CASE OF SATAKUNNAN MARKKINAPÖRSSI OY AND SATAMEDIA OY v. FINLAND

Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Final domestic decision);No violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom to impart information);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

Alena Poláčková;Aleš Pejchal;András Sajó;Angelika Nußberger;Armen Harutyunyan;Carlo Ranzoni;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Kristina Pardalos;Krzysztof Wojtyczek;Lech Garlicki;Luis López Guerra;Marko Bošnjak;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Päivi Hirvelä;Pauliine Koskelo;Paulo Pinto De Albuquerque;Síofra O’Leary;Vincent A. De Gaetano;Yonko Grozev

Since 1994 the first applicant company, Satakunnan Markkinapörssi Oy collected data from the Finnish tax authorities for the purpose of publishing information about natural persons’ taxable income and assets in the Veropörssi newspaper. Several other publishing and media companies also publish such data which, pursuant to Finnish law, are accessible to the public (see paragraph 39 below for an explanation of the Finnish access to information regime).

In 2002 Veropörssi appeared 17 times, with each issue concentrating on a certain geographical area of the country. The data published comprised the surnames and forenames of approximately 1.2 million natural persons whose annual taxable income exceeded certain thresholds, mainly from 60,000 to 80,000 Finnish marks (approximately 10,000 to 13,500 euros (EUR)), as well as the amount, to the nearest EUR 100, of their earned and unearned income and taxable net assets. When published in the newspaper, the data were set out in the form of an alphabetical list and organised according to municipality and income bracket.

The first applicant company worked in cooperation with the second applicant company, Satamedia Oy, and both were owned by the same shareholders. In 2003 the first applicant company started to transfer personal data published in Veropörssi, in the form of CD-ROM discs, to the second applicant company which, together with a mobile telephone operator, started a text-messaging service (SMS service). By sending a person’s name to a service number, taxation information could be obtained concerning that person, on the requesting person’s mobile telephone, if information was available in the database or register created by the second applicant company. This database was created using personal data already published in the newspaper and transferred in the form of CD-ROM discs to the second applicant company. From 2006 the second applicant company also published Veropörssi.

It transpires from the case file that in 1997 the Minister of Justice requested that the police instigate a criminal investigation into the publishing activities of the applicant companies. No information is contained in the file as to the outcome of this request or of any subsequent investigation.

In September 2000 and November 2001, the applicant companies ordered taxation data from the Finnish National Board of Taxation (verohallitus, skattestyrelsen). Following the first order, the Board requested an opinion from the Data Protection Ombudsman, on the basis of which the Board invited the applicant companies to provide further information regarding their request and indicating that the data could not be disclosed if Veropörssi continued to be published in its usual form. The applicant companies subsequently cancelled their data request and paid people to collect taxation data manually at the local tax offices.

On an unspecified date, probably in 2003, the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen) contacted the applicant companies and advised them that, although accessing and publishing taxation data were not prohibited as such, they had to cease publishing such data in the manner and to the extent that had been the case in 2002, when they had published data concerning the 2001 tax year. The applicant companies refused to abide by this request, which they considered violated their right to freedom of expression.

By a letter of 10 April 2003 the Data Protection Ombudsman asked the Data Protection Board (tietosuojalautakunta, datasekretessnämnden) to prohibit the applicant companies from processing the taxation data in the manner and to the extent that had been the case in 2002 and from passing those data to the SMS service. He claimed that under the Personal Data Act the companies had no right to collect, store or pass on personal data and that the derogation provided by that Act concerning journalism did not, in his view, apply to the present case. The collecting of taxation information and the passing of such information to third parties were not for journalistic purposes and therefore were not covered by the derogation in the Personal Data Act, but rather constituted the processing of personal data in which the applicant companies had no right to engage.

On 7 January 2004 the Data Protection Board dismissed the Data Protection Ombudsman’s request. It found that the derogation laid down in the Personal Data Act concerning journalism applied to the present case. As regards the SMS service, the data used in the service had already been published in Veropörssi and therefore the Act did not apply to it.

By letter dated 12 February 2004 the Data Protection Ombudsman appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) reiterating his request that the applicant companies be prohibited from processing taxation data in the manner and to the extent that had been the case in 2002 and from passing such data to the SMS service.

On 29 September 2005 the Administrative Court rejected the appeal. It found that the derogation laid down in the Personal Data Act concerning journalism, which had its origins in Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data was adopted (OJ 1995 L 281, p. 31, hereafter “the Data Protection Directive”), should not be interpreted too strictly, as an overly strict interpretation would favour protection of privacy over freedom of expression. That court considered that Veropörssi had a journalistic purpose and that it was also in the public interest to publish such data. It emphasised, in particular, that the published data were already accessible to the general public. The journalism derogation thus applied in the circumstances of the present case. As regards the SMS service, the Administrative Court agreed with the Data Protection Board that, as the information had already been published in the newspaper, the Act did not apply to it.

By letter dated 26 October 2005 the Data Protection Ombudsman lodged an appeal with the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Helsinki Administrative Court.

On 8 February 2007 the Supreme Administrative Court decided to request a preliminary ruling from the Court of Justice of the European Communities (which became the Court of Justice of the European Union on 1 December 2009, hereafter the “CJEU”) on the interpretation of Directive 95/46/EC.

On 16 December 2008 the Grand Chamber of the CJEU handed down its judgment (see Case C-73/07 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, EU:C:2008:727). It found, first of all, that the activities in question constituted “processing of personal data” within the meaning of Article 3(1) of Directive 95/46. According to the CJEU, activities involving the processing of personal data such as those relating to personal data files which contained solely, and in unaltered form, material that had already been published in the media, also fell within the scope of the Directive (see paragraphs 37 and 49 of the judgment). The object of the derogation in Article 9 of the Directive for the processing of personal data carried out solely for journalistic purposes was to reconcile the protection of privacy with freedom of expression. In order to take account of the importance of the latter in every democratic society, it was necessary to interpret notions relating to that freedom, such as journalism, broadly. However, in order to achieve a balance between those two fundamental rights, the protection of the fundamental right to privacy required that the derogations and limitations in relation to the protection of data had to apply only in so far as were strictly necessary (see paragraphs 54 and 56 of the judgment). Journalistic activities were not limited to media undertakings and could be undertaken for profit-making purposes (see paragraph 61). Furthermore, when interpreting the journalistic purposes derogation, account must be taken of the evolution and proliferation of methods of communication and the dissemination of information. Activities such as those involved in the domestic proceedings, relating to data from documents which were in the public domain under domestic legislation, could be classified as “journalistic activities” if their sole object was the disclosure to the public of information, opinions or ideas, irrespective of the medium which was used to transmit them. Whether or not that was the case, was for the national court to determine (see paragraphs 60-62 of the judgment).

On 23 September 2009 the Supreme Administrative Court, applying the ruling of the CJEU and with reference to the case-law on Article 10 of the Convention, quashed the impugned decisions of the Data Protection Board and the Helsinki Administrative Court and referred the case back to the Data Protection Board for a fresh examination with a view to issuing an order pursuant to section 44(1) of the Personal Data Act. The Supreme Administrative Court requested the Board to prohibit the processing of taxation data by the applicant companies in the manner and to the extent carried out in 2002.

In its legal assessment, the Supreme Administrative Court gave the following reasoning:

“Scope of the matter

The present case does not concern the question of the extent to which taxation data and official documents concerning taxation are public under the Act on the Public Disclosure and Confidentiality of Tax Information.

Nor does it concern the right to publish taxation data as such but only the processing of personal data. Therefore, there is no issue of possible prior interference with the content of the publications, but rather an assessment of whether the legal conditions set for personal data processing and protection of privacy are fulfilled.

The reconciliation of protection of privacy with freedom of expression is part of the legal assessment of personal data processing in the matter.

Reconciliation of the protection of privacy and freedom of expression

Interpretation of the exception concerning journalistic purposes in the Data Protection Directive. The Court of Justice of the European Communities emphasised that the purpose of the Data Protection Directive is to ensure that when processing their personal data, the Member States guarantee individuals’ fundamental rights and freedoms, and in particular their right to privacy, while allowing the free movement of such information. The Court further emphasised that these fundamental rights must be reconciled to a certain extent with the fundamental right to freedom of expression, and that this task belongs to the Member States.

It therefore appears from the aforementioned ruling of the Court of Justice of the European Communities that the concept of journalism must, as such, be interpreted broadly within the meaning of Article 9 of the Directive, that, on the other hand, the protection of privacy can be derogated from only in so far as it is strictly necessary, and that this task of reconciliation of the two fundamental rights is the task of the Member States. Ensuring proper balance between the rights and interests at stake, including the fundamental rights guaranteed in the Communities’ legal order, is the task of the domestic authorities and courts (see also case C-101/01 Lindqvist).

