Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens

The applicant was born in DATE and lives in GPE . He is a violoncello player and has been diagnosed as having a psycho - social disability . At the material time he weighed QUANTITY and was QUANTITY tall . In the past , he has been treated in NORP psychiatric hospitals as a voluntary patient . At the time of the events at issue , he was using ORG , a calming psychiatric medication prescribed to him by his psychiatrist .

On DATE the applicant inadvertently overdosed on ORG . In TIME , he left his flat and went to buy some food . Being under the influence of the medication , he did not notice that he was wearing only a sweater , but no trousers or underwear . On the way he was stopped by a police patrol that assumed that he was a drug addict and called an ambulance , which took him to ORG . The record drawn up by the ambulance staff states that the applicant was receiving psychiatric treatment and that he was calm during transport .

At the hospital he was examined by PERSON , who did not find any injuries on the applicant ’s body and sent him to the sobering - up centre in the same hospital at TIME The applicant was calm during the medical examination . In the sobering - up centre he was again examined by PERSON , who confirmed that there were no injuries on the applicant ’s body when he was admitted to the centre .

On DATE at TIME the applicant was transferred to ORG where , according to the admission record , he had visible abrasions on the front of his neck , both wrists and both ankles , caused probably by friction against textile , and abrasions of an unspecified different type on his knees . He complained about his treatment in the sobering - up centre to the hospital authorities , but they did not take any action .

On DATE the applicant was examined by a neurologist , who stated that as a result of the use of straps the applicant suffered severe paresis of the left arm and medium to severe paresis of the right arm . He began a course of intensive treatment at ORG .

The applicant remained in the hospital involuntarily until released on CARDINAL DATE .

NORP However , because of his DATE hospitalisation , he was confused and was not able to fully take care of himself . He voluntarily returned to the hospital on DATE and remained there until DATE .

The following facts are disputed by the parties .

According to the applicant , at TIME on DATE he was strapped to a bed with leather straps around his wrists , knees and ankles by CARDINAL male nurses , Mr M. and PERSON While strapping him , they kneeled on his chest and verbally abused him . He remained strapped for the whole night , until TIME The staff did not check up on him during that time . As the straps were too tight , he struggled to breathe and as a result of insufficient blood circulation the nerves in his arms were damaged .

According to the Government the applicant was strapped to a bed for CARDINAL intervals , namely , from TIME to TIME , TIME to TIME and TIME to TIME

They submitted a record from the sobering - up centre containing the following information . When brought to the centre the applicant was intoxicated and was put to bed . He was unstrapped at TIME At TIME he attacked a nurse and was strapped again . Checks were carried out . The applicant was restless . At TIME he was checked on and again strapped . The record noted that he showed destructive behaviour . He was released at TIME and sent to the psychiatric hospital .

The version of the record submitted by the applicant and obtained from his medical files contains less information . The information about the release of the applicant at TIME is illegible . According to the Government , the version submitted by the applicant was an incomplete version sent to the psychiatric hospital as an accompanying document .

On DATE the hospital informed ORG ( městský soud ) that the applicant had been detained because he showed signs of a mental illness and was a danger to himself and his surroundings . He was described as –“restless , aggressive and suspected of intoxication by psycho - stimulants ” .

On DATE the court began reviewing the lawfulness of the applicant ’s involuntary admission under Article CARDINALb of the Code of Civil Procedure . At the same time , it appointed an attorney , PERSON , to represent the applicant in the proceedings . On DATE a court employee visited the hospital and questioned the applicant ’s treating doctor , PERSON , in the absence of the applicant and his representative . PERSON testified that the applicant had been admitted to the hospital due to his confusion , restlessness and inappropriate behaviour and that he had been intoxicated when admitted . He further stated that the applicant was only partly able to understand the proceedings . The court employee did not question or even see the applicant because PERSON told her that contact with him “ would not be entirely beneficial ” .

On DATE and without any further evidence the court ruled that the applicant ’s involuntary admission had been lawful because he suffered from an illness that made him dangerous to himself and his surroundings . The decision was served on the applicant ’s representative only . The latter did not take part in the proceedings , not being aware of them as the decision on her appointment was sent to her together with the decision on the merits . The applicant never saw her during his detention .

After his release in DATE , the applicant contacted a local office of ORG ( “ the LAW ” ) . On DATE an ORG lawyer lodged an appeal on his behalf , applying at the same time for a waiver of the deadline for lodging the appeal .

On DATE ORG granted the waiver . However , on DATE , ORG ( krajský soud ) , terminated the appeal proceedings without deciding on the merits . It stated that the applicant had been released on DATE , that on CARDINAL DATE ORG had stayed the proceedings on the applicant ’s continuing detention and that , therefore , the court did not have the authority to deal with the case .

In the meantime , on DATE , the applicant lodged an action for nullity ( žaloba pro zmatečnost ) under LAW ) of LAW seeking to have ORG decision of DATE quashed on the ground that he had been denied the right to participate in the proceedings and had not been properly represented . On DATE ORG dismissed the applicant ’s action , finding , inter alia , that PERSON had not been wholly inactive , referring to a letter of CARDINAL DATE by which she had allegedly tried to establish contact with the applicant , but which , according to the applicant , had never been delivered to him . On DATE ORG upheld the decision .

On DATE the applicant lodged a constitutional appeal challenging the decision of DATE and alleging a violation of his rights to liberty , a fair trial and an effective remedy because ORG had failed to rule on the merits of his appeal and thus the legality of his detention in the psychiatric hospital .

On DATE ORG ( PERSON ) dismissed his appeal on the grounds that he had not exhausted all available remedies . It held that the applicant should have lodged a plea of nullity under LAW against the DATE decision of ORG .

After ruling on the lawfulness of the applicant ’s involuntary admission to the hospital , ORG continued proceedings under LAW PERSON of LAW to review the lawfulness of the applicant ’s continuing detention . On DATE a forensic psychiatric expert was appointed for these purposes . On CARDINAL DATE the court terminated the proceedings without deciding on the merits , the applicant having been released in the meantime .

On DATE the applicant filed a criminal complaint concerning the measure of restraint applied to him and alleged ill - treatment on the night from DATE in the sobering - up centre of the psychiatric hospital .

He was questioned by the police on DATE and gave a full account of the events . The police then questioned numerous other persons .

The male nurses on duty , Mr DATE , did not recall the applicant at all and were not able to provide any specific information about him . Mr. PERSON noted that during DATE checks had been always carried out in accordance with the instructions of the psychiatric hospital management .

The third nurse on duty that night , PERSON , stated that the applicant had been strapped to the bed because he had been restless and intoxicated by an unknown substance and had refused to undergo a blood test to identify the substance . She admitted that it was possible that regular checks TIME might not have been performed due to the high number of patients at the centre that night . She also alleged that the applicant had attacked a male nurse at TIME but she could not remember who exactly .

PERSON , who had been on duty at the sobering - up centre that night , confirmed that the applicant had had no injuries when he had been admitted . He noted that the applicant had been strapped to the bed due to his restlessness but that he and other staff had duly checked on him .

Nurse P. recalled that while she was taking over patients from PERSON at TIME , the applicant ’s arms and legs had been strapped . They had tried releasing the straps one by CARDINAL but because he defended himself each time a limb was released he was strapped again .

In his report of DATE commissioned by the police , a forensic expert , PERSON , stated that the applicant had suffered bilateral severe paresis of the elbow nerves as a result of compression of the nerves and blood vessels . He confirmed that these injuries corresponded to the cause as described by the applicant . According to him , the injury on the applicant ’s left arm limited his ability to play the violoncello . He concluded that the injury would have a long - lasting effect which was unlikely to be permanent .

On DATE ORG ( městské ředitelství policie ) terminated the criminal proceedings , finding that no criminal offence had been committed regarding the applicant ’s strapping on TIME to CARDINAL DATE . It held that the applicant had suffered the injuries partly as a result of the staff ’s failure to check on him regularly but that the extent of the guilt of individual suspects could not be determined . It also held that the injuries had almost healed and that the applicant was partly responsible for them .

The applicant appealed , disputing the conclusions of the police , and requested that the doctors and nurses give evidence again .

On DATE ORG ( městské státní zastupitelství ) dismissed the applicant ’s appeal . Without examining any additional evidence it stated that the strapping of the applicant on account of his aggressive behaviour at the time of his admission to the sobering - up centre had been in compliance with the law and the hospital ’s internal rules and he had been checked on TIME . The applicant had been strapped from TIME to TIME , from TIME to TIME and from TIME

The applicant lodged a constitutional appeal claiming a violation of ORG CARDINAL , CARDINAL § DATE and CARDINAL of the Convention . He alleged that the investigation had not been effective because , inter alia , he had not been allowed to be present during the questioning of witnesses and put questions to them .

