Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant was born in 1943 and lived in Sremska Mitrovica. He died on 20 October 2014.

On 26 December 1993 the applicant was detained on remand by the “Police of the Republic of Serbian Krajina” (Policija Republike Srpske Krajine) under suspicion of murder. His detention was subsequently extended by the “investigative judge” (istražni sudija) on 29 December 1993 and by the “District Court of Beli Manastir” (Okružni sud u Belom Manastiru) on 25 January 1994, 15 February 1994, 8 April 1994 and 9 May 1994.

On 9 May 1994 the “District Court of Beli Manastir” sentenced the applicant to 8 years of imprisonment for murder. It found that the applicant, after a quarrel in which his neighbour accused him of war profiteering, intentionally shot the neighbour in the head with a rifle, leaving him dead on the spot. It further found that the entire event had taken place in front of several eyewitnesses.

On 21 July 1994 this sentence was confirmed by the “Supreme Court of the Republic of Serbian Krajina” (Vrhovni sud Republike Srpske Krajine). The applicant was then sent to serve his prison sentence in “Beli Manastir District Prison” (Okružni zatvor u Belom Manastiru).

All of the above institutions were at the relevant time under the control of the “Republic of Serbian Krajina” (Republika Srpska Krajina), an internationally unrecognised self-proclaimed entity established on the territory of the Republic of Croatia during the wars in the former Yugoslavia. The entity ceased to exist after the adoption of the Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium of 12 November 1995 (hereinafter Erdut Agreement) by which the Republic of Croatia assumed sovereignty over the entirety of its territory. The entity was never recognised as a state by the Respondent State.

Shortly after the adoption of the Erdut Agreement, and upon the request of the “Beli Manastir District Prison”, the applicant was transferred on 20 June 1996 to Sremska Mitrovica prison (Kazneno-popravni zavod Sremska Mitrovica), which is on the territory of the Respondent State. The reason for the transfer was listed as “security concerns”. No proceedings for recognition and enforcement of a foreign prison sentence were conducted by the authorities of the Republic of Serbia.

The applicant remained in Sremska Mitrovica prison until 5 February 1999, when he was released for annual leave until 15 February 1999. Due to the applicant’s failure to return to the prison on the specified date, a warrant for his arrest was issued.

On 7 July 2010, the applicant was arrested when he attempted to enter Serbia from Croatia. He was sent to Sremska Mitrovica prison to serve the remainder of his sentence.

The applicant remained in prison until 15 November 2012 when he was pardoned by the President of the Republic of Serbia and released.

On 4 February 2011 the applicant lodged a constitutional appeal challenging the lawfulness of his imprisonment.

On 10 May 2012 the Constitutional Court found that there was no violation of the applicant’s right to liberty. It concluded that the legal ground for the applicant’s detention was his conviction by the “Supreme Court of Serbian Krajina” of 21 July 1994. It further noted that the procedure governing the recognition of a foreign criminal sentence and its enforcement was not applicable in the applicant’s case because Serbian Krajina was not a state. The court concluded that the applicant’s transfer had been carried out for factual reasons – the deteriorating security situation in the war zone which could lead to the applicant’s escape from prison or his death. The court further noted that the applicant had been convicted of murder by which the right to life was violated, and that states have positive obligations to protect this right. It finally held that the lack of procedure for recognition of a foreign judgment was proportionate to the obligation to enforce a prison sentence for murder especially given that the applicant had access to the Constitutional Court which had the power to review the legality of his detention and that he had access to other procedures available to any other prisoner in Serbia, including the procedure for applying for a pardon.

On 7 March 2011 the applicant initiated civil proceedings for compensation for unlawful imprisonment. On 13 December 2012 the First Instance Court in Belgrade rejected the applicant’s claim finding that he had been lawfully convicted of murder by the courts of the “Republic of Srpska Krajina” and that his imprisonment cannot be considered as unlawful. On 16 April 2014 the Belgrade Appellate Court confirmed this judgment. On 6 June 2014 the applicant lodged an appeal on points of law before the Supreme Court of Cassation. On 8 July 2015 the Supreme Court of Cassation rejected the applicant’s appeal on points of law on procedural grounds, finding that the value of the dispute in question was below the applicable statutory threshold.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano

The applicant was born in 1972 and lives in Pakruojis.

In 1996 the applicant graduated from the Lithuanian Police Academy with a degree in law. He worked as an investigator at Šiauliai city police headquarters.

On 3 October 2000 the Šiauliai Regional Court established that from 1995 to 1996, when he had been working as an investigator, the applicant had several times solicited and sometimes succeeded in getting bribes for discontinuing criminal proceedings. The victims of the applicant’s crimes, who were suspects in criminal proceedings or their relatives, had been threatened and sometimes harassed sexually by the applicant. He would tell them that “the case would end badly (blogai baigsis)” if they did not meet his demands. The Šiauliai Regional Court found that such actions amounted to the intentional crimes of abuse of office (Article 285 of the Criminal Code) and bribery (Article 282 of the Criminal Code). The court also noted that the applicant had not acknowledged his guilt, but had instead tried to justify his criminal acts and avoid taking responsibility for them in any way possible. The trial court sentenced him to eight years’ deprivation of liberty in a correctional labour colony under a strict regime, ordered the confiscation of all his property, and prohibited him from working in law enforcement or the justice system for five years.

The applicant’s conviction was upheld by the Court of Appeal on 29 June 2001 and by the Supreme Court on 18 December 2001.

In 2003, upon entry into force of the new Criminal Code, the Šiauliai Regional Court requalified the applicant’s sentence to four years and seven months’ deprivation of liberty. The applicant was released from prison on 8 September 2003 after serving his sentence.

By a ruling of 17 June 2005 the Šiauliai Regional Court expunged the applicant’s conviction from his criminal record. The court noted that the applicant had served his sentence. He had been convicted of crimes of medium severity. The court also took account of the fact that the applicant had not committed any violations of administrative law, had been bringing up a child alone, had been described in positive terms by people at his place of residence and at his workplace, had drawn the right conclusions from the crimes he had committed, and had promised not to commit any crimes in the future. The ruling was not appealed against and became enforceable.

According to the applicant’s curriculum vitae, which he later submitted to the Bar Association, from May 2004 he worked as in-house lawyer and loan administrator in various private companies.

On 12 January 2007 the applicant wrote to the Lithuanian Bar Association, which regulates advocates (lawyers admitted to the Bar, advokatas), requesting to be admitted as a trainee advocate. He asked that an advocate V.S.B. be appointed as his supervisor in his work practice. The applicant also confirmed in writing that “none of the grounds listed in the Law on the Bar prevented him from being put on the list of trainee advocates”. The applicant also submitted a written application (advokato įskaitos lapas) where he listed his former places of employment, stating that from 22 July 1991 until 15 March 1999 he had worked in the police and from 19 March 2004 in the private sector. There was no explanation about the period between 1999 and 2004.

The Bar Association placed the applicant’s name on the list of trainee advocates on 25 January 2007 and advocate V.S.B. was appointed as his supervisor.

On 13 June 2007 the Bar Association received a letter from a private person, L.G., informing it that the applicant had withheld information from the Bar Association that he had been previously convicted.

On 20 June 2007 the Bar Association held that by failing to inform it of the conviction, the applicant had withheld information relevant to assessing his reputation, and that therefore he had shown that his attitude towards the standing of the Lithuanian Bar and towards becoming a trainee advocate was not honest and respectful. The Bar Association considered that the applicant had breached points 1.3, 12.1 and 13.2 of the Lithuanian Code of Professional Ethics for Advocates (see paragraph 37 below – hereinafter, “the Code of Ethics”), and disciplinary proceedings against him were therefore justified. The Bar Association also considered that the applicant’s supervisor, V.S.B., had likewise breached the Code of Ethics but that he would not face disciplinary proceedings owing to his long and positive professional record.

On 10 July 2007 the Disciplinary Committee of the Bar Association held that the applicant had committed a disciplinary violation by withholding information about his conviction by Šiauliai Regional Court on 3 October 2000 (see paragraph 7 above). The committee emphasised the fact that the applicant had not mentioned the conviction or his “long prison sentence” in his application to be admitted as a trainee advocate, his curriculum vitae or in the other documents submitted in support. Information about the conviction had been relevant for assessing his reputation. By withholding such information the applicant had acted dishonestly and disrespectfully, and had not protected the prestige of the Lithuanian Bar. The applicant had thus breached points 1.3, 12.1 and 13.2 of the Code of Ethics, which set out the necessary requirements for candidates to become trainee advocates (see paragraph 37 below). The case therefore had to be decided by the Court of Honour of Advocates (hereinafter – “the Court of Honour”).

In a letter of 4 September 2007 to the Bar Association the chief prosecutor of Šiauliai Region wrote that the applicant lived in the city of Šiauliai and that in the course of his work as a trainee advocate he had interaction with the same investigators, prosecutors and judges with whom he had worked before committing his crimes and with those who had later investigated his crimes or examined his case in court. Even though the applicant had served his sentence, communication with those investigators, prosecutors and judges caused some strains at work in Šiauliai. The chief prosecutor stated that it would be better if the applicant could be prevented from practising law in the city or region of Šiauliai, even though the Law on the Bar did not provide for the possibility to restrict an advocate’s activity within or outside a certain area.