Interpretation of the exception in the Personal Data Act concerning journalistic purposes. ... It transpires from the preparatory work on the Personal Data Act (HE 96/1998 vp) that the purpose of the adoption of the Personal Data Act was to maintain the existing situation in respect of journalistic files kept by the media, provided it remained within the limits imposed by the Data Protection Directive. Therefore, in order to conclude that processing of personal data is conducted for journalistic purposes within the meaning of the Personal Data Act, inter alia, that data must be used solely for journalistic activities and the data must not be made available to persons other than those involved in those journalistic activities.

When interpreting section 2(5) of the Personal Data Act, particular regard must be had to the fact that it concerns the reconciliation of two fundamental rights, namely the freedom of expression and the protection of privacy.

The case-law of the European Court of Human Rights has also adopted a position on reconciling freedom of expression with the protection of privacy. The Court has held, inter alia in its von Hannover judgment of 24 June 2004, that the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart, in a manner consistent with its obligations and responsibilities, information and ideas on all matters of public interest.

On the other hand, the Court also held in the above-mentioned judgment that increased vigilance as regards the protection of private life was necessary in order to contend with the new communications technologies which make it possible to store and reproduce personal data.

According to the Court, when balancing the protection of private life against freedom of expression, the decisive criterion had to be the contribution made by publishing the data to a debate of public interest. If a publication is only meant to satisfy the curiosity of a certain audience, freedom of expression must be interpreted more narrowly.

In the present case, it must be assessed to what extent the impugned processing of personal data as carried out in the course of the companies’ activities falls within the scope of the exception concerning journalistic purposes that is provided for in section 2(5) of the Personal Data Act. The starting point is whether the aim of their activities was to disclose information, opinions or ideas to the public. In this assessment, account must be taken of whether or to what extent those activities can be seen as contributing to a debate in a democratic society rather than solely satisfying the curiosity of certain individuals.

Processing of personal taxation data in the background file of Satakunnan Markkinapörssi Oy and in the Veropörssi newspaper

Satakunnan Markkinapörssi Oy collected for the Veropörssi newspaper taxation data from different tax offices in which individuals’ names appear together with information on their taxable income.

As mentioned above, the case concerns the processing of personal data to which the general requirements in Chapter 2 of the Personal Data Act are applicable, unless the Act allows for an exception from the application of these provisions. It must first of all be assessed whether the processing of personal data in the company’s background file before the publication of such data in the Veropörssi newspaper falls within the scope of the exception concerning journalistic purposes.

From the preparatory work on the amendment of the Personal Data File Act (HE 311/1993 vp), which was the Act in force before the Personal Data Act, it transpires in particular that the press considers that the right to freely disclose information also requires journalists to be able, in advance, to freely collect and store information. Restricting the processing of personal data at this stage, that is to say before publication, could in practice mean that a prior decision is taken on what can be published. Such an outcome would be incompatible with the fundamental right guaranteeing freedom of expression.

The issue at stake in the present case concerns publicly accessible personal data received from the tax authorities. The collection and processing of such data in the company’s internal files for the purpose of the company’s publishing activities can, on the basis of above-mentioned grounds, be regarded as processing of personal data for journalistic purposes. The processing of large quantities of such data from the various municipal taxation records may well be necessary as background information for the purpose of the editing of a publication concerning taxation and from the point of view of free communication and open debate. At this stage of activities the protection of the privacy of the persons concerned can also be sufficiently secured, provided that the data collected and stored in the file are protected against unlawful processing as required by section 32 of the Personal Data Act.

Satakunnan Markkinapörssi Oy has published the personal data collected from the tax offices as wide-ranging municipality-based catalogues in the Veropörssi newspaper. As already stated above, in this regard too it is a question of processing personal data within the meaning of section 3(2) of the Personal Data Act. As part of the case file, the Supreme Administrative Court had at its disposal Veropörssi newspaper no. 14/2004, published by Satakunnan Markkinapörssi Oy and covering the Helsinki metropolitan area.

In this respect it must be decided whether a derogation is possible from the requirements relating to the processing of personal data on the basis of section 2(5) of the Act, that is to say whether the impugned processing of personal data by publishing those data in the Veropörssi newspaper came within the scope of the exception provided for journalistic purposes.

It transpires from the preparatory work on the Personal Data Act (HE 96/1998 vp) that the processing of data in the background file referred to in the Personal Data File Act must relate solely to journalistic activities and that the processed data must not be made available to any persons not engaged in journalistic activities. The purpose of section 2(5) of the Personal Data Act was to maintain the existing situation in respect of journalistic files kept by the media, within the limits allowed by the Data Protection Directive. Therefore, the purpose of the Personal Data Act in this respect can be seen as guaranteeing the possibility for free journalistic work prior to the publication of information.

The term “processing of personal data for journalistic purposes” cannot be regarded as covering the large–scale publication of the journalistic background file, almost verbatim, as catalogues, albeit split into different parts and sorted by municipality.

Since the disclosure of registered data on such a scale is equivalent to the disclosure of the entire background file kept for journalistic purposes by the company, such disclosure does not represent solely an expression of information, opinions or ideas. As stated above, with a view to reconciling the requirements of freedom of expression with the protection of privacy, the collection of data before publication has been made permissible under section 2(5) of the Personal Data Act without any requirement of compliance with general conditions set out in section 8 of the Act. By contrast, the processing of personal data collected in the company’s background file by publishing it and by rendering it available to the general public to the extent that has been done in the present case, and beyond the scope of the minimum requirements set out in section 2(5) of the Act, cannot be regarded as compatible with the purpose of the Personal Data Act.

Open public-interest debate, the monitoring of the exercise of power in society and the freedom to criticise, which are necessary in a democratic society, do not require the disclosure of the personal data of specific individuals in the manner and to the extent described above. When regard is also had to the foregoing comments on the narrow interpretation of section 2(4) of the Personal Data Act and the fact that a strict literal interpretation of that provision would result in a situation incompatible with the purpose of the Act as regards protection of personal data, the processing of personal data with a view to publishing them in the Veropörssi newspaper, and as far as the contents of this publication itself are concerned, was not conducted for journalistic purposes within the meaning of the Personal Data Act.

Having regard to sections 2(5) and 32 of the Personal Data Act and Article 9 of the Data Protection Directive, as interpreted by the Court of Justice of the European Communities in its preliminary ruling, the collection of personal data prior to its publication in the Veropörssi newspaper and its processing in the background file of Satakunnan Markkinapörssi Oy cannot as such be regarded as contrary to the regulations concerning the protection of personal data, provided that, inter alia, the data have been protected properly. However, with reference to all the clarifications on how and to what extent the personal data in the background file were further processed in the Veropörssi newspaper, Satakunnan Markkinapörssi Oy did in fact process personal data concerning natural persons in violation of the Personal Data Act.

Handover of data in a CD-ROM

Satakunnan Markkinapörssi Oy handed over a CD-ROM containing the published data to Satamedia Oy so that the latter could start up an SMS service using that data. As mentioned above, that action amounts to the processing of personal data within the meaning of section 3(2) of the Personal Data Act.

Having regard to the preliminary ruling of the Court of Justice of the European Communities and its effect on the interpretation of section 2(4) of the Personal Data Act, as well as all that has been said above about the processing of personal data in the Veropörssi newspaper, the handover to Satamedia Oy of personal data collected in the background file of Satakunnan Markkinapörssi Oy, even though they were published in the Veropörssi newspaper, cannot be regarded as processing of personal data for journalistic purposes within the meaning of Personal Data Act. Nor can the processing of personal data in such a manner be regarded as having been effected for journalistic purposes within the meaning of Article 9 of the Data Protection Directive. Therefore, in that regard too, Satakunnan Markkinapörssi Oy processed personal data in violation of the Personal Data Act.

Processing of personal data for the realisation of a SMS service by Satamedia Oy

As stated above in the “Facts” section, Satamedia Oy handed over the above-mentioned personal data to a third company in order to start up a SMS service, which company operated the SMS service on behalf of Satamedia Oy.

It was pointed out above that Satakunnan Markkinapörssi Oy had no right under the Personal Data Act to process the personal data at issue by handing it over to Satamedia Oy. Consequently, Satamedia Oy also had no right under the Personal Data Act to process personal data received in this manner.

In addition, it follows from the preliminary ruling of the Court of Justice of the European Communities that the exception provided for in the Data Protection Directive, which concerns the processing of personal data for journalistic purposes, requires the disclosure of data to the public. According to section 2(1) of the Act on the Exercise of Freedom of Expression in Mass Media, the term “the public” in that Act refers to a group of freely determined message recipients. Satamedia Oy’s SMS service involves the company processing personal data relating to the taxation of a specific individual on the basis of a request by another individual. It therefore does not concern disclosure of data to the general public, as explained above, but replying to a request by an individual concerning the personal data of another individual.

