CASE OF REINHARDT AND SLIMANE-KAÏD v. FRANCE

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

Mr PERSON was formerly the chairman of CARDINAL public limited companies ORG ( “ PERSON ” ) and ORG ( “ Servec ” ) , respectively engaged , in particular , in buying equipment for export and in industrial coachbuilding .

On DATE he had also formed with PERSON a private company called ORG ( “ ORG ” ) , whose registered office was at the latter ’s home address and main activity the hire and sale of equipment of all types both in GPE and overseas . On DATE Mr PERSON had replaced PERSON as manager of that company .

Under CARDINAL commercial agreements the ORG company was to sell industrial vehicles to ORG and deliver “ cab chassis ” on bailment , with ORG being named as bailee , to coachbuilders designated by either ORG or PERSON . It was stipulated that at the end of the bailment and on receipt of payment , ORG would deliver to ORG and PERSON the vehicle test certificates ( feuilles des mines ) of the vehicles concerned and the certificates of sale .

The description of the facts set out in this and the next paragraph is based on the documents from the domestic proceedings produced to the ORG .

On DATE CARDINAL vehicles belonging to ORG were delivered on bailment to PERSON ’s premises . The periods of bailment were due to end on DATE , DATE , CARDINAL DATE and DATE ; on those dates PERSON and PERSON were to take up the purchase option on the vehicles and to obtain delivery of the test certificates for each vehicle and the certificates of sale specific to ORG .

At ORG ’s request , a bailiff inspected PERSON ’s premises and drew up an official report on CARDINAL DATE . A court - appointed expert carried out an inspection on DATE and an interim attachment was made on DATE . It was found on the first of those CARDINAL dates that CARDINAL vehicles were missing , on the second that CARDINAL were missing and on the third that CARDINAL were missing . ORG obtained restitution of CARDINAL vehicles ; the others had been registered and sold .

On DATE an ORG representative reported certain of these matters to ORG ( “ RCID ” ) . Inquiries were made by Detective Inspector PERSON . In a report of DATE he said that the test certificates and certificates of sale of CARDINAL ORG vehicles that had been filed by ORG for registration purposes with the prefecture were forgeries ; he went on to say that offences may have been committed under the companies acts and insolvency legislation in connection with Servec /Provex and to conclude that a judicial investigation was necessary .

On DATE the ORG public prosecutor made a written application for an investigation to be opened into offences by an unnamed person of misappropriation and procuring the issue of administrative documents by means of false information , certificates or statements . Mr Candau , the investigating judge , who was assigned to the case DATE , sent instructions on DATE to the head of the Versailles RCID to “ ... continue the investigation with a view to identifying the persons who committed the offences , their co - principals and accomplices ... ” .

On DATE Mr PERSON was taken into police custody and questioned . On DATE the Versailles RCID ’s report was received , PERSON was charged with misappropriation and procuring the issue of administrative documents by means of false information , certificates or statements , and remanded in custody ( until DATE , when the investigating judge ordered his release under judicial supervision ) . On DATE the investigating judge sent instructions to FAC to pursue the investigation .

On DATE the ORG public prosecutor made a written application for an additional investigation to be opened into offences of forgery of private , commercial or banking documents by PERSON , who was suspected of having falsified the relevant test certificates and certificates of sale .

On DATE Iveco – which had joined the proceedings as a civil party claiming damages on DATE made oral submissions and a director of ORG was heard as a witness . On DATE and on DATE Mr PERSON lawyer wrote to the investigating judge enclosing documents for the file . ORG ’s lawyer did likewise on DATE .

Mr PERSON was questioned on CARDINAL and DATE and an ORG executive was heard on DATE . On DATE a confrontation was held between Mr PERSON and an ORG executive and on DATE Mr PERSON was questioned again and charged with forgery of private , commercial or banking documents .

On DATE Mr PERSON lawyer wrote to the investigating judge enclosing documents for the file . ORG ’s lawyer did likewise on DATE .

Since the investigators suspected Mr PERSON of further offences , a second preliminary inquiry was started on DATE into his activities at ORG , PERSON and ORG .

DATE the Versailles RCID carried out a number of searches and seizures at PERSON home address and on the premises of ORG ; but they also carried out searches and seizures on DATE at PERSON home ( the registered office of ORG ) DATE while she was in custody – and on DATE in a house rented by ORG . On DATE PERSON was questioned by a police investigator .

On DATE the investigating judge had made an order transmitting the file to the public prosecutor for submissions ( ordonnance de soit - communiqué ) . On DATE the ORG public prosecutor made an application for additional charges to be preferred against Mr PERSON for misappropriating company assets , offences equivalent to negligent bankruptcy ( for failure to declare within the statutory time - limit that the company was unable to meet its liabilities ) , fraudulent bankruptcy ( for misappropriation of part of the company ’s assets ) , false accounting and fraud . On DATE Mr PERSON was charged with those offences .

On DATE the investigating judge sent instructions to the head of the Versailles RCID to pursue the investigation into all the offences with which PERSON had been charged .

Mr PERSON was questioned on CARDINAL and DATE .

The Versailles RCID sent the investigating judge its report on DATE after carrying out the instructions . On DATE , PERSON , who had been held in custody since DATE , was charged with forgery of private , commercial or banking documents and released under judicial supervision . He was suspected of issuing false invoices to ORG and PERSON and supplying PERSON with the means for committing a like offence .

On DATE the investigating judge sent instructions to the Versailles RCID to pursue the investigation into the offences with which Mr PERSON and PERSON had been charged . The Versailles RCID sent in its report on DATE .

PERSON was arrested on DATE ; DATE , following an application by the ORG public prosecutor for a further investigation to be opened , she was charged with aiding and abetting the misappropriation of company assets and of handling misappropriated company assets . She was suspected of having given Mr PERSON CARDINAL blank cheques DATE drawn on ORG ’s bank account for a total of MONEY – which she had signed and which PERSON was to make out and endorse DATE and of having benefited from monies fraudulently obtained from that company .

On DATE the investigating judge sent instructions to the Versailles RCID to pursue the investigation into the offences with which Mr PERSON , PERSON and PERSON had been charged .

On DATE Mr PERSON lawyer sent a letter to the investigating judge enclosing documents for the file .

On DATE the Versailles RCID sent in its report pursuant to the investigating judge ’s instructions of CARDINAL DATE .

Mr PERSON and PERSON were questioned on DATE and DATE respectively and PERSON DATE who had been summoned to appear before the investigating judge on DATE , but had not done so – on DATE .

On DATE the investigating judge made an order transmitting the file to the public prosecutor for submissions .

On DATE Mr PERSON wrote to the investigating judge enclosing documents for the file .

In a further application of CARDINAL DATE the ORG public prosecutor requested the investigating judge to pursue the investigation into the offences with which Mr PERSON , PERSON and PERSON had been charged and to interview Mr PERSON , PERSON and the managing director of the ORG company .