On DATE ORG dismissed his constitutional appeal as manifestly ill - founded . It held that there was no right to have a third person prosecuted so the applicant could claim his rights only in civil proceedings for damages and protection of his personality rights ( ochrana osobnosti ) . It further found no violation of procedural obligations as developed by ORG under LAW . It noted that the police had conducted a number of interviews and examined other evidence and that the investigation had also been independent and prompt . Lastly , it held that it had no jurisdiction to rule on the ill - treatment in the hospital because that was an instantaneous act , whereas it could only rule on interference with rights that was ongoing and that could be remedied by a decision on its part .

On DATE the applicant instituted proceedings for protection of his personality rights against ORG , claiming a violation of his right to liberty , inhuman treatment and interference with his health and physical integrity .

On DATE ORG rejected his claim , holding that the applicant ’s internment in the sobering - up centre and the use of restraints had been necessary for his own protection and that of his surroundings .

The applicant appealed and the proceedings are pending .

Under Article CARDINALa a health - care facility that admits a patient against his or her will must inform the competent court within TIME .

Under Article CARDINAL § CARDINAL a court has to review the lawfulness of an involuntary admission to a health - care facility within DATE . Article CARDINALb § CARDINAL provides that the patient has a right to be represented by counsel of his or her own choosing . If he or she does not have counsel , the court shall appoint him or her an attorney . In accordance with Article CARDINALb § CARDINAL , the court shall assess evidence , hear the detained person , his or her treating doctor and other persons at the detained person ’s request unless it considers it unnecessary .

Under Article CARDINAL an appeal can be lodged against a decision taken under Article PERSON , but does not have a suspensive effect . The health - care facility can release the patient even if a court has declared that the involuntary admission was lawful .

Article CARDINALd § CARDINAL provides that if the court finds that the admission was lawful , it shall continue to review the lawfulness of the continued confinement . Pursuant to paragraph CARDINAL , the court shall appoint an expert to assess the necessity of the confinement . That expert must not be working in the health - care facility where the person is detained . In accordance with paragraph CARDINAL the court shall hold a hearing and summon the patient and his or her counsel ( provided that according to the treating doctor or written expert opinion the patient is able to follow and understand the meaning of the proceedings ) . At the hearing , the court shall hear the expert , the treating doctor if needed and the patient and assess any other relevant evidence . Its decision must be issued DATE from the decision by which the admission to the health care facility was approved .

Under Article PERSON the patient , his or her counsel , guardian and other persons close to him may , before the expiration of the time for which his or her admission to the health - care facility was approved , request a new medical examination and release , if there is a reasoned presumption that continued confinement is not necessary .

Under LAW ) a final court decision may be challenged by an action for nullity on the ground that a party to the proceedings lacked legal capacity to act or could not attend the court and was not properly represented . LAW provides that an action for nullity may also be lodged against a final decision of an appellate court by which an appeal was dismissed or the appellate proceedings were terminated .

Under section CARDINAL(CARDINAL)(b ) a person can be involuntarily hospitalised if he shows signs of a mental illness and is a danger to himself or his surroundings .

Section CARDINAL(CARDINAL ) defines an alcohol and drug sobering - up centre as a health - care facility established by a regional self - governing unit .

Section CARDINAL(CARDINAL ) stipulates that should a health - care facility find that a person ’s life is not endangered by failure of basic vital functions but that he or she is under the influence of alcohol or another drug and can not control his or her behaviour , thereby directly endangering him or herself or other persons , public order or property , or is causing public annoyance , that person shall undergo treatment and stay at the sobering - up centre for however long is necessary for the acute intoxication to subside .

This guideline stipulates , inter alia , the following :

“ The use of measures of restraint must be considered as a last resort in cases when it is necessary for the protection of the patient , other patients , the patient ’s surroundings and staff of psychiatric facilities . They may be used only after all other possibilities have been exhausted . Any decision to restrain the patient must be sufficiently grounded . Restraint can not be used to facilitate treatment or to deal with a restless patient . Potential causes of problematic behaviour , for example , pain , discomfort , side effects of medicinal products , stress , interpersonal problems between the caregivers and the patient , or other illnesses must always be identified . The use of measures of restraint is justified only if a removable cause of the patient ’s behaviour can not be found or in situations when the risk arising from the patient ’s behaviour is unacceptably high . The benefit of the use of restraining means must outweigh the risks ...

Measures of restraint can be used only exceptionally and only when the patient behaves in a way which endangers himself and his surroundings , and not on an educational or corrective basis . In the case of each individual patient it is necessary to use the most gentle and appropriate means of restraint ...

A patient restrained by these means shall be checked on on a regular basis , intervals between the checks shall be specified , provisions shall be put in place to prevent the patient hurting himself or suffering from dehydration , malnutrition , hypothermia and pressure ulcers , and to allow for personal hygiene . Measures of restraint should be used for the shortest time possible , and during checks the need for the measures and the possibility of using less restraint should be reassessed ...

The doctor shall decide on the use of measures of restraint , and make a record that shall always include : the name of the person who ordered the measure of restraint , the type of restraint used , the reason for using it , the time when restraint was employed and the time when it ended , the frequency of checks by the medical staff and the doctor , a description of the person ’s physical and mental condition ... A member of the medical staff shall inform the doctor of any change in the patient ’s symptoms . The record on the use of restraint shall be subsequently signed by the head doctor during the ward round . ”

In its section on the use of restraints the Guidelines contain similar principles as the above - mentioned Guideline no . CARDINAL/CARDINAL of ORG . In particular they state that mechanical restraints should be used only as a matter of last resort . Strapping to a bed should be applied only in cases of serious manifestations of distress endangering surroundings , auto - aggressive manifestations with immediate risk of selfharm or suicide or conditions that will with the highest probability result in these manifestations .

They also state that all circumstances connected with the use of restraints must be transparently and clearly documented . Every use of restraints must be recorded in a concrete way , including , inter alia , the time when the restraints were applied and removed and checks on the patient .

On DATE ORG adopted an opinion on this matter , because the courts had not been dealing with cases concerning proceedings to decide on the lawfulness of admission to a health - care facility ( Article PERSON of LAW ) and continuing confinement therein ( LAW PERSON of LAW ) in a uniform manner .

It held , inter alia , that if the detained person is released there are no more reasons for continuing the proceedings either under Article PERSON or ORG and both should be discontinued .

The ORG , drawn up by ORG of ORG , are largely considered to contain rules of customary international law . They stipulate , inter alia , the following possibilities of attribution of a conduct to a ORG :

“ CARDINAL . The conduct of any ORG organ shall be considered an act of that ORG under international law , whether the organ exercises legislative , executive , judicial or any other functions , whatever position it holds in the organization of the ORG , and whatever its character as an organ of the central Government or of a territorial unit of the ORG .

An organ includes any person or entity which has that status in accordance with the internal law of the ORG . ”

“ The conduct of a person or entity which is not an organ of the ORG under article CARDINAL but which is empowered by the law of that ORG to exercise elements of the governmental authority shall be considered an act of the ORG under international law , provided the person or entity is acting in that capacity in the particular instance . ”

In its commentary to LAW explained that the rule dealt with situations when entities which were not considered organs of a ORG exercised functions of a public character normally exercised by ORG organs , and the conduct of the entity was related to the exercise of the governmental authority concerned . It gave the power of detention as an example of such a public function .

Article CARDINAL , entitled “ ORG and restraint ” stipulates :

“ CARDINAL . Seclusion or restraint should only be used in appropriate facilities , and in compliance with the principle of least restriction , to prevent imminent harm to the person concerned or others , and in proportion to the risks entailed .

Such measures should only be used under medical supervision , and should be appropriately documented .

NORP In addition :

i. the person subject to seclusion or restraint should be regularly monitored ;

ii . the reasons for , and duration of , such measures should be recorded in the person ’s medical records and in a register .

This Article does not apply to momentary restraint . ”

NORP The ORG standards contain the following rules on restraining patients in psychiatric establishments :

“ Involuntary placement in psychiatric establishments Extract from the CARDINALth ORG [ ORG ( CARDINAL ) CARDINAL ]

In any psychiatric establishment , the restraint of agitated and/or violent patients may on occasion be necessary . This is an area of particular concern to the ORG , given the potential for abuse and ill - treatment .

The restraint of patients should be the subject of a clearly - defined policy . That policy should make clear that initial attempts to restrain agitated or violent patients should , as far as possible , be non - physical ( e.g. verbal instruction ) and that where physical restraint is necessary , it should in principle be limited to manual control .