Open public-interest debate, the monitoring of the exercise of power in society and the freedom to criticise, which are necessary in a democratic society, do not require the possibility of processing the personal data of specific individuals as has been done in this case. Freedom of expression does not require any derogation from the protection of privacy in such a situation.

The Court of Justice of the European Communities further stated in its preliminary ruling that the technical means used for the transfer of information is not relevant when assessing whether there is any question of activities undertaken solely for journalistic purposes. As regards the SMS service operated by Satamedia Oy, it is irrelevant that the data were transferred via mobile phones and text messages. Therefore, this is not a case of treating this mode of transmission of data differently from other modes of transmission. The assessment would be the same if the company processed, on the basis of a request by an individual, the personal data of another individual by using some other mode of transmission.”

Pursuant to the above-mentioned judgment of the Supreme Administrative Court, on 26 November 2009 the Data Protection Board prohibited the first applicant company from processing taxation data in the manner and to the extent that had been the case in 2002 and from forwarding that information to an SMS service. It found that the collection of personal data prior to its publication in Veropörssi and its processing in the background file of the first applicant company could not as such be regarded as contrary to the data protection rules, provided, inter alia, that the data had been protected properly. However, considering the manner and the extent to which the personal data in the background file had been published in Veropörssi, the first applicant company had processed personal data concerning natural persons in violation of the Personal Data Act. The second applicant company was prohibited from collecting, storing or forwarding to an SMS service any data received from the first applicant company’s database and published in Veropörssi.

By letter dated 15 December 2009, after the Data Protection Board had made its decision, the Data Protection Ombudsman asked the applicant companies to indicate what action they were envisaging in response to the Board’s decision. In their reply, the applicant companies asked for the Data Protection Ombudsman’s views on the conditions under which they could continue to publish public taxation data at least to a certain extent. In his reply the Data Protection Ombudsman stated, with reference to the decision of the Data Protection Board of 26 November 2009, that “when data on taxable income were collected in a database and published in large catalogues almost as it stood, the Personal Data Act was applicable...”. He reminded them of his duty to report any breach of the Personal Data Act to the police.

By letter dated 9 February 2010 the applicant companies appealed against the decision of the Data Protection Board to the Helsinki Administrative Court, which transferred the case to the Turku Administrative Court. They complained that the decision violated the Constitutional prohibition of censorship as well as their right to freedom of expression. According to the applicants, under domestic law, it was not possible to prevent publication of information on the basis of the amount of information to be published or of the means used for its publication. Nor was it possible to rely on the “public interest” as a criterion for preventing publication where preventive restriction of freedom of expression was concerned. Accepting that would mean that the authorities would be able to prevent publication if they thought that the publication did not promote discussion of a topic of public interest.

On 28 October 2010 the Turku Administrative Court rejected the applicant companies’ appeal. It found that the Supreme Administrative Court had stated in its decision of 2009 that the case concerned neither the public accessibility of taxation data nor the right to publish such information per se. As the court was now examining only the 2009 decision rendered by the Data Protection Board, it could not examine the issues which the Supreme Administrative Court had excluded from the scope of its 2009 decision. As the Board’s decision corresponded to the content of the latter decision, there was no reason to change it.

By letter dated 29 November 2010 the applicant companies further appealed to the Supreme Administrative Court.

On 18 June 2012 the Supreme Administrative Court upheld the judgment of the Turku Administrative Court, reiterating that the case concerned neither the right to publish taxation information as such, nor preventive censorship.

According to the information submitted by the applicants, the SMS service was shut down after the 2009 decision of the Supreme Administrative Court was served on the applicant companies. The newspaper continued publishing taxation data in autumn 2009 when its content was only one fifth of the previous content. Since then the newspaper has not appeared. The Government, on the other hand, submitted that, according to the applicant companies’ website, Veropörssi was still being published on a regional basis in 2010 and 2011. Moreover, an Internet service continued to operate allowing anyone to request a natural person’s tax data concerning the year 2014 by filling in a form on the website in question. The requested tax information would then be delivered to the customer by phone call, text message or e-mail.

The editor-in-chief of Veropörssi lodged an application with the Court in 2010, complaining that the impugned decision of the Supreme Administrative Court violated his right to freedom of expression. On 19 November 2013 the application was declared inadmissible as being incompatible ratione personae with the provisions of the Convention (see Anttila v. Finland (dec.), no. 16248/10, 19 November 2013).

The first applicant company was declared bankrupt on 15 March 2016. The bankruptcy administration did not oppose the continuation of the present proceedings before the Court (see paragraph 94 below).


Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1940 and lives in Bucharest.

On 23 August 1996 the Sibiu Police Department remanded the applicant in custody for twenty-four hours on suspicion of intellectual forgery (fals intelectual) and use of forged documents (uz de fals).

By an order of 24 August 1996 the Sibiu Prosecutor’s Office detained the applicant for five days pending trial on account of the seriousness of the offences and the need to protect public order.

By an order of 28 August 1996 the Sibiu Prosecutor’s Office extended the applicant’s pre-trial detention by twenty-five days on account of the seriousness of the offences, the need to protect public order, and the need to prevent him from destroying evidence.

The applicant challenged the order before the domestic courts and requested to be released under judicial supervision.

By a final interlocutory judgment of 18 October 1996 the Alba Iulia Court of Appeal allowed the applicant’s challenge. It held that the applicant’s arrest had been lawful; however there was no lawful reason concerning the applicant that would prevent the court from releasing him under judicial supervision.

On 2 September 1997 the Sibiu Prosecutor’s Office indicted the applicant and other co-accused for bribery, influence peddling, complicity in fraud, intellectual forgery, and use of forged documents, and referred the case to the Sibiu County Court.

On 17 April 1997, 15 May, 2 July and 17 September 1998 the Sibiu County Court heard the applicant, his co-accused and the witnesses in the case. In addition it allowed the applicant’s and his co-accuseds’ request for documentary evidence, and ordered an expert financial report to be produced in the case. The applicant submitted that he did not agree that a financial expert report should be produced in the case, and refused to submit observations on the report’s objectives following the court’s request.

On 15 October 1999 the applicant informed the Sibiu County Court that he had no objections in respect of the financial expert report.

On 22 May 2000 the applicant’s chosen legal representative submitted oral observations to the court in respect of the merits of the case.

On 15 June 2000 the Sibiu County Court acquitted the applicant on the basis of documentary, testimonial and expert evidence in addition to the applicant’s statements, on the ground that no unlawful act had been committed.

The Sibiu Prosecutor’s Office appealed against the judgment.

On 5 December 2000 the Alba Iulia Court of Appeal allowed the Sibiu Prosecutor’s Office’s appeal on the merits, quashed the judgment of 15 June 2000, convicted the applicant of bribery, trafficking influence, complicity in fraud, and forgery of privately signed documents (fals ȋn ȋnscrisuri sub semnătură privată) which following changes to the relevant domestic legislation had absorbed the offences of intellectual forgery (fals intelectual) and use of forged documents (uz de fals), and sentenced him to three years’ imprisonment.

The applicant appealed on points of law (recurs) against the judgment.

On 1 March 2002 the Court of Cassation allowed the applicant’s appeal on points of law, quashed the judgments of 15 June and 5 December 2000, and referred the case back to the Sibiu Prosecutor’s Office for the entire criminal investigation of the case to be carried out again. The court held that the prosecutor’s office had failed to observe the lawful requirements for investigating the case, had established the facts of the case superficially, and had breached procedural rules which affected the very existence of the criminal investigation and the lawfulness of the referral of the case to the court. It noted that the investigation had been carried out mainly by the police, and not by the prosecutor as required by the applicable rules of criminal procedure; the prosecutor’s office had failed to produce all the relevant evidence in the case concerning the existence of the offences and of the defendants’ guilt, and had not clarified the contradictions in the available evidence, in particular between the expert opinions produced in respect of the case. The domestic courts which had examined the case had also been unable to clarify the existence or inexistence of the alleged damage caused by the defendants, or to quantify it.

On 16 October 2002 the Sibiu Prosecutor’s Office referred the applicant’s case to the National Anticorruption Prosecutor’s Office. It held that given the applicant’s status and the nature of some of the offences the National Anticorruption Prosecutor’s Office was competent to carry out the criminal investigation in respect of the case.

From 27 November 2002 to 13 January 2003 the prosecutor attached to the National Anticorruption Prosecutor’s Office heard the applicant and his co-accuseds

On 30 June 2003 the National Anticorruption Prosecutor’s Office discontinued the criminal proceedings opened against the applicant for bribery and influence peddling on the ground that no unlawful act had been committed. The prosecutor’s office relied on testimonial evidence, including statements by the applicant produced both before the courts and before the prosecutor’s office after the case had been referred back there by the courts. In addition, it referred the case to the Sibiu Prosecutor’s Office in order to carry out the criminal investigation opened against the applicant for complicity in fraud and forgery of privately signed documents, on the ground that it was not competent to carry out the investigation in respect of those offences.