By a letter of 4 September 2007 the Court of Honour informed the applicant about the forthcoming hearing in his case, and invited him to participate in person or have an advocate represent his interests in those disciplinary proceedings. The applicant was present at the hearing, and explained that he had not hidden his conviction. The only reason he had not informed the Bar Association about it was because in his view there had been no requirement to do so. He also asked for the removal of the president of the Court of Honour, J.K., stating that the manner in which the latter had put certain questions to him showed he was biased. The request was refused as unfounded.

The Court of Honour, composed of the presiding advocate, J.K., and two other advocates, A.P. and G.P., met on 25 September and 25 October 2007. They postponed the hearing to a later date on each occasion.

On 23 November 2007 the Court of Honour rejected a request by the applicant to remove J.K. as unsubstantiated, while A.P. was replaced by another advocate, J.M.

The Court of Honour also held on the same day that the applicant had breached the Code of Ethics and imposed the disciplinary measure of ordering his removal from the list of trainee advocates, on the basis of Articles 13 § 1 and 54 § 2 of the Law on the Bar (see paragraph 34 below). In setting out its reasons the Court of Honour had regard to the crimes committed by the applicant and noted that during the criminal court proceedings he had expressed no remorse (see paragraph 7 above). For the Court of Honour, even though the law did not directly require that a person disclose a prior conviction when submitting a request to become a trainee advocate, such an obligation stemmed from Article 8 (4) of the Law of the Bar, which required candidates to be of high moral character (nepriekaištinga reputacija). Similarly, point 13.2 of the Code of Ethics set out that an advocate had to act honestly and ethically, even if certain acts or behaviour that did not meet the requirements of the Law on the Bar or the Code of Ethics were not described specifically in that Code (see paragraph 37 below). The Court of Honour considered that the crimes which the applicant had committed whilst working in law enforcement had been cynical and had shown great disrespect towards society. Moreover, he had committed those crimes while working in the legal field. In the light of such considerations, the Court of Honour was convinced that the applicant, who had a university degree and had previously had a law-related job, had deliberately withheld information about his prior conviction, because he had been aware that, if information not only about his crimes but also about the manner in which he had committed them had come to light, then the Bar Association would have rejected his application to become a trainee advocate. Lastly, the Court of Honour noted that the profession of advocate was defined not only by legal acts, but also by certain ethical rules, historic practices and society’s legitimate expectations as to the assistance an advocate was to provide as part of his or her role. An advocate should therefore always adhere to the moral and legal standards and obligations, protect the professional honour and dignity of advocates and do nothing that would discredit the good name of the profession, the advocate’s oath, or the notion of justice.

The applicant challenged the above decision before the Vilnius Regional Court. He argued, inter alia, that there had been procedural beaches and that the Court of Honour had not been impartial. He also maintained that the concept of high moral character applied to advocates was too strict when compared with the requirements for bailiffs or civil servants.

On 24 October 2008 the Vilnius Regional Court dismissed the applicant’s appeal as unfounded. It dealt with the applicant’s allegations about procedural violations by the Court of Honour by noting that that court had merely postponed the case on 25 September and 25 October 2007, without examining it on the merits (see paragraph 19 above). The applicant’s suggestion that the Court of Honour had issued a ruling on either of those dates that the applicant had not committed a disciplinary violation was therefore unfounded. Furthermore, J.K., the advocate who had been the president of the Court of Honour, had been questioned as a witness by the Vilnius Regional Court and had testified that he had not been biased against the applicant; he had only had an opinion about the particular actions performed by the applicant. Moreover, the applicant’s allegation about a lack of impartiality on the part of J.K. had also been dismissed as unfounded by the Court of Honour. Lastly, the change in the composition of that court when the case had been decided on 23 November 2007, removing A.P., a member said by the applicant to have been favourable to him (see paragraph 20 above), had not been a decisive factor because the court had been unanimous in its finding against the applicant. The Vilnius Regional Court thus dismissed the applicant’s request to summon for questioning advocate A.P., who, according to the applicant, had participated in the hearing when his case had gone before the Court of Honour. On the basis of the written evidence, the first-instance court established that A.P. had not taken part in the disciplinary proceedings against the applicant.

As to the question of the applicant’s reputation, the Vilnius Regional Court had particular regard to the crimes of which he had been convicted (see paragraph 7 above). While observing that the conviction had expired, the court noted that the crimes had been committed when the applicant had been working in law enforcement. The manner in which those crimes had been committed and their scale did not allow for the assertion that the applicant had automatically regained the status of being of high moral character immediately after the conviction had been expunged. Were it otherwise, society’s expectations as to the morals and ethics of representatives of the advocate’s profession would not be met. Only people of high moral character could be trusted to work in the process of the implementation of justice. In other words, the applicant’s actions had to be looked at to see not only if they had been in accordance with applicable laws, but also whether they had adhered to the requirements of professional ethics. That stemmed, inter alia, from Article 8 (4) and other provisions of the Law on the Bar, which provided that an advocate was liable to disciplinary sanctions, including disbarment, for breaches of professional ethics (see paragraph 34 below), and was something that had also been confirmed by the Supreme Court (see paragraph 43 below).

The Vilnius Regional Court concurred with the Court of Honour that the applicant had had a moral obligation to disclose important information such as a prior conviction to the Bar Association when submitting an application to become a trainee advocate, even though that requirement had not been explicitly stated on the application form (see paragraph 12 above, advokato įskaitos lapas). The fact that, according to the applicant, his supervising advocate, several other advocates in Šiauliai and some members of the Bar Association Council had known about his prior conviction, did not absolve him from the obligation to provide information that was as comprehensive as possible when applying to the Bar, so that it would be possible to assess his reputation objectively and comprehensively. The Court of Honour had also been correct in holding that the applicant had consciously withheld that information because he had understood that the nature of his criminal acts would not have permitted him to be considered as a person of high moral character. In any case, if the applicant had had any doubts about whether the information about his prior conviction was relevant, he could have asked the Bar Association. Consequently, it had been legitimate for the Court of Honour to impose a disciplinary measure on the applicant by removing him from the list of trainee advocates.

The applicant appealed, arguing, inter alia, that the rules of the Code of Ethics had not applied to him at the time when he had requested to become a trainee advocate, given that they applied only to people who were already advocates and trainee advocates. According to the applicant, the president of the Court of Honour had clearly acknowledged to the Vilnius Regional Court that anyone who had disclosed a prior conviction had been admitted to the Bar and that the applicant would also have been admitted if he had done the same. The applicant also relied on Article 5 § 1 (2) of the Law on Bailiffs and Article 9 § 3 (1) of the Law on Civil Service (see paragraphs 41 and 42 below), implying that the definition of high moral character had been interpreted too broadly by the Court of Honour.

The Bar Association asked that the applicant’s appeal be dismissed.

By a ruling of 7 April 2009 the Court of Appeal upheld the Vilnius Regional Court’s arguments and dismissed the applicant’s appeal. It found that no violations had been committed under Article 6 §§ 1 and 3 of the Convention as regards the fairness of the disciplinary proceedings. The rules regulating disciplinary proceedings did not prohibit postponing examination of a case. Moreover, the applicant had not challenged J.M.’s participation in the disciplinary proceedings. It would also have been irrelevant to summon A.P. as she had not sat in the Court of Honour when it had decided on the applicant’s case on 23 November 2007.

As to the merits of the complaint, the Vilnius Regional Court had been correct in its interpretation of the Law on the Bar and of established court practice in looking at the applicant’s crimes, their manner and scale not only in the light of the Law on the Bar, but also taking into account the rules for advocates’ professional ethics. There had been no arguments in the applicant’s appeal to refute the first-instance court’s view of his crimes and behaviour in the light of those ethical requirements. Contrary to the applicant’s submission, the first-instance court had relied on Article 8 (4) of the Law on the Bar and on the Code of Ethics, not on Article 8 (1) of the Law on the Bar. The applicant’s argument that the first-instance court had applied Article 8 (1) of the amended Law on the Bar (see paragraph 35 below) retroactively was therefore unfounded.

Lastly, the Court of Appeal rejected the applicant’s argument that he had had no obligation to inform the Bar Association about his prior conviction. The Court of Honour had been correct in finding that such an obligation stemmed from the Law on the Bar and the Code of Ethics, which also applied to the applicant. The Court of Honour’s conclusion had been supported by point 12.1 of the Code of Ethics, which set out that the relationship between an advocate and the Bar was based on mutual respect and good-will assistance, and by point 13.2, which stated that an advocate must also adhere to the traditions and customs which corresponded to the common principles of ethics and decency (see paragraph 37 below). As a result, the Court of Honour had had grounds to impose a disciplinary penalty on the applicant and to strike his name off the list of trainee advocates on the basis of Articles 7 § 1 (4), 8 (4), 13 § 1 (1) and 35 of the Law on the Bar.