Staff in psychiatric establishments should receive training in both non - physical and manual control techniques vis - à - vis agitated or violent patients . The possession of such skills will enable staff to choose the most appropriate response when confronted by difficult situations , thereby significantly reducing the risk of injuries to patients and staff .

Resort to instruments of physical restraint ( straps , strait - jackets , etc . ) shall only very rarely be justified and must always be either expressly ordered by a doctor or immediately brought to the attention of a doctor with a view to seeking his approval . If , exceptionally , recourse is had to instruments of physical restraint , they should be removed at the earliest opportunity ; they should never be applied , or their application prolonged , as a punishment ...

Every instance of the physical restraint of a patient ( manual control , use of instruments of physical restraint , seclusion ) should be recorded in a specific register established for this purpose ( as well as in the ORG

This will greatly facilitate both the management of such incidents and the oversight of the extent of their occurrence . ”

“ Means of restraint in psychiatric establishments for adults Extract from DATE ORG [ ORG ( DATE ) CARDINAL ]

As a general rule , a patient should only be restrained as a measure of last resort ; an extreme action applied in order to prevent imminent injury or to reduce acute agitation and/or violence ...

Experience has shown that detailed and accurate recording of instances of restraint can provide hospital management with an oversight of the extent of their occurrence and enable measures to be taken , where appropriate , to reduce their incidence .

Preferably , a specific register should be established to record all instances of recourse to means of restraint . This would be in addition to the records contained within the patient’ ”

“ CARDINAL . At FAC ... [ t]he restraints would be applied either on the patient ’s own bed or in a separate room close to the nurses’ office . A protocol on the use of immobilisation was in force , but the protocol does not mention the surveillance intervals ; it appears that the hospital staff had adopted a practice to monitoring an immobilised patient TIME .

The delegation was pleased to note that registers recording the use of restraints had been introduced on the wards of ORG , thus meeting a longstanding ORG recommendation . However , the delegation found that the entries were not always meticulously kept ; the release time and , on occasion , the moment of application of the immobilisation were not recorded .

As indicated above ( cf . paragraph CARDINAL ) , in the ORG ’s view , patients who are immobilised should always be subject to continuous , direct personal supervision by a member of staff . However , the delegation was told that a pilot project on ward CARDINAL to have patients accompanied by a member of staff for the full duration of the immobilisation had failed due to a lack of staff . Nevertheless the ORG considers that hospital management should ensure the permanent presence of a staff member whenever a patient is immobilised .

The ORG recommends that in ORG :

- the register on restraints clearly records the duration of the measure , as well as all other events that occur during the period of restraint ;

- the protocol on restraints be amended in order to include a paragraph on supervision of an immobilised patient .

Further , the ORG recommends that all patients who are immobilised are always subject to continuous , direct personal supervision by a member of staff . ”


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-2;Violation of Art. 5-1-f;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

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

On DATE the applicant ’s passport and luggage were stolen in GPE when she was on her way back to GPE from a journey in GPE . After the NORP police had provided her with a document certifying that she had declared the theft , she continued her trip via GPE and GPE .

On DATE the NORP border police refused the applicant leave to enter GPE and sent her back to the NORP border police ; on DATE , ORG Bezirkshauptmannschaft ) ordered her detention with a view to her expulsion pursuant to section CARDINAL(CARDINAL ) of LAW DATE ( PERSON DATE ) . The reasoning read as follows :

“ You entered NORP territory , coming from GPE , at TIME on DATE at DATE PERSON ( marker stone DATE ) , circumventing border controls and without being in possession of a valid travel document and stamp . On DATE at TIME you were apprehended by border control officials .

Your entry into and stay in GPE are therefore illegal . You do not have any fixed accommodation in GPE , nor do you have sufficient funds to finance your stay .

The Neusiedl / See District Administrative Authority has instituted proceedings for your deportation with a view to your expulsion from the country .

In view of the foregoing there is reason to fear that , if released , you would abscond and seek to evade the proceedings . ”

The order for the applicant ’s detention with a view to her expulsion ( PERSON ) , issued in NORP and consisting of CARDINAL pages , included instructions as to available remedies ( PERSON ) , referring in particular to a complaint to ORG ( Unabhängiger Verwaltungssenat ) against the lawfulness of the order , arrest or detention . It was handed to the applicant at TIME together with CARDINAL information sheets in NORP .

Information sheet I read as follows :

“ Section A

You are hereby informed that you have been arrested by law - enforcement officers ( federal police / customs officers / NORP federal army ) in accordance with section CARDINAL ) of LAW because you entered GPE without reporting to ORG and were apprehended immediately afterwards .

You are entitled to have a relative or other person close to you advised of your arrest , at your request , without unnecessary delay and according to your choice . In addition , the consular representation of your country of nationality will be immediately informed of your detention .

You will be immediately brought before the authority responsible , namely the ORG am ORG , which will issue the subsequent orders .

Section B

I ... ( Name ) ... ( Date of birth ) ... , would like the following person to be advised of my arrest : ...

Would you like your consular representation in GPE to be informed of your arrest ? Yes O No O

By signing , I also confirm receipt of information sheet I.

( Signature ) ”

The applicant filled in the form , asking that Mr PERSON [ full name ] , whose address and telephone number she indicated , be informed of her arrest , and ticked the box indicating that she wished the consular representation to be informed of her arrest . The applicant duly signed the form .

Information sheet II read as follows :

“ Section A

( CARDINAL ) You are informed that the ORG am See ORG have , in accordance with section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW , ordered your detention pending deportation as being necessary to secure your expulsion or deportation to your country of nationality .

Aliens , that is to say , persons who are not NORP citizens , may , according to section CARDINAL(CARDINAL)(CARDINAL ) of LAW , be required to return to a foreign country if they have entered GPE without reporting to ORG and have been apprehended within DATE .

According to section CARDINAL(CARDINAL)(CARDINAL ) , aliens may , in the interest of public order , be expelled on the basis of an order if they have entered GPE without reporting to ORG and have been apprehended within DATE .

In your case , you were arrested by law - enforcement officers on DATE at TIME after entering federal territory in the ... local administrative area on DATE at ... CARDINAL without reporting to ORG , and therefore illegally .

( CARDINAL ) You are entitled to appeal to ORG ( ‘ UVS’ – Unabhängiger Verwaltungssenat ) of GPE , alleging the unlawfulness of the order for your detention pending deportation , your arrest or your detention . This appeal can be addressed to ORG , ORG , CARDINAL ORG or to ORG / See , Eisenstädterstr . CARDINAL , CARDINAL ORG am See ( designation and address of ORG ) .

Please mark the envelope ‘ UVS - Beschwerde’ ( ‘ UVS Appeal’ ) .

( CARDINAL ) If you have not taken part in the determination of your identity and nationality to the required extent or if the approval necessary for entry has not been given by another country , detention pending deportation can last for DATE if earlier deportation is not possible for these reasons .

Therefore it is above all in your interest to declare any identity papers which may have been handed over to other persons or hidden or thrown away in GPE , in particular travel documents , or to have them sent by your relatives from your country of nationality . Your participation in the determination of your identity by your representation office can also considerably shorten your detention pending deportation .

( CARDINAL ) If you have further questions you can also address them in writing to ORG / See , Eisenstädterstr . CARDINAL , CARDINAL ORG am See ( designation and address of ORG ) .

Section B

( CARDINAL ) Can you contribute to the determination of your identity ? Yes O No O

( CARDINAL ) Furthermore , I confirm by this signature the receipt of information sheet NORP dated ...

( Signature ) ”

The applicant ticked the box stating that she could contribute to the determination of her identity , and signed the information sheet confirming that she had received it on DATE .

That evening she was transferred to the GPE police detention centre , where she was issued with a leaflet in NORP informing her of her rights as a detainee ( NORP für Festgenommene ) , including the maximum length of police detention , the right to consult a lawyer , the right to inform a person close to her and the consulate , the right to obtain medical care , and her rights during questioning . She also received and signed an information sheet concerning assistance for persons in detention pending deportation ( Information über die LOC ) in NORP and ticked the box for requesting such assistance . She also received a short version of the internal prison rules .

According to the applicant , she then requested a lawyer and an interpreter in order to be informed of the reasons for her arrest . She alleged that her request had been ignored . In the ORG ’s view these submissions were misleading since the relevant information had been provided to the applicant through information sheets I and II .

