of offences ( while carefully weighing up all the manifold advantages and disadvantages ) . Taking everything into account , we are dealing here with a distinction which is based on factual differences and therefore constitutionally admissible from the point of view of section CARDINAL para . CARDINAL of LAW , in conjunction with LAW . ”

On DATE ORG dismissed ORG request to review the constitutionality of LAW of LAW .

ORG had argued , inter alia , that Article CARDINAL violated Articles CARDINAL and CARDINAL of the Convention as the theory that male adolescents ran a risk of being recruited into homosexuality on which ORG had relied in its previous judgment , had since been refuted . ORG found that the issue was res judicata . It noted that the fact that it had already given a ruling on the same provision did not prevent it from reviewing it anew , if there was a change in the relevant circumstances or different legal argument . However , ORG had failed to give detailed reasons for its contention that relevant scientific knowledge had changed to such an extent that the legislator was no longer entitled to set a different age limit for consensual homosexual relations than for consensual heterosexual or lesbian relations .

On DATE , upon a further request for review made by ORG , ORG found that LAW was unconstitutional .

ORG had argued , firstly , as it had done previously , that LAW violated Articles CARDINAL and CARDINAL of the Convention and , secondly , that it was incompatible with the principle of equality under constitutional law and with LAW , as a relationship between male adolescents DATE first legal , but became punishable as soon as one reached DATE and became legal again when the second one reached DATE . ORG held that the second argument differed from the arguments which it had examined in its judgment of DATE and that it was therefore not prevented from considering it . It noted that Article CARDINAL concerned only consensual homosexual relations between men aged DATE and adolescents DATE . In the DATE age bracket homosexual acts between persons of the same age ( for instance CARDINAL DATE ) or of persons with a QUANTITY DATE age difference were not punishable . However , as soon as CARDINAL partner reached DATE , such acts constituted an offence under LAW . They became legal again when the younger partner reached DATE . Given that LAW did not only apply to occasional relations but also covered ongoing relationships , it led to rather absurd results , namely a change of periods during which the homosexual relationship of CARDINAL partners was first legal , than punishable and then legal again and could therefore not be considered to be objectively justified .

In DATE ORG , ORG and ORG brought motions in ORG to repeal LAW . They argued in particular that the legislator in DATE had justified this provision on the theory that male adolescents were at a risk of being recruited into homosexuality while female adolescents were not . However , modern science had shown that sexual orientation was already established at DATE . Moreover , different ages of consent were not in line with NORP standards . In this respect they referred in particular to Recommendation CARDINAL/CARDINAL of ORG of ORG which had advocated equal ages of consent for heterosexual and homosexual relations . Protection of juveniles against sexual violence and abuse was sufficiently afforded by other provisions of LAW , irrespective of their sexual orientation .

Subsequently , on DATE , a sub - committee of ORG of ORG heard evidence from CARDINAL experts in various fields such as medicine , sexual science , AIDS prevention , developmental psychology , psychotherapy , psychiatry , theology , law and human - rights law . CARDINAL were clearly in favour of repealing LAW , an important argument for the experts in the fields of medicine , psychology and psychiatry being that sexual orientation was , in the majority of cases , established before DATE , which disproved the theory that male adolescents were recruited into homosexuality by homosexual experiences . Another recurring argument was that penalising homosexual relations made AIDS prevention more difficult . CARDINAL experts were in favour of keeping LAW : CARDINAL simply stated that he considered it necessary for the protection of male adolescents ; the other considered that despite the fact that there was no such thing as being recruited into homosexuality , not all male adolescents were already sure of their sexual orientation and it was therefore better to give them more time to establish their identity .

On DATE ORG held a debate on the motion to repeal LAW . Those speakers who were in favour of repealing LAW relied on the arguments of the majority of the experts heard in the sub - committee . Of those speakers who were in favour of keeping LAW , some simply expressed their approval while others emphasised that they still considered the provision necessary for those male adolescents who were not sure of their sexual orientation . There was an equal vote at the close of the debate ( CARDINAL to CARDINAL ) . Consequently , Article CARDINAL remained on the statute book .

On DATE ORG again brought a motion before ORG to repeal LAW . The ensuing debate followed much the same lines as before . The motion was rejected by CARDINAL votes to CARDINAL .

On DATE ORG decided to repeal LAW ( see paragraph CARDINAL above ) .


The applicant was born in DATE and lives in GPE .

On DATE the applicant was charged under ORG CARDINAL and CARDINAL of LAW ( straffeloven ) with the sexual abuse of a minor , PERSON , born in DATE , during the period from DATE . Under these provisions he was charged with having , on CARDINAL or several occasions , threatened to hit PERSON if she cried out , and/or having held her tight , whereupon he had introduced his penis into or pointed it towards her sex and/or made her masturbate him . At the time , PERSON ’s father was cohabiting with the applicant ’s mother . The alleged offences were said to have occurred in the applicant ’s home when the child visited her father .

Criminal proceedings were instituted before ORG ( lagmannsrett ) which heard the case DATE , including PERSON ’s compensation claim of ( up to ) MONEY ( ORG ) for non - pecuniary damage , made under section CARDINAL of LAW DATE ( skadeerstatningsloven ) , and joined to the trial in accordance with LAW ( straffeprosessloven ) . By a judgment of DATE , ORG , noting that the jury had answered the questions concerning criminal guilt in the negative , acquitted the applicant of the charges . Moreover , it decided to reject PERSON ’s compensation claim .

PERSON subsequently appealed to ORG ( PERSON ) under the rules of LAW ( tvistemålsloven ) against the refusal to award compensation . ORG then ordered the taking of oral evidence by ORG ( byrett ) . Evidence was taken DATE , DATE and DATE , CARDINAL DATE and DATE , during which time CARDINAL witnesses were heard .

In the appeal proceedings before ORG , PERSON ’s lawyer requested that documents produced in the context of the criminal case be submitted as evidence to ORG . These included records of the judicial examination of PERSON , medical certificates , letters and witness statements given to the police in connection with the criminal proceedings . The applicant ’s lawyer , relying on LAW , objected to this request .

By a decision of CARDINAL DATE , ORG authorised the documents from the criminal case to be joined to the case file in the compensation proceedings . Its decision included the following reasons :

“ In their pleadings , the lawyers for the parties have dealt extensively with the issue under LAW . The only question for ORG to determine is whether the submission of the criminal - case documents in the civil case would as such violate this LAW provision . The question as to the significance of this provision for the decision on the compensation claim falls to be considered in connection with the decision on the merits of the appeal .

The use of documents from the criminal case as evidence in this case does not in my view fall foul of the requirement in LAW ... The submission of the documents does not as such imply that the acquittal in the criminal case is open to doubt .

The statement in the PERSON case , which the lawyer for the defendant has referred to , must be read in its context . The ruling can not be perceived as a general procedural bar against the production of the case documents from criminal proceedings in a later case .

Furthermore , I should like to add that , although this is not decisive for my view on the issue under LAW , both parties were given the usual opportunity to supply evidence in connection with the taking of evidence by ORG .