On DATE , following a complaint lodged on DATE by ORG ( which joined the proceedings as a civil party claiming damages ) against a person or persons unknown for misappropriation and forgery of commercial documents , the senior investigating judge at ORG made an order transmitting the file to the public prosecutor for submissions .

On DATE the ORG public prosecutor applied for an investigation to be opened for misappropriation and forgery of commercial documents by a person or persons unknown . The investigation was to be conducted by Judge PERSON .

On DATE both investigations were assigned to a different judge , Judge PERSON . He heard VPL ’s representative on CARDINAL DATE .

On DATE and CARDINAL DATE Mr PERSON and his lawyer wrote to the investigating judge enclosing documents for the file in connection with the first set of proceedings .

Mr PERSON was questioned on DATE and DATE .

On DATE VPL ’s lawyer had sent documents to the investigating judge requested by the latter in a letter of CARDINAL DATE .

Mr PERSON lawyer wrote to the investigating judge on CARDINAL DATE regarding the hearing of witnesses and inquiries in the first investigation . On DATE CARDINAL ORG ’s lawyer produced documents for the file .

Instructions were sent on DATE to the GPE RCID for inquiries to continue into the offences with which the CARDINAL suspects had been charged .

On DATE the investigating judge ordered that an expert ’s report be commissioned on the signatures at the foot of the certificates of sale . The expert filed his report on DATE . It was served on ORG on DATE .

On DATE Mr PERSON wrote to the investigating judge informing him that he had changed lawyers .

On DATE the Versailles RCID ’s report pursuant to the instructions of CARDINAL DATE was received .

On CARDINAL DATE PERSON wrote to the investigating judge informing him that he had changed lawyers .

On DATE he was questioned and charged in connection with the second investigation with misappropriation and forging commercial documents .

On DATE he wrote to the investigating judge informing him that he had changed lawyers .

On DATE he again appeared before the investigating judge .

On DATE and DATE and CARDINAL DATE Mr PERSON or his lawyer wrote to the investigating judge in connection with additional inquiries and the production of documents for the file .

DATE . On DATE a confrontation was held between Mr PERSON and the ORG representative .

On DATE and DATE , CARDINAL and DATE , DATE and CARDINAL DATE and DATE and DATE , PERSON or his lawyer wrote to the investigating judge in connection with additional inquiries and the production of documents for the file .

On DATE , in connection with the first investigation concerning PERSON , the investigating judge instructed the ORG police superintendent to “ inspect the ORG vehicle registration file for DATE and DATE ” and “ to seize and place official seals on the originals of the test certificates ” .

On DATE ORG ’s lawyer wrote to the investigating judge and produced documents for the file .

On DATE the investigating judge heard an ORG representative . Documents were produced for the file .

On DATE the Versailles RCID ’s report on the instructions of CARDINAL DATE was sent to the investigating judge .

On DATE Mr PERSON lawyer wrote to the investigating judge enclosing documents for the file relating to the first investigation ; a lawyer acting for CARDINAL of the civil parties did likewise on DATE .

On DATE the investigating judge heard Mr PERSON , who both at that hearing and under cover of a letter of DATE produced documents for the file .

On DATE Mr PERSON requested an expert audit of ORG ’s accounts . The request was renewed by his lawyer on DATE , but turned down by the investigating judge on DATE . Mr PERSON appealed against that decision on DATE but , following submissions on DATE by ORG at ORG , the President of ORG of that court refused , in an order of CARDINAL DATE , to refer the request to ORG .

On DATE ORG ’s lawyer had written to the investigating judge and produced documents for the file . PERSON lawyer did likewise on DATE in connection with the second investigation .

By an order of the president of the ORG tribunal de grande instance on DATE , Judge PERSON was replaced by Judge PERSON . On DATE Judge PERSON ordered the transmission of the file to the public prosecutor for submissions with a view to joinder of the CARDINAL sets of proceedings ; the public prosecutor sought an order to that effect DATE . On DATE the investigating judge made CARDINAL orders : the first for joinder of the CARDINAL sets of proceedings and the second for transmission of the file to the public prosecutor . On DATE the public prosecutor made final submissions requesting the committal of Mr PERSON , PERSON and PERSON to the criminal court . On DATE Judge PERSON made a committal order .

ORG held a hearing on DATE .

On DATE Mr PERSON lawyer wrote to the president of that court enclosing documents for the file , as did ORG ’s lawyer on CARDINAL DATE . PERSON lawyer forwarded further documents on DATE .

On DATE the criminal court decided to extend its deliberations until CARDINAL NovemberCARDINAL .

On CARDINAL and DATE respectively ORG and PERSON lawyers wrote to the president of that court enclosing documents for the file .

Judgment was delivered on DATE . PERSON was found guilty of misappropriation , forging private , commercial or banking documents , fraud , false accounting and misappropriation of company assets and sentenced to DATE imprisonment , CARDINAL of which were suspended ; he was barred from carrying on any business activity for DATE . PERSON was given a sentence of DATE months’ imprisonment for forging private , commercial or banking documents and aiding and abetting the forgery of commercial documents and PERSON a DATE suspended sentence for aiding and abetting the misappropriation of company assets . The court declared the civil party claims of ORG and VPL inadmissible .

Mr PERSON appealed to ORG on DATE , as did the public prosecutor 's office , PERSON , Mr PERSON and ORG on DATE , DATE , DATE and DATE respectively .

According to the Government , on DATE and CARDINAL DATE a summons was issued requiring a representative of VPL to appear , but the company could not be located . PERSON , ORG , the liquidator of PERSON ( Mr NORP ) and PERSON were summonsed on DATE , DATE and DATE DATE and CARDINAL DATE respectively .

At the hearing on DATE CARDINAL PERSON , Mr PERSON and ORG lodged their submissions . The hearing was adjourned to CARDINAL DATE to enable summonses to be served on PERSON and VPL .

Summonses were issued against PERSON on DATE and , according to the Government , against VPL on DATE , but neither could be located .

On DATE the hearing was adjourned for the last time to CARDINAL DATE to enable summonses to be served on VPL and Mr PERSON , the liquidator acting in the joint liquidation of GPE , PERSON and ORG .

Summonses were issued against VPL on DATE and CARDINAL DATE .

On DATE ORG acquitted PERSON PERSON on the count of misappropriation of company assets , upheld the guilty verdict on the other counts and confirmed the sentence . It increased PERSON sentence to a term of CARDINAL months’ imprisonment , suspended , and reduced PERSON sentence to DATE . It upheld the judgment of the trial court in all other respects .

PERSON and PERSON lodged appeals on points of law with ORG that DATE . Mr PERSON and ORG did likewise on CARDINAL and DATE . PERSON also appealed .

The case file was sent to ORG on DATE and assigned to a reporting judge on DATE .

ORG lodged written pleadings on DATE , followed by Mr PERSON and PERSON on DATE . On DATE ORG lodged CARDINAL , and PERSON two , written pleadings .