On DATE the Neusiedl / See District Administrative Authority requested the NORP embassy in GPE to issue a provisional travel document for the applicant ’s return and to do so speedily , given the applicant ’s detention with a view to her expulsion . This letter was dispatched and sent by registered post on DATE and arrived at the NORP embassy on DATE .

Also on DATE the applicant called the NORP embassy in GPE , which promised to issue her with a provisional travel document by DATE . This did not happen , even after CARDINAL more phone calls by her to that effect .

On DATE the applicant was questioned at the GPE police detention centre in the presence of an interpreter , for the purpose of issuing an expulsion order . TIME of this interview were prepared in NORP . According to the minutes the interpreter translated into NORP the decision of CARDINAL DATE ordering the applicant ’s detention with a view to her expulsion .

The applicant submitted that it was only then that she had learnt for the first time that she was going to be expelled from GPE . The Government contested this statement as being incorrect in the light of the above submissions concerning information sheet II , which had been handed to the applicant on DATE .

On DATE the Neusiedl / See District Administrative Authority issued a deportation order ( ORG ) against the applicant . The order was transmitted by fax to the FAC police detention centre and handed to the applicant on DATE .

On DATE the NORP embassy in GPE issued a provisional travel document , valid from DATE until DATE , which was received by ORG on DATE . This document was transmitted to ORG on DATE and from there immediately to the GPE police detention centre .

On DATE the GPE - GPE liaison office ( Kontaktbüro ) examined whether the applicant was prohibited from entering GPE .

On DATE she was expelled by train from GPE via GPE to GPE .

At the material time , the relevant provisions governing the arrest and detention of aliens with a view to their expulsion and remedies against such arrest and detention were contained in LAW ( Fremdengesetz DATE ) , which entered into force on DATE .

Section CARDINAL governed detention with a view to expulsion . In so far as relevant , it provided :

“ ( CARDINAL ) An alien may be arrested and detained ( detention with a view to expulsion ) where this is necessary in order to secure the conduct of the procedure for issuing an exclusion order or an expulsion order until it becomes enforceable , or in order to secure his or her expulsion , removal or transit . ...

( CARDINAL ) Detention with a view to expulsion shall be based on an order . ...

( CARDINAL ) The decision to detain a person with a view to his or her expulsion shall be amenable to appeal under LAW . ”

Section CARDINAL concerned the arrest of aliens . In so far as relevant , it provided :

“ ( CARDINAL ) The law - enforcement agencies shall be empowered to arrest an alien :

NORP who is apprehended within DATE of entering the country , if he or she has entered the country by circumventing the border controls . ... ”

Section CARDINAL dealt with less intrusive measures :

“ ( CARDINAL ) The authorities may refrain from detaining a person with a view to his or her expulsion if they have reason to believe that the same purpose can be achieved by means of less stringent measures . ...

( CARDINAL ) Less stringent measures shall take the form in particular of an order to reside in accommodation designated by the authorities . Less stringent measures shall be implemented only if the alien concerned agrees to the collection of personal identification data , ...

( CARDINAL ) Following collection of his or her personal identification data , the alien concerned shall reside in the accommodation designated by the authorities and shall report DATE to a police station designated for the purpose . ... ”

The provisions referred to in the CARDINAL information sheets ( see paragraphs CARDINAL above ) were the relevant provisions of LAW DATE , which was in force prior to DATE . Sections CARDINAL(CARDINAL)(CARDINAL ) and CARDINAL(CARDINAL)(CARDINAL ) governed the right to expel aliens who had entered GPE illegally by circumventing border controls . Section CARDINAL(CARDINAL)(CARDINAL ) concerned the arrest of aliens who had been apprehended within DATE of circumventing border controls , and section CARDINAL concerned detention with a view to expulsion .

Section CARDINAL of LAW DATE , in so far as relevant , provided :

“ ( CARDINAL ) Persons arrested under section CARDINAL or who have been or are being detained on the basis of LAW , shall have the right to apply to ORG alleging the unlawful nature of the order for their detention with a view to expulsion , or of their arrest or detention . ”

Section CARDINAL of the Act , in so far as relevant , provided :

“ ( CARDINAL ) ORG within whose judicial district the applicant was arrested shall be competent to deal with the application .

( CARDINAL ) ...

ORG shall give a decision on the alien ’s continuing detention with a view to expulsion within DATE , unless the alien ’s detention ends sooner .

( CARDINAL ) If the alien concerned remains in detention , ORG must in any event determine whether at the time of its decision the conditions for his or her continuing detention with a view to expulsion are met . ... ”

Decisions given by ORG may be challenged before ORG ) and ORG ( Verwaltungsgerichtshof ) .


The applicants are a couple . They are farmers residing in GPE , GPE . In the proceedings before the ORG they are represented by Mr. PERSON , a lawyer practising in PERSON .

On DATE ORG ) issued a decree ( Verordnung ) under LAW ( NORP ) declaring that parts of the applicants’ land fell within the danger zone ( PERSON ) of the NORP ammunition depot . It appears that certain restrictions on the use of the property at issue follow from such a declaration .

On DATE the applicants lodged a request for compensation with ORG ( Bezirksgericht ) .

On DATE ORG issued a second decree including CARDINAL further plots of land belonging to the applicants in the danger zone of the GPE ammunition depot . The decree entered into force on DATE .

On DATE the applicants , represented by counsel , specified their compensation claim as regards the plots of land affected by the DATE decree and extended their claim as regards the plots of land affected by the DATE decree .

On DATE ORG dismissed the applicants’ compensation claim as regards damages resulting from the DATE decree as well as regards damages resulting from the DATE decree . Referring to the relevant provisions of LAW , the court noted that anyone claiming damages resulting from a decree under LAW had to file a request for compensation within DATE of the entry into force of the respective decree . As to the DATE decree , the applicants had filed their compensation claim within the time - limit . However , they had implicitly waived their right to compensation as they had not pursued their claim for DATE . As to the DATE decree , the applicants had only filed their request on CARDINAL DATE . The court noted that the applicants had claimed to have made a supplementary request when lodging their first claim , in which they requested the court to take any changes of the danger zone into account and to take any necessary steps to compensate them for future damages . The court explicitly noted that it was irrelevant whether or not the applicants had filed the said supplementary request . Even if it had been made as claimed by the applicants , it did not fulfil the requirements of a compensation claim as is did not specify the plots of land concerned and the amount of compensation requested . The applicants had only made these submissions on CARDINAL DATE , i.e. outside DATE time - limit .

On DATE ORG ( PERSON ) upheld ORG decision as regards the refusal of compensation for damages resulting from the DATE decree . However , it quashed the said decision as regards the refusal of damages resulting from the DATE decree and referred the case back to ORG . Subsequently , the applicants were granted compensation in this respect .

On DATE ORG ( Oberster Gerichtshof ) dismissed the ORG appeal on points of law . Referring to the relevant provisions of LAW , it noted that the claim to compensation only arises once the respective decree is issued . Thus , even assuming that the applicants had in DATE filed a supplementary request relating to possible future damages , such a request was inadmissible . As the applicants failed to specify their compensation claim within DATE of the entry into force of the DATE decree , their request was out of time and had to be rejected .


Remainder inadmissible;Violation of Art. 3 (in case of deportation to Iran);Violation of Art. 5-1;Violation of Art. 5-4;No violation of Art. 3 (substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in DATE and is currently held in the ORG Admission and ORG , in GPE .

NORP The applicant first entered GPE on DATE using a false passport . She began living and working in GPE without informing the NORP authorities or the ORG High Commissioner for Refugees ( “ the ORG ” ) .

On DATE the applicant applied to the ORG and asked to be recognised as a refugee . On an unspecified date in DATE she was detained by the NORP authorities and deported to GPE , where she claims to have been imprisoned for DATE and subjected to illtreatment .

Following her release from prison in GPE , the applicant reentered GPE illegally on DATE . She learned that her case before the ORG had been closed in her absence .

In DATE the applicant was diagnosed with myomatosis of the uterus and operated in a private hospital on DATE . The medical reports , in particular the pathology results , revealed that there were no cancerous cells .

In the meantime , she became interested in NORP and began attending Bible classes . On DATE the applicant was baptised in a NORP church in GPE . On an unspecified date the applicant 's son , who was attending ORG in GPE , was expelled on the ground of “ conduct against the school 's faith ” . Some time within DATE of that incident the applicant applied to ORG in GPE for a passport . While there , she was asked to complete a form stating that she was a NORP .

On an unspecified date at DATE , the applicant applied to the ORG and requested that her case be re - examined .

On DATE the applicant went to the LOC police headquarters in GPE in order to make statements as a witness regarding a criminal offence committed by third persons . As she was found to have identity documents with different names on them , an investigation was initiated into this and she was arrested . On an unspecified date she was released .