The applicant lodged an appeal on points of law. He submitted, inter alia, that the prohibition on him practising law was in breach of his rights under Articles 8 and 14 of the Convention. He also argued that an expired conviction should not be an obstacle for him to become an advocate. He mentioned that the stricter requirements on reputation under the amendments to Article 8 (1) of the Law on the Bar of 15 April 2008 (see paragraph 35 below), should not have been applied to him retroactively. For the applicant, it was also wrong to apply the Code of Ethics to actions he had committed before becoming a trainee advocate. Lastly, he was also dissatisfied by how his case had been handled by the Court of Honour, relying on Article 6 § 1 of the Convention. He argued that all such considerations meant his case merited review by the Supreme Court because the uniform interpretation of the law was at stake.

On 13 May 2009 the Supreme Court rejected the appeal. It restated its settled case-law (see paragraphs 43 to 47 below) that advocates and trainee advocates were part of the justice system, and were therefore not only bound by laws, but also had to protect the spirit of the law and the ideals of justice and lawfulness. Ignorance of requirements of laws discredited the advocate’s profession and undermined its prestige. An advocate or trainee advocate who had breached imperative legal norms could not excuse that failing by alleging that he or she did not know the law or that the law was not sufficiently precise, because that person was bound to know the law and ethical requirements as part of his or her job. The activity of advocate was not only regulated by standards applicable to the general public, but also by special requirements set out in the laws regulating the advocate’s profession and by professional ethics. The requirements for the applicant’s behaviour, which were set out in the rules for professional ethics, were objectively necessary: only a person whose professional behaviour was beyond reproach could be entrusted to take part in the process of the implementation of justice. The notion of the implementation of justice would be discredited if any and every person was allowed to take part in that process, irrespective of his or her behaviour. The applicant’s case therefore did not give grounds for cassation appeal because it followed established case-law and was not relevant for developing it.

On 25 June 2009 the applicant attempted to submit another appeal on points of law. He drew the Supreme Court’s attention to the Šiauliai Regional Court’s ruling of 17 June 2005 to expunge his conviction (see paragraph 10 above).

On 10 July 2009 the Supreme Court found the appeal to be essentially identical to the earlier one and refused to admit it for examination.


CASE OF CACUCI AND S.C. VIRRA & CONT PAD S.R.L. v. ROMANIA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for home)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The first applicant, Ms Floare Cacuci, was born on 2 March 1939 and lives in Oradea. She is an accounting expert and the owner and general manager of the second applicant, S.C. Virra & Cont Pad SRL, a singlemember company based in Oradea. Both applicants were members of the Romanian Institute of Accounting Experts and Certified Accountants (Corpul experților contabili și contabililor autorizați din România).

On 30 July 2001 the criminal department of the Bihor County Police ordered a forensic accounting report in a criminal case it was dealing with. The first applicant was appointed to produce this report, which concerned pecuniary damage to the State budget in the sum of 22,143,258,699 Romanian lei (ROL), allegedly caused by S.C. T.P. SRL, a private company. The first applicant’s fees in relation to that expert report amounted to ROL 497,250,000.

Claiming that she had not been fully paid for the report, on 25 January 2004 the first applicant submitted to the county police only approximately ninety-five pages of the report, which actually consisted of more than five hundred pages. She only submitted the conclusions of the report. The annexes justifying the conclusions were thus not appended on that occasion, but at a later date (see paragraph 22 below).

The first applicant alleged that, when asked by the Police to hand in the remaining pages of the report, she had replied that the report was on her computer, and that, since she had not received any payment for it, she was not able to print it, as it was extremely long.

On 25 March 2005 the first applicant, together with two other accounting experts, was appointed by the Oradea District Court to produce a forensic accounting report in a criminal case concerning tax fraud, forgery and the use of forged documents – offences allegedly committed by two third parties, M.G.S. and C.V.C, in their capacity as managers of two private companies. A fourth expert, who was assisting M.G.S. and C.V.C., was also appointed to participate in producing the report.

The conclusions of the report, which was submitted on 15 September 2005 by the three experts and with which the assisting expert agreed, noted that no damage had been caused to the State budget by the managerial activities of M.G.S.

M.G.S. and C.V.C were acquitted on 7 December 2005 by the Oradea District Court. That judgment was later upheld by the Bihor County Court on 28 May 2007 on appeal, and by the Oradea Court of Appeal on 22 May 2008 in an appeal on points of law.

On 18 October 2005 the prosecutor’s office attached to the Oradea District Court proposed to initiate ex officio criminal investigations against the first applicant in relation to an offence of intellectual forgery (fals intelectual, defined by Article 289 of the Criminal Code) in connection with the second forensic accounting report. The prosecutor noted that the report was based solely on documents provided by M.G.S., in spite of the fact that it stated that the district court’s case file had been consulted. In the case file, there was no request from any of the experts to either consult the file or obtain copies of it. The conclusions of the report were therefore not based on all the documents on file, in spite of what the report stated.

The prosecutor’s proposal also concerned the two other accounting experts, who were investigated for the same offence as the first applicant.

The proposal to initiate criminal investigations in respect of the first applicant was confirmed by the prosecutor’s office on 19 October 2005.

On 20 October 2005 the prosecutor’s office attached to the Oradea District Court filed an application with the court, asking it to issue a search warrant in respect of the first applicant’s home.

The prosecutor argued that there was a reasonable suspicion that the applicant had committed intellectual forgery while producing the second forensic accounting report, in order to help one of the defendants, M.G.S, avoid investigation. The grounds for this suspicion were: the report’s conclusions contradicted the conclusions of a previous report which had been produced by another accounting expert during the criminal investigation; the report objectives proposed by M.G.S. had most likely been copied and pasted into the report itself, the two documents having the same page settings, wording, spelling and grammar mistakes; and there was no proof that the first applicant had ever studied the case file in the court’s archives or requested copies of the documents in order to produce the expert report, therefore the report was probably based solely on information provided by M.G.S.

The prosecutor also stated that, in accordance with the decision of 19 October 2005, a criminal investigation had already been initiated in respect of the first applicant in relation to intellectual forgery.

The prosecutor further submitted that important evidence relating to the production of the second expert report – such as a computer, a printer, files and documents (whether on paper or on disc) – could be obtained from the first applicant’s home.

On the same day the Oradea District Court – sitting as a single judge, Judge F.P. – allowed the prosecutor’s application and issued a warrant to search the first applicant’s home, with the aim of discovering evidence concerning the alleged offence of intellectual forgery. In accordance with the relevant domestic law, the decision was taken in camera, in the presence of the prosecutor and without summoning the parties.

The warrant was to last three days, the court stating that the search was to be carried out in compliance with Articles 101, 103-108 and 111 of the Romanian Code of Criminal Procedure (hereafter “the RCCP” – see paragraph 46 below). It was formulated as follows:

“Based on Article 100 of the RCCP, in view of the prosecutor’s application issued on 20 October 2005 and the investigative work which has been presented, namely: the minutes attesting to the decision of the prosecutor to initiate criminal investigations ex officio, confirmation of the proposal to initiate criminal investigations against Cacuci Floare in relation to the offence of intellectual forgery as set out in Article 289 of the Criminal Code, and the forensic reports included in the file, [the court] authorises that a home search (percheziție domiciliară) be performed at the suspect’s place of residence, [the suspect being] Cacuci Floare, daughter of ..., born on ..., in Oradea, ..., in the Bihor District.

The search shall be performed in compliance with Articles 101, 103-108 and 111 of the RCCP.

This warrant is to last three days from the day of issue.

Given in camera on 20 October 2005 at 3 p.m.”

According to the first applicant, on 21 October 2005, while she was in the street, having just left her house, she was stopped by a police officer, who told her that he had a search warrant for her home. The first applicant asked to be assisted by her lawyer. The police officer then searched her bag, from which he seized some personal documents, including an orange notebook containing various phone numbers. Subsequently, a prosecutor entered the first applicant’s home in order to perform the home search, accompanied by three police officers, one of whom was an information technology (IT) specialist.

According to the Government’s version of events – supported by the documents in the file, as issued by the criminal investigating authorities (see paragraph 42 below) – the search of the bag was carried out inside the first applicant’s home.

The first applicant’s lawyer arrived at the beginning of the search, namely around ten minutes after the first applicant had been stopped in the street (see paragraph 13 above); two assistant witnesses, who were neighbours of the first applicant, were also present during the search.

The prosecutor’s notes in the search report produced on that occasion at the place of residence of the first applicant state that the first applicant was asked to surrender the items used to commit the alleged offence of intellectual forgery, namely the computer, the printer, and the documents on which the second expert report was based (Articles 96-99 of the RCCP, see paragraph 45 below). The first applicant confirmed the existence of such items at her place of residence.

According to the search report, the first floor of the building was occupied by the first applicant’s office, where she claimed to keep the objects which had been requested and other objects essential to her professional duties.