The reporting judge filed his report on DATE and the advocate - general was appointed on DATE .

PERSON filed written pleadings on DATE and DATE . VPL and Mr PERSON filed pleadings on DATE .

DATE . According to the Government , it is unlikely that the advocate - general prepared his submissions in writing as he intended to present them orally at the hearing .

The Government further maintained that at the hearing of ORG on DATE , which took place without the applicant ’s representatives being present , the reporting judge addressed the court and oral submissions were made by the advocate - general .

In a decision delivered on DATE , ORG , relying on the reporting judge ’s report , the parties’ pleadings and the submissions of the advocate - general , dismissed the appeals of those who had been convicted .

ORG is composed of the president , the divisional presidents , the judges , the auxiliary judges , ORG , ORG , the advocates - general , the senior registrar and the divisional registrars ( Article PERSON of LAW ) .

It is divided into CARDINAL civil divisions and CARDINAL criminal division , each comprising a divisional president , judges , auxiliary judges , CARDINAL or more advocates - general and a divisional registrar ( Articles PERSON , PERSON and PERSON ) . The divisions are subdivided into sections , in which formation most appeals are heard .

Judgments of an ORG and judgments delivered by an assize court , a criminal court or a police court sitting as a court of last instance may , if they are not in accordance with the law , be set aside on an appeal on points of law by either the public prosecutor 's office attached to the court which delivered the judgment or the party adversely affected ( LAW ) .

In criminal cases , ORG at ORG may appeal to that court only for the purposes of clarifying the law ( pourvoi dans l’intérêt de la loi ) . In such cases , he appeals either on formal instructions from the Minister of Justice ( Article CARDINAL ) or of his own motion against a judgment delivered by an assize court , a criminal court or a police court sitting as a court of last instance where none of the parties has entered an appeal within the set time - limit ( Article CARDINAL ) ; in the event of an appeal by ORG of his own motion , if the appeal is allowed the judgment is reversed but the parties may not rely on ORG ruling to contest execution of the judgment that has been set aside ( ibid . ) .

As soon as the case file is received by the registry of ORG , the president of that division appoints a reporting judge ( LAW ) from among the judges and the auxiliary judges ; the latter have a vote at deliberations on appeals in which they are appointed as reporting judge ( LAW ) .

The reporting judge draws up a written report in which he carries out a thorough review of the case , sets out the legal arguments deduced from the grounds of appeal , indicates what research he has carried out into legal opinion and case - law on the basis of the grounds of appeal and states his recommendations . He also prepares a draft judgment , which is distributed to each of his colleagues as a basis for discussion at deliberations .

The case file lodged by the reporting judge is sent by the registry , with the report and draft judgment , to the advocate - general assigned to the case by ORG . Counsel for the parties are informed of the recommendation in the report ( appeal to be declared inadmissible , or to be dismissed , allowed in part or in full ) by an entry in the list of cases that is distributed DATE before the hearing to lawyers practising in the PERSON d’Etat and ORG .

In principle , any additional pleading filed at this stage will be declared inadmissible ( LAW ) . However , ORG has a discretion and it appears that examples of its declaring inadmissible pleadings filed late are rare ( see PERSON , ORG at ORG , “ NORP en cassation ” , Juris - classeur procédure pénale , DATE , fascicule CARDINAL ) .

Principal State Counsel 's Office at ORG does not act as a prosecuting authority before that court . Except in appeals made for the purposes of clarifying the law , it acts only as a party joined to the criminal proceedings . Its role is not to argue the prosecution ’s case but to ensure that the law is correctly applied ( see “ NORP en cassation ” , cited above , and PERSON , ORG , Juris - classeur procédure pénale , DATE ) .

PERSON , Advocate - General at ORG , thus explains that whereas the role of the prosecution consists , in principle , of law enforcement and upholding the law , the role of ORG Office at ORG is confined to the latter task . In that capacity it is required to ensure that the law is correctly applied when it is clear and correctly construed when ambiguous ( PERSON , “ ORG et Cour suprême ” , PERSON juridique , Doctrine ( DATE ) , PERSON . PERSON no . CARDINAL ) .

NORP The duties of ORG in ORG are “ personally conferred on ORG ” ( Article R. CARDINAL - CARDINAL of LAW ) . Save for directions to lodge an appeal for the purposes of clarification of the law , ORG does not receive any instructions regarding the performance of his duties ( see for example the speech made on DATE by PERSON , ORG at ORG , at the formal ceremony marking the beginning of the judicial year , GPE documentation française , GPE DATE , and the “ ORG et Cour suprême ” article cited above ) .

ORG “ assigns ORG and the advocates - general to the divisions in which he considers they may most usefully serve ” ( Article R. CARDINAL - CARDINAL ) . ORG and the advocates - general “ speak on behalf of ORG in the divisions to which they have been appointed ” ( Article PERSON ) . In important cases their submissions are communicated to ORG , who , if he is not in agreement and the advocate - general refuses to amend them , may delegate another advocate - general or make submissions himself at the hearing ( Article R. CARDINAL - CARDINAL ) . It appears , however , that that provision has never been applied and that in practice the advocates - general are , therefore , free to decide on the tenor of their submissions ( see the “ NORP en cassation ” article cited above ) .

In his speech of DATE ( referred to above ) PERSON explained : “ [ the ] value of the work [ of the advocate - general ] , which is performed after the reporting judge has completed his task , is as a ‘ second GPE . Either the advocate - general agrees with the report , in which eventuality the decision to be taken will be clearer , or he disagrees , and will have triggered the necessary debate . In all cases his role is somewhat ‘ maieutic’ . ”

DATE . The advocate - general ’s submissions do not have to be in writing .

NORP The list of hearings is fixed DATE . A single advocate - general deals with all cases on the list for DATE he is on duty . He informs the relevant lawyers practising in the ORG d’Etat and ORG , who , if they wish to make oral submissions , must advise the president before the hearing .

DATE before the hearing a preparatory “ meeting ” is held between the president and the senior judge of the division and the advocate - general on duty for DATE ; they systematically review the cases on the list and exchange views ( see the “ Pourvoi en cassation ” and “ ORG et Cour suprême ” articles cited above and the speech given on DATE by Mr PERSON , ORG at ORG , entitled “ PERSON général à la PERSON et la Convention européenne de sauvegarde des ORG , GPE palais , CARDINAL DATE ) . It appears to be customary after the meeting for the advocate - general to inform the lawyers acting in the case of the tenor of his submissions ( see the speech entitled “ PERSON général à la PERSON et la Convention européenne de sauvegarde des ORG l’Homme ” cited above ) .

In parallel , the reporting judge ’s report is studied in detail by the offices of the president and the senior judge , which give a reasoned opinion in writing . Their opinion , together with the submissions of the advocate - general , are communicated to the reporting judge DATE before the hearing ( see the “ NORP en cassation ” article cited above ) .