On DATE the applicant was rearrested on suspicion of infringement of visa requirements and forging official documents . According to a letter sent by the GPE police to the GPE responsible for foreigners , borders and asylum attached to ORG on DATE , the applicant had stated that she did not wish to live in GPE and that she had come to GPE in order to apply to the ORG . The same letter stated that the applicant had been placed in ORG of the GPE police headquarters with a view to her deportation from GPE .

On DATE the director of the department responsible for foreigners , borders and asylum attached to the ORG requested the GPE police headquarters to obtain statements from the applicant regarding a number of issues , including her failure to apply to the NORP authorities when she had applied to the ORG , the reason why she had made multiple entries and exits between GPE and GPE and why she was staying illegally in GPE . The director also requested that the possible security risks that the applicant may pose in GPE be determined .

On DATE the applicant sent another letter to ORG . Referring to her medical condition , she requested urgent treatment and asked to be released and issued with a temporary residence permit pending the proceedings before the ORG and the ORG .

On DATE the applicant was questioned by a police officer at the GPE police headquarters . She maintained , inter alia , that she had initially entered GPE with a false passport and that she had been deported to GPE where she had spent DATE in prison . She contended that when she re - entered NORP territory on DATE she had immediately re - applied to the ORG . She noted that she was against the present government in GPE and that she and her family members had been oppressed when they lived in GPE . The applicant mentioned that she had left and reentered NORP territory as that was the only way to renew her visa . She further contended that she had not applied to the NORP authorities earlier as her case had been closed by the ORG .

On DATE the applicant 's statements were sent to ORG by the GPE police .

On DATE and DATE and DATE , the applicant 's representative lodged petitions with ORG and requested that his client be released and given a residence permit pending the outcome of her application to the ORG .

By a letter dated DATE , the deputy director of the GPE police headquarters informed the GPE police headquarters that the applicant did not wish to return to her country , but wished to seek asylum , and had applied to ORG . The director reiterated that she had been held in the GPE police headquarters with a view to her deportation . He further maintained that the applicant should be held in the GPE Foreigners ' Admission and ORG pending the outcome of the proceedings before the ORG . On DATE the applicant was transferred to that facility .

On DATE ORG informed the applicant that her case before the NORP authorities was suspended pending the proceedings before the ORG .

On DATE the applicant and her son were recognised as refugees , under the ORG 's mandate , on religious grounds .

On DATE the applicant 's representative lodged a case with ORG . He requested the court to annul the decision of the Ministry not to release his client and to order a stay of execution of that decision pending the proceedings .

On CARDINAL DATE ORG rejected the applicant 's request for a stay of execution .

The applicant 's representative appealed . On DATE ORG dismissed the appeal .

In his submissions to the ORG dated DATE the applicant 's representative contended that , although the applicant was suffering from serious consequences of the operation she underwent in DATE , she did not have access to a doctor in the Kırklareli Foreigners ' Admission and ORG . On DATE he informed the ORG that the applicant had been examined by a doctor , who had ordered a further medical examination . Despite this , ORG did not authorise a further examination and the applicant 's health was deteriorating .

On DATE the applicant , with CARDINAL other persons , started a “ fast to the death ” to protest about her placement and the physical conditions in the LOC .

Before the ORG , the applicant maintained that the physical conditions in the ORG were below the minimum standards set by ORG for the Prevention of Torture ( the “ CPT ” ) . In support of her submissions the applicant provided a number of photographs containing images of several parts of the Centre . In CARDINAL room there were CARDINAL bunk beds on which there were pillows and blankets . There was no bed linen on the beds . In another room there were QUANTITY beds with bed linen , pillows and blankets . The photographs of the kitchen sinks and stoves showed that the latter were unusable . Another photograph showed that there were CARDINAL sinks in the bathroom . Inside , the toilets were partially covered with some kind of dark substance . Photographs of the cleaning products that had labels in the LANGUAGE alphabet showed that their dates had expired DATE .

The applicant finally alleged that the officers who worked at the ORG did not treat the detainees well . In particular , she had been insulted and threatened by a police officer .

The Government replied that the applicant was subjected to a series of medical examinations during DATE at ORG According to the documents submitted , blood tests , an abdomino - pelvic ultrasound examination and an abdominal tomography were performed on the applicant . The doctors found no pathological signs as a result of these examinations .

The Government denied the applicant 's allegation that the physical conditions at the Kırklareli Foreigners ' Admission and ORG did not comply with the minimum standards established by the ORG . Noting that the ORG in question was not a detention facility , the Government provided photographs of a birthday party and an engagement party , both organised in the common room of the FAC . They further submitted photographs of an NORP celebration ( Festival of PERSON ) organised in the garden of the ORG .

In their submissions dated DATE , the ORG maintained that an investigation had been initiated into the actions of the police officer who had allegedly insulted the applicant in relation to the latter 's complaint of ill - treatment .

A description of the relevant domestic law and practice may be found in the case of GPE and GPE v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .

The standards of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment concerning the conditions of detention of foreign nationals ( see the ORG standards , document no . ORG ( DATE ) CARDINAL- Rev. CARDINAL , page CARDINAL ) provide , in so far as relevant , as follows :

“ ... In the view of the ORG ... where it is deemed necessary to deprive persons of their liberty for an extended period under aliens ' legislation , they should be accommodated in centres specifically designed for that purpose ...

Obviously , such centres should provide accommodation which is adequatelyfurnished , clean and in a good state of repair , and which offers sufficient living space for the numbers involved . Further , care should be taken in the design and layout of the premises to avoid as far as possible any impression of a carceral environment . As regards regime activities , they should include outdoor exercise , access to a day room and to radio / television and newspapers / magazines , as well as other appropriate means of recreation ( e.g. board games , table tennis ) . The longer the period for which persons are detained , the more developed should be the activities which are offered to them . ... ”

In DATE ORG visited CARDINAL ORG in GPE , including the FAC in GPE . The relevant extracts from the report entitled “ Stuck in a Revolving Door ” , published by ORG on DATE , read as follows :

“ ... ORG ( hereafter PERSON ) has had a long history as an actual refugee camp . In DATE it was a safe haven for ethnic NORP fleeing GPE ; in DATE , a shelter for refugees from GPE ; and in DATE , a place of refuge for NORP . It can no longer be described , truthfully , as a refugee camp , however . It is rather a detention centre for migrants , some of whom may indeed be refugees , but not refugees being protected from persecution , but rather refugees that GPE is seeking to remove .

At the time of ORG visit , GPE held CARDINAL detainees , including CARDINAL women and the DATE child of CARDINAL of the women .

Although the men are locked away in a long barracks building , they were freely wandering around the outdoor grounds of the fenced - in facility during the ORG visit . They appeared to be allowed to go outside the barracks during the afternoons . The facility is surrounded by a chain - link fence topped with barbed wire . Signs of its history as a former refugee camp are abundant in the form of old unused shelters with faded ORG logos and an overgrown soccer field that have not been used in DATE , despite a rather comical attempt by the ORG administrator to give Human Rights a guided tour intended to show that old classrooms and recreational facilities are still being used by the detainees .

The women and child were housed in a separate building that the women told ORG they had recently been asked to clean prior to a visit by another delegation . The administrator showed ORG a large - screen television set in CARDINAL of the women 's private rooms , but failed to note that the TV was not plugged in and did n't work at all . Although the men are allowed to leave their barracks during most TIME , the guards tell the women that they are not allowed to leave their building . " The door is kept open to allow the child to come and go , but we are not allowed to walk out the door , " said a DATE NORP woman .

Both men and women at ORG complained about the poor quality and small quantity of food . A man claiming to be NORP said , " The food is not good . It is not fit for humans , and it is not enough . Nothing happens if we complain . The guards say , ' If you do n't like the food , go to the market and buy your own . ' "

The main complaint , however , is that the detainees are not informed how long they will remain in detention . ORG spoke privately with a man who appeared to be an informal leader of the " NORP " at GPE . He said that the NORP numbered CARDINAL of the CARDINAL detainees in the camp and that most , including him , had already been held there for DATE and had no idea how much longer they would stay there . " Just tell us what to do , " he said . " Give us a sentence . If they let us leave , we will work and feed our families . Let us leave or kill us . ”

Even though the conditions at GPE did not appear to be nearly as bad as at PERSON , tensions between detainees and guards were very high . The camp administrator told ORG , " Despite the good conditions here , there is an enmity towards us . "

On TIME after ORG visit there was a riot at GPE . The causes of the riot and the response of the security forces were under investigation when ORG left the country . In the course of putting down the disturbance , NORP security forces shot and killed one of the detainees , a young man of unknown nationality who ORG had talked to at length . ... ”

On DATE around midnight a riot started in the Kırklareli Foreigners ' Admission and ORG . During the riot an asylum seeker died and another asylum seeker and CARDINAL police officers were wounded . Subsequent to the riot , ORG ) , a human rights organisation based in GPE , made a visit to the FAC in order to assess the situation there . During this visit , FAC interviewed persons held in the FAC , the GPE governor , the director of the ORG and CARDINAL of the officers who had been injured . The governor stated , inter alia , that the authorities were doing their best to meet the needs of the persons held in the FAC . The director also stated that they maintained good standards of living in the LOC .