Several items and documents were found, the first applicant claiming that everything belonged to the second applicant. She showed the prosecutor a lease contract concluded between herself and the second applicant in respect of the use of one half of the immovable property.

According to the report, the following objects were seized: the computer’s central processing unit, one printer, four files and documents concerning various forensic accounting reports, one CD, forty-two floppy discs, an orange notebook containing several notes written by the first applicant and telephone numbers – one of which belonged to M.G.S., see paragraph 7 above – and an empty printer cartridge box.

The applicants argued that, while the copy of the search report handed to them at that moment had made no mention of the manner in which the seized items had been sealed, the copy in the criminal file contained supplementary information on page 4, mentioning that the objects had been put in a sealed cardboard box labelled MAI (the Ministry of Internal Affairs) 15980.

At the end of the search the first applicant declared, in the presence of her lawyer, that she would submit written objections at a later stage. The witnesses had no objections concerning the manner in which the search had been carried out.

According to the report, the search started at 8.45 a.m. and was finished by 12.30 p.m.

On 18 November 2005, at the request of the prosecutor, the Oradea District Court issued a warrant for a search of the computer system and IT data seized from the applicants on 21 October 2005, namely one CD and forty-two floppy discs. The court gave reasons for its decision, accepting that there was sufficient indication that the IT data would prove that the impugned expert report had been partly copied from a document given to the first applicant by M.G.S (see paragraph 11 above).

The warrant was to last three days, starting on 21 November 2005.

According to the applicant, on 18 November 2005 she was summoned to the Cluj District police headquarters to participate in the unsealing of the computer on 21 November 2005. She went there with her lawyer, where they noted that the sealed box was different to the box which had been used at her house during the search (see paragraphs 16-17 above). She therefore asked that the two witnesses who had been present at the search be summoned to attest that the box was different, but the request was refused. Consequently, together with her lawyer, she decided to leave the police headquarters without attending the unsealing and search procedure.

On 5 December 2005 the first applicant submitted the missing 497 pages from the first expert report (see paragraph 6 above) to the Oradea District Court, following payment of 60% of her fee.

On 8 November 2005, pursuant to Articles 275-2781 of the RCCP (see paragraph 47 below), the first applicant filed a complaint against the search carried out on 21 October 2004 (see paragraphs 13-19 above). She contested both the search itself and the manner in which it had been carried out.

The first applicant submitted that the warrant had been issued only in respect of her home, and not in respect of the registered office of the second applicant. In spite of that, a search of the whole house had been carried out, including the space used by the second applicant. The seized items and documents belonged to the second applicant.

The first applicant also submitted that the search had not been necessary, and could have been avoided if she had been asked to submit the relevant items and documents, as set out in Article 98 of the RCCP (see paragraph 45 below). Furthermore, no reasons had been given to justify the search measure.

She argued that the limits of the search warrant had been exceeded by the search carried out in respect of her purse, which constituted a body search (percheziţie corporală), and by the fact that she had been prevented from using her mobile phone during the search.

She complained of the manner in which the electronic devices seized had been sealed on that occasion.

She further referred to the seizure of various items from her home, namely “personal documents and personal notebooks which had no connection to the criminal charge against her”, concluding that all the above circumstances constituted evidence of a breach of her right to a private life, personal inviolability, professional secrecy, and right of property.

On 24 November 2005 the head prosecutor of the prosecutor’s office attached to the District Court of Oradea dismissed the first applicant’s claims, finding that the complaint against the search measure itself was inadmissible, given the lack of specific legal provisions allowing for such an appeal, while the complaint concerning the carrying out of the search was ill-founded.

Concerning the appeal against the search measure itself, the prosecutor gave reasons for his inadmissibility decision, stating that it was inconceivable that any search warrant application would be debated in adversarial proceedings, as such a procedure would impede the very purpose of the search, namely the discovery and collection of specific evidence from a specific place without prior notice.

The prosecutor stated that the search at the applicant’s home had been conducted in accordance with the law. The warrant had been issued in respect of her residence as stated on her identification documents. The prosecutor submitted that the investigating authorities had had no obligation to check whether that residence was also the registered office of various private companies. In the impugned forensic expert report, the first applicant had given her identification details, including her place of residence, without mentioning that the report had been issued by or on behalf of the second applicant. Moreover, during the search, the first applicant had submitted a lease contract concluded between herself and the second applicant concerning one half of the immovable property, without specifying or determining which half belonged to which party.

The prosecutor also stated that the investigating authorities had been obliged to seize all pieces of physical evidence found at the search location, irrespective of who owned them, and that the pieces not belonging to the suspect had been returned to their owner at the end of the criminal trial.

Concerning the body search, namely the search of the first applicant’s bag, the prosecutor submitted that the relevant forensic rules set out clearly and authoritatively that such a search had to be performed before the start of a home search, “so as to preclude any potential act of aggression against the authorities or self-aggression, but also so as to locate and collect any potential corpora delicti thus hidden by the searched person (in [this] case, documents)”.

The rules also provided that the investigating authorities were obliged to prevent any people inside the building in question from communicating with people outside, whether by phone or otherwise, which justified the fact that the first applicant had been temporarily prevented from using her mobile phone.

In respect of the manner in which the seized electronic devices had been sealed, the prosecutor stated that the report produced on that occasion had been signed by both the first applicant and her lawyer, and no objections had been raised. As mentioned in the report, the central processing unit of the computer had been sealed in a cardboard box with the MAI seal. In any event, the manner in which the seized objects had been sealed could not affect the legality of the search, but possibly their use as evidence in the criminal proceedings.

The first applicant contested that decision before both the prosecutor’s office attached to the County Court of Bihor and the Oradea District Court.

It is unclear whether any response to that complaint was given by the prosecutor’s office. In any event, the same complaint was assessed by the domestic courts in two separate sets of proceedings, as detailed below.

In the first set of proceedings, started by the first applicant on 23 December 2005, the Oradea District Court gave its judgment on 29 June 2006, dismissing the first applicant’s complaint as inadmissible in respect of the search measure itself, and ill-founded in respect of the manner in which the search had been carried out. The court stated that, in the event that she was indicted, the first applicant would be entitled to lodge with the criminal courts complaints regarding the search and the acts of the prosecutor.

The first applicant appealed. On 28 November 2006 the Bihor County Court dismissed her appeal, upholding the first instance court’s decision. It considered that the search had been lawful and in compliance with the warrant issued by the Oradea District Court. Furthermore, at the material time, the first applicant, assisted by her lawyer, had not objected to either the search or the manner in which it had been carried out.

The court considered that it would be “abusive” to have an adversarial procedure for debating the necessity of a search, either before or after it was carried out.

In the second set of proceedings, a complaint lodged by the first applicant on 4 January 2006 reiterated the same main arguments as those presented in the proceedings described above. In particular, it referred to the fact that the limits of the search warrant had been exceeded as follows: the warrant had only been issued in respect of her home, and not in respect of the registered office of the second applicant; no warrant had existed in respect of her purse or mobile phone; certain items, like her personal notebooks, had been seized even though they had no connection with the criminal charge. The computer had been seized without being appropriately sealed, therefore the first applicant had refused to take it back in the absence of verification and confirmation by an expert that the IT data had not been altered. The first applicant argued that the real aim of the prosecutor and the police had been to seize her computer in order to copy the 497 pages of annexes to the first accounting expert report (see paragraph 6 above).

In any event, the search had not been necessary, as she would have surrendered all required items and documents if she had been asked to.

The complaint was allocated to a single judge for determination, Judge F.P., who on 21 February 2006 asked to recuse herself from the case, as it had been she who had examined and approved the application for a search warrant on 20 October 2005 (see paragraph 12 above).

That request was dismissed by the President of the Oradea District Court on the same day. It was noted that the first applicant had expressly confirmed that she was not challenging the search measure itself, but the manner in which it had been carried out. In such circumstances, there was no reason for Judge F.P. to withdraw from the case.

In the context of the second set of proceedings, on 28 June 2006 the first applicant lodged an application calling into question the constitutionality of the provisions of Article 100 § 4 of the RCCP (see paragraph 46 below). She claimed that the impugned provisions breached a claimant’s defence rights, right to a fair trial and right to an effective remedy, as he or she was denied the right to participate in proceedings and contest a search measure.

The application was dealt with by the Romanian Constitutional Court (“the Constitutional Court”), which gave its judgment on 30 November 2006, dismissing the objection as ill-founded. The Constitutional Court firstly found that the constitutionality of the impugned provisions had already been examined and found to be in accordance with the Constitution (the court referred to its decision of 21 October 2004, detailed in paragraph 52 below). The court reiterated that only the legislature could dictate the jurisdiction of the domestic courts and trial procedure.

Furthermore, the Constitutional Court held that the issuing of a search warrant was a procedural measure and not a trial in itself, and that therefore the summoning of parties was not obligatory, especially as a search was conducted in the presence of the interested parties and/or their representative. Moreover, interested parties had at their disposal several opportunities and means to contest any measure taken during a criminal investigation or criminal trial.