On 31 July 2003 the Sibiu Prosecutor’s Office discontinued the criminal investigation initiated against the applicant. It held on the basis of the documentary, testimonial and expert evidence available in the file that although the applicant’s criminal liability was undeniable, the criminal action initiated against him was time-barred.

The applicant challenged that decision, and on the basis of Article 13 of the Romanian Code of Criminal Procedure requested that the authorities continue the criminal investigation initiated against him to enable his innocence to be established.

On 11 November 2003 the Sibiu Prosecutor’s Office allowed the applicant’s challenge and reopened the criminal investigation against the applicant.

On 12 November 2003 the prosecutor attached to the Sibiu Prosecutor’s Office heard the applicant. On the same date the applicant stated that he did not have any more evidence to request, and that the evidence already produced fully proved his innocence. In addition, he asked the authorities to examine the circumstances of his case by relying on the evidence produced at the pre-trial and trial stages of the proceedings.

On 14 November 2003 the Sibiu Prosecutor’s Office discontinued the criminal investigation initiated against the applicant. It held on the basis of the testimonial, documentary and expert evidence available in the file, as well as the applicant’s own statements, that although the applicant’s unlawful acts had been proven, the criminal action initiated against him was time-barred.

The applicant appealed against the order before the Sibiu County Court. He argued that the prosecutor’s office’s order was unlawful, because the criminal investigation against the applicant had been carried out by the same prosecutor who had previously confirmed the applicant’s indictment. In addition, he denied committing the impugned offences.

On 31 May 2004 the Sibiu County Court held that it was not competent ratione materiae to examine the applicant’s action, and referred the case to the Sibiu District Court.

On 14 July 2004 the Sibiu District Court allowed the applicant’s action, quashed the prosecutor’s office’s order of 14 November 2003, and referred the case back to the prosecutor’s office for the criminal investigation against the applicant to be reopened. It held that the criminal investigation against the applicant had been carried out by the same prosecutor who had previously confirmed the applicant’s indictment. In addition, by declining to examine the remaining arguments raised by the applicant, it had instructed the prosecutor’s office to assess if the applicant’s complaint concerning the merits of the case was founded. Lastly, it instructed the prosecutor’s office to clearly determine the extent of the applicant’s involvement in committing the impugned offences and also whether he had been indicted for the same unlawful acts of which he had been informed.

The applicant appealed on points of law against the judgment, without providing any arguments.

On 18 October 2004 the Sibiu County Court dismissed the applicant’s appeal on points of law as ill-founded, and upheld the judgment of the first-instance court. The court noted that the applicant had submitted the grounds for his appeal on points of law after the debates on the merits of the case had been closed.

On 21 March 2005 the Sibiu Prosecutor’s Office discontinued the criminal investigation initiated against the applicant. It held on the basis of the documentary, testimonial and expert evidence available in the file produced both during the previous investigation and during the trials that, although the applicant was guilty of the impugned offences, the criminal proceedings initiated against him were time-barred. In addition, it described the applicant’s involvement in committing the unlawful acts and noted that after its reopening the criminal investigation against the applicant had been carried out by a different prosecutor from the one who had confirmed his indictment. Furthermore, the applicant had been indicted for the same unlawful acts of which he had been informed. In this connection, the prosecutor’s office noted that some of the offences had been examined by the prosecutor’s order of 30 June 2003. Also, following some amendments to the relevant legislation, the domestic legal practice had changed: the offences of intellectual forgery and use of forged documents had been absorbed by the offence of forgery of privately signed documents.

The applicant appealed against the decision before the Sibiu District Court by relying on Article 2781 § 8 (c) of the Romanian Code of Criminal Procedure. He argued that the domestic court should quash the prosecutor’s decision, retain the case for examination, and acquit him. In addition, he contended that the prosecutor’s order had been unlawful because it concerned acts with which the criminal investigation was not concerned, and was in any case not supported by the evidence available to the file. Also, without providing any grounds the investigating authorities had ceased to accuse him of intellectual forgery or use of forged documents. Furthermore, the Sibiu Prosecutor’s Office did not follow the mandatory instructions received from the court. There was no evidence in the file that he had been an accomplice to an offence. Lastly, he had disagreed with being charged with forgery of privately signed documents; he had argued that the parties had not been allowed to submit observations in respect of the requalification carried out.

On 18 January 2006 the applicant and his chosen legal representative informed the Sibiu District Court that he did not have other requests in respect of the judicial investigation of the case. They further argued, among other things, that although in July 2004 the Sibiu District Court had ordered the prosecutor’s office to reopen the criminal proceedings against him and had given the investigating authorities several instructions, none of those instructions had been followed. In particular, no evidence was adduced, and they were not called to take part in the production of evidence. Also, the investigating authorities did not clarify any of the issues identified by the court. Consequently, they requested that on the basis of Article 2781 § 8 (c) the court should quash the prosecutor’s order and, given that the production of other evidence was not necessary, acquit the applicant in respect of the merits of the case.

By a judgment of 2 February 2006 the Sibiu District Court dismissed the applicant’s appeal and upheld the prosecutor’s decision, relying on the available evidence. It held that the investigating authorities had not ceased to accuse him of intellectual forgery or use of forged documents, but had requalified those offences as forgery of privately signed documents. Also, the Sibiu Prosecutor’s Office had observed the mandatory instructions received from the court. In particular, the criminal investigation had been carried out by a different prosecutor from the one who had indicted the applicant, the prosecutor had explained in detail how the applicant had helped and contributed to the commission of the offences, and had verified that the acts for which the criminal investigation had been opened were identical to those indicated by the prosecutor’s order. Furthermore, the prosecutor’s order had clearly described in detail, by relying on evidence, why the applicant had been an accomplice to an offence. Lastly, the applicant’s own statements amounted to an acknowledgment that he had forged privately signed documents.

The applicant appealed against the judgment on points of law. He argued that the domestic court should quash the prosecutor’s decision, retain the case for examination, and on the basis of the same evidence available in the file acquit him of fraud and forgery of privately signed documents. He further contended that the evidence in the file and the examination carried out by the prosecutor’s office did not prove that he had committed the offences. Also, the parties had not been allowed to submit observations following the requalification of two of the offences he had been charged with to forgery of privately signed documents.

By a final judgment of 30 March 2007 the Bacău County Court dismissed the applicant’s appeal on points of law and acknowledged the lawfulness of the prosecutor’s order of 21 May 2005 and of the firstinstance court’s judgment. It so held on the basis of the available documentary, testimonial and expert evidence produced both during the criminal investigation and before the domestic courts that the applicant had committed the offences of complicity in fraud and forgery of privately signed documents. In addition, the prosecutor’s office had examined the applicant’s guilt on the merits, and had established that the acts had existed and therefore the criminal proceedings against the applicant could not have been discontinued on the ground that no unlawful act had been committed. Therefore, the prosecutor’s office had correctly held that the criminal proceedings initiated against him had been time-barred.

In a letter of 28 February 2008 the applicant informed the Court that the criminal proceedings initiated against him had destroyed his reputation, and that a virulent press campaign had been initiated against him and his company at the time of his arrest. The applicant submitted three articles published in local and national newspapers between June 1997 and March 1998 describing the events which led to the charges being brought against him and a chronological narration of the criminal proceedings initiated against him.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 6 - Right to a fair trial (Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1987 and lived in Voronezh prior to her arrest.

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

On 14 July 2007 the applicant, together with B., travelled to Moscow by car. At about 3.40 a.m. the police stopped the car; two men from the narcotics unit approached the car and asked the passengers to step out and produce their identity documents and luggage for inspection. An officer opened the sports bag which, according to the applicant, her friend had asked her to take to another friend in Moscow, and found a black plastic bag. The applicant stated that she was not aware of its contents. The officers then put the black bag into the trunk of the police car and took the applicant and B. to the premises of the narcotics unit.

The applicant and B. were interviewed in separate rooms. In the morning the applicant was taken to another office, in which one female officer, a forensics expert and two individuals who were introduced as “attesting witnesses” (понятые) were present. The applicant was told to open the black bag and to show its contents. Four plastic bags containing yellow and green herb and cash money were found inside. At 8.15 a.m. the police drafted a report on the seizure of objects and substances. The expert later determined that the herb was marijuana having a total weight of almost three kilograms.

At 6 p.m. a senior investigator of the narcotics unit instituted criminal proceedings against the applicant and B. on suspicion of attempted largescale sale of drugs.