In my view , the request for submission of the criminal - case documents in question must therefore be granted . ”

ORG examined the case under the rules of civil procedure . After hearing the parties and a large number of witnesses , ORG , in a judgment of DATE , ordered the applicant to pay ORG CARDINAL,CARDINAL to PERSON in compensation for non - pecuniary damage , under section CARDINAL - CARDINAL(CARDINAL)(b ) of LAW .

The first voting judge , PERSON , stated on behalf of a unanimous court , inter alia :

“ In so far as the appeal concerns the merits , CARDINAL general questions arise , namely the relationship to the acquittal in the criminal case ( see LAW ) and the requirement of proof in such cases .

Under LAW of LAW , civil compensation claims may ... be made in criminal proceedings by the prosecution or by the injured party . This arrangement is intended to make it easier for the injured party to have a civil compensation claim examined , but it does not preclude the possibility of making such a claim in separate civil proceedings instead .

Contrary to what followed from the old LAW , it is not a condition for the examination of civil compensation claims that the accused person should have been convicted in respect of the charge . Thus , it is in principle possible to either reject or uphold a civil compensation claim , irrespective of the decision concerning criminal liability . This has its background in the fact that the injured party , who does not enjoy rights as a party in the criminal case , should not forfeit his or her compensation claim as a result of an acquittal in the criminal case . Although it will hardly be a frequent occurrence that the decision on the civil compensation claim goes in a different direction from that on criminal liability , this may happen for various reasons . Amongst others , the requirement of evidence for the criminal and the civil consequences of an action ... is different .

By LAW , a person who is charged with a criminal offence is to be deemed innocent until proved guilty . The presumption of innocence applies even after an acquittal ( see in this connection the PERSON case and the decision reported in PERSON DATE , p. CARDINAL , dealing with the significance of the presumption of innocence in a case concerning the right of the accused to compensation after an acquittal ) .

However , in my opinion it must be clear that the said provision can not constitute an obstacle for a person injured by an act to claim compensation from the alleged perpetrator , even though the latter has been acquitted of a criminal offence , and that the court in such a case can rely on a finding that the defendant has in fact committed the act in relation to which he has been acquitted . Even assuming that the ORG provision applies to the treatment of such claims , it has not been infringed as long as no disagreement or doubt has been expressed with regard to the decision on criminal liability . I can not see that the arrangement under NORP criminal procedural law , whereby it is possible to have civil compensation claims determined after an acquittal , gives rise to any particular problems in relation to LAW [ of the LAW ] . Moreover , in the case at hand , it is above all ORG decision concerning compensation which has been brought before ORG under the provisions of LAW . ”

As regards the requirement of evidence , PERSON noted that under the law on compensation the test was normally the balance of probabilities . However , bearing in mind the burden which an allegation of reprehensible conduct might have for the defendant and the serious consequences it might have for his or her reputation , the requirement as to the strength of the evidence had to be stricter than that which applied to the test of the balance of probabilities . Nevertheless , the requirement could not be as strict as that which applied for establishing criminal liability . In a case of the kind under consideration , the test had to be whether on the balance of probabilities it was clearly probable that the alleged abuse had been committed .

In dealing with the particular facts of the appeal concerning compensation , ORG had regard to the video recording of the judicial examination of the alleged victim in the criminal proceedings before ORG . ORG did not share ORG view that the evidentiary value of the video recording was diminished by certain misgivings concerning the lack of synchronisation of sound and picture when shown to ORG . Those shortcomings had been remedied before ORG . ORG also had regard to evidence taken by it from this person , which deviated slightly from the judicial examination before ORG . It further had regard to the statements of an expert witness and the statements of a therapist who had treated the alleged victim . Considering the evidence as a whole , Justice Gjølstad found that the evidence satisfied the standard of proof , establishing that sexual abuse had occurred and that , on the balance of probabilities , it was clear that the applicant was the abuser . Accordingly , there was a basis for awarding the victim compensation under LAW CARDINAL - CARDINAL(CARDINAL)(b ) of LAW . However , Justice PERSON emphasised that this decision was taken independently of the decision in the criminal case and that it did not undermine the acquittal . Finally , as regards the amount of compensation , she observed , inter alia , that she based her assessment on her finding that several infringements had occurred and that , even though their extent was not possible to ascertain with precision , there had been serious violations involving a certain use of force or threats , as a result of which PERSON had sustained damage .

NORP Under NORP criminal law there are CARDINAL basic conditions that must be met in order to establish criminal liability :

( CARDINAL ) the accused has committed an act or omission ( actus reus ) which is contrary to a provision of LAW or to a special statutory criminal provision in force at the time when the act or omission occurred ;

( CARDINAL ) there are no exonerating circumstances ( for example , self - defence ) ;

( CARDINAL ) the accused has acted with intent ( mens rea ) , unless otherwise expressly stated in the relevant criminal provision ; and

( CARDINAL ) the accused was of sound mind at the time of the commission of the offence .

As a general rule , the prosecution has to prove these CARDINAL elements beyond reasonable doubt . Any reasonable doubt must benefit the accused ( in dubio pro reo ) .

Under the NORP jury system , when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion , and no records are kept which could disclose that a negative answer as to the applicant ’s guilt was not unanimous . CARDINAL conclusions are possible in a criminal case – guilt or acquittal ( see Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW ) . There is no third alternative , such as that formerly known in some other NORP countries , where a criminal charge could result in the finding that there was not sufficient evidence to establish guilt .

Under the DATE LAW , a civil claim may be pursued in connection with a criminal trial , provided that the claim arises from the same set of facts . The civil claim of a victim may be decided either in connection with a criminal case or in separate proceedings . Article CARDINAL reads :

“ Any legal claim that the aggrieved person or any other injured person has against the person charged may , in accordance with the provisions of LAW , be pursued in connection with such cases as are mentioned in LAW , provided that the said claim arises from the same act that the case is concerned with . On the above conditions the following claims may also be pursued :

The claims specified in the first and second paragraphs shall be deemed to be civil claims and shall be dealt with in accordance with the provisions of LAW ... ”

Other provisions concerning civil compensation claims may be found in LAW of LAW , notably the following :

“ In a public prosecution the prosecuting authority may on application pursue such civil legal claims as are specified in LAW . ...

When civil claims are pursued against a person other than the person charged , the person concerned assumes the position of a party to the case in so far as this issue is concerned . ... ”

“ Any person who has any such civil claim as is specified in LAW may himself pursue it in connection with a public prosecution if a trial hearing is held . ... ”

“ A separate appeal against a decision on civil claims shall be brought in accordance with the provisions of LAW . The same shall apply to a reopening of the case . ”

Under LAW DATE , the alleged victim may , regardless of the outcome of the criminal proceedings , claim compensation for pecuniary and non - pecuniary damage .

Section DATE , as in force at the relevant time , read as follows :

“ Anyone who with intent or through gross negligence has

( a ) caused personal injury or

( b ) committed ... an act of misconduct as mentioned in section CARDINAL

may ... be obliged to pay the victim such a lump sum as the court deems would constitute reasonable compensation [ oppreisning ] for the pain and suffering and other non - pecuniary damage caused thereby . ...

A person who with intent or through gross negligence has caused the death of another person may be ordered to pay such compensation to the deceased ’s ... parents . ”

Section CARDINAL - CARDINAL , referred to in the above provision , expressly applies to misconduct mentioned in , amongst other provisions , Articles CARDINAL and CARDINAL of LAW .