The case was sent back to the Oradea District Court, which gave its judgment on 31 January 2007, dismissing the first applicant’s complaint. The court noted that a similar claim lodged by the first applicant in another set of proceedings had already been dismissed by a final judgment (see paragraph 31 above).

The court further stated that the search had been carried out in compliance with the domestic legal provisions and in the presence of the prosecutor, the applicant and her lawyer, and no objections had been raised at the material time.

It appears that the decision was not appealed against by the first applicant.

In January 2006 the second applicant was struck off the list of the Romanian Institute of Accounting Experts and Certified Accountants; the first applicant was removed from the list from January 2006 until 7 April 2010, allegedly as a result of the criminal investigations against her.

The first applicant was indicted on 27 September 2009, charged with perjury as a witness in a criminal trial, aiding and abetting a perpetrator (with specific reference to the criminal trial concerning M.G.S. and C.V.C.), and spoliation (the material alteration, thereby invalidation) of evidence.

The indictment referred to the items seized during the search of 21 October 2005, namely documents relating to the forensic accounting reports issued by the first applicant and relevant to several criminal proceedings against various suspects (C.V.C., A.D., F.K., G.P.); the prosecutor considered that such documents had been withheld by the first applicant for the purpose of obstructing justice.

The indictment stated that the criminal proceedings against the two other accounting experts (see paragraph 9 above) were to be terminated (scoatere de sub urmărire penală).

By a judgment of 30 November 2010 the Oradea District Court acquitted the first applicant of all charges.

In relation to the charge of perjury, the court held that such a charge was relevant where an expert had been called before a court to give oral evidence, which had not been the case with regard to the first applicant. In relation to the written evidence given by the first applicant in the form of the forensic accounting report, the court held that the report was a collective piece of work produced by the three experts appointed in the case. Even if evidence had been adduced proving that only one of the experts had personally studied the file in the court’s archives, it could not be inferred that the work had been done by the first applicant exclusively and in the absence of consideration of all the relevant documents and consultation with the other experts.

The court further stated that there was insufficient proof that the first applicant had favoured M.G.S. The accounting expert report had been produced with the other experts appointed in the case. The first applicant had been selected as an expert in the impugned criminal proceedings from a list of six experts, and it had therefore been impossible for her to plan to help M.G.S in any way.

With reference to the documents found at the first applicant’s residence during the search carried out on 21 October 2005, the court stated that they had not been in her possession unlawfully, as all of them had been given to her by the police for the purpose of allowing her to produce the relevant forensic accounting reports. It could therefore not be inferred that the applicant had withheld the documents with the intention of obstructing justice. The court ordered that all IT equipment seized from the first applicant should be returned to her once the judgment became final.

By a judgment of 21 April 2011 the Oradea Court of Appeal dismissed an appeal lodged by the prosecutor and upheld the first-instance court’s judgment, stating essentially that the presumption of innocence in respect of the first applicant had not been rebutted. The only dissenting opinion of the Oradea Court of Appeal considered that the case should have been remitted to the first-instance court for a re-trial, as the first-instance judgment had lacked appropriate reasoning.

The first applicant filed several criminal complaints against the relevant prosecutors and police officers who had requested and carried out the search of 21 October 2005 with various domestic authorities (the Romanian Senate, the High Council of the Judiciary and the Ministry of Internal Affairs), accusing them of abuse of office for carrying out the search in breach of Articles 100-111 of the RCCP (see paragraph 46 below). She reiterated her arguments: a special warrant and a separate report had been needed for the body search (Article 106), and another warrant had been necessary for the search of the company’s registered office (Article 111).

Those complaints were joined and assessed in a unique case file, being dismissed as ill-founded by the Oradea Court of Appeal on 20 September 2006. The court upheld the prosecutor’s decision. In respect of the complaint concerning the body search, it found that the search of the applicant’s bag had been carried out inside her house, as a preliminary step of the actual search measure. Furthermore, the home search warrant had been issued in respect of an address, not in respect of a person or company. The court concluded that all the complaints were ill-founded.

That decision was upheld by the High Court of Cassation and Justice on 10 November 2006.

The first applicant also submitted to the Court a copy of another undated criminal complaint, which was addressed to the prosecutor’s office attached to the High Court of Cassation and Justice. In the complaint, the first applicant claimed that the search report had been forged with regard to the manner in which the computer had been sealed (see paragraphs 16-17 above). She also stated that, at some point after the search, she had noticed that the data on her computer relating to various forensic accounting reports which she had produced had been altered while at the police headquarters, so as to provide evidence to incriminate her.

In the absence of any registration number or reference to a domestic file number, it is unclear if and when that complaint was lodged with the domestic authorities; assuming that it was, it is equally unclear whether the first applicant received any response.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicant was born in 1974 and lives in Chernigiv.

On 25 January 2007 the Desnyanskiy District Court in Chernigiv (“the District Court”) issued a warrant to search the applicant’s flat for a mobile telephone, which had been reported stolen. The relevant part of the ruling read:

“Acting investigator has applied to the court with a request to authorize search of the dwelling of [the applicant] ... with a view to locating a mobile telephone “Nokia7270” stolen from private entrepreneur [K.] ... [theft] having taken place on 2 December 2006 at night.

During the hearing, the acting investigator and the prosecutor have supported their request ...

Having heard the acting investigator [and] the opinion of the prosecutor, and having examined the material of the criminal case, the court concludes that ... [it] has been provided with sufficient data indicating a possibility that the Nokia 7270 mobile telephone may be at the [applicant’s] place of residence.”

On 30 January 2007 the police searched the applicant’s flat in his presence and seized three mobile telephones, which, according to the applicant, belonged to him and his family members. As appears from a poorly legible copy of the list of the seized items prepared by the police, two of these telephones were apparently of Samsung and one – of Nokia make. According to the applicant, on an unspecified date the seized telephones were returned, and neither he nor any of his family members were ever indicted or involved in any other way in the criminal proceedings giving rise to the search warrant.

On 3 March 2007 the applicant lodged an administrative complaint with the District Court, alleging that his home had been searched arbitrarily and seeking moral damages for breaching inviolability of his home.

On 5 March 2007 the District Court refused to examine the above complaint, citing a lack of jurisdiction. It noted that all complaints regarding the unlawfulness of procedural actions by law-enforcement authorities taken in connection with a criminal investigation had to be lodged within the framework of relevant criminal proceedings based on Articles 234 and 236 of the Code of Criminal Procedure of Ukraine (“the CCP”), then in force.

The applicant appealed against that decision. He alleged that there was no meaningful opportunity for him to obtain redress on the basis of the CCP provisions, since a criminal court could only examine complaints concerning the actions of investigation authorities in the context of its examination of a criminal case. In the applicant’s situation, such a remedy would not be effective, since he had no procedural status in the criminal proceedings at issue, and had never been informed of the progress of those proceedings. Moreover, it was not certain whether or when the case would reach trial stage. However, as the applicant considered himself to have been a victim of an arbitrary search, regardless of the outcome of the relevant criminal investigation, he also considered that he had standing to bring an administrative complaint under Articles 2 and 4 of the Code of Administrative Justice of Ukraine (“the CAJ”).

On 15 May 2007 the Kyiv Administrative Court of Appeal rejected the appeal by the applicant, having essentially endorsed the findings of the first-instance court.

The applicant appealed in cassation. He reiterated the arguments raised in his ordinary appeal and additionally submitted that his claim against the police for non-pecuniary damages could not be examined and resolved within the framework of criminal proceedings against a third party.

On 13 May 2009 the Higher Administrative Court of Ukraine rejected the applicant’s cassation appeal.


CASE OF MLADINA D.D. LJUBLJANA v. SLOVENIA

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant, the private company Mladina d.d. Ljubljana, whose registered office is in Ljubljana, is the publisher of the weekly magazine Mladina.

On 16 and 22 June 2005 the National Assembly (hereinafter –“Parliament”) examined a draft law on same-sex civil partnerships. At a later date it adopted the Registration of Same-Sex Civil Partnerships Act (hereinafter – “the Act”). During the parliamentary debate on the issue, certain deputies of the Slovenian National Party (hereinafter – “the SNP”), which opposed legal recognition of same-sex partnerships, took the floor in order to express their disagreement with the proposed draft.

On 27 June 2005 the Mladina magazine published a one-page article entitled “Registration of Same-Sex Civil Partnerships Act adopted”, with the standfirst: “Right-wingers full of pride, but according to non-governmental organisations the Act is not consistent with the Constitution”, summarising the parliamentary debate preceding the adoption of the Act. The first three paragraphs of the article read as follows:

“Last week, the second reading of the proposed Act on the registration of same-sex civil partnerships ended up as a crash course in narrow-mindedness, pervaded by a Stone Age mentality. Our elected representatives were so keen to reject amendments to the draft [and the] actual rights of same-sex oriented citizens that they decided to pass the Act at the third attempt within one single parliamentary session. On Wednesday, the Act came to fruition, the outcome being 44 votes to 3 ...