Hearings of ORG are held in public and the procedure is the same as that in the other courts ( LAW ) .

The procedure before ORG is nevertheless in written form ; the parties’ lawyers are not required to appear at hearings . In ORG there is an oral hearing only in the ( rare ) cases where the parties’ lawyers have expressly requested CARDINAL .

At the hearing the reporting judge is the first to address the court . He reads out his report but does not disclose his recommendations . If there are to be oral submissions , counsel for the appellant addresses the court first followed by counsel for the respondent ; they may not submit any new legal argument . The advocate - general is the last to address the court ; he makes submissions that are confined to legal issues and may concern the consideration of a ground of appeal raised by the court of its own motion ( Article CARDINAL of LAW ; and see the “ NORP en cassation ” article cited above ) . It would appear that where oral submissions are made it is customary to allow the parties to reply to the advocate - general ’s submissions , either orally or by a note addressed to the court in deliberations ( see the speeches of Mr PERSON and Mr PERSON referred to above ) .

After the public hearing , the members of the court deliberate in private . The reporting judge gives his opinion ; the other judges and the president then express their views . Following a vote on whether the recommendations of the report should be adopted , the draft judgment , which each judge will have received DATE beforehand , is then considered ( LAW ; and see also the “ NORP en cassation ” article cited above ) .

The advocate - general generally attends the deliberations . In that connection , Mr PERSON explained in his speech of DATE ( cited above ) : “ ... practice on this point is settled . If it is an important case that has ( exceptionally ) been pleaded by counsel , the advocate - general leaves the courtroom at the same time as the parties and the public in order clearly to demonstrate that the judges deliberate alone . In ordinary cases , the advocate - general usually remains in his seat but does not take part in the debate . His presence results from purely practical considerations relating to the number of cases , which is often substantial , to be heard at each sitting . It has no special signification ” ( see also Mr PERSON ’s speech referred to above ) .

The judgment in its adopted form is then finalised and delivered at a public hearing , in most cases immediately after the deliberations .


The first CARDINAL applicants were born in DATE and DATE respectively and live in the town of GPE in the GPE region . The third applicant was born in DATE and lives in GPE .

On DATE the police were called to a flat owned by the third applicant . Upon their arrival , the police officers discovered the first applicant in the flat . He jumped out of the kitchen window and ran away trying to escape . The policemen fired several shots in the air , but the first applicant did not stop . A policeman pursued him , knocked him down to the ground and handcuffed him .

The first applicant was taken to the FAC police station , where he was allegedly beaten up for TIME . He signed a statement confessing to having broken into the flat attempting to commit theft . Mr PERSON , appointed to act as the first applicant 's counsel , was present when he made that statement .

An investigator of ORG drew up the record of the first applicant 's arrest . He indicated that the first applicant had been apprehended at the crime scene , that eyewitnesses , including the victims , had identified him as the perpetrator of the criminal offence , that he had tried to escape and that he had no permanent place of residence .

On DATE the second applicant was arrested as the first applicant 's accomplice to the theft .

The first CARDINAL applicants were charged with theft and on DATE ORG , by separate decisions , authorised their placement in custody . The prosecutor noted that the first CARDINAL applicants were charged with a serious criminal offence carrying a sentence of imprisonment ; that they did not have a permanent place of residence in GPE ; that the second applicant was a “ citizen of GPE ” and the first CARDINAL applicants were liable to abscond and evade justice . The decisions were amenable to appeal , but the first CARDINAL applicants did not make use of this avenue .

On DATE the first CARDINAL applicants and their lawyers started reading the case file . An investigator drew up records in which the CARDINAL applicants and their lawyers made handwritten notes confirming that they had been provided with the entire file and that no time restrictions had been imposed on them .

On DATE the pre - trial investigation was closed , the first CARDINAL applicants were served with the bill of indictment and the case was set down for trial in LOC of GPE . On DATE ORG fixed the first trial hearing and extended the CARDINAL applicants ' detention . That decision was not appealed against and became final .

On DATE the ORG found the first CARDINAL applicants guilty as charged and sentenced the first applicant to DATE and DATE imprisonment and the second applicant to DATE imprisonment . The ORG based its judgment on statements by the victims , including the third applicant , witnesses , expert opinions , documentary evidence and the confession made by the first applicant on DATE . That judgment was upheld by ORG on DATE .

In DATE the applicants requested a review of the judgment of DATE , as upheld on appeal on DATE .

On DATE the Presidium of ORG , by way of supervisory review , quashed the judgments of DATE and DATE and remitted the case to ORG for a fresh examination . The ORG held that the first CARDINAL applicants should “ remain in detention ” . No reason for the extension was cited .

On DATE the ORG scheduled the first trial hearing , appointed Mr GPE to act as counsel for the first CARDINAL applicants and ordered that witnesses should be called according to lists prepared by the parties . As follows from the decision , ORG did not determine the issue of detention . According to the Government , ORG held that the measure of restraint to which the first CARDINAL applicants were subject should “ remain unchanged ” .

On DATE ORG found the first CARDINAL applicants guilty of aggravated theft and sentenced them to DATE imprisonment . ORG relied , inter alia , on the statement made by the first applicant on DATE .

ORG , on appeal , quashed the judgment on DATE and remitted the case to ORG for a fresh examination . ORG , without indicating any reasons , held that the first CARDINAL applicants should “ remain in detention ” .

The Lyublinskiy District Court received the case file on CARDINAL May CARDINAL . On DATE ORG fixed the hearing date , appointed counsel for the first CARDINAL applicants and held that the preventive measure “ should remain unchanged ” .

DATE the FAC extended the detention of the first CARDINAL applicants until DATE . It held that the applicants had been charged with a serious criminal offence and “ there were no grounds for changing the measure of restraint ” .

The first CARDINAL applicants appealed , arguing that there were no grounds for their continued detention and that they should be released subject to a written undertaking . They further complained that the length of their detention was excessive and that ORG had failed to provide reasons for extending it .

On DATE ORG upheld the order of DATE , relying on the gravity of the charges and the fact that the trial proceedings were pending . It also noted that the entire period of the detention of the first CARDINAL applicants had been authorised in compliance with the procedural requirements and had not been excessively long .

On DATE the ORG extended the detention of the first CARDINAL applicants until DATE , holding that in view of the complexity of the case it needed additional time for the trial , that the first CARDINAL applicants were charged with a serious criminal offence and that there was no reason to release them .

On DATE ORG upheld the order , noting the gravity of the charges against the first CARDINAL applicants and the absence of any grounds for their release .

On DATE the ORG found the first CARDINAL applicants guilty of aggravated theft , sentenced them to DATE imprisonment and ordered that they should jointly pay the third applicant MONEY in compensation for damage . ORG did not make any reference to the confession made by the first applicant on DATE . At the same time it noted that the prosecution authorities had examined the complaints alleging ill - treatment and had dismissed them as unfounded . The first applicant and his lawyer had not appealed against that prosecutor 's decision and had therefore agreed with the prosecutor 's findings .