At 8.15 p.m. the investigator compiled the record of the applicant’s arrest. The time of arrest was given as 7.50 p.m. on 14 July 2007.

On 15 July 2007 the applicant was formally charged and the investigator applied to a court for a detention order.

The detention hearing before the Zyuzinskiy District Court in Moscow began at 7.15 p.m. on 16 July 2007. Counsel for the applicant submitted that, in view of the actual time of the applicant’s detention, the maximum statutory period of forty-eight hours had already expired. However, the court did not heed that argument and ordered that the applicant be remanded in custody because the gravity of charges against her.

On 19 July 2007 counsel for the applicant filed an appeal. On 25 July 2007 copies of the appeal were forwarded to the applicant and to the prosecutor for comments. The appeal hearing was initially scheduled for 22 August 2007 but subsequently adjourned for one week because one of the applicant’s representatives did not show up.

On 27 August 2007 the City Court rejected the appeal against the detention order in a summary fashion, noting that “the pre-trial investigation authorities did not commit any substantial breaches of the rules of criminal procedure”.

The case against the applicant was referred for trial to the Babushkinskiy District Court in Moscow.

The defence claimed that the attesting witnesses who had been present during the opening of the bag were in fact employees of the narcotics unit rather than independent observers as required by law. Both of those witnesses – Ms P. and Ms A. – did not appear before the trial court. Instead, a court bailiff submitted reports about his unsuccessful attempts to ensure their attendance. The reports contained the same text to the effect that the witnesses could not be reached on the phone, that no one opened the door at their residence and that neighbours had told the bailiff that they had not seen them for a long time.

Counsel for the applicant requested the court to obtain the visitors journal from the reception of the narcotics unit. Since the unit was located within a security perimeter, all civilian visitors were to be recorded in the journal. The trial court refused the motion, without giving any reasons. It further held that there existed “exceptional circumstances” for the absence of the witnesses Ms P. and Ms A. and allowed their pre-trial statements to be read out, overriding the objections from the defence.

The trial court also authorised the reading-out of the pre-trial statement of Mr F., the driver of the car, of which the applicant and B. had been passengers. The bailiff submitted similarly worded reports to the effect that Mr F. was unavailable on the telephone or at his residence.

By judgment of 8 April 2008, the District Court found the applicant and B. guilty as charged and sentenced each of them to eight years’ imprisonment in a high-security correctional colony. It held in particular that the applicant’s claim that she did not know she was carrying marijuana in her friend’s bag was refuted by the seizure report of 14 July 2007 and the statements by the witnesses Ms P. and Ms A.

On 28 July 2008 the Moscow City Court examined and rejected her appeal against the conviction.


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Ksenija Turković

The first applicant was born in 1978 and lives in Turin. The second applicant was born in 1975 and was detained in Turin up to the time of his death on 10 January 2017.

In 2004 the applicants were detained in the Asti Correctional Facility.

On 10 December 2004 the second applicant intervened in a fight that had broken out between the first applicant and a prison officer.

The manner in which the impugned events occurred, as submitted by the applicants and as it emerges from their witness statements during the domestic proceedings, may be summarised as follows.

On 10 December 2004, following an altercation with the prison officer, the first applicant was summoned to a meeting with the correctional unit commander (comandante di reparto della polizia penitenziaria). Before he reached the commander’s office, he was stopped by a group of prison officers, who took turns beating him. Following the meeting, he was stripped of his clothes and led to a cell in the solitary confinement wing.

The only item of furniture in the cell was a bed with no mattress, bed linen or covers. As to sanitary facilities, the cell had a squat toilet without running water and was not equipped with a sink. The cell window had no window panes and the only source of heating was a small, malfunctioning radiator, which provided little protection against the December weather. For a number of days, although it is unclear for how many exactly, he was left naked.

During the first week of his detention in solitary confinement no food was provided and he was given only scant amounts of water. He was subsequently given rationed quantities of food.

He was beaten on a daily basis, several times per day. He was repeatedly punched, kicked and hit in the head by prison officers, who assaulted him in groups of varying sizes.

He was also subjected to sleep deprivation, as the beatings often took place at night and the prison officers verbally abused him in order to keep him awake.

During the detention in solitary confinement the applicant did not receive visits from his lawyer or his family.

On 10 December 2004, following the same altercation with the prison officer, the second applicant was stripped of his clothes and led to a cell in the solitary confinement wing of the correctional facility. The bed in the cell had no mattress, sheets or covers, and the cell had no sink. Initially there were no panes in the windows, which were covered with some plastic sheeting after an unspecified number of days. For a number of days, although it is unclear for how many exactly, he was left naked. He was subsequently given some light clothing.

The applicant’s food was rationed, and at certain times he was given only bread and water. On some days he received no food at all.

The applicant was beaten by prison officers, often more than once per day. He was subjected to various forms of physical violence, including being repeatedly punched, kicked and slapped, at one point with his head being pinned to the ground by one of the prison officers’ boots. The beatings occurred both during the day and at night. The applicant was beaten by four or five officers at a time. One prison officer ripped out a chunk of his hair.

On 16 December 2004 he was admitted to the hospital.

During the period he spent in solitary confinement he was only allowed outside the cell twice, once to shower and once for some outdoor time.

A criminal investigation into the impugned treatment was launched in 2005. It was initiated when it emerged, in the context of covert surveillance in an operation to investigate drug smuggling in the Asti correctional facility, that a number of the prison officers had discussed the ill-treatment inflicted on the applicants.

On 7 July 2011 five prison officers, C.B., D.B., M.S., A.D., and G.S., were committed for trial. They were charged with ill-treatment of the applicants under Article 572 of the Italian Criminal Code (“the Criminal Code”), in conjunction with Article 61 § 9 of the Criminal Code, a provision which considers the commission of an offence by a civil servant abusing his or her position to be an aggravating circumstance.

On the same date the applicants joined the proceedings as civil parties.

The Asti District Court’s judgment was delivered on 30 January 2012. Its findings may be summarised as follows.

As to the establishment of the facts concerning the ill-treatment, the court found that the evidence gathered during the investigation and produced at the trial showed that the events had occurred in the manner described by the victims in their submissions during the trial. The Court relied on statements to the effect that the applicants had been subjected to physical and verbal abuse, coupled with the deprivation of food, water, sleep, and clothing, and had been detained in cells without adequate access to sanitation, heating, and bedding.

The court further found it to be established beyond reasonable doubt that the applicants had been subjected not merely to isolated acts of harassment and abuse, but to repeated ill-treatment which had been put into practice in a systematic manner.

More specifically, the court found it established beyond reasonable doubt that the first and second applicants had been subjected to repeated physical violence from 10 to 29 December 2004 and from 10 to 16 December 2004 respectively. The court found that the beatings occurred regularly at all times of the day, and particularly at night.

The court noted that the second applicant had been admitted to the emergency room of the Asti Civil Hospital on 16 December 2004 with traumatic injuries. With regard to the first applicant, the court acknowledged his hospitalisation following the events without citing a date or specific medical documentation to this effect.

Moreover, the court found it to be established beyond reasonable doubt that in 2004 and 2005 in the Asti Correctional Facility there had existed what it defined as a “generalised practice of ill-treatment” that had been systematically inflicted on prisoners considered to be problematic. Measures which the court defines as exceeding the bounds of permitted disciplinary or security measures were routinely taken to punish and intimidate problematic detainees and to deter other disorderly behaviour. As part of this practice, a detainee would generally be taken to a cell in the solitary confinement unit where he would be subjected to repeated harassment and abuse by prison officers. The abuse would primarily take the form of physical violence, as detainees would be beaten by groups of prison officers, often during the night. In addition, detainees would be routinely subjected to sleep, food and water deprivation, and would also be denied access to sanitary facilities.

The court further found ample evidence that the prison officers operated in a climate of impunity. This was due, in the court’s view, to the acquiescence of high-level prison administrators and the complicity that existed among prison officers.

It emerges that the court ordered an inspection of the correctional facility, including the solitary confinement wing, during the course of the trial. The court found that several cells in the solitary confinement wing of the Asti Correctional Facility were unfit for holding detainees. Some did not have bed linen, mattresses, sanitary facilities or heating. Although the windows in some cells had no panes and others had windows covered by metal plates with small perforations, the cells were nonetheless used during the winter months. Some cells were equipped with a bed and a squat toilet but no other furniture or sanitary facilities.

Following the establishment of the facts, the court went on to assess responsibility for the established conduct. In this regard, G.S. was acquitted as to his involvement in the ill-treatment, and A.D. and D.B. were acquitted of the charge of ill-treatment under Article 572 of the Criminal Code. The court nonetheless held that the conduct of A.D. and D.B. amounted to infliction of bodily harm contrary to Article 582 of the Criminal Code. However, it ordered that the proceedings against them be discontinued due to the expiry of the applicable time-limit as laid down in the statute of limitations.