Following the initiation of the “ fast to the death ” by the CARDINAL persons held in the Kırklareli Foreigners ' Admission and Accommodation Centre , including the applicant , on DATE ORG made a second visit to the ORG in order to interview the persons on hunger strike and to observe the living conditions in the FAC . According to the report published by ORG , they were not allowed to visit the inside of the LOC where foreign nationals were held . They could however interview the applicant and CARDINAL persons , who maintained that there had been problems regarding the quality of food provided by the administration of ORG , the ORG 's hygiene , access to medical care and common living space .


Violation of Art. 10;No separate issue under Art. 6-2;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr PERSON and Mr PERSON , who are NORP nationals , lived in GPE at the material time . Mr PERSON was born in DATE and is a former publishing director of the DATE satirical newspaper ORG enchaîné . PERSON was born in DATE and is a journalist on ORG enchaîné .

DATE was a period of industrial unrest within the Peugeot motor company . The workforce 's demands included pay rises , which the management , led by the company chairman and managing director Mr PERSON , refused to award .

On DATE , ORG enchaîné published an article by PERSON under the headline :

“ PERSON turbo - charges his salary ”

with the subhead :

“ His tax forms reveal more than he does . The ORG boss has given himself a PERCENT rise over DATE . ”

The article itself included the following :

“ When PERSON appeared on the LAW programme ' ORG in DATE , he refused to answer a question about his pay . This is seen as a public - relations blunder on the part of the ORG boss , but the ORG is now in a position to put it right , thanks to the famous PERSON 's CARDINAL most recent tax - assessment forms , which have come into our hands by chance . At the time of the broadcast , he was earning MONEY net per month .

These documents show that , DATE , PERSON 's total salary ( plus benefits in kind and sickness benefit ) rose by PERCENT . According to ORG 's own figures , the average pay of the group 's CARDINAL workers rose by PERCENT over DATE in other words , CARDINAL times less than the boss 's .

PERSON blues

PERSON has turned ORG around in spectacular style , but in a recent interview on Antenne CARDINAL he said he was under stress due to his group 's position in the face of the NORP offensive . It would appear that this painful psychological crisis has not prevented him from swelling his income – though it should be noted that PERSON is far from LAW in the hit - parade of chief executives ' salaries .

In DATE he awarded himself a PERCENT increase in his DATE pay , bringing it to MONEY – that is , MONEY DATE . Why ? Probably because the Revenue had grabbed a big slice of DATE income . And this dreadful tax - pay spiral continued its destructive course DATE . In DATE , in order to scrape by , PERSON was forced to give himself another rise , of PERCENT . His salary that year came to MONEY , i.e. MONEY DATE after deductions ... ”

The article was illustrated by a box reproducing a photocopy of that part of each of the CARDINAL notices of assessment to tax which detailed Mr PERSON 's “ total taxable income ” and showed the amounts he had received by way of “ salary , benefits in kind and sickness benefit ” . Each of the CARDINAL totals was circled in pencil .

On DATE Mr PERSON lodged a criminal complaint against a person or persons unknown , together with an application to join the proceedings as a civil party claiming damages , with the senior investigating judge at GPE tribunal de grande instance . He submitted that the events in question must have involved the unlawful removal and possession of the originals or copies of documents normally held by the tax authorities and amounted to the offences of misappropriation of deeds or documents by a public servant , breach of professional confidence , misappropriation of documents for the time needed to reproduce them and handling unlawfully obtained documents .

On DATE the public prosecutor applied to the investigating judge for an investigation to be opened into allegations of theft , breach of professional confidence , unlawful removal of deeds or documents by a public servant and handling unlawfully obtained goods .

On DATE the Minister for the ORG also lodged a criminal complaint , together with an application to join the proceedings as a civil party claiming damages , against a person or persons unknown for unlawful removal of government documents and breach of professional confidence . On DATE the public prosecutor requested that a further investigation be opened .

In the course of the investigation , an analysis of the computer reference number on the copy documents in Mr PERSON 's possession revealed that they were photocopies of the part of the tax - assessment notice which is kept by the tax authorities and is not intended to leave their LOC . An inspection of the LOC confirmed that the locks on the cabinets containing the documents had not been forced and that the alarm protecting the LOC outside TIME had not been activated .

An examination of the original of Mr PERSON 's tax assessment for DATE revealed a palm - print belonging to the ORG Director of Taxes . However , it was asserted that this person had called up the relevant tax file on DATE at the request of the Head of the Revenue and the Director of Taxes for the département . The person or persons responsible for unlawfully removing the document from the tax authorities ' premises could not be identified , with the result that no one was ever charged under that head .

On DATE the applicants were charged with handling copies of notices of assessment to tax obtained through a breach of professional confidence , unlawful removal of deeds or documents and theft .

On DATE the public prosecutor filed a report recommending that no one should be charged with the offences of theft or breach of professional confidence , that all the charges against the first applicant should be dropped and that the second applicant should be committed for trial before ORG on charges of handling photocopies of Mr PERSON 's tax assessments obtained through a breach of professional confidence by an unidentified tax official .

On DATE the investigating judge ordered that , as no culprit had been identified , the proceedings for theft and breach of professional confidence should be discontinued . The judge committed both applicants for trial before ORG on charges of handling confidential information concerning Mr PERSON 's income obtained through a breach of professional confidence by an unidentified tax official and of handling stolen photocopies of Mr PERSON 's tax assessments .

The applicants submitted CARDINAL arguments in their defence : first , that the conditions for publishing directors to be criminally liable , laid down in CARDINAL of the Freedom of LAW of DATE ( see paragraph CARDINAL below ) did not apply and , second , that the elements of the offences with which they had been charged , as defined in LAW ( see paragraph CARDINAL below ) , were not made out in their case .

At the trial Mr PERSON stated that the first time he had seen the extracts from the tax assessments printed in the newspaper was when he looked at the proofs before personally passing the article for press . He said he had asked PERSON “ whether his documents were sound in journalistic terms ” , that is to say , “ whether the information was accurate and had been checked ” . He acknowledged that , as a general rule , passing copy for press was the responsibility of an editorial assistant , who , “ if there is a problem , consults the editor and , in the last resort , the publishing director ” .

The second applicant stated that the photocopies of the tax assessments had been sent anonymously in an envelope addressed to him by name , DATE before they were used in the paper . He explained that he had “ checked the plausibility ” of the information in the documents , in particular by looking up the level of Mr PERSON 's remuneration in specialist works including ORG . He said that he had also checked with various persons to ensure that the documents were photocopies of “ genuine ” tax - assessment notices . He specified that he had also verified that they really were tax - authority documents , adding that once it appeared that there was no proof that they had been obtained unlawfully , “ the overriding consideration was the documents ' significance ” .

In a judgment of CARDINAL DATE , ORG acquitted the applicants , holding that the principal offences of theft and breach of professional confidence had not been made out because it had proved impossible to identify who had disclosed the documents or to establish the circumstances in which the offences had been committed .

In relation to the offence of breach of professional confidence , the court held as follows :

In the instant case , while it has been established that the originals of the documents in question are notices of assessment to tax held on Mr PERSON 's tax file , it can not be inferred from this that the person guilty of wrongfully taking them for the time needed to photocopy them , or of disclosing them to third parties , or of divulging the information contained in them , necessarily fell within CARDINAL of the categories of person defined in the above - mentioned provision [ Article PERSON of LAW ] ; since the tax authorities themselves have suggested that the perpetrator might be ' someone from outside ' ... – whatever the security regulations at the time .

The fact that the status and professional functions of the person responsible for the disclosure are unknown therefore rules out any possibility of proving one of the essential elements of the offence of breach of professional confidence .

Consequently , there is no formal proof that this offence was committed , so that the charge against the defendants of handling the fruits of a breach of professional confidence has not been made out ... ”

In relation to the theft charge , the court held :

“ ... In particular , it has not been shown that the person who originally copied the documents had any unlawful intention or had such an intention at the time of taking the documents .