On DATE ORG upheld the judgment . In response to the first applicant 's complaint that his confession of DATE had been obtained under duress , it noted that ORG had not taken the confession into consideration and had not based its findings on it . ORG once again indicated that the first applicant had not appealed against the prosecutor 's decision .

ORG The first CARDINAL applicants were released on DATE after having served their sentence .

The first applicant complained to the prosecutor that on DATE the policemen had beaten him up and had forged evidence in his case .

On DATE an assistant of ORG refused to institute criminal proceedings in connection with the applicant 's claim of ill - treatment . He studied a record of the medical examination of the first applicant on DATE , in which multiple bruises on his face , upper body and legs had been noted . The assistant prosecutor found that the first applicant could have received those injuries on DATE as a result of falling down when trying to escape from the policemen . The reasoning of the CARDINAL - page decision was founded on the statements by the police officer who had apprehended the applicant on DATE and PERSON , a neighbour of the third applicant , who had seen the first applicant immediately after his arrest . The decision of DATE was promptly notified to the first applicant .

Until DATE criminal - law matters were governed by LAW of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .

Before DATE , pre - trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment ( Article CARDINAL ) . The amendments of DATE repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they were charged with . The new ORG reproduced the amended provisions ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .

After the arrest the suspect is placed in custody during the investigation . The period of detention during the investigation may be extended beyond DATE only if the detainee is charged with a serious or particularly serious criminal offence . No extension beyond DATE is possible ( Article CARDINAL of the old CCrP , Article CARDINAL of the new CCrP ) .

Before DATE the old ORG set no time - limit for detention during the trial proceedings . On DATE a new LAW was inserted which established that the period of detention during the trial proceedings could not generally exceed DATE from the date the court received the file . That limitation did not apply to defendants charged with particularly serious criminal offences . The new CCrP establishes that the detention during the trial proceedings may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( Article CARDINAL ) .

The RSFSR Code of Criminal Procedure ( in force until DATE , “ the CCrP ” ) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities ' own initiative when there were reasons to believe that a crime had been committed ( Articles CARDINAL and CARDINAL ) . A prosecutor was responsible for general supervision of the investigation ( ORG CARDINAL and CARDINAL ) . He could order a specific investigative action , transfer the case from CARDINAL investigator to another or order an additional investigation . If there were no grounds to initiate a criminal investigation , the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party . The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction ( LAW .

On DATE ORG of GPE held that anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings should have the right to appeal against that decision to a court .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON . The respondent Government are represented by PERSON , Representative of GPE at ORG .

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

On DATE the applicant 's husband was killed in a sobering - up centre No . CARDINAL in Novokuznetsk ( медвытрезвитель № CARDINAL г. ORG ) by negligent behaviour of Mr PERSON , another detainee .

On DATE PERSON was convicted by LOC of the negligent manslaughter .

Shortly after the conviction the applicant brought civil proceedings for damages against Mr G.

On DATE the Zavodskoy ORG of Novokuznetsk awarded her a lump - sum compensation and DATE payments . ORG appealed .

On DATE ORG reversed the judgment of DATE and remitted the case for fresh examination by the district court .

On DATE , in the new proceedings , the applicant requested the Zavodskoy ORG of Novokuznetsk to replace the defendant by ORG of Novokuznetsk ( ORG внутренних дел г. ORG ) which was in charge of the sobering - up centre . In its judgment of the same date the court decided that the damages should be paid by PERSON PERSON and ORG of Novokuznetsk in equal shares .

On DATE ORG reversed on appeal the judgment of DATE due to incorrect calculation and a lack of legal grounds for civil liability of the sobering - up centre . It remitted the case for fresh examination by the first instance court .

On DATE the Zavodskoy ORG of Novokuznetsk ordered ORG of Novokuznetsk to pay the damages to the applicant . This judgment was appealed against by LOC .

On DATE ORG reversed on appeal the judgment of DATE and remitted the case for fresh examination by the first instance court .

On DATE the Zavodskoy ORG of Novokuznetsk awarded the applicant damages to be paid both by ORG PERCENT ) and by PERSON PERSON ( PERCENT ) . ORG appealed , claiming that the damages were to be charged from the municipal , not federal budget . PERSON also appealed .

On DATE ORG upheld on appeal the judgment of DATE .

On DATE the applicant was informed that the enforcement of the judgment was stayed pending the supervisory review proceedings .

On DATE the President of ORG lodged a request for a supervisory review of the judgment ( протест на решение суда , вступившее в законную силу , an extraordinary appeal ) .

On DATE the Presidium of ORG granted the extraordinary appeal and quashed the judgment as it had found the ORG 's liability in this case “ disputable ” . It remitted the case for fresh examination by the district court .

On DATE the Zavodskoy ORG of Novokuznetsk awarded a part of the damages to be paid to by ORG PERCENT ) and another part by Mr PERSON ( PERCENT ) .

On DATE ORG reversed on appeal the judgment of DATE for lack of legal grounds for civil liability of the sobering - up centre . It remitted the case for fresh examination by the first instance court .

On DATE ORG of Novokuznetsk granted the applicant 's request to stay the proceedings .

On DATE the applicant sent a letter to the Zavodskoy ORG of Novokuznetsk . It follows from its context that the court had notified the applicant about the resumption of the proceedings . The applicant , however , was opposed to the continuation of the trial and insisted that the proceedings would remain stayed until ORG had decided on the admissibility and the merits of her application .

On DATE the ORG of Kemerovo nevertheless resumed the proceedings . The applicant expressly waived any claims against PERSON but reiterated her claims against the ORG . In its judgment of DATE the court found that no fault or negligence of the sobering - up centre staff had been established in the criminal proceedings concerning the death of the applicant 's husband , hence there were no statutory grounds to impose civil liability on the ORG . The court refused to award damages against the ORG and found that they could be awarded against Mr. G , but for the applicant 's express refusal to sue him .


Preliminary objection dismissed (non-exhaustion);Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

At the material time Mr PERSON , a journalist and writer , born in DATE , was the editor of the DATE periodical ORG ( “ The ORG ' Voice ” ) , which appears in GPE . In issue no . CARDINAL of DATE , the periodical published an article written by a reader and entitled “ PERSON LOC ( “ the NORP problem is a NORP problem ” ) .

On DATE the public prosecutor ( “ the prosecutor ” ) at ORG ( “ the ORG ” ) instituted criminal proceedings against A.E.A. and the applicant in their respective capacities as publisher and editor of the periodical .