A claim for compensation for nonpecuniary damage submitted by a victim under section CARDINAL of the LAW is subject to his or her showing that the alleged perpetrator , with intent or through gross negligence , committed the wrongful act . The test is normally the balance of probabilities and the burden of proof lies with the claimant . This burden may be heavier where liability may have serious consequences for the respondent ’s reputation , though it will be less than for criminal liability . The competent court has to determine liability in the light of all the evidence available at the time of the adjudication of the case .

The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same . The subjective constitutive elements in principle differ : normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence . There may be exonerating circumstances – such as self - defence , necessity , provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation . A person of unsound mind may be exempted from criminal liability but not necessarily from civil liability to pay compensation ( see PERSON GPE ( NORP Official Reports ) CARDINAL , “ Erstatning til ofrene hvor tiltalte frifinnes for straff ” ( “ Compensation to victims in cases where the accused has been acquitted on the criminal charge ” ) , a study by PERSON , Professor of PERSON , LAW , section CARDINAL.CARDINAL.CARDINAL ) .

The purposes of the criminal law and the law on compensation are not identical . While deterrence and restoration are important considerations in both areas of law , the former places emphasis on retribution and the latter on the allocation of financial loss . The CARDINAL systems also supplement one another in important respects . While criminal - law sanctions are particularly designed to deter actual and potential offenders from committing offences , those of the law of compensation are particularly designed to meet the aggrieved person ’s need for economic redress ( ibid . , LAW , section CARDINAL.CARDINAL.CARDINAL ) .


CASE OF LEELA FORDERKREIS E.V. AND OTHERS v. GERMANY

Violation of Art. 6-1;No violation of Art. 9;Non-pecuniary damage - claim dismissed

Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Otto Mallmann;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant associations are religious associations or meditation associations belonging to the PERSON movement , formerly known as the PERSON or PERSON movement . The movement was founded by the NORP mystic PERSON , who was first called PERSON by his followers , and then later PERSON . According to their statutes , the applicant associations promote the teachings of PERSON , who maintained that the aim of spiritual development was enlightenment . CARDINAL precondition was to become free of all socialisation , through a comprehensive programme of traditional and new meditation techniques and a range of therapies . The applicant associations run PERSON meditation centres , organise seminars , celebrate religious events and carry out joint work projects . They also protect the religious rights of their members against discrimination .

NORP The applicant associations belong to a group of previously unknown religious communities which first surfaced in GPE in DATE . They were described as “ sects ” , “ youth sects ” , “ youth religions ” , “ psycho - sects ” , and “ psycho - groups ” or given similar labels . The groups quickly became the subject of critical public debate due to the fact that their actions are seen to be predominantly influenced by their religious and philosophical views and due to the way they treat their members and followers . The focus of concern was the potential danger that these groups could pose to adolescents’ personal development and social relations , which could lead not only to their dropping out of school and vocational training , radical changes in personality , various forms of dependence , lack of initiative and difficulties in communication , often aggravated by the group structure characteristic of certain communities , but also to material loss and psychological harm .

Since DATE ORG and the governments of the ORG have been confronted with these issues . To draw attention to the potential dangers of such groups , both to the individual and to society , ORG launched a large - scale information and education campaign designed to increase public awareness and stimulate a critical discussion on the aims and activities of sects and sectarian groups . Since DATE ORG has given several official warnings concerning so - called sects with a view to informing the public about the practice of these groups . The PERSON , or PERSON , movement was mentioned as one of these new religious and spiritual movements . As part of their public relations work , ORG agencies have characterised the applicant associations as a “ sect ” , “ youth sect ” , “ youth religion ” and “ psycho - sect ” . The adjectives “ destructive ” and “ pseudo - religious ” have also been used to describe them , and the accusation has been raised that their members are manipulated .

These expressions were contained in Government statements , namely , in replies to members of ORG DATE , CARDINAL DATE and DATE , in a report by ORG to ORG on youth sects in GPE dated DATE and published by the Federal Minister of ORG , ORG , and in a speech by the Federal Minister of ORG , ORG delivered on DATE .

In the reply of DATE on the subject “ Recent religious and philosophical communities ( so - called youth sects ) ” the “ PERSON Movement ” was counted among the so - called religious and philosophical communities . ORG stated that these were labelled with general terms such as “ youth sects ” , “ destructive religious groups ” or “ destructive cults ” . ORG itself referred to them as “ youth sects ” “ pseudo - religious and psycho - groups ” as well as generally referring to them as “ sects ” .

In their reply dated DATE the Government mentioned the “ PERSON movement ” in connection with questions concerning the membership structure of “ so - called new youth sects ” . Furthermore , in the preliminary remarks the term “ so - called psycho - sects ” was used , while throughout the main text the Government referred to “ youth religions ” .

In their reply of DATE concerning the “ economic activities of destructive youth religions and psycho - sects ” the Government mainly used the terms “ youth religion ” and “ psycho - sect ” . The Government further stated that it appeared to be difficult to apply labour law regulations to associations the conduct of whose members was manipulated .

In its report to ORG of DATE ORG pointed out in the introduction that the terms “ youth religion ” or “ youth sect ” encompassed a number of highly varied groups . The “ group based around “ PERSON ( i.e. God ) PERSON ” was presented as one of these groups , and was included as one of the “ psycho - movements ” .

In the speech he gave on DATE at a conference on the topic “ New youth religions – Protecting the freedom of the individual ” the Federal Minister of Youth , ORG used the terms “ youth religion ” , “ youth sect ” , “ sect ” , “ destructive religious cults ” , “ pseudo salvation teachings ” and “ pseudo - religion ” with reference to the groups dealt with .

On DATE the applicant associations instituted legal proceedings before ORG ( Verwaltungsgericht ) . They requested that the Government desist from issuing the above - mentioned statements about the religious movement and the associations belonging to it , maintaining that such statements were incriminating . They essentially alleged that their freedom to profess a religious or philosophical creed under LAW ) had been infringed .

According to the applicant associations , the teachings of the community were based on the idea of achieving transcendence in all essential areas of life . These teachings were continuously shared by them and their community . The various statements of the Government had breached the obligation of neutrality required by LAW by discrediting the teachings of the movement . The expressions used were either actually defamatory or were meant to be , and there was no factual or legal basis which would justify using those terms . The applicant associations did not pursue any activities contrary to the basic rights of other persons , groups or organisations . The Government had misinterpreted the concepts of PERSON ’s teachings and thus interfered with the essential religious beliefs of their movement .

By a judgment of CARDINAL DATE ORG prohibited the Government from calling the PERSON movement in official statements a “ youth religion ” , “ youth sect ” or “ psycho - sect ” , from using the adjectives “ destructive ” and “ pseudo - religious ” and from alleging that members of the PERSON movement had been manipulated .

ORG found that those terms evoked a negative connotation of the basic contents of the applicant associations’ religious beliefs and that the use of those terms infringed their religious freedom guaranteed by LAW . It considered , however , that the use of the term “ sect ” as such had no negative impact on the applicant associations’ religious belief .