Hence , without further rehearsing the numerous questions remaining unanswered concerning how these documents found their way into PERSON hands , we find that the elements of the offence of theft have not been sufficiently proved .

Unless it can be precisely established that , in the first place , an act defined as a serious crime ( crime ) or other major offence ( délit ) was committed , and its elements can be made out , the prerequisite for an offence of handling is lacking , and the defendant must be acquitted . ”

On DATE and DATE respectively , the public prosecutor and the civil parties claiming damages appealed .

In a judgment of DATE , ORG reversed the judgment and found the applicants guilty of handling photocopies of Mr PERSON 's tax returns obtained through a breach of professional confidence by an unidentified tax official . Mr PERSON and PERSON were sentenced to , respectively , fines of MONEY ( ORG ) and ordered , jointly and severally , to pay Mr PERSON CARDINAL by way of damages for non - pecuniary damage and FRF CARDINAL by way of reimbursement of legal costs under LAW .

ORG held as follows :

“ This ORG can not agree with the manner in which the court below analysed the facts . The results of the investigations show that only a tax official familiar with the department could have leaked the documents , since no outside party had requested PERSON file and that file was found , on TIME CARDINAL DATE , in its normal condition , with the documents filed according to the particular practice of ORG . It is certain that CARDINAL party , someone who was not a civil servant or was from outside the tax department , could not – without attracting attention – have taken documents filed in CARDINAL separate places in the file , photographed or photocopied them and put them back in exactly the right place , given that the file is kept in a metal cabinet in a locked room to which there is access only for authorised persons .

Contrary to the court below , we therefore hold that , in this case , it has been established that the offence of breach of professional confidence was committed , and that the fact that the culprit has not been identified is irrelevant .

PERSON told the investigating judge that the photocopies of PERSON tax notices were sent to him anonymously at the newspaper , in an envelope addressed to him personally . He confirmed that he had questioned various people in order to ensure that they were indeed copies of genuine tax documents .

PERSON article , containing a reproduction of the documents in question , was submitted to PERSON , the publishing director of ORG enchaîné , who , personally , passed it for press .

PERSON told the investigating judge that he saw the extracts from PERSON tax notices at that point . He explained that DATE as a general rule – copy is passed for press by the senior editorial assistant , who , if there is a problem , consults the editor and , in the last resort , himself .

The offence of handling the fruits of a breach of professional confidence was characterised , in the instant case , by the publication of documents obtained in breach of the provisions of LAW and was committed by PERSON and PERSON given that , in the light of the nature of the documents and of the checks which PERSON says he carried out , the defendants must have known that those documents came from a tax file . Moreover , this explains why the article was passed for press by PERSON , the publishing director , and not an editorial assistant or the editor . It is worth recalling that , although Mr PERSON was not the person to whom the documents were sent , he saw them before giving his authorisation to publish the article reproducing extracts from them . Therefore , both the actus reus and the mens rea of the offence of handling the fruits of a breach of professional confidence are present in his case as well as in that of the author of the article , PERSON ... ”

Mr PERSON and PERSON appealed to ORG on points of law . In their grounds of appeal ( and subsequently in a reply to Mr PERSON 's pleadings ) , they submitted CARDINAL arguments .

As the first ground of appeal , PERSON argued that , since he was a publishing director as defined in the LAW of DATE , the lower courts ORG were not empowered to convict him of a handling offence under the general criminal law , but only of CARDINAL of the offences specially defined in that LAW . In his reply , he pointed out that the other side was confusing “ handling ” with “ publishing ” , submitting that Mr PERSON was concerned , not by the handling but by the publication – something which did not contravene any provision of the press laws , so that the prosecution had resorted to another , inappropriate , charge , that of handling .

As the second ground , both applicants argued that the elements of the offence with which they had been charged , as defined in the relevant domestic law , including sections CARDINAL , CARDINAL and DATE of LAW , were not made out in their case . On that point , they maintained that Mr PERSON 's tax assessments were not covered by a duty to preserve confidentiality – so that there could have been no breach of such a duty – but contained information which was available to the public . They argued that a journalist could not lawfully be convicted of “ handling information ” and submitted that ORG had failed to demonstrate how the actus reus and mens rea of the offence with which they had been charged DATE namely possession or control of the thing in question and knowledge that it had been obtained unlawfully DATE were made out in their case . With regard to the fact that ORG had deduced that PERSON must have known that the documents had been obtained unlawfully since , when he had received them , he had verified that they were indeed copies of tax assessments , PERSON submitted that he had “ merely fulfilled his duty as a journalist : before publishing information , he had checked that it was genuine , as required by the obligation on all journalists to exercise caution and verify sources ” .

ORG dismissed the appeal on DATE , holding as follows :

The grounds [ of ORG judgment ] , following as they do from findings of fact which are not subject to review by ORG , show that the appellate court , having established that the defendants knowingly had in their possession or control documents obtained through a breach of professional confidence , contrary to LAW , did not misdirect themselves in law as alleged [ by the appellants ] .

In particular , ORG can not be held to have misinterpreted LAW as it stood at the time , in which the only offence defined is that of handling stolen goods , since , although it found the applicants guilty of handling unlawfully obtained photocopies , it rightly dismissed the charge of handling unlawfully obtained information on which the journalists were committed for trial before FAC .

Information , whatever its nature or source , is covered neither by LAW nor by LAW which came into force on DATE , so that , if a problem arose – that is , if certain information were published and that publication were challenged by the persons concerned – the only legal provisions governing it would be those specifically concerning the freedom of the press or of audiovisual communication ... ”

The relevant sections of the Freedom of the Press Act of DATE provide as follows :

“ Anyone may print or sell books and other publications ” .

“ Any newspaper or periodical may be published without prior authorisation or the payment of any security , provided that the declaration required by section CARDINAL has been made ” .

“ All press publications must have a publishing director ... ”

“ The following persons shall be liable , as principals and in the following order , to penalties for serious crimes ( crimes ) or other major offences ( délits ) committed through the press :

( CARDINAL ) NORP publishing directors or publishers , whatever their profession or title and , in the circumstances defined in section CARDINAL(CARDINAL ) , joint publishing directors ;

( CARDINAL ) in the absence of any of the foregoing , the actual offenders ;

The relevant Articles of the Code of Tax Procedure provide as follows :

Article L. CARDINAL

“ The duty to preserve professional confidentiality , as defined in LAW , applies to any person who is required , in the course of his duties or exercise of his powers , to take any action concerning the assessment , inspection or recovery of , or disputes over , any taxes , duties , imposts or levies referred to in LAW . The duty shall cover all information obtained in the course of the above - mentioned operations . ”

Article L. CARDINAL - CARDINAL

“ A list of the persons liable for income tax or corporation tax shall be drawn up , distinguishing between the CARDINAL types of tax as levied in each municipality .

The list shall be kept by ORG for each area and shall be available for consultation by the taxpayers in that area . ORG may order it to be posted .

The list concerning income tax shall also show , in the manner provided for by decree and for each taxpayer , the number of dependants ' allowance tax units applicable , the amount of tax payable and the total tax credits .

Publishing or otherwise disseminating the lists referred to above or any information relating to those lists which concerns a named person is forbidden on pain of a tax fine under LAW [ LAW ” .

At the material time , LAW provided :

“ Anyone who knowingly handles any goods ( or any part thereof ) taken , misappropriated or obtained by means of a serious crime ( crime ) or other major offence ( délit ) shall be liable to DATE imprisonment or a fine of between FRF CARDINAL,CARDINAL and FRF CARDINAL,CARDINAL,CARDINAL or both . The amount of the fine may be increased to a sum exceeding FRF CARDINAL,CARDINAL,CARDINAL but not exceeding CARDINAL the value of the goods handled ... ”


The applicant is a NORP citizen , born in DATE and living in GPE ) . She is represented before the Court by Ms Irmgard Möbus - Hohl , a lawyer practising in Föhren .

A.

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

On DATE the applicant , who had been living and working in GPE , bought a house in GPE ( PERSON ) , GPE . At that time GPE was CARDINAL of the republics of ORG ) and the applicant , as a citizen of that state , was legally entitled to buy property without restrictions in the whole territory of GPE . Although she lived in GPE , the applicant encountered no obstacles whatsoever to enter GPE and use her property there .

After the dissolution of GPE in DATE , the situation changed significantly for the applicant . As a citizen of GPE she is now a foreign citizen in GPE and her entry and stay in the territory of GPE are subject to some restrictions .

On DATE the applicant requested and on DATE obtained a permission for an extended stay in GPE until DATE from ORG .