The prosecutor noted that , in the article in question , “ acts of separatist terrorism perpetrated in the south - east of the country were described as NORP ORG ; part of the country , [ thus ] of ORG , was called GPE [ and ] an appeal was made for support for acts described as being of LAW ” . He charged the defendants with disseminating propaganda , through the medium of a periodical , against the territorial integrity of the ORG and the indivisible unity of the NORP nation , contrary to section CARDINAL , paragraphs QUANTITY and CARDINAL , of LAW ( Law no . ORG ) ( see paragraph CARDINAL below ) .

Having regard to the context from which the public prosecutor appears to have drawn his grounds for pressing charges ( see paragraph CARDINAL above and paragraph CARDINAL below ) , the relevant passages of the article in question can be summarised as follows :

“ ... The confrontations between NORP and NORP in the various provinces are seen as foreseeable incidents ; moreover , they are sometimes provoked by the security forces , sometimes by fascist civilians and from time to time by the ' fundamentalists ' . Consequently , the policy of favouring ' a military solution ' , which until now was implemented by means of a dirty war against [ the guerrillas ] has taken on a new dimension and has begun to be coupled with a destructive social policy leading to ethnic conflict in all regions of GPE . It is very clear from this that the NORP problem is a general problem for NORP society and not a problem experienced in GPE and confined to within GPE 's borders ... DATE , the NORP problem is a NORP problem ... GPE [ “ RT ” ] , which is confronted with a NORP national movement within its own borders , clings firmly onto [ the branch ] of the ' NORP problem ' and , in doing so , is rapidly sucked into the complex developments in LOC ... Will the DATE repositioning of the pawns in LOC , the changes of alliance and the long - term imperialist plans ensure the success of those policies of the ORG ? Besides that , ... will the proportions reached by the NORP national movement allow it to be destroyed as a result of suffocation by a series of massacres ? Clearly , nobody DATE can foresee answers to these questions ... Given the proposals for a ' political solution ' , expressed recently by the various spokespersons of the sovereign powers , the latter do not appear to have renounced the ' military solution ' . Since the ' political solution ' referred to is merely a sham political solution which denies the people of GPE their free will ... In addition to that , the ' referendum ' discussions , which have also been on the agenda for some time , are engaged in by the sovereign classes not in such a way as to achieve a solution to the problem , but to push it into a dead end . The envisaged ' referendum ' does not in any way take as its basis the self - determination of the people of GPE , but , on the contrary , outlines a ' solution ' which is likely to unleash a rise in hostilities between the peoples ... Many of those on the left in GPE have confined their perspective to preventing ORG terror and violations of human rights in GPE , whereas another section are attempting to find their raison d'être in the shadow of the NORP national movement with a point of view which is far from likely to offer a democratic solution for all . It is clear that neither of those approaches can provide society with a credible means of solving the NORP problem . The revolutionary democratic powers must offer society as a whole a programme setting out the path necessary to achieve a democratic and liberal solution to the NORP problem . In order to make such a solution acceptable to the many different sectors of society , it is also necessary to implement an appropriate practice . Otherwise , the ORG 's warring policies will reach a point at which they can only engender circumstances condemning the whole country to chauvinism , ORG terror and darkness . Since the NORP problem is also a NORP problem ... Moreover , in the ranks of ORG in GPE , the current war is generally perceived as an ' international war ' . Irrespective of what has been said in official declarations , the policy of favouring a military solution resembles , in practice , open warfare against the NORP people ... The sovereign powers , in their deliberate distortion [ of things ] , make every effort to present this war as that of the NORP against the NORP . And , alas ! , the fact that the NORP people have adopted a passive attitude towards the NORP problem renders that distortion credible . To perceive the war in GPE as an ' international war ' reinforces , among NORP workers , chauvinistic and exclusive tendencies against the NORP , while among the NORP youth in the West the same social atmosphere very spontaneously sparks off feelings of hostility towards NORP society ... In actual fact , if one were to react in accordance with the requirements of an ' international war ' , what would affect NORP and NORP workers would not be an ' international war ' , but a generalised social collapse . Faced with this increasingly marked tendency , even the leader of ORG is failing to show himself to be sufficiently sensitive and prefers to keep silent . Clearly , such a dispute will benefit neither the NORP people nor the NORP people . A dispute of this kind will merely be a confrontation between fundamentalists , lacking in any revolutionary dynamic , and will make the NORP and NORP people vulnerable to attacks by the sovereign classes and imperialists . In order to curb this negative tendency , there is surely nothing more foolish than to suggest that the NORP people give up national resistance . On the contrary , defeating NORP national resistance will not in any way serve to eliminate the ethnic tensions beginning to appear in the West and will only set off a trend towards the establishment of lasting hostilities between the peoples . If there really is something to be achieved , it must be achieved in the West within the NORP population . The only key to resolving the problem is for the NORP people to perceive NORP national resistance as part of their [ own ] struggle for freedom and democracy ... activities designed to establish fraternity between peoples in the West constitute , in themselves , one of the most important means of the struggle against the current bonds of sovereignty ... ORG in the LOC should henceforth ' intervene ' in the NORP problem . ”

At a hearing on DATE in ORG , the applicant denied the charges against him . He submitted , among other things , that the article in question had been written by a reader residing in GPE , GPE , and that he had published it because he had considered that it did not contain anything justifying censorship or anything revealing any criminal intention . The applicant argued that the article , considered as a whole , intended only to put forward the different approaches to the NORP problem , with the aim of suggesting democratic solutions to it .

On DATE ORG found the applicant and A.E.A. guilty of the offence as charged . It also ordered the copies of the issue of the review in which the impugned article had been published to be seized .

In its judgment , considering that it was not necessary to reproduce the passages judged to be in breach of the law , the ORG agreed with the prosecutor that the article in question referred to a part of NORP territory which it called GPE and condoned acts of violence by the ORG ( ORG of Kurdistan ) , which it portrayed as a national resistance movement against the ORG . Considering that the expressions and phrases used by ORG , the author of the impugned article , undoubtedly showed an intention to transgress section CARDINAL of Law no . ORG , the court concluded that , in publishing the article , the applicant and his co - defendant should be deemed to have knowingly conveyed propaganda designed to obtain support for the aim of destroying the territorial integrity of GPE and the unity of the NORP nation .

ORG accordingly sentenced PERSON , in his capacity as editor , to DATE imprisonment and a fine of MONEY ( TRL ) .

The applicant appealed to ORG . In a judgment of CARDINAL DATE , delivered after holding a hearing , the court dismissed his appeal , upholding ORG assessment of the evidence and its reasons for dismissing Mr ORG 's defence .

On DATE the applicant began paying the fine , which had been divided into DATE instalments of TRL CARDINAL .

On DATE , before the custodial sentence imposed on the applicant was enforced , Law no . CARDINAL came into force amending , inter alia , section CARDINAL of PERSON no . ORG ( see paragraph CARDINAL below ) . It modified the mens rea laid down by the former text of section CARDINAL as to the commission of the act of propaganda in question . It also imposed a lighter custodial sentence for that offence , but increased the fines . In a transitional provision , PERSON no . ORG also provided for an ex officio re - examination of earlier convictions imposed under section CARDINAL ( see paragraph CARDINAL below ) .