The SNP’s gunslingers ... shone brilliantly during the explanation of their votes. [B.Z.] spouted forth all the same stupidities as at the previous reading (such as that the Act was completely unnecessary, that the Act had been extorted by marginal groups, that there were other groups which merited the legislature’s priority), and touched on the objections against his use of words such as ʻfaggotsʼ and ʻlesbiansʼ a week ago. He stated: ʻWhere I come from, we call them “faggots” and “lesbians”; in Primorska [a region in Slovenia], they are called “kulotini” and in Ljubljana they are “gays”. I am not someone who would change his way of speaking just because he has come to Ljubljana. In Štajerska [another region in Slovenia], we simply have faggots and lesbians.ʼ

[S.P.], also from the SNP, assured with a playful smile that there was probably not a single person in the assembly hall who wished for the ‘fruit of their loins to declare themselves to be what we are voting on today, with our rights ... in other words, none of us would want to have a son or a daughter who would opt for this kind of marriage’. If our homeless people could follow the breadcrumb trail to Finland or even further, let these ladies and gentlemen also go there to marry. But the biggest victims of this law would be the children of such a marriage: ‘Just imagine a child whose father comes to pick him up from school and greets him with “Heeeeey, I’ve come to take you hooooome! Have you got your coat on yet?’ He accompanied this brilliant remark with a coffeehouse imitation which was probably supposed to clearly illustrate some orthodox understanding of a stereotypically effeminate and mannered faggot, whereas in reality [what it illustrated was] just the typical attitude of a cerebral bankrupt who is lucky to be living in a country with such a limited pool of human resources that a person of his characteristics can even end up in Parliament, when in a normal country worthy of any respect he could not even be a janitor in the average urban primary school.”

In the second half of the article, the author first described the responses of other parliamentarians to the SNP members’ speeches, and in the last two paragraphs concluded with the views on the newly adopted Act expressed by the non-governmental organisations advocating for the rights of same-sex couples, which mainly deplored the fact that the Act accorded a very limited set of rights to these couples. It ended by reporting the announcement by the representatives of these organisations that they would be challenging the newly adopted Act before the Constitutional Court.

On 26 August 2005 the SNP member S.P. brought an action before the Ljubljana District Court for defamation of his honour and reputation against the applicant company, claiming that he had suffered severe mental distress due to the offensiveness of the article. He claimed that the depiction of him as “cerebral bankrupt” was objectively and subjectively offensive, its sole intent being to belittle him.

On 20 September 2005 the applicant company replied that it considered its actions to have been lawful, as a balance had to be struck between S.P.’s right to honour and reputation and its own right to the freedom of expression. It invoked the standards and case-law of the European Court of Human Rights regarding the freedom of the press to impart information on matters of public interest. The applicant company considered that S.P.’s statements in the parliamentary debate had amounted to an insulting attack which degraded homosexuals, and hence the criticism published in Mladina. Nevertheless, the critical article had not been aimed at belittling S.P. as a person, but constituted a reaction to his own extreme statements in similar terms.

On 28 February 2006 the Ljubljana District Court held an unsuccessful settlement hearing.

On 16 May 2006 another hearing was held at which the court heard S.P., who stated that he had not offended anyone with his remarks, nor had he wished to do so. He had taken the offensive remarks in Mladina as an attack on his character and had been very hurt by them, especially as he had become the subject of ridicule in his local community.

On the same date, the Ljubljana District Court handed down its judgment, in which it partially upheld S.P.’s claim and ordered the applicant company to pay him damages in the amount of 700,000 Slovenian Tolars (2,921.05 euros (EUR)). The applicant company was also ordered to publish the introductory and operative part of the judgment in Mladina. The remainder of S.P.’s claim was dismissed. The court acknowledged that the applicant company had had the right to publish critical comments on S.P.’s conduct in the parliamentary debate; however, the term “cerebral bankrupt” had referred to his personal characteristics and was therefore objectively offensive. In the court’s opinion, the use of such offensive language did not simply serve the purpose of imparting information to the public. Moreover, the description in the article did not constitute a serious criticism of S.P.’s work.

As to S.P.’s conduct, the court held that the gestures he had used to mimic the behaviour of a homosexual man were simply reminiscent of gestures made by actors to convey the idea of homosexuality. The court neither found S.P.’s speech and conduct to be offensive to homosexuals, nor considered it to have been aimed at promoting prejudice and intolerance against them. It held that S.P. had merely expressed his opinion, which, wrong as it might have been, was not to be regarded as extreme and thus justifying the treatment in the impugned article.

Both parties appealed against the judgment before the Ljubljana Higher Court.

On 24 January 2007 the Ljubljana Higher Court dismissed the applicant company’s appeal. It upheld S.P.’s appeal in respect of the text to be published in Mladina informing the public of the judgment, but dismissed his claim for greater damages. The Higher Court upheld the District Court’s finding that the statements in the impugned article constituted an offensive judgment of S.P.’s personality which he was not required to endure. The court further held that, even assuming that S.P.’s speech had been offensive to homosexuals, that did not justify the applicant company’s crude response aimed at him personally.

On 10 November 2007 the applicant company lodged a constitutional complaint with the Constitutional Court. It claimed, inter alia, that the impugned article was to be considered a political satire in which the author had merely expressed his opinion on S.P.’s conduct in a public parliamentary debate. It further maintained that the words “typical attitude of a cerebral bankrupt” had not been aimed at S.P. as a person but at his mimicking of the gestures allegedly typical of homosexual men.

On 10 September 2009 the Constitutional Court, by a majority of six votes to three, dismissed the applicant company’s complaint, holding that the lower courts had struck a fair balance between its freedom of expression and S.P.’s personal dignity. The court acknowledged the broad boundaries associated with the freedom of the press, especially when reporting on matters of great public interest, but found on the facts of the case in issue that the lower courts had appropriately applied the criteria resulting from their own case-law and the case-law of the European Court of Human Rights. The court dismissed the applicant company’s assertion that the criticism in question had not been aimed at S.P. as a person but at his mimicking of homosexuals, concluding that the average reader would understand the remark as an assessment of S.P.’s intelligence and personal characteristics.

It also dismissed the applicant company’s argument that the article was to be regarded as a satire, as it was evident from the text that it was intended to inform the public about the content of the parliamentary debate and to express a critical opinion of the speeches of the individual deputies. As regards the applicant company’s argument that the offensive statement had been a response to S.P.’s own offensive remarks, the Constitutional Court acknowledged that in such cases sharper criticism might be permissible, but only if there was a sufficient factual basis for it. As the court found no substantive connection between S.P.’s speech and the assessment of his intellectual abilities, it concluded that the criticism was not justified. In the Constitutional Court’s view, the impugned article and its author’s offensive characterisation of S.P. had not contributed either to people being informed or to a socially responsible public discussion on the position of homosexuals.

Constitutional judge C.R. submitted a dissenting opinion in which he referred to a climate of general tolerance towards intolerant and offensive statements against homosexuals. He further expressed the view that the lower courts had been biased and also that the Constitutional Court had failed to appropriately apply the standards of freedom of the press developed in the case-law of the European Court of Human Rights.


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1966 and lives in St Petersburg.

In April 2003 the applicant gave birth prematurely to twins at a maternity hospital in St Petersburg (“the maternity hospital”). The first twin died nine hours after her birth. The second twin, who was transferred to a resuscitation and intensive therapy unit at one of the St Petersburg children’s hospitals (“the children’s hospital”) twenty hours after his birth, survived. The applicant was of the opinion that her daughter would also have survived had she been promptly transferred to a resuscitation and intensive therapy unit at a children’s hospital.

On 25 May 2003 the applicant’s mother, Mrs D., sent the following telegram to the President of the Russian Federation:

“... newborns are dying because of delays in emergency medical treatment. Resuscitation units lack capacity. [Hospitals] have waiting lists – a brutal practice. Thus in ... April at ... a.m. in Maternity Hospital no. ... [my] grandchildren, twins, ... were born. They were tenth on the waiting list. [My] granddaughter ... never got to the top of the list and died ten hours later. [My] grandson ... was hospitalised twenty hours after his birth and placed in the resuscitation unit of Children’s Hospital no. ... in a very serious condition ... The death [of my granddaughter] has shocked our family. We could not imagine that it was possible not to provide emergency medical treatment to the newborn child ... Does the waiting list constitute negligence or irresponsibility on a criminal scale? I ask [you] to take action. Children’s Hospital no. ... needs urgent help ...”

On 15 June and 1 August 2003 D. sent two more telegrams to the President of the Russian Federation, stating:

“I am informing you for the second time that emergency neonatal resuscitation for premature babies in St Petersburg is being provided on the basis of a waiting list. Who is responsible for the deaths of these children? I request that this problem be examined at the meetings of the Government and the State Duma ...”

“I am wiring you for the third time about the deaths of premature newborns in St Petersburg ... [I] consider the existence of a waiting list for resuscitation treatment a crime ... Waiting for [your] response about the action taken ...”