Subsequently the applicant left GPE and returned to GPE . In her absence the house was burgled and partly demolished .

On DATE the applicant lodged a request for permanent residence in GPE with ORG in GPE , GPE . As by that time she had retired , she planned to live permanently in her house in GPE . On DATE ORG refused her request .

On DATE the applicant instituted administrative proceedings with ORG , contesting the decision of ORG . On DATE that court ruled against the applicant .

On DATE the applicant lodged a constitutional complaint arguing that her right to property was violated as she was denied by the NORP authorities access to her property in GPE .

On DATE ORG rejected her complaint . It found that , although the applicant was the owner of a house in GPE and despite the fact that she was in bad health , that she was single and with a residence in GPE where she had sufficient means for living , she did not satisfy conditions for a permanent residence in GPE as set out in the Movement and Stay of Aliens Act ( Zakon o kretanju i boravku stranaca ) .

B. Relevant domestic law

Movement and Stay of Aliens Act ( DATE )

Article CARDINAL

“ A foreigner may enter GPE and stay in its territory if he is the holder of a valid passport issued according to the relevant legal provisions of a foreign state or of a valid travel document for foreign citizens issued by the ORG authority competent for issuing such documents . Such a passport or travel document should contain a visa , save where this LAW provides otherwise . ”

Article CARDINAL

“ A visa is given to a foreign citizen for entering , leaving or passing through the territory of GPE . ”

“ The Government of GPE may decide that citizens of certain countries do not need visas to enter , leave or pass through the territory of GPE . ”

“ Visas may be issued for CARDINAL entry or for an unlimited number of entries . ”

“ Visas shall be issued for a period of DATE or until the expiration of a foreign passport , if that date falls within DATE from the date of issue of visa . ”

Article CARDINAL

“ Stay of a foreign citizen in GPE shall include : temporary stay , extended stay , stay with a business visa , stay on the basis of authorised permanent residence and stay on the basis of recognised refugee status . ”


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

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

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

PERSON practised as a lawyer in GPE until DATE , when she retired on the ground of having reached pensionable age . She received her pension from ORG ( ORG ) on a DATE basis until DATE , when she decided to leave the country and go to GPE . Pursuant to the national legislation in force at that time ( Law no . CARDINAL/CARDINAL and Decree no . CARDINAL ) , those who left the country were compelled to give up the social and political rights conferred on them by GPE . The applicant had thus renounced her pension rights while she also gave up her NORP nationality . Consequently , by a decision of DATE , the ORG suspended the payment of the applicant ’s pension rights on the grounds that she was about to move abroad and had given up her NORP nationality .

On an unspecified date the applicant moved to GPE , where she resides at present . Upon her request , on DATE ORG in GPE granted the applicant NORP citizenship .

The NORP legislation applicable to the assessment of pension entitlements , PERSON no . CARDINAL/CARDINAL regulating the national pension system and LAW no . CARDINAL regarding the lawyers’ pension system , were repealed on DATE and on CARDINAL DATE respectively , when the amending PERSON no . CARDINAL and the Statute of ORG were respectively adopted . The new regulations removed the NORP nationality and residence criteria from the conditions decisive for the payment of a pension .

On DATE the applicant lodged her application for the resumption of pension payments , which was registered in due form by the ORG on DATE .

On DATE the ORG allowed the above - mentioned application and granted the applicant the payment of her pension , starting from DATE , as requested .

On DATE the applicant contested this decision , claiming that she had retroactive entitlement to a pension , which should be calculated and updated for DATE ( starting from DATE , DATE being the general cut - off period for pecuniary claims ) . The ORG gave a decision on DATE allowing the claims in part . The pension was calculated as of DATE , the reference date when the new legislation became applicable to the applicant ’s case . The reasoning put forward by the ORG in rejecting the claims from DATE to DATE was that the legislation in force until DATE had not provided for payment of pensions to persons who did not have NORP citizenship and/or did not reside in GPE . Once the new legislation had come into force , on DATE , the nationality and/or residence criteria for a person ’s entitlement to payment of a pension had been removed .

Furthermore , LAW ORG prescribed that pension payments were to resume , on request , DATE following DATE when the ground for their suspension ceased . Taking into account the entry into force of the Statute , the payment of the applicant ’s pension would become operative as of DATE .

The applicant ’s pension was calculated and updated in accordance with the lex specialis , PERSON no . CARDINAL/CARDINAL .

The applicant contested this decision before ORG on DATE . On DATE , she amended her request to claim that she had become entitled to her pension rights on DATE . She argued that her renunciation of NORP nationality and residence , and implicitly the payment of her pension , had been determined exclusively by the unfair legislation in force during the communist regime . From DATE , that legislation had lapsed , hence the suspension of her rights should be considered to have terminated and the payments resumed as of right . In support of this claim , she also invoked LAW , asserting that lawyers’ pension rights were not subject to negative prescription . Consequently , her pecuniary claims were not timebarred , the general cut - off period of DATE being inapplicable .

The applicant also contested the ORG ’s method of recalculating her pension in that she considered that the readjustment should have been made on the basis of the inflation rate and not in accordance with the specific methods stipulated in the pension lex specialis no . CARDINAL .

Furthermore , the applicant also complained that from DATE until DATE she had had to pay taxes on her newly set income , even though , as she did not reside in GPE , she was not a taxpayer within the meaning of the relevant law , ORG no . CARDINAL and under PERSON no . PERSON and PERSON for avoiding double taxation . Consequently , she requested reimbursement of the money deducted as tax from her pension revenue .

On DATE , ORG dismissed her claims , upholding the ORG ’s decision and reasoning . The applicant ’s submission regarding the lapse of the applicable legislation after the fall of the communist regime , that is , PERSON no . CARDINAL/CARDINAL and Decree no . ORG , was rejected by the court , which held that the above - mentioned legislation had been officially repealed once the new pension Law no . CARDINAL and the Statute of the PERSON had come into force , namely , on DATE and CARDINAL DATE respectively . Therefore , applying the tempus regit actum principle and in so far as the applicant had not complied with the statutory conditions ( NORP citizenship and/or residence ) , the first - instance court considered that the applicant had not proved that she had a substantive right to receive a pension for the period of time in question .

With regard to her claims concerning the pension readjustment , the court held that as long as there was a lex specialis establishing a specific method of adjusting the amounts of all pensions ( recorelare ) , the general principles of adjusting pecuniary claims in line with the inflation rate could not be taken into consideration . The courts further held that the applicant was subject to NORP taxation as long as she had obtained the income in question in GPE and had not proved that she was actually paying taxes in another country .

The applicant filed an appeal on points of law with ORG . She challenged the lower court ’s reasoning , asserting that her pension rights had first been acknowledged in DATE and had never ceased to exist , despite the changes in her nationality and residence and despite the fact that her enjoyment of those rights had been interfered with from DATE onwards . Consequently , the suspension of the payment of her pension had to be considered as a wrongful act that should have terminated once the communist regime had fallen .

By a decision rendered on DATE , the court dismissed the appeal . It held that since the LIF ’s Statute removing the citizenship and/or residence requirement had come into force on DATE , it was only from DATE , in accordance with LAW , that the applicant was entitled to have the payment of her pension resumed . In so far as the applicable legislation before DATE had provided that NORP nationality and/or residence was a mandatory and decisive condition for pension payments , the applicant had not proved that she was eligible for payment of a pension in respect of the earlier period .

a ) Law no . CARDINAL/CARDINAL regarding the pension system and other social security rights and assistance came into force on DATE ; it was repealed on DATE , once the new “ pension law ” no . CARDINAL/CARDINAL came into force . Section CARDINAL stated that every NORP citizen who had worked for the system was entitled to pension rights .

b ) Decree no . CARDINAL regarding the lawyers’ pension system and other relevant social - security rights came into force on DATE , and was repealed on DATE . Article CARDINAL provided that payment of the pension and all other relevant rights would be suspended as long as the retired person had his / her residence established in a foreign country .

c ) ORG came into force on DATE ; Article CARDINAL stipulates that payment of suspended pensions will be resumed on request , starting on DATE following DATE in which the ground for the suspension ceased to exist . LAW provides that ORG social - security rights are not subject to negative prescription .

Article CARDINAL of the DATE ORG ( Minimum Standards ) Convention DATE ( “ the DATE LAW ” ) provides that benefits to which a protected person would otherwise be entitled in compliance with the DATE LAW ( including old age benefits ) may be suspended , in whole or in part , by national law as long as the person concerned is absent from the territory of the ORG concerned . The above provision is echoed in DATE LAW and LAW ) .