Mr Erdoğdu applied to ORG for a reexamination of his case on the merits . In his pleadings , his lawyer submitted :

“ As you know , section CARDINAL of the Prevention of Terrorism Act has been amended by PERSON no . CARDINAL ... However , since the words ' irrespective of the methods used and the intention ' ... have been repealed , the mens rea of the offence has been completely done away with , so as to fully alter the nature of the offence . The court is therefore legally obliged ... to set aside on grounds of nullity the sentence imposed on our client ... under former section CARDINAL ... there will have to be a re - trial on the basis of the new definition of the offence . ”

He continued as follows :

“ Freedom of opinion must allow individuals unrestricted access to ideas and knowledge , to not be criticised for the opinions and convictions they hold , to express them freely , either alone or with others , through various media , such as speech , the press , drawings , cinema , theatre , etc . , [ and ] to defend them , disseminate them to others and broadcast them . ... To put acts of terrorism and concepts of expression and statement of opinions in the same category is to restrict ' the free circulation of ideas ' and the right and freedom ' of people to inform themselves ' . ... What has been punished in our case is merely the ' risk of legitimising the ideas and acts of the ORG ' . No one is obliged to think in accordance with official points of view and to produce ideas which conform to them . An idea which conflicts with the concept of nation can not be considered as ' propaganda destroying the unity of the country or that of the nation ' . Furthermore , criticisms of leaders for their acts contrary to democracy and freedoms resulting from erroneous policies or proposing solutions are not acts destructive of national unity ... Proposing economic , cultural and social solutions ... and a discussion of those solutions is a natural sequitur of the most basic right of persons to think and express their opinions ... LAW expresses that fact by stipulating that the public has a right to receive and impart information . Free political debate constitutes the essence of the concept of a democratic society fully implementing the Convention . A balance has to be struck between the aims of ensuring the national security and integrity of the country and the benefit brought by the free debate of political issues . The important role of the freedom of expression in a NORP society and above all the publication by the press of information and ideas of public interest can only be secured by means of a pluralistic society underwritten by the ORG . The least satisfactory method of achieving this is by a ORG monopoly imposing a maximum restriction on the freedom of speech . ”

In its judgment of DATE , the wording of which turned out to be based on the judgment of DATE ( see paragraph CARDINAL above ) , ORG finally sentenced Mr ORG to a fine of TRL CARDINAL , which it decided to defer in accordance with section CARDINAL of Law no . CARDINAL ( see paragraph CARDINAL below ) . The court stipulated that a new judgment had thus been delivered , and ordered that execution of the previous sentence be stopped .

On DATE the applicant appealed to ORG . In his notice of appeal , in which he reserved the right to enlarge on his submissions after service of the finalised judgement , the applicant complained that ORG judgment “ was contrary to the principles both of domestic law and of international law and had been delivered without any examination of the defence ” submitted in the instant case .

While those proceedings were still pending , PERSON no . DATE was promulgated on DATE . That PERSON provided for the deferment of judgment and of execution of sentence in respect of offences committed by editors before DATE ( see paragraph CARDINAL below ) .

Having regard to that new LAW , on DATE ORG set the judgment aside and remitted the case to the lower court .

Lastly , in a judgment of DATE , ORG decided , pursuant to section CARDINAL(CARDINAL ) of PERSON no . DATE , to defer judgment against PERSON , but to proceed to delivery if , within DATE from the date of deferment , PERSON was convicted of an intentional offence in his capacity as editor , and , lastly , that the criminal proceedings against him would be discontinued if no similar conviction was made before the expiry of that DATE period .

Before Law no . CARDINAL of DATE came into force , section CARDINAL of Law no . ORG provided :

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not DATE imprisonment and a fine of from CARDINAL to MONEY .

Where the act of propaganda , deemed to be an offence for the purposes of the above paragraph , is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE . However , the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not DATE and not DATE imprisonment . ”

Since being amended by PERSON no . CARDINAL , that section reads as follows :

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not DATE imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a re - offender may not be commuted to a fine .

Where the act of propaganda , deemed to be an offence for the purposes of the first paragraph , is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE . However , the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not DATE and not DATE imprisonment .

Where the act of propaganda , deemed to be an offence for the purposes of the first paragraph , is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not DATE and not DATE imprisonment and a fine of from CARDINAL MONEY ...

The following amendment was made to PERSON no . ORG following the enactment of PERSON no . CARDINAL :

“ In DATE following the entry into force of the present PERSON , the court which has given judgment shall re - examine the case of a person convicted pursuant to LAW CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) and , in accordance with the amendment ... to section CARDINAL of PERSON no . ORG , shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections ... and CARDINAL [ ] of PERSON no . CARDINAL of DATE . ”

The following provisions are applicable to sentences in respect of offences under LAW :

“ The execution of sentences passed on those who were convicted under LAW of LAW ( Law no . CARDINAL ) or other laws as editors for offences committed before DATE shall be deferred .

The provision in the first paragraph shall also apply to editors who are already serving their sentences .

The institution of criminal proceedings or delivery of final judgments shall be deferred where no proceedings against the editor have yet been brought , or where a preliminary investigation has been commenced but criminal proceedings have not been instituted , or where the final judicial investigation has been commenced but judgment has not yet been delivered , or where the judgment has still not become final . ”

“ If an editor who has benefited under the provisions of the first paragraph of section CARDINAL is convicted as an editor for committing an intentional offence within DATE of the date of deferment , he must serve the entirety of the suspended sentence .

Where there has been a deferment , criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within DATE of the date of deferment .

Any conviction as an editor for an offence committed before DATE shall be deemed a nullity if the aforesaid period of DATE without any further conviction for an intentional offence . Similarly , if no criminal proceedings have been instituted , it shall no longer be possible to bring any , and , if any have been instituted , they shall be discontinued . ”

The relevant parts of section CARDINAL of the Execution of Sentences Act DATE provide :

“ Where a person is ... sentenced to a fine ... and/or up to DATE imprisonment ... for an offence which he has committed , execution of the sentence shall be deferred if the court considers that , having regard to his criminal record and [ his ] tendency to break the law , such deferment will suffice to deter him from reoffending . ”

Paragraphs CARDINAL and CARDINAL of LAW govern applications for rectification of judgment :

“ CARDINAL . Applications for rectification of a judgment of ORG or of ORG sitting as a full criminal court shall be admissible only where a ground relied on in the notice ... of appeal ... and/or errors or omissions affecting the judgment on the merits have not been taken into account by ORG ...

ORG alone shall have power to request rectification of a judgment . ... ”

ORG can use the remedy in question either of his own motion or at the request of the public prosecutor at the court of first instance and/or the party adversely affected by ORG judgment .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by Mr A. ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) did not appoint an agent to represent them .