ORG pointed out that there was no indication that the applicant associations pursued exclusively commercial aims or that the teachings of PERSON or the methods employed by the applicant associations were contrary to human dignity . The right protected by LAW obliged the ORG to maintain strict neutrality regarding religious activities and prohibited negative judgments on a determined religious belief . Furthermore the use of such general terms was not appropriate for the prevention of danger .

On DATE the Government appealed against that judgment . A hearing was held before ORG of the Land GPE ( PERSON das ORG ) on CARDINAL DATE . By a judgment of DATE ORG quashed the impugned judgment and dismissed the applicant associations’ claim as a whole , as well as the appeals of CARDINAL applicant associations who had contested the findings of the first - instance court as regards the use of the term “ sect ” . It did not allow an appeal on points of law .

ORG found that the contested statements interfered with the applicant associations’ basic rights guaranteed by LAW and CARDINAL of LAW . However , the right to religious freedom was not absolute . It was subject to limitations by other provisions of LAW Limitations and interferences by the ORG had to be accepted where important reasons of public interest required the protection of basic rights which were in conflict with the right to freedom of religion . Where a mere suspicion of a possible violation of these rights existed , relevant information and warnings were appropriate and necessary for their protection . Under LAW , which vested governmental functions in the Government , taken together with the positive obligations under LAW , first sentence , which guarantees the right to life and to inviolability of the person , and LAW , which protects the rights of the family , the Government had the right to impart information . The views expressed by the Government were acceptable and respected the principle of proportionality .

On DATE ORG ( ORG ) dismissed the applicant ORG appeal against the decision of ORG refusing leave to appeal . The court considered that the case had no fundamental importance . It noted that the legal questions raised in connection with public declarations of the Government in respect of new religious movements had already been dealt with in its previous case - law and that of ORG ( Bundesverfassungsgericht ) . The applicant associations’ submissions did not raise any new issue . The Government ’s constitutional right to inform the public and to protect the human dignity and health of citizens justified the interference with the freedom of religion or belief . The right to inform the public included the right to warn the public and to consider the conduct of others as dangerous .

On DATE the applicant associations filed a constitutional complaint against the above - mentioned court decisions . On DATE ORG informed the applicant associations in reply to their letter of DATE that it was not able to indicate when a decision would be given . On DATE it wrote to the applicant associations that the case had been communicated to ORG and ORG . On DATE ORG submitted their observations , which were served on the applicant associations on DATE . On DATE the applicant associations submitted their observations in reply . By letters of CARDINAL DATE , DATE , DATE and DATE the applicant associations enquired about the state of the proceedings .

On DATE ORG ruled that the judgment of ORG of ORG of DATE violated the applicant associations’ basic rights guaranteed by LAW and CARDINAL of LAW . It quashed the judgment insofar as the applicant associations’ claim had been dismissed in respect of the use of the expressions “ destructive ” , and “ pseudo - religious ” , and the allegation that they “ manipulated their members ” and referred that part of the complaint back to ORG for a new decision . However , it found that the Government was authorised to characterise the applicant associations’ movement as a “ sect ” , “ youth religion ” , “ youth sect ” and “ psycho - sect ” and was allowed to provide the public with adequate information about it .

According to ORG , the right to freedom of religion or belief guaranteed by LAW and CARDINAL of LAW did not prevent the ORG from entering into a public and even critical discussion about the aims and activities of religious groups . The limitations on the freedom of religion were to be found in other basic rights and freedoms guaranteed by LAW , such as the protection of human dignity , the right to life and physical integrity and the protection of marriage and the family .

The power to manage ORG affairs derived directly from LAW and authorised ORG to provide information in all matters coming within the sphere of their overall ORG responsibility . Providing direct public information helped them to resolve conflicts within the ORG and society , to face challenges even if they occurred at short notice , to react quickly and adequately to the problems and concerns of citizens and assist them in finding guidance . This activity did not require an express legal provision , since it did not constitute a direct interference with the applicant associations’ rights . It merely influenced the conduct of others vis - à - vis the applicant associations . Moreover , it was not possible to establish rules for the Government ’s information - imparting role , given the wide variety of the subject matter dealt with and methods used . When acting in the exercise of their power to direct ORG affairs , ORG were entitled to provide information to the public , even if basic rights were indirectly affected as a result .

NORP However , the ORG had to restrict itself to neutral terms and act with moderation in matters of religion or belief . Defamatory , discriminating or deceptive statements were prohibited . The ORG also had to respect the separation of powers between ORG and the ORG . The Government were authorised to impart information relating to supra - regional matters and where nationwide information helped to resolve problems efficiently . Providing information in these circumstances did not exclude or impair the powers of the LOC governments to impart information themselves , nor did it prevent the administrative authorities from carrying out their administrative tasks .

Furthermore , ORG had to respect the principle of proportionality when imparting information . Statements affecting the very essence of the right guaranteed by LAW and CARDINAL of LAW had to be appropriate in relation to the cause for concern .

As to the term “ sect ” , ORG found that the Government were not prohibited from using the term , which at the material time corresponded to the general understanding of new religious movements . Similarly , the use of the terms “ youth religion ” and “ youth sect ” described the prevailing situation at the material time and the term “ psycho - sect ” reflected the PERSON movement ’s meditation practices . These terms were employed without discriminatory differences of treatment in respect of these groups on grounds of their religion or belief . They complied with the obligation of the ORG to neutrality in matters of religious and philosophical beliefs and did not affect the very essence of the right guaranteed by LAW and CARDINAL of LAW .

In contrast , the use of the terms “ destructive ” and “ pseudo- religious ” , and the allegation that members of the movement were manipulated , did not satisfy the requirements of constitutional law .

Even if the employment of such terms could not be criticised on the ground that it exceeded the powers of ORG , the terms used nonetheless infringed the neutrality requirement and were thus not justifiable according to the proportionality principle . In particular , no substantiated reasons had been advanced which could have justified the statements regarded as defamatory by the complainants , nor were any such reasons otherwise apparent . That decision was served on the applicant associations on DATE .

On DATE ORG withdrew their appeal against the judgment of ORG of DATE as the appeal was again pending before ORG following the decision of ORG of DATE .

On DATE the applicant associations’ representative informed the ORG that the fourth and fifth applicant associations , ORG für ganzheitliches PERSON . PERSON and PERSON ORG . V , wished to withdraw their application .

The relevant provisions of LAW read as follows :

LAW , first sentence

“ Everyone has the right to life and to inviolability of his person ”

LAW and CARDINAL

“ The freedom of belief and conscience and the freedom to profess religious and philosophical beliefs are inviolable .

The undisturbed practice of worship is guaranteed . ”

Article CARDINAL § CARDINAL

“ Marriage and family enjoy the special protection of the ORG . ”

Article CARDINAL

“ The Federal Chancellor shall determine and be responsible for the general guidelines of policy . Within these limits each Federal Minister shall conduct the affairs of his department independently and of his own motion . The Federal Government shall resolve differences of opinion between ORG . The Federal Chancellor shall conduct the proceedings of ORG in accordance with rules of procedure adopted by the ORG and approved by the Federal President . ”

By a judgment of CARDINAL DATE ORG ruled that ORG was entitled to provide information and publish warnings by virtue of their constitutional responsibility to inform the public about new religious and ideological communities and “ psycho - groups ” ( BVerwGE CARDINAL C CARDINAL/CARDINAL , see Judgments and Decisions of ORG , vol . CARDINAL , pp CARDINAL et seq . ) . On CARDINAL DATE ORG , sitting as a bench of CARDINAL judges , did not accept the constitutional complaint of ORG ( Transcendental Meditation ) for adjudication , confirming that ORG was entitled to provide information on new religious and ideological communities and “ psycho - groups ” in compliance with its constitutional obligations , namely to express opinions and submit recommendations and warnings to the public within the limits of the proper execution of the powers granted by LAW ( DATE ) .