With respect to C.B. and M.S., the court held that there existed sufficient evidence to conclude that they had been responsible for most, if not all, of the acts of physical, psychological, and “material” abuse at issue. The court then considered that the acts at issue could be classified as torture pursuant to the definition provided by the United Nations (UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It went on to observe that Italy had failed to incorporate the offence of torture into national legislation, in breach of its international obligations. It was therefore obliged to conclude that, under Italian law, there existed no legal provision that would allow it to classify the impugned conduct as acts of torture.

Having taken note of the above-mentioned considerations, the court proceeded to assess which existing offence was more suitable in respect of the legal classification of C.B. and M.S.’s conduct. When conducting its assessment, the court relied on the conclusion that the primary purpose of the impugned treatment was to punish the applicants, to “maintain order” in the correctional facility, and to convey a clear message to the other detainees.

The court considered that the conduct of the two prison officers thus fell most appropriately within the scope of Article 608 of the Criminal Code, which deals with abuse of authority against arrested or detained persons. However, the statutory limitation period for the offence in question had elapsed, as the court had found no procedural action which would have the effect of interrupting it.

The court stated that C.B. and M.S. were also responsible for the infliction of bodily harm, but that, as the statute of limitations was applicable to that offence as well, such a finding did not alter the substance of the decision. The court therefore ordered that the proceedings against C.B. and M.S be discontinued because the applicable time-limit as laid down in the statute of limitations had expired.

On 22 February 2012 the public prosecutor lodged an appeal with the Court of Cassation, arguing that the Asti District Court had erred in the legal classification of the offence with respect to C.B. and M.S. The prosecutor contended that the most appropriate offence for the purposes of classification of the conduct in question would have been aggravated illtreatment under Article 572 of the Italian Criminal Code ‒ as initially identified in the bill of indictment ‒ in conjunction with Article 608 of the Criminal Code.

By a judgment issued on 21 May 2012, and filed with the court Registry on 27 July 2012, the Court of Cassation declared the public prosecutor’s application inadmissible. The court expressed its agreement with the prosecutor’s contention as a matter of principle but, as the statute of limitations had been likewise applicable to the offence of aggravated illtreatment, a decision in favour of the prosecution would have been devoid of any practical effect.

On 26 July 2012 C.B. lodged an objection to execution (incidente d’esecuzione) with the Asti District Court, arguing that its decision of 30 January 2012 (see paragraph 24 above) could not be considered as final and binding insofar as he was concerned, as the decision had not been properly served on him.

In a decision issued on 31 October the Asti District Court dismissed C.B.’s objection on the grounds that C.B. must have had cognisance of the decision at the moment the public prosecutor lodged an appeal with the Court of Cassation (see paragraph 36 above) or, at the latest, when his representative filed a defence brief at a hearing before the Court of Cassation in May 2012.

On 26 July 2012 C.B. appealed against the decision before the Court of Cassation.

In a judgment delivered on 11 July 2013, and filed with the Registry on 1 August 2013, the Court of Cassation granted the appeal. It found that the failure to serve the decision on C.B. could not be remedied by C.B.’s potential knowledge of the decision at a later stage, as argued by the District Court. The Asti District Court judgment of 30 January 2012 could not, accordingly, be considered final and binding insofar as C.B. was concerned.

Based on the latter decision, on 10 October 2013 C.B. lodged an appeal against the Asti District Court judgment of 30 January 2012 with the Turin Court of Appeal, seeking an acquittal.

No further information has been provided by the parties as to the outcome of the proceedings.

In their observations of 31 March 2016, the Government indicated that four prison officers had undergone disciplinary proceedings in connection with the impugned events and by different decisions issued on 29 January 2013 the following disciplinary sanctions had been imposed:

– C.B. was dismissed from his functions (destituito dal servizio). He was, however, reinstated on 26 November 2013, following the Court of Cassation judgment of 11 July 2013 which suspended the binding nature of the Asti District Court’s judgment (see paragraph 41 above);

– M.S. was dismissed from his functions;

– A.D. was suspended from duty for a period of 4 months;

– D.B. was suspended from duty for a period of 6 months.

According to a document issued by the Staff Director of the Prison Administration Department of the Ministry of Justice on 12 October 2015, and furnished by the Government, the four prison officers were not suspended from duty (sospensione precauzionale dal servizio) during the course of the investigation or the trial.

At the Court’s request, the Government submitted extracts from the prison medical record of the second applicant between 26 November 2004 and 5 March 2005 and typed copies of his hospitalisation record of 16 December 2004.

The prison medical record indicates that on 13 December 2004 the second applicant was examined visually (whilst still “behind bars”). He complained of pain in the thoracic area and right ear. The reporting physician noted the presence of ecchymoses and haematomas around the patient’s ribcage. He recommended a more thorough medical examination and/or transfer to the infirmary.

The record further indicates that another visual examination (also “behind bars”) took place on 15 December 2004. The information in this entry is the same as in the previous entry. Transfer to the infirmary for a medical examination was recommended.

On 15 December 2004 the record shows that the applicant underwent a medical examination in the afternoon. The physician reported ecchymoses on the patient’s ribcage and in the retroauricular region. Palpation of the patient revealed diffuse pain. The reporting physician recommended that Xrays be performed for a suspected fracture. Painkillers were administered.

The entry of 16 December 2004 reports the applicant’s transfer to the emergency room of the Asti Civil Hospital as a consequence of traumatic injury.

According to the medical record of the Asti Civil Hospital, an X-ray revealed a fractured rib and the medical examination disclosed diffuse bruising in the thoracic and abdominal area and pain on palpation. The record states that the applicant told the doctor his injuries occurred as a consequence of an accidental fall.

The prison medical record entry on the applicant’s discharge from the hospital on 16 December 2004 shows that he was prescribed painkillers.

As to the first applicant, no copy of the prison medical register had been submitted by the Government, notwithstanding the Court’s request for such information.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home;Respect for private life);No violation of Article 13+8 - Right to an effective remedy (Article 8 - Right to respect for private and family life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicants were born in 1976 and 1986 respectively and live in Budapest.

When introducing the application, the applicants were staff members of Eötvös Károly Közpolitikai Intézet, a non-governmental, “watchdog” organisation voicing criticism of the Government. The subsequent employer of one of the applicants was subjected to financial control measures by the Government in 2014, which according to the applicants verged on vexation.

Act no. CXLVII of 2010 defines combating terrorism as one of the tasks of the police. Within the force, a specific Anti-Terrorism Task Force (“TEK”) was established as of 1 January 2011. Its competence is defined in section 7/E of Act no. XXXIV of 1994 on the Police, as amended by Act no. CCVII of 2011 (the “Police Act”).

Under this legislation, TEK’s prerogatives in the field of secret intelligence gathering include secret house search and surveillance with recording, opening of letters and parcels, as well as checking and recording the contents of electronic or computerised communications, all this without the consent of the persons concerned.

The authorisation process for these activities is dependent on the actual competence exercised by TEK, namely whether it is within the framework of secret surveillance linked to the investigation of certain specific crimes enumerated in the law (section 7/E (2)) or to secret surveillance within the framework of intelligence gathering for national security (section 7/E (3)).

Whereas the scenario under section 7/E (2) is as such subject to judicial authorisation, the one under section 7/E (3) is authorised by the Minister in charge of justice, (i) in order to prevent terrorist acts or in the interests of Hungary’s national security or (ii) in order to rescue Hungarian citizens from capture abroad in war zones or in the context of terrorist acts.

“Section 7/E (3) surveillance” takes place under the rules of the National Security Act under the condition that the necessary intelligence cannot be obtained in any other way. Otherwise, the law does not contain any particular rules on the circumstances in which this measure can be ordered, as opposed to “section 7/E (2) surveillance”, which is conditional on the suspicion of certain serious crimes. The time-frame of “section 7/E (3) surveillance” is 90 days, which can be prolonged for another 90-day period by the Minister; however, the latter has no right to know about the results of the ongoing surveillance when called on to decide on its prolongation. Once the surveillance is terminated, the law imposes no specific obligation on the authorities to destroy any irrelevant intelligence obtained.

The applicants filed a constitutional complaint on 15 June 2012, arguing in essence that the sweeping prerogatives under section 7/E (3) infringed their constitutional right to privacy. They emphasised that the legislation on secret surveillance measures for national security purposes provided fewer safeguards for the protection of the right to privacy than the provision on secret surveillance linked to the investigation of particular crimes. They pointed out that (i) “section 7/E (2) surveillance” was always linked to a particular crime and could only be ordered for the purposes of identifying or locating suspects, whereas “section 7/E (3) surveillance” was not linked to any particular crime; (ii) “section 7/E (2) surveillance” was always ordered by the court, whereas “section 7/E (3) surveillance” was authorised by the government minister in charge of justice; (iii) the decision on ordering “section 7/E (2) surveillance” was subject to detailed reasoning, whereas no reasoning was included in the minister’s decision on ordering “section 7/E (3) surveillance”; and (iv) under the legislation relating to “section 7/E (2) surveillance”, all collected but irrelevant information had to be destroyed within eight days, unlike in the case of “section 7/E (3) surveillance”.