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

On DATE , during the night , the applicant went into labour and was taken to the GPE NORP Training and ORG . Just after her arrival at the hospital at TIME , the doctor at the hospital examined her and informed her that the baby was suffering from a high degree of asphyxia . Thus , she had to undergo a caesarean operation . Meanwhile , her relatives carried out the necessary formalities for her stay at the hospital .

The operation started at TIME and the baby was born at TIME According to the birth card , the baby ’s weight was QUANTITY and his height was QUANTITY . When the baby was born , he was not breathing . The team of anaesthetists carried out the necessary reanimation process on the body by way of intubation but , despite many attempts , he could not be revived . The relevant hospital document showed that the baby had been suffering from respiratory distress and had consumed his faeces whilst in the mother ’s womb . The reason for death was foetal distress .

TIME after the birth , a nurse had appeared outside the operating theatre holding the corpse of a baby wrapped in a cloth and had told the applicant ’s husband that his baby had died . The corpse was taken to the hospital morgue .

On DATE , according to a document prepared DATE , the applicant was discharged from the hospital of her own free will . The authorities submitted that , upon leaving the hospital , neither the applicant nor her husband expressed their intention to take the corpse from the morgue for burial . Neither did the applicant pay the hospital expenses which were assessed at MONEY ( [ TRL ] ; MONEY [ ORG ] at the material time ) .

On DATE the hospital authorities wrote to ORG , requesting that they carry out the burial procedure .

On an unspecified date , the applicant and her husband allegedly requested the hospital authorities to hand over the corpse of the baby . In response , the authorities told them that they had waited until they had had CARDINAL or CARDINAL corpses of babies before burying them all .

On an unspecified date , the applicant and her husband applied to ORG of ORG ( PERSON ) , asking for information . On DATE the applicant ’s representative filed a complaint with ORG , requesting a preliminary investigation into the incident .

On DATE the GPE public prosecutor wrote a letter to ORG , seeking permission for the prosecution of the responsible medical staff of the hospital according to PERSON no . CARDINAL ( the PERSON on the Prosecution of Civil Servants and Public Officials ) . On DATE the Konak District Governorship instituted an investigation .

On DATE a medical expert was appointed to prepare a preliminary report . After collecting all the necessary evidence , such as the patient ’s files and the statements of all relevant persons , the expert concluded as follows : There had been CARDINAL doctors , CARDINAL anaesthetist and a midwife from the obstetrics department who had taken part in the medical procedure . A doctor named PERSON , who was mentioned by the applicant , had never worked at that particular obstetrics department . There had been no other stillbirth case on the same date and none of the babies born DATE had been exceptionally big , as alleged by the applicant .

The applicant ’s neighbours had also been heard as witnesses . ORG stated that he had driven the couple to the hospital at the request of the applicant ’s husband . DATE , he had returned to the hospital where the applicant ’s husband had told him that the baby had died and that he had seen its purple foot , but that his wife was well . Then the applicant ’s husband and ORG went to see the doctor , who told them that they could take the corpse whenever they wished . However , the applicant ’s husband had asked if the hospital authorities could carry out the burial as , financially , he was unable to do so at that stage . The doctor had said to the applicant ’s husband that the hospital could bury the corpse when there were a few more unclaimed babies who had died . The husband had accepted this . ORG added that DATE the applicant had “ escaped ” from the hospital to avoid paying the medical expenses and that she and her husband had stayed at home with the curtains closed for a while . The witness statement of PERSON , who was ORG ’s partner , was the same .

Consequently , the preliminary report of the medical expert established that the applicant and her husband had not taken delivery of the corpse , knowingly and willingly , in order to avoid the hospital and burial expenses . The corpse had been kept in the hospital morgue for longer than the statutory period ; however no claim had been made . It was then buried in the Karşıyaka Doğancay Cemetery by the authorities . Therefore , the medical staff had not committed any offence , as alleged by the applicant ; nor had they been at fault during the entire incident .

On DATE the ORG of ORG forwarded the applicant ’s petition to ORG . On DATE the applicant and her husband filed an additional petition with ORG . They claimed that they had doubts about the death of their baby , as the corpse had not been handed over to them . They requested that the grave be opened and that a DNA examination be conducted . On DATE ORG sent a letter to the GPE Governorship , accompanied by the applicant ’s petition to ORG , requesting an investigation into the applicant ’s allegation .

On DATE the Konak District Governorship , after having examined the abovementioned expert report and the file , decided that no prosecution should be brought against the medical staff of ORG of ORG . The decision concluded that , on DATE , the applicant had been given a general anaesthetic in the course of a caesarean operation . After the delivery , the medical team had carried out the necessary reanimation process on the baby , which had been unsuccessful . It further stated that there was no other stillbirth case on DATE ; nor had a live baby been swapped with a stillborn . The family had refused to take the corpse in order to avoid the hospital expenses .

The applicant challenged this decision before ORG . On DATE ORG rejected the applicant ’s appeal and upheld the decision of LOC . On DATE the applicant ’s representative was notified of this decision .


Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)

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

The applicant was born in DATE and lives in GPE .

His wife died on DATE leaving dependent children . His claim for widows’ benefits under the new scheme was made on DATE and was rejected on DATE on the ground that his wife died before DATE . The applicant applied for reconsideration and on DATE he was informed that the decision remained unchanged . This decision was confirmed by an appeal tribunal on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

On DATE the applicant was awarded Widowed ORG ’s ORG from and including DATE .

The relevant domestic law and practice are described in the ORG ’s judgment in the case of PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV .


The applicant [ Mr PERSON ] is an NORP national , born in PERSON ( GPE ) in DATE . He lives in PERSON . He was represented before the Court by Mr J .- PERSON , of FAC .

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

The applicant came to GPE with his family in DATE , when he was DATE . He lived in GPE continuously until he was deported to GPE in DATE .

In a judgment of CARDINAL DATE ORG for the Rhône département convicted the applicant of a number of offences of armed robbery , and of hostage - taking . It sentenced him to DATE imprisonment .

Following that conviction , the Minister of the ORG made an order for his deportation on DATE under section CARDINAL of PERSON and Residence ) Ordinance of DATE , as amended .

On DATE the applicant , relying , inter alia , on LAW , applied to ORG to quash the deportation order . His application was dismissed on DATE .

The applicant appealed to the ORG d’Etat . In a judgment of DATE the ORG d’Etat upheld ORG judgment . In respect of the applicant ’s allegation that there had been a violation of LAW , the ORG d’Etat ruled as follows :

“ Despite the applicant ’s claim that the order in question interfered with his private and family life , the documents in the case file show that Mr GPE , aged CARDINAL on the date of the order in question , unmarried and with no dependants , was not entirely without links with his country of origin , that country being , moreover , the one in which he had chosen to perform his military service ; under the circumstances , and having regard to the seriousness of the offences committed by the appellant , the measure in question did not exceed what was necessary to preserve public order and did not breach the provisions of LAW ; ”