In DATE ORG ( Deutscher Bundestag ) charged an expert commission to prepare a report on “ so - called sects and psycho - cults ” . In its final report issued in DATE ORG stated that negative sentiments were typically evoked when the term “ sect ” was used . However , only a small number of the movements characterised as “ sects ” were problematic . The Commission recommended that in official statements , information leaflets or legal texts the word “ sect ” not be employed in future .


Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The first applicant , Mr PERSON , is an NORP and NORP citizen , who was born in DATE and lives in GPE , GPE . The second and third applicants are his children , PERSON , born in DATE , and PERSON , born in DATE . They currently live in GPE with PERSON , their mother .

The first applicant and PERSON got married in DATE in GPE . The CARDINAL had already lived together as a couple in GPE for DATE before the wedding . In DATE and DATE respectively , their CARDINAL children , PERSON and PERSON , were born in GPE . Their last place of residence in GPE was PERSON .

In DATE , as explained by the applicant , the couple , who had joint custody of the children , agreed that the mother and the CARDINAL children would visit the mother 's family in GPE for DATE . On DATE , the mother and the children left for GPE ; according to their roundtrip airline tickets , they were scheduled to be back on DATE .

However , they never returned to GPE ; on DATE , PERSON 's mother informed the first applicant that PERSON and the children would remain in GPE .

Subsequently , the first applicant filed for the return of his children , under LAW ( proceedings described under no . CARDINAL below ) , while PERSON filed for divorce and custody of the children with the NORP courts ( proceedings described under no . CARDINAL below ) .

On DATE the first applicant filed a request for the return of his children under LAW DATE on ORG ( “ LAW ) . The request was submitted through ORG to ORG ( “ the Ministry ” ) . The first applicant claimed that his wife was wrongfully retaining their children in GPE , without his consent .

On DATE the Ministry , acting as ORG for the purpose of LAW , instituted proceedings on behalf of the first applicant before ORG of FAC .

On the basis of the evidence adduced in the case , which included a “ psychological evaluation of the children ” , ORG found on DATE that the retention of the children in GPE was illegal under LAW , as at the time of the retention the father had lawful custody rights . It also held that the allegations of PERSON according to which the first applicant had agreed that the children should remain in GPE as his financial situation in GPE was precarious , confirmed by the witness M .- A. T. , who stated that neither the applicant , nor PERSON had a job in GPE , were however unsubstantiated , as the first applicant had proved that he had made attempts to rent a house for the family , had enrolled the children in a local kindergarten and was regularly in contact with the children by phone .

The defence raised by ORG under LAW b ) of LAW was also dismissed by the court ; it considered that the “ state of insecurity ” invoked and the “ general threat of terrorist attacks ” arising in GPE had not proved to be an obstacle to the family living in GPE for DATE prior to the children 's removal , and could not be regarded as having developed to a dangerous degree at that time . The court ordered that the children be returned to their habitual residence in GPE DATE after the judgment became final .

A.R. filed an appeal against this decision , which was allowed by ORG in a final judgment of DATE . Out of the panel of CARDINAL judges , Judge PERSON gave a dissenting opinion , favouring the reasoning of the first - instance court .

The majority 's decision was based on CARDINAL conclusions : firstly , that LAW was not applicable to the case , in so far as the children , NORP citizens , had left GPE and remained in GPE upon the agreement of the parents ; secondly , that in any event , the exception provided for by LAW b ) of the ORG was substantiated , as it had been proved that , if returned to GPE , the children would risk exposure to physical or psychological harm .

The appellate court thus found that the children had left GPE and remained in GPE with the consent of their father , due to the worsening of his financial situation . The agreement between the parents was for the children to stay in GPE until the first applicant 's financial situation improved –in that respect , even the fact that they had bought roundtrip tickets , which were cheaper than CARDINAL - way tickets , only underlined the financial difficulties the family was undergoing ; however , as time passed , the evidence showed that this situation had kept worsening , since the first applicant had sold the house where they had lived as a family , after the departure of PERSON with the children , and gone to live with his mother . Also , the first applicant had not produced any evidence to support his claim that he had sent money to his children .

The court further held that the first applicant had not proved that he had maintained contact with his children ; in the file there was only evidence of CARDINAL visit paid by the first applicant to his children , on DATE ; the phone calls allegedly made by the first applicant to his children in GPE had been made from the house of the first applicant 's mother , which was interpreted as meaning that the conversations had been between the children and their paternal grandmother .

Hence , the agreement between the spouses regarding the children remaining in GPE proved to be real and such an agreement could by no means be regarded as breaching LAW .

NORP Moreover , the evidence in the file showed that the CARDINAL children had integrated into the NORP community successfully – they had good results at kindergarten and positive psychological evaluations – arguments which supported a dismissal of the first applicant 's action . The court also held that “ the evaluation of the children carried out by ORG in the presence of a counsellor revealed that no assessment could be made of the possible effects of the separation of the father from his children , insofar as there was insufficient information with regard to the father - children relationship ” .

The defence under LAW b ) of LAW , namely , that there was a grave risk of exposing the children to intolerable physical harm if returned to GPE , was also allowed . The court based their reasoning , inter alia , on “ the reports produced by ORG ” , which stated according to the court , that PERSON was located in a conflict area , where citizens feared for their safety . At the same time , the court based its reasoning on travel advice issued in DATE by ORG , in which warnings were allegedly made about “ potential conflicts which could arise between the NORP and the NORP ” , and “ signs of possible terrorist attacks in the area ” were referred to .

In a dissenting opinion to the judgment , Judge PERSON underlined that the above - mentioned documents “ did not actually refer specifically to PERSON , but to other regions of GPE ” .

The applicant was never given a copy of the above - mentioned reports . In a certificate issued by ORG on DATE to the applicant it was mentioned that neither the ORG reports , nor the GPE ORG release were to be found in the domestic case file .

On DATE , PERSON filed for divorce , custody of the children and maintenance before ORG of FAC .

On DATE the first applicant ( defendant ) , represented by an appointed lawyer , presented his observations in reply to PERSON 's claims . He contended that the NORP courts did not have general jurisdiction in such proceedings , in so far as the marriage was registered in GPE , the defendant was an NORP and NORP citizen , the couple 's children were NORP citizens , and the last marital home had been in GPE .

He also lodged counterclaims asking the courts to either grant him full custody of the CARDINAL children , or to order their return to their habitual residence in GPE .

On DATE , the court rejected the first applicant 's plea regarding the lack of jurisdiction , considering that “ the NORP courts did have full jurisdiction in such cases , pursuant to ORG ( ORG ) No . CARDINAL of DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility ” .

In its judgment of DATE , the district court granted ORG a divorce on the grounds of exclusive fault by the first applicant .