The Administration of the President of the Russian Federation forwarded the telegrams to the Ministry of Healthcare of the Russian Federation (“the Ministry”) for examination. The Ministry asked the Committee for Healthcare at the St Petersburg City Administration (“the Committee”) to examine the allegations and take the necessary action.

The Committee ordered an examination, which was carried out by a panel consisting of the chief neonatologist of the Committee and the head of the paediatrics department at the advanced medical studies faculty of the St Petersburg State Paediatrics Medical Academy. The examination was carried out on the basis of the applicant’s and the twins’ medical records, which were obtained from the maternity hospital and the children’s hospital. The results of the examination were set out in a report (рецензия), which mainly concerned the development and treatment of the twin who had died. In particular, the report stated that the infant had been born prematurely in the thirty-first week of gestation of an eighth pregnancy and by a first delivery. Her blood test had indicated the possibility of a prenatal viral infection, and she had been clinically diagnosed as premature (at thirtyone weeks), with respiratory distress syndrome and atelectasis. A postmortem examination had revealed moderate interstitial emphysema of the lungs, which had explained the immediate cause of death. It was concluded that she had been born with severe respiratory distress syndrome complicated by an air leak syndrome, and that she had been provided with treatment which had been entirely appropriate, given the seriousness of the condition and the nature of the disease. Such cases carried a risk of death of not less than 80%, in addition to the risk of serious disabilities, and an early transfer to a children’s hospital did not guarantee survival or a favourable outcome. The report also noted that the second twin had suffered from respiratory distress syndrome as well, but to a much lesser extent. The experts did not make any significant observations about the treatment he had received at the maternity hospital or the children’s hospital.

On 5 September 2003 the acting head of the Committee sent the report to the Ministry with an accompanying letter.

On 12 September 2003, in reply to her telegrams, the Committee informed D. of the results of the experts’ examination of the twins’ medical records by briefly restating the conclusions in the report. The Committee noted that the results of the examination of her allegations had been communicated to the Ministry.

On the same day, the Committee forwarded to the Ministry a copy of its reply to D. and informed the Ministry that, according to the conclusion of a commission formed by the maternity hospital where the twins had been born, the reasons for the applicant’s premature delivery had been her compromised obstetricgynaecological history – in particular, seven artificial abortions – and her urogenital mycoplasmosis infection. The letter of 12 September 2003 was the subject of proceedings brought by the applicant against the Committee, about which no further information is available.

On 3 December 2003 the applicant received a letter from the Committee with similar contents to the letter of 12 September 2003 that it had sent to D., stating, in particular, that her children’s medical records had been examined by the panel of experts. It appears that a request by the applicant for a copy of the report was refused, and that that refusal was the subject of separate proceedings brought by the applicant against the Committee. In the course of those proceedings, on 30 November 2004, the applicant received a copy of the report and the Committee’s letter to the Ministry of 5 September 2003.

On 25 February 2005 she brought new proceedings against the Committee, seeking a declaration that its actions had been unlawful in that it had collected and examined her medical records and those of her children, and had communicated the report containing her personal information to the Ministry without obtaining her consent. She requested that the report and the letter of 5 September 2003 be declared invalid. She stated that she had not asked the Committee to examine the quality of the medical treatment she and her children had received or to establish the cause of her daughter’s death. She claimed that the Committee had interfered with her private life by disclosing – without her consent – confidential information to a considerable number of individuals, including staff at the Committee and the Ministry who dealt with correspondence and other employees. She relied on Article 61 of the Basic Principles of Public Health Law, which prohibited the disclosure of confidential medical information without a patient’s consent. She argued that the provisions of Article 61 contained an exhaustive list of exceptions to that general rule, and that the Committee’s impugned acts had not fallen under any of them.

On 14 December 2005 the Kuybyshevskiy District Court of St Petersburg dismissed her application. The chief neonatologist, who was examined as a witness, stated that: he had acted within his powers; he had not been able to verify D.’s allegations without obtaining the medical records in question; he had involved medical specialists in the examination of those records; and no disclosure of the information contained in those medical records had taken place. A representative of the Committee denied the applicant’s allegations.

The District Court found that the Ministry had asked the Committee to examine the allegations set out in D.’s telegrams. The Ministry had had the power to request material from the Committee, which in turn had had a corresponding duty to submit detailed information. The applicant’s medical records had been examined by doctors bound by confidentiality. It was the report prepared as a result of that examination, and not the applicant’s medical records per se, which had been transferred to the Ministry.

On the basis of the above considerations, the District Court held that the applicant’s rights, as guaranteed by Article 61 of the Basic Principles of Public Health Law, had not been violated.

The District Court also noted that the applicant had lodged her application on 25 February 2005, although she had learned that her children’s medical records had been obtained without her consent on 3 December 2003 from the Committee’s letter of that date. The District Court saw no reasonable excuse for her failure to lodge her application within the statutory timelimit. Lastly, it rejected her request for a separate ruling to denounce the Committee’s allegedly common practice of obtaining medical records without patients’ consent.

An application by the applicant for clarification of the judgment – in particular, for details as to whether her application had been dismissed on the merits or because it had been time-barred – was dismissed on 20 January 2006 by the District Court, which considered that the judgment had been clearly formulated and did not allow for different interpretations. The applicant did not appeal against that decision.

The applicant appealed against the judgment, relying on Article 61 and, in particular, the exhaustive list of exceptions to the general rule of non-disclosure of confidential medical information without a patient’s consent provided therein. She stated that her own medical records and those of her children had been collected and examined without her consent by Committee officials acting ultra vires, and not by her own doctors, who were bound by confidentiality. The report contained confidential medical information and its communication to the Ministry without her consent had been unlawful. The fact that her own personal medical records had been examined in addition to those of her children had become known to her at a later date than 3 December 2003. The threemonth timelimit for lodging her application had started running on 30 November 2004, when she had received a copy of the report. She had therefore complied with that time-limit.

On 14 March 2006 the St Petersburg City Court dismissed the applicant’s appeal against the judgment and fully endorsed the District Court’s findings.


No 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)

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in 1982 and lives in Adana. As the facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicant are set out in Section B below (paragraph 6). The Government’s submissions concerning the facts are summarised in Section C below (paragraph 7). The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraph 8-30).

At the time of the incidents the applicant was selling CDs from a street stand in Adana. On 5 July 2001 the applicant and his relative M.Y. were arrested by the police while they were working at the stand. They were taken to the police station and beaten up by a police officer there. As a result of a punch to his ear, the applicant’s eardrum was perforated. The applicant and M.Y. were subsequently released from the police station.

On 5 July 2001 the Adana Police Station received a complaint that damaged CDs were being sold from a street stand. A number of police officers went to the venue and talked the applicant and M.Y. into a solution with the complainant, but they did not arrest them because their activity had not constituted an offence.

On 7 July 2001 the applicant and M.Y. lodged a criminal complaint with the Adana prosecutor against a police officer who they alleged had ill-treated them on 5 July 2001. At the time of their complaint they did not know the identity of the police officer but gave a description of his physical appearance. They also complained that they had been arrested without any explanation and that as a result of that arrest they had been arbitrarily deprived of their rights.

On 9 July 2001 the applicant went back to the Adana prosecutor’s office and complained that he had been injured as a result of the ill-treatment. In order to provide evidence of his injuries the applicant requested a medical examination. On the same day the Adana prosecutor referred the applicant to the Adana Forensic Medicine Institute.

On 10 July 2001 the Adana Forensic Medicine Institute reported that the applicant’s left eardrum had been perforated as a result of physical trauma, and that the injury required a 15-day healing period.

On 10 July 2001 the applicant also applied to the Adana branch of the Turkish Human Rights Foundation, where a number of physical and psychological assessments were carried out by the doctors working for the Foundation. According to a report drawn up on 22 October 2001, the applicant had a perforation in his left eardrum and he was suffering from acute post-traumatic stress disorder. The report concluded that the doctors’ findings were compatible with the applicant’s story of ill-treatment.

In the Turkish Human Rights Foundation’s report the applicant was reported as having described the incident and told the doctors that after he was punched on his ear, his eardrum had been perforated and he was no longer able to hear on that side. He added that, at the end of his arrest, he had not been taken to a forensic doctor for the required medical check, but the police officers had taken him to a private doctor, where he was diagnosed with ear perforation. The applicant submitted the report for the investigation file. However, this evidence was not further investigated during the proceedings.

On 11 July 2001 the applicant and his relative M.Y. gave their statements at the Adana prosecutor’s office. The applicant complained that he had been beaten by a police officer working at the Adana Police Station and as a result his eardrum had been perforated. He said that he did not know the name of the officer, but he could identify him. M.Y. affirmed the same in his statement. He complained that he had also been beaten by the same officer; however, he had not asked to be examined by a doctor because the ill-treatment had not left any marks on his body.