On 18 November 2013 the Constitutional Court dismissed the majority of the applicants’ complaints. In one aspect the Constitutional Court agreed with the applicants, namely, it held that the decision of the minister ordering secret intelligence gathering had to be supported by reasons. However, the Constitutional Court held in essence that the scope of national security-related tasks was much broader that the scope of the tasks related to the investigation of particular crimes. For the purpose of national security, the events of real life were examined not for their criminal law relevance; therefore they might not necessarily be linked to a particular crime. Furthermore, in the context of national security, the external control of any surveillance authorised by the minister was exercised by Parliament’s National Security Committee (which had the right to call the minister to give account both in general terms and in concrete cases) and by the Ombudsman, and that this scheme was sufficient to guarantee respect for the constitutional right to privacy of those concerned. Finally, the Constitutional Court was of the opinion that the National Security Act, which applies to “section 7/E (3) surveillance”, contained general provisions on ex officio deletion of any data unnecessary for achieving the aim underlying the gathering of intelligence.

This decision was published in the Official Gazette on 22 November 2013.


Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Possessions);Just satisfaction reserved (Article 41 - Just satisfaction)

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1972 and lives in Baku.

Since his birth the applicant had lived in a house in the Khutor settlement of Baku which previously belonged to his parents. The total surface area of the house was 84.6 sq. m, including a habitable area of 58.8 sq. m. According to the “technical passport” for the house issued on 26 May 2004 by the Technical Inventory and Ownership Rights Registration Department of the Baku City Executive Authority (“the BCEA”), it was located on a plot of land measuring 257 sq. m, of which 93.4 sq. m was occupied by the house and 163.6 sq. m by the courtyard. The applicant lived in the house with his wife and two small children and his elderly mother.

The original ownership of the house is unclear. On 8 October 2005 the applicant acquired private ownership of the house and was issued with an ownership certificate by the Technical Inventory and Ownership Rights Registration Department of the BCEA confirming that he was the private owner. The plot of land underneath the house was not registered as being in the applicant’s formal ownership.

On 14 May 2004 the Head of the BCEA issued an order assigning various sites in Baku for development by a number of private promoters. The order read, in the relevant part, as follows:

For the purpose of coordinating with the General Development Plan [of the City] and completing the facilities [obyektlərin Baş Plana uyğunlaşdırılaraq tamamlanması] in our capital which are in a state of ruin owing to having remained partially constructed for a long period of time and which undermine the beauty and development of the city, the following plots of land should be assigned [ayrılsın] to the following companies and firms:

Taking into account the request made by Kaspi Nur LLC on 13 May 2004, the land comprising neighbourhoods nos. 1070, 1072, 1073 and 1076 on Shushinski Street in the Narimanov District shall be assigned to the aforementioned company on the basis of a lease, for the purpose of designing and constructing cottage-type houses.

The developer is instructed [to do the following:]

9.1. To receive the plot of land in kind and carry out the necessary health and safety checks.

9.2. To comply with the instructions of the Chief Department for Architecture and Urban Planning [“the CDAUP”] concerning the timing and procedure of the project design and with the other conditions laid down in the construction certificate [inşaat pasportu].

9.3. Prior to completion of the project design, to coordinate with the [CDAUP] the sketches for the architectural planning of the land and buildings. After completing the project design, to submit the full working plan to the [CDAUP].

9.4. To coordinate [the relocation of utility lines] with [the CDAUP] and the relevant authorities.

9.5. This order, together with the construction certificate, form the basis solely for preparing the project design.

In accordance with Articles 66, 67 and 68 of the Land Code, the developer shall obtain [from the relevant authorities] the certificate and other documents confirming its rights over the plot of land ...

The construction work shall start after the registration of all the project design documentation by the Baku State Architecture and Construction Surveillance Inspectorate.

Should the developer fail to comply with the requirements of the above provisions, this order may be repealed in accordance with the law.”

The applicant’s house was located in one of the neighbourhoods mentioned in point 6 of the order. According to the applicant, he was never informed of this order by the executive authorities and became aware of its existence for the first time during the court proceedings (see section C below).

By a letter of 17 December 2008 the Narimanov District Executive Authority (“the NDEA”), a subordinate body of the BCEA, informed the BCEA that the relocation of the inhabitants of the “old, hostel-type and squatter houses” located in the area specified in the BCEA order of 14 May 2004 “remained a problem”. The NDEA further proposed the following:

“For the purpose of relocation of the families residing in the aforementioned area, we consider it appropriate to assign the empty plot of land in neighbourhood no. 1969 on A.M. Cuma Street ... for the construction of two and three-storey residential houses ... and request you to express your opinion on the construction project submitted by Azyevro LAU LLC as a developer.”

There is no information in the case file as to whether the BCEA formally replied to the NDEA’s letter of 17 December 2008.

On 24 April 2009 the Head of the NDEA issued an order authorising the construction by Azyevro LAU LLC of new houses for the relocated residents. The order read as follows:

“For the purpose of relocation of the residents of houses located in neighbourhoods nos. 1070, 1072, 1073 and 1076 on Khan Shushinski Street in connection with the construction of an important State facility in the aforementioned area, the project design for the construction of residential houses in neighbourhood no. 1969 on A.M. Cuma Street, submitted by Azyevro LAU LLC, ...was approved by [the CDAUP] in letter no. 18/03-8/2042 dated 23 April 2009.

Taking the above into consideration and for the purpose of completion of the relevant documentation, I hereby decide:

To authorise Azyevro LAU LLC to carry out the development project (construction of residential houses) in neighbourhood no. 1969 on A.M. Cuma Street, in accordance with the project design agreed by [the CDAUP] and with the purpose of ensuring the relocation of the residents of neighbourhoods nos. 1070, 1072, 1073 and 1076 on Khan Shushinski Street.

To instruct the management of Azyevro LAU LLC to obtain, in accordance with the legislation, documentation relating to the assignment of the plot of land and the construction.

To instruct the District Housing Maintenance and Utilities Union to supervise compliance of the construction with the project design and the relocation of the residents in accordance with the requirements of the law.

To instruct the District Police Office to ensure the protection of public order during the relocation process.

To instruct the Legal Division of [the NDEA] to issue the residents with occupancy vouchers for their new flats.

To request the Baku Office of the State Registry Service for Immovable Property reporting to the Cabinet of Ministers to assign specific postal addresses to the residents’ new flats and to provide them with technical passports [for the new flats] and with [the relevant] extracts from the State Register. ...”

According to the applicant, in the second half of 2009 employees of the NDEA approached him with oral demands to give up his house and, in compensation, to accept an occupancy voucher (yaşayış orderi) for a new five-room flat measuring 123 sq. m under construction on A.M. Cuma Street, an area previously occupied by a relocated cemetery. When the applicant asked to be shown the lawful basis for the demands, he was told that it was a “Government instruction”.

The applicant refused, stating that he had no intention of relinquishing his house. He noted that, in any event, for this to be possible he would require prior monetary compensation equal to the market value of the house and the plot of land underneath the house.

According to the applicant, his neighbours faced the same situation and many of them gave in to the NDEA’s pressure. They moved out and accepted the occupancy vouchers offered to them. Soon the authorities began demolishing their houses. With large-scale demolition works in the neighbourhood (including the destruction of some walls and fences adjacent or immediately next to the applicant’s house), accompanied by power cuts and the accumulation of debris around his house, the applicant and his family no longer found it possible to stay in it and had to leave the house in October 2009. However, the applicant’s mother remained in the house.

According to the applicant, on 8 December 2009 the NDEA evicted his mother and began demolishing his house. The house was demolished over an unspecified number of days, together with the applicant’s belongings that remained inside.

On 8 December 2009 the applicant lodged a court action with the Narimanov District Court against the NDEA. The applicant asked the court to stop the defendant from breaching his right to enjoy his private property, to order the restoration of the property to its previous condition or, if that was no longer possible, to order the defendant to pay him 500,000 Azerbaijani manats (AZN) for pecuniary damage, AZN 200,000 for non-pecuniary damage, and AZN 500 daily for damages in respect of lost opportunity from December 2009 until the date of execution of the judgment. Subsequently, the BCEA, the Ministry of Finance and Azyevro LAU LLC were joined to the case as co-defendants together with the NDEA.