Based on the conclusions of a social enquiry report on the children 's concrete situation , which held that they were well taken care of and benefited from a good standard of living , and taking into consideration their ages ( CARDINAL and DATE , at that time ) , the court awarded custody of the children to the mother . The court found that it was in their best interest to remain with their mother , her care and presence being a psychological factor which was absolutely essential for their intellectual , moral and physical development .

In the absence of any proof regarding the first applicant 's employment and/or income , the court referred to the national minimum wage scale and ordered him to pay DATE maintenance in the amount of CARDINAL PERSON in respect of each child , starting on DATE and until they reached the age of majority .

Neither the first applicant , nor PERSON have lodged any appeals against this judgment , which thus became final and enforceable .

The relevant legal provisions of LAW are to be found in Iosub GPE v. GPE , no . CARDINAL/CARDINAL , DATE and PERSON GPE and GPE , no . CARDINAL/CARDINAL , § DATE .

LAW was ratified by GPE by Law no . CARDINAL of DATE .


Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

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

PERSON was the owner of a flat in GPE , which he had let to ORG and after her death to her daughter PERSON

In a writ served on the tenant on DATE , PERSON informed the tenant that he intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE . He summoned the tenant to appear before the Florence Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , GPE died , his wife and children – the actual applicants – inherited the flat and became party to the proceedings as heirs .

On DATE , the applicants served notice on the tenant requiring her to vacate the premises .

On DATE , they informed the tenant that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicants were not entitled to police assistance in enforcing the order for possession .

On DATE , pursuant to section CARDINAL of Law no . CARDINAL , the tenant asked for a suspension of the eviction proceedings .

NORP The eviction proceedings were suspended until DATE .

On DATE , the applicants served notice on the tenant informing her that the order for possession would be enforced by a bailiff on CARDINAL DATE .

On DATE , the bailiff made CARDINAL attempt and discovered that the tenant had left the LOC on DATE .

Consequently , the applicants recovered possession of the flat .

The relevant domestic law and practice is described in the ORG 's judgment in the case of ORG , ( no . CARDINAL/CARDINAL , § § DATE ) .


CASE OF ASHENDON AND JONES v. THE UNITED KINGDOM

Remainder inadmissible;No violation of Art. 6-2

Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The first applicant was born in DATE and lives in GPE .

NORP In TIME of DATE the first applicant was discovered sleeping in a flat in a sheltered accommodation complex . He was naked from the waist down and intoxicated . Blood tests subsequently showed that he had consumed alcohol and ecstasy TIME and that he was a regular cannabis user . The tests also showed a positive response for cocaine .

Police and paramedic personnel were called to the scene . After investigation it was thought that the first applicant had gained entry to the flat through another flat in the complex . Upon entering the second flat , the police discovered its occupant , PERSON , who was DATE , lying on the floor . She too was naked from the waist down . She was covered in faeces , she was upset and confused , and said she was in pain . She had a number of injuries and told the police she had been sexually assaulted in the night .

The first applicant ’s jacket , shoes , trousers and underpants were found in B ’s flat . Faecal material , which was found to contain components of B ’s DNA , was found on the applicant ’s t - shirt . Pubic hair , visually similar to that of B , was found on the first applicant and elsewhere in the flat where he had been found . Swabs were taken from the first applicant ’s penis but no DNA or blood was found . There was no semen found anywhere .

When interviewed by police the following evening , the first applicant admitted to having been drinking and to having taken an ecstasy tablet . He denied having committed any offences and stated that he had no recollection of events . He was interviewed on a further CARDINAL occasions and states that he co - operated with the police each time .

The first applicant was charged with burglary , rape ( by penile penetration ) , rape ( by digital penetration ) , and sexual assault . The applicant ’s trial began on DATE . The prosecution offered no evidence in respect of the burglary charge and a not guilty verdict was recorded . In respect of the remaining charges , it was not suggested by the defence that someone other than the first applicant had assaulted B , or that there had been no contact between them . Instead , the principal area of dispute was whether the first applicant ’s actions had amounted to rape or , alternatively , sexual assault . The prosecution ’s case was that they did . The applicant maintained that they did not . In giving evidence in his defence , the applicant repeated that he had no recollection of events on TIME in question .

NORP The trial judge ’s summing up to the jury contained the following direction :

“ We all know this is a horrific , a disgusting episode . We all know that , and we all know – there has not been any argument about this , has there ? – where moral responsibility lies but we are a court of law , we are not here to dish out admonitions for immoral conduct , disgusting behaviour . ... We are here to judge whether a crime has been committed , whether the criminal law of the land has been broken .

In order to do that you have to be objective . You have to stand back from the feelings of disgust and revulsion that come from the facts of this case and be objective . That last thing anyone would want is to compound an already awful event with another awful event , which would be a verdict based upon emotion and feelings of distaste and disgust rather than a verdict based upon a proper , logical , objective analysis of what has happened and that is what you are trusted to do . ”

On DATE the jury acquitted the applicant of the CARDINAL remaining charges . When the first applicant applied for his costs ( which exceeded GBP CARDINAL and had been met by his family ) his counsel stated :

“ This is a case in which [ the first applicant ] was inevitably going to be charged with a criminal offence , I do not doubt that for a moment , and the point I made to the jury was that had a different criminal offence been charged he may have had no alternative but to plead guilty , but costs have been expended on defending him on charges for which he has been found not guilty .

Bearing in mind everything Your Honour has said about his conduct that , in my submission , would not be a relevant consideration to the application that I make now because once he was interviewed by the police he did his best ... to tell the truth as he understood it and remembered it to be so he did not do anything more at that stage to bring this prosecution upon himself , simply the conduct which ended him up where he was . ”

In refusing the application , the trial judge said :

“ With regard to a defendant ’s costs you [ Counsel ] are right , the costs should and almost invariably would follow the event . I can not think of another case in DATE experience in the criminal courts in which it is more apparent that a defendant ’s conduct , albeit that it had led to him being acquitted , but a defendant ’s conduct has led to him being brought before the court and , given the nature of the circumstances and the consequences to the very vulnerable victim , the injuries that were seen upon her , where they were seen , the combination of facts , it is one of those cases where I feel it is right for the court to exceptionally say a defendant ’s costs order will be refused . He [ the applicant ] will have an opportunity , I have not the least doubt , in DATE to make some recompense to his family who have stood so loyally by him . It is not an order that I lightly refuse but this is CARDINAL of those exceptional cases where it seems to me to be justified . ”

The second applicant was born in DATE and lives in GPE , GPE .

In DATE , the police began investigating the business affairs of a company where , it was alleged , there had been money laundering , theft and fraud . The second applicant is an accountant and the company had been one of her clients . In the course of their investigation the police came into possession of an audio tape , which recorded a conversation between the applicant and another person under investigation , PERSON , in which the applicant was alleged to have provided advice on how to steal from the company .

The second applicant was interviewed under caution on DATE . The tape was played to her and , on the advice of her solicitor at that time , she declined to reply to the questions put to her . It appears that , at this time , the police did not know the provenance of the tape or the date the conversation was recorded ; the applicant maintains that , when interviewed , she was unable to remember the conversation or the date of it .

On DATE , the second applicant was charged with an offence of perverting the course of justice and , in DATE , with CARDINAL coaccused including PERSON , she was charged with conspiring to steal from the company DATE and DATE .