On 16 July 2001 the prosecutor’s office asked for another medical examination at the Adana State Hospital in order to determine the date of injury to the applicant’s ear. It was concluded that it was medically not possible to determine the date of injury.

On 18 July 2001 the applicant submitted the names of his witnesses to the investigating authorities.

On 2 August 2001, a chief police commissioner who had been entrusted with the duty of investigating the applicant’s allegations, questioned the applicant, his relative M.Y., the suspect and two other police officers as witnesses. That administrative investigation was conducted because the domestic law applicable at the time required prosecutors to seek permission from the administrative authorities before they could prosecute a police officer (see paragraph 58 below). A police officer, V.A., who worked at the Adana police station, testified as a witness. He stated that the applicant had neither been arrested nor ill-treated on 5 July 2001.

On the same day the applicant was arrested once more after a complaint was received regarding his CD stand, and taken to the police station. He was released the following day.

On 25 October 2001 the Adana prosecutor decided not to prosecute the police officer because the Governor of Adana had denied the requisite permission for a criminal prosecution.

On 6 May 2002 the prosecutor’s decision was notified to the applicant’s lawyer. On the same day the lawyer lodged an objection against the decision.

In response to the applicant’s objection, on 20 May 2002 the Tarsus Assize Court decided to quash the decision and ordered the prosecutor to file criminal charges against the police officer. The Assize Court noted that the prosecutor had not conducted a proper investigation and had failed, in particular, to establish whether the applicant had been taken to the police station on 5 July 2001, and to question the eyewitnesses named by the applicant.

M.T., a police officer working at the Adana Police Station, was subsequently indicted before the Adana 8th Criminal Court of First Instance (hereinafter “the criminal court”) and the applicant was admitted to the case as the complainant. On 14 August 2002 M.T. gave his statement before the criminal court. He denied all the charges.

On 13 August 2002 the suspect M.T. informed the criminal court in writing that he had been assigned to work for the United Nations Mission in Kosovo; therefore, he would not be able to be present at the court hearings. As a result, until June 2004 the criminal court was unable to summon him to take part in the proceedings.

On 18 March 2003 and 29 September 2003 the witnesses proposed by the applicant testified before the criminal court. The first witness stated that he had helped the applicant at his CD stand occasionally, and that he had seen him on the day of the incident. The applicant had told him that he had been ill-treated by the police because he had refused to provide them with free CDs. The other witness testified that he had taken the applicant to the hospital, and during that time the applicant had told him that he had been beaten in the police station.

On 25 March 2003 police officer V.A. (see paragraph 16 above) appeared as a witness before the criminal court. He testified that the applicant had been taken to the police station by the suspect M.T. However, he had not been subjected to ill-treatment.

On 10 June 2004 the suspect M.T. attended the hearing before the criminal court. The applicant was not present at the hearing. The criminal court ordered the applicant to attend the next hearing and identify the suspect from his photographs. However, the applicant and his relative M.Y. could not be brought before the criminal court until May 2005 as a result of a change of address.

On 5 May 2005 the applicant and his relative M.Y. attended the hearing before the criminal court. M.Y. also testified as a witness. He stated that the applicant had been subjected to ill-treatment at the police station and had suffered injuries to his ear, which was later diagnosed at the hospital as perforation of the eardrum. The criminal court also asked him to identify the suspect from his photograph. M.Y. stated that he needed to see the suspect in person in order to be able to identify him because he considered that he would not be able to do so from the photographs.

On 5 January 2006 the criminal court was informed that the suspect could not appear before the court because he was in Kosovo. The suspect could not be brought before the court until December 2006.

On 17 September 2007 the criminal court decided to acquit the police officer on the ground of insufficient evidence.

On 18 September 2007 the applicant’s lawyer appealed to the Court of Cassation.

On 8 February 2010 the Court of Cassation quashed the decision of the first instance court on the ground that the limitation period had expired, and ordered the discontinuation of the proceedings against the police officer.


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Positive obligations) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano

The applicant was born in 1973 and is detained in Drobeta Turnu Severin Prison.

On 28 October 2009 the applicant was convicted of rape and sentenced to ten years’ imprisonment. He has since been serving his sentence in various Romanian prisons.

The medical report drawn up when the applicant was admitted to prison on 28 October 2009 indicates that he was “clinically healthy” (clinic aparent sănătos).

From 26 May to 9 June 2011 the applicant was placed in the hospital wing of Rahova Prison, Bucharest, where he underwent surgery on 3 June 2011 for an inguinal hernia on his right side.

From 2 to 8 October 2012 the applicant was placed in the internal medicine unit of the hospital wing of Jilava Prison, for digestive problems. He was included in a screening programme for digestive and liver conditions. Following a medical test to identify the viral markers of hepatitis, the applicant was found to be suffering from viral hepatitis C (purtator VHC). A biochemical blood analysis was conducted; the results indicated that his ALAT, ASAT and GGT enzyme levels were normal, as was his total bilirubin.

In a note summarising the medical tests conducted during the applicant’s hospitalisation (scrisoare medicală), the doctor who had treated him observed that the applicant’s disease was progressing satisfactorily and that no additional examination was necessary at that stage. He recommended that the applicant adhere to a specific diet and refrain from smoking. He prescribed symptomatic treatment, namely hepatoprotective drugs and vitamin therapy, noting that these were to be administered “if needed” (la nevoie). The applicant’s health was scheduled for re-examination within six months.

The applicant was provided with a special diet for persons suffering from disease (norma 18). During January, February and March 2013 he was treated with hepatoprotective drugs.

On 21 February 2013 the applicant refused to be hospitalised for his health check-up. His medical records do not indicate the reasons for this refusal. However, they indicate that his health was to be re-examined within six months.

From 5 to 8 August 2013 the applicant was placed in the internal medicine unit of the hospital wing of Jilava Prison for re-testing of his liver function. Blood tests showed that the ALAT and ASAT enzymes were slightly above the normal levels. On leaving the hospital wing, the applicant was advised to follow a course of hepatoprotective drugs, vitamin therapy and symptomatic treatment, to be administered if needed. He was also advised to have his condition reassessed within six months.

The applicant continued to be provided with the special diet for persons suffering from disease. In August, October and December 2013 he was treated with hepatoprotective drugs. The list of the applicant’s medical consultations shows that, following a medical examination on 9 December 2013 in Jilava Prison, it was recommended that he attend a medical consultation for hepatitis C in Ion Cantacusino public hospital.

At the end of December 2013 and in January 2014 the applicant was treated with a hepatoprotective drug and vitamins.

On 14 January 2014 the applicant refused to be hospitalised for re-assessment of his health with regard to the hepatitis C condition. On 19 January 2014 the applicant was examined by an internal medicine specialist, who noted that his general state of health was good.

On 28 January 2014 the applicant was examined by the prison doctor. The latter noted a diagnosis of “liver disease under observation” and indicated that the applicant had complained of vomiting. An anti-spasmodic drug was prescribed and administered to him.

On 13 February 2014 the applicant complained of palpitations. He was examined by the prison doctor, who recommended a cardiology test.

From 18 to 21 February 2014 the applicant was placed in the internal medicine and cardiology unit in the hospital wing of Jilava Prison, on the grounds that he required medical supervision for retro-sternal pain and that, as a smoker, he was an at-risk patient. An electrocardiogram and blood test were carried out. The biochemical blood analysis revealed that the ALAT enzyme was one-and-a-half times over the upper norm, that the ASAT enzyme was slightly over the norm and that the GGT enzyme was at normal levels.

A medical certificate issued at the end of his hospitalisation indicated that the applicant was suffering from unstable angina (angor intricat de novo) and potentially toxic liver disease (hepatopatie posibil toxică). The applicant was prescribed treatment for his heart disease and a course of hepatoprotective treatment, to be followed for one month.

In March 2014 the prison took the necessary steps to purchase the hepatoprotective drug, which was administered to the applicant at the beginning and end of May 2014. The applicant’s medical records indicate that he was treated with hepatoprotective drugs in June and July 2014.

In the meantime, on 2 August 2013 the applicant had applied to the judge delegated by the court to supervise the observance of prisoners’ rights in Jilava Prison (“the delegate judge”), complaining about his physical conditions of detention and a lack of medical treatment for his hepatitis C.

By a decision of 19 August 2013, the delegate judge dismissed his complaint. He confirmed the applicant’s allegations that he was being held in a cell measuring 33.96 m², occupied by twenty-seven inmates and containing four tables and six chairs. He further held that the prison authorities had attempted to improve conditions in the cell, noting that it had recently been renovated. He stated that the toilet block was separated from the cell, and that the cell received natural and artificial light. The fact that the cell was equipped with three-tier bunk beds arose from an objective cause, namely an increase in the number of detainees, and not from a lack of good will on the part of the prison authorities.

With regard to the medical treatment provided to the applicant, the judge noted that he received the special diet for persons suffering from disease and that he had just received vitamin therapy.

Following an appeal by the applicant, on 4 December 2013 the Bucharest Court of First Instance upheld, in a final judgment, the delegate judge’s decision of 19 August 2013.