In its reply to the applicant’s lawsuit, the NDEA responded that the relocation of the residents from the applicant’s neighbourhood was being conducted in connection with “the important State project” approved by the BCEA order of 14 May 2004. As a legal basis for that order the NDEA indicated the old 1982 Housing Code which had been in effect until 1 October 2009 (on that date it was replaced by the new Housing Code).

On 2 March 2010 the NDEA requested the court to order an expert evaluation of the market value of the applicant’s house (which had already been demolished) and the five-room flat offered to the applicant in compensation. The applicant opposed this request, noting, inter alia, that the determination of the new flat’s market value was irrelevant since he had refused to accept it as lawful compensation and since the subject of his claim was the unlawfulness of the interference with his private property.

On 2 March 2010 the Narimanov District Court issued an order for an expert evaluation. The applicant challenged this order, relying on various grounds. After a series of appeals, the order was quashed pursuant to a Supreme Court decision of 22 June 2010 and a Baku Court of Appeal decision of 28 July 2010, on the ground that the first-instance court had designated an incorrect category of expert for the evaluation requested. No further expert evaluations were ordered.

By a judgment of 4 November 2010 the Narimanov District Court rejected the applicant’s claims.

In the legal analysis part of the judgment the court first confirmed that the house had been in the applicant’s private ownership. It noted, however, that the applicant had not formalised his ownership rights over the plot of land and therefore could not make any claims in respect of the land.

The court also took note of the BCEA order of 14 May 2004. It further noted that between 2007 and 2009 the BCEA and NDEA had corresponded with each other concerning “problems” in relocating the residents of “old, hostel-type houses and squatter houses” in the applicant’s neighbourhood and that on 24 April 2009 the NDEA had decided to contract a private company (Azyevro LAU) to construct new residential buildings for those residents in a vacant area previously occupied by a relocated cemetery. The court noted that the applicant had been “given” a five-room flat in one of these new buildings, under an occupancy voucher issued in his name on 29 September 2009 pursuant to the NDEA order of 24 April 2009.

The court cited Article 157.9 of the Civil Code concerning the expropriation of private property for State needs, although it attempted neither to establish the applicability of that provision to the applicant’s situation nor to determine whether the applicant had been deprived of his house in compliance with its requirements.

The court further relied on various provisions of the old 1982 Housing Code, which had been in effect until 1 October 2009. The court noted that the 1982 Housing Code was still in force at the time when the applicant had been issued with an occupancy voucher on 29 September 2009. In particular, the court cited Articles 10 § 4, 40 § 1, 41, 89, 90 § 1, 91, 94 § 1, 96 § 1 and 135 of the 1982 Housing Code, concerning the rules on the provision to citizens of accommodation in residential buildings belonging to “the State housing fund” or “the public housing fund” (see paragraphs 37-48 below).

The court found that the BCEA order of 14 May 2004 was “in force” and that the issuance of an occupancy voucher in the applicant’s name for a five-room flat in a newly constructed building constituted “compensation in kind” for his house within the meaning of Articles 41 and 135 of the 1982 Housing Code. For these reasons, the court found that the applicant’s claim that the defendants’ actions had been unlawful was ill-founded.

Furthermore, although the order of 2 March 2010 for an expert evaluation had been quashed, the NDEA had nevertheless procured and presented to the court an “expert report” which estimated the market value of the new flat proposed to the applicant as being higher than that of his old house. The court considered that the compensation given to the applicant was fair because the new flat, with a total surface area of 123 sq. m, was larger than the applicant’s house and had a higher market value. Therefore, the court considered that the applicant’s claim in respect of pecuniary damage, seeking payment of the market value of his house in cash, was also unsubstantiated.

The court then proceeded to reject the applicant’s claim for non-pecuniary damage, finding that the applicant had failed to demonstrate that he had suffered any moral damage.

The applicant appealed against the judgment of 4 November 2010, raising, inter alia, the following arguments:

(a) although the first-instance court had based its decision on the premise that the applicant’s house had been expropriated for public needs, it did not address the fact that this “expropriation” had not complied with the applicable requirements of the Constitution and the relevant provisions of the Civil Code (in particular, Articles 157.9 and 207 of the Civil Code);

(b) the de facto deprivation of property had been unlawful as there had been no expropriation order issued in accordance with the procedure specified by law; in particular, the reasons for the expropriation given by the defendants in the court proceedings did not fall under any of the lawful grounds for expropriation specified by the law and there had been no expropriation order issued by the Cabinet of Ministers as required by the law; in such circumstances, the applicant had been arbitrarily deprived of his property;

(c) the first-instance court had incorrectly relied on various provisions of the old 1982 Housing Code which had no longer been in force at the time of the interference (which, according to the applicant, had taken place in December 2009, at the time of the demolition of the house); and

(d) the part of the judgment concerning the dismissal of his claim to the plot of land was unlawful, as the right of ownership over the plots of land underneath privately owned houses had been granted to their respective owners by the regulations approved by the Presidential Decree of 10 January 1997 (see paragraph 58 below); therefore, he was the lawful owner of the plot of land by virtue of his ownership of the house, even though he had not formally registered his ownership rights over it.

In its submissions to the Baku Court of Appeal, the NDEA noted among other things that, because the applicant had refused to accept the five-room flat offered to him as compensation, the NDEA had issued him with occupancy vouchers for two other flats (a one-room flat and a four-room flat) in the same newly constructed building. However, for unexplained reasons, these two occupancy vouchers were both dated 29 September 2009, the same day as the date of issuance of the voucher for the five-room flat that had originally been proposed (see paragraphs 13 and 23 above).

In its judgment of 18 March 2011 the Baku Court of Appeal essentially repeated the Narimanov District Court’s reasoning and upheld that court’s judgment of 4 November 2010, with the exception of the part of the judgment rejecting the applicant’s claim in respect of pecuniary damage. In that part, the Baku Court of Appeal quashed the judgment and ordered that the applicant be given the two new flats on A.M. Cuma Street (the one-room flat and the four-room flat, instead of the single five-room flat offered earlier) as “compensation for pecuniary damage”, and instructed the NDEA to deal with the formalities of transferring the flats to the applicant.

The applicant lodged an appeal on points of law, reiterating the points of his previous appeal and further elaborating on them. In particular, he argued as follows:

(a) although his claim specifically sought only to establish the unlawfulness of the destruction of his house within the meaning of the applicable law, as well as to secure payment of monetary compensation for that unlawful action, the courts had ignored his claim and failed to assess the lawfulness of the interference with his property rights; instead, they had forced him to accept as “compensation” the flats given to him by the defendants (first the five-room flat, then the one-room and four-room flats), which he had repeatedly and lawfully refused to accept as lawful compensation;

(b) the interference with his property had taken place in December 2009 and therefore the 1982 Housing Code was not applicable to his situation; in any event, even the provisions of that Code cited by the courts had been misapplied, as those provisions concerned accommodation in “the State and public housing funds” and not privately owned houses and flats;

(c) the courts had also misapplied the Supreme Court Plenum’s decision of 14 February 2003, because that decision concerned the local executive authorities’ and municipalities’ competence in respect of buildings constructed on plots of land occupied without authorisation; however, in the applicant’s case, the land comprising the yard attached to the house was lawfully his to use by virtue of his ownership of the house; moreover, he had been entitled to acquire private ownership of the land free of charge in accordance with the applicable legislation;

(d) the courts’ reliance on an “expert report” presented by the NDEA was unacceptable, as that document had been written not by a qualified expert but by an unqualified person with no relevant credentials, was not based on relevant property valuation standards, used arbitrary figures and contained numerous mistakes;

(e) under the relevant legislation, privately owned property could be lawfully alienated in favour of the State by way of (i) expropriation for State needs, subject to prior payment of compensation as required by Article 29 § IV of the Constitution (see paragraph 36 below) and in accordance with Article 157.9 of the Civil Code (see paragraph 52 below); or (ii) purchase of the property by the State, with the owner’s consent, in accordance with Articles 203.3.3 and 207 of the Civil Code (see paragraphs 54-55 below) and Article 31 of the 2009 Housing Code (see paragraphs 49-50 below); or (iii) other specific situations provided for in Article 203.3 of the Civil Code (see paragraph 54 below); however, none of the above procedures had been complied with and the courts had failed to provide any legal or factual assessment in that regard;

(f) the interference with his property rights had also been in breach of, inter alia, Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The applicant insisted that he had been unlawfully deprived of his house and that, despite his consistent and lawful refusals to accept as compensation any new flats that he did not want, the lower courts had essentially forced him to accept this unlawful compensation.

On 8 July 2011 the Supreme Court upheld the Baku Court of Appeal’s judgment of 18 March 2011, reiterating that judgment’s reasoning. The Supreme Court’s decision did not address any of the applicant’s arguments in detail.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law.