A defence statement was served by the applicant on DATE in which she addressed the tape recording . She denied any discussion of impropriety , challenged the admissibility of the tape as evidence and stated that , if the prosecution established her voice was on the tape , any comments she had made in the conversation had been taken out of context .

The second applicant maintained that , at the start of the trial , the prosecution offered to drop the charges against her and CARDINAL co - defendants if ORG and another defendant , ORG , pleaded guilty to a significant proportion of the charges against them . She alleges that if this offer had been accepted her application for her costs would inevitably have been granted . The Government , in their observations to this Court , do not accept that such an offer was made or that , if it had been accepted , the second applicant ’s application for her costs would inevitably have been granted .

At trial the second applicant sought to have the tape excluded from evidence but the trial judge ruled that it was admissible . The second applicant then gave evidence in her own defence in which she explained that she had been able to calculate the date of the recording ( DATE ) by reference to matters referred to in it . She also stated that , even if the tape was genuine and had not been edited as she alleged , the conversation was not in any way criminal or dishonest in purpose .

In his closing speech , counsel for the prosecution argued that the jury could and should draw an adverse inference from the fact that the applicant had relied on many facts in her defence , none of which she had mentioned when she was interviewed . In his summing up , the trial judge told the jury that the second applicant had failed to mention something in her police interview that she now relied upon in court . He also indicated that if the jury concluded that the second applicant had genuinely and reasonably relied on legal advice they should not draw an adverse inference .

On DATE the second applicant was acquitted unanimously of the CARDINAL counts facing her . CARDINAL defendants , including PERSON and GPE , were convicted of the majority of the charges against them . CARDINAL defendant , PERSON , was acquitted of all charges against him and another , ORG , was acquitted of all but CARDINAL charge against her . GPE and PERSON were legally aided but were granted defendant ’s costs orders in respect of their own expenses .

The second applicant applied immediately for a defendant ’s costs order , pursuant to section CARDINAL(CARDINAL ) of LAW DATE ( see relevant domestic law and practice below ) . The trial judge refused the application . He stated :

“ The relevant features , in my judgment , in this case are these : that [ the second applicant ] , acting very much on the advice of her then solicitor [ name omitted ] , exercised her right to silence when answering ‘ no comment’ in her police interview . I emphasise she can not be criticised for that , and the advice was given in good faith and it was accepted in good faith by [ her ] . However , in my judgment it is a relevant consideration in deciding whether a defendant ’s costs order should be made in this case . Her failure to answer questions , in my judgment , to some extent had the effect of bringing this prosecution on herself , allowing the police to believe that the case against her was stronger than it in fact has turned out to be . In particular , a cardinal plank of the prosecution case against her on the conspiracy count was a taped phone call between her and [ A.R. ] in which on the face of it she appeared to give advice to [ A.R. ] as to how to steal from the company . Her failure , in my judgment , of putting that phone call into its true context and true timescale clearly influenced the prosecution decision to bring charges against her , and it is for that reason , and that reason alone , that I have come to the conclusion that to that extent she brought this prosecution upon herself and in my judgment that is a proper reason for refusing a defendant ’s costs order . In no way is that decision meant to indicate that she is in any way guilty of this offence , she is not , she has rightly been acquitted by this jury . ”

On DATE , the second applicant renewed her application in writing , relying inter alia on the fact the she had been unable to recall the conversation on the tape recording until the trial had started and that CARDINAL of the reasons her solicitor had sought disclosure of the tape was to consider whether to propose to the police that they should re - interview her . The trial judge declined to hold an oral hearing on the renewed application and stated that he was unable to make the order for the reasons he had already given .

Section CARDINAL(CARDINAL ) of LAW DATE provides that where any person is tried on indictment and acquitted of any count in the indictment , ORG may make a defendant ’s costs order in favour of the accused . ORG ) provides that such an order shall be for the payment out of central funds of such an amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by the defendant in the proceedings .

The Practice Direction ( On Costs in Criminal Proceedings ) [ DATE ] CARDINAL Cr . App . PERSON provides :

“ Where a person is not tried for an offence for which he has been indicted , or in respect of which proceedings against him have been sent for trial or transferred for trial , or has been acquitted on any count in the indictment , the court may make a defendant ’s costs order in his favour . Such an order should normally be made whether or not an order for costs between the parties is made , unless there are positive reasons for not doing so . For example , where the defendant ’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was , the defendant can be left to pay his own costs . The court when declining to make a costs order should explain , in open court , that the reason for not making an order does not involve any suggestion that the defendant is guilty of any criminal conduct but the order is refused because of the positive reason that should be identified . ”

In PERSON v. PERSON [ DATE ] EWHC CARDINAL ( Admin ) , ORG found that the phrases in LOC where the defendant ’s own conduct has brought suspicion on himself ” and “ has misled the prosecution into thinking that the case against him was stronger than it was ” had to be read conjunctively . A court could not refuse to make a defendant ’s costs order on the ground that a defendant had brought suspicion on himself unless it was also satisfied that he had also misled the prosecution into thinking the case against him was stronger than it was . ORG also found that there was a duty to give reasons for not making an order .

The High Court reached the same conclusion as to a conjunctive reading of ORG in NORP ( on the application of GPE ) v. ORG [ DATE ] EWHC CARDINAL ( Admin ) . In that case , ORG also found that an acquittal on the basis of a procedural irregularity was not a proper reason for refusing to make an order .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Mr Z. Odehnal , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr PERSON , from ORG .

On DATE ORG ( okresní soud ) found the applicant guilty of attempted fraud and sentenced him to CARDINAL years’ imprisonment suspended for DATE . The court found it established that the applicant falsified signatures on CARDINAL contracts in order to receive a pre - emption right from the ORG for a certain plot of land .

The applicant appealed arguing , inter alia , that the court had not heard any expert opinion concerning the authenticity of the signatures .

On DATE ORG ( krajský soud ) upheld the applicant ’s conviction but changed the sentence to CARDINAL months’ imprisonment suspended for DATE finding the possible damage to the ORG to be considerably lower than that found by ORG . The court further held that the signatures on the contract were so significantly different compared to real signatures of the persons concerned that an expert opinion was not necessary .

On DATE ORG ( PERSON ) rejected the applicant ’s appeal on points of law as manifestly ill - founded . The court noted that the applicant had been aware that the signatures were not authentic and thus if the contracts had been considered valid the ORG would have suffered a damage . The applicant thus acted with dolus eventualis .

The applicant lodged a constitutional appeal ( ústavní stížnost ) claiming a violation of his right to a fair trial and the principle of no punishment without law . He complained , inter alia , that no mens rea to commit an offence had been proved and that the courts did not admit in evidence an expert opinion regarding the authenticity of the signatures . ORG ( GPE PERSON ) requested observations from the ordinary courts . ORG , ORG and ORG only shortly referred to their decisions and maintained that they had already dealt with the complaints raised by the applicant . None of these observations were communicated to the applicant .

On DATE ORG rejected the applicant ’s constitutional appeal as manifestly ill - founded . As to the fact that it had not communicated the other parties’ observations to the applicant , it noted that it did not take them into account as they did not bring anything new .

The relevant domestic law and practice concerning the procedure before ORG are set out in the ORG ’s judgment in the case of ORG and Others v. GPE ( no . CARDINAL/CARDINAL , ECHR CARDINALV ) .


Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant started working at a privately owned factory in the city of ORG . On DATE he had an accident in the factory and seriously injured his leg . ORG , on CARDINAL DATE the applicant 's employment at the factory was terminated on the ground that he had failed to report to work DATE without a reason .

On DATE , the applicant brought a legal action against the factory before ORG ( “ the ORG ” ) and claimed pecuniary compensation in respect of the accident . In the meantime , in DATE the applicant 's leg had to be amputated following the diagnosis of a malignant tumour in his injured leg .

On DATE , while the proceedings were pending before ORG , the applicant brought another action before ORG ( “ the ORG ” ) against the factory and asked the court to issue a declaration to the effect that the incident had been an “ occupational accident ” .

On DATE , at the applicant 's request , ORG decided to adjourn its examination of the compensation claim pending the outcome of the proceedings before ORG .

On DATE ORG , relying on CARDINAL expert reports , decided that the accident had been occupational . Nevertheless , the decision of ORG was quashed on DATE by ORG , which held that ORG ( ORG “ the ORG ” ) should also be a party to the proceedings .

Proceedings recommenced before ORG , which found on DATE that the applicant had introduced the same claim in DATE , and dismissed the case .

On DATE ORG quashed the decision of ORG and pointed to the fact that the case which had been brought in DATE had had different parties and its subject matter had also been different to that of the present one .

On DATE , after a further review of the case , ORG gave a decision and held that the accident had been occupational .

On DATE ORG quashed the judgment once more and held that ORG should have considered whether a causal link existed between the tumour in the applicant 's leg and the accident . ORG considered that this could be done by obtaining a report from ORG ( “ the Institution ” ) .

On DATE , after re - examining the case , ORG confirmed its judgment of DATE . In its decision , ORG maintained that any causal link between the tumour and the accident was irrelevant to the case at hand . It considered that this was a matter for ORG to consider in its examination of the applicant 's compensation claim .

On DATE ORG quashed ORG decision of DATE and upheld ORG decision of DATE .

On DATE ORG asked the Institution to draft a report as required by ORG . On DATE the ORG requested ORG to forward to it all medical reports pertaining to the applicant 's medical treatment . Following the failure of ORG to comply with its request , the ORG repeated its request on CARDINAL further occasions . ORG , which did not comply with the ORG 's requests , asked the Institution to prepare its report on the basis of the reports already in its possession .

On DATE the Institution prepared its report based on several medical reports on the applicant delivered by different hospitals DATE . It concluded that it was not possible to establish whether the tumour in the leg had been caused by the accident . In its report the ORG also noted that the applicant , although warned by the doctors about the gravity of his condition , had failed to have medical examinations DATE . It concluded that this could also have caused the tumour in the applicant 's leg .

On DATE the applicant submitted to ORG written objections to the ORG 's report . He argued , in particular , that the report was irrelevant to the examination of his claim and in any event was based on insufficient data . The applicant further argued that ORG had prepared a negative report as he had lodged a complaint against the experts regarding the delay in the submission of their report .

Based on the report of the Institution , ORG decided on DATE that there was no causal link between the accident and the tumour in the applicant 's leg , and dismissed the case . On DATE the applicant appealed and repeated his objections , mentioned above , to the ORG 's report . The applicant 's appeal was rejected by ORG DATE .

Following the decision of ORG , ORG resumed the proceedings . On DATE the domestic court rejected the applicant 's case based on the decision of ORG dated DATE . In its decision , it stated that ORG had had regard to all the documents in the case file , the submissions of the parties and the medical report of ORG which held that there was no causal link between the tumour in the applicant 's leg and the incident . As a result , by making reference to the decision of ORG it dismissed the applicant 's case . On DATE ORG rejected the applicant 's appeal request .


Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE . He is an attorney .

The applicant was suspected of aiding and abetting aggravated embezzlement . He was first questioned by the police on DATE . He was subsequently questioned again in connection with CARDINAL other similar offences .

On DATE the public prosecutor brought charges against him and another defendant , R , in the GPE ORG ( käräjäoikeus , tingsrätten ) . The court held its first session on DATE . In the course of the proceedings , the court was presented with written evidence , including CARDINAL documents submitted by the applicant . It also received testimony from both defendants and CARDINAL witnesses , CARDINAL of whom were called by the applicant . The evidence included a written statement and the oral testimony of ORG . On DATE the court gave its judgment . It found that on DATE the applicant had , as a receiver of a bankrupt ’s estate , unlawfully transferred a substantial sum of money from the estate ’s bank account to the account of his own law firm . The court also found that , on the same date , he had aided and abetted his associate R in the commission of CARDINAL similar offences . The court convicted the applicant of aggravated embezzlement and CARDINAL counts of aiding and abetting aggravated embezzlement and sentenced him to a suspended term of DATE and CARDINAL months’ imprisonment . R was found guilty of having made unlawful money transfers on several separate occasions DATE and DATE . He was convicted of CARDINAL counts of aggravated embezzlement , as well as aiding and abetting the applicant ’s aggravated embezzlement .

The applicant , R , and the prosecutor all appealed against the judgment to ORG ( hovioikeus , hovrätten ) . At the applicant ’s request , the court had extended by DATE the time - limit for lodging his appeal . In his letter of appeal , lodged on DATE , the applicant claimed that he had only transferred funds to which he believed he was entitled as a retainer and that he had , therefore , lacked criminal intent . He made similar claims in connection with the CARDINAL counts of aiding and abetting R ’s offences . He also referred , inter alia , to the written statement of ORG , in which the latter had considered it possible that the applicant had , in fact , lacked criminal intent in regard to the alleged embezzlement . On DATE ORG held an oral hearing . By its judgment of CARDINAL DATE it upheld the applicant ’s conviction but changed his sentence to DATE and QUANTITY months’ unconditional imprisonment . In its reasons the court had regard , inter alia , to ORG testimony . The ORG had noted , inter alia , that at the time of drawing up his written statement he had not had all the information about the applicant ’s actions in the matter or , at least , had not paid attention to it . He had also testified that the receiver of a bankrupt ’s estate did not have a right to withdraw money from the estate ’s account without consent .

On DATE ORG ( korkein oikeus , högsta domstolen ) refused leave to appeal .

LAW , section CARDINAL , subsection CARDINAL of LAW ( rikoslaki , strafflagen ; as amended by LAW . CARDINAL/CARDINAL which took effect on DATE ) reads :

“ In addition to what is provided above in section CARDINAL , grounds for mitigating the sentence that are also to be taken into consideration are

( CARDINAL ) a considerably long period that has passed since the commission of the offence ;

if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result . ”

In its judgment of DATE ( ORG CARDINAL ) , ORG noted that , although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings , such a dismissal or declaring a case inadmissible might in some exceptional circumstances , for example if their duration ruled out a good defence , be the only effective remedy satisfying the requirements of LAW . That was , however , not the case here . In considering whether there were grounds for applying LAW , section CARDINAL , subsection CARDINAL of LAW , ORG held that it had to be decided in PERSON whether the duration of the proceedings ( here over DATE ) had been unreasonable . It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings .