CASE OF A.P., GARÇON AND NICOT v. FRANCE

Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Mārtiņš Mits;Yonko Grozev

On the date of lodging of the applications, the applicants were regarded for civil-law purposes as belonging to the male sex. For that reason, the masculine form is used in referring to them; however, this cannot be construed as excluding them from the gender with which they identify.

The first applicant was born in 1983 and lives in Paris.

The first applicant stated that, although he had been entered in the register of births as being male, he had always behaved like a girl and his physical appearance had always been very feminine. As an adolescent and young adult he had struggled considerably with his gender identity, since the male identity assigned to him at birth did not match his female psychological and social identity. In 2006, after several doctors had diagnosed a gender identity disorder known as “Harry Benjamin syndrome”, he had begun a transitional phase, living in society as a woman and undertaking a course of hormone treatment under the supervision of an endocrinologist, Dr H., and a neuropsychiatrist, Dr Bo.

The first applicant submitted three medical certificates issued by these doctors during the period in question. In the first two certificates, dated 12 April 2007, Dr Bo. stated that the first applicant had been under his supervision since 27 April 2005 “for a syndrome typical of gender identity disorder”. He stated that “there [was] thus an observable difference between his current physique and the photograph on his identity card”, and that “there [were] no medical or psychological contraindications for [an] operation ... on the Adam’s apple”. In the third certificate, dated 16 January 2008, Dr H. stated that he had been overseeing the applicant’s hormone treatment for “typical primary gender identity disorder since 1 June 2006, together with Dr B.”, and that “following endocrinology and metabolic tests, including karyotyping, [he was being] treated with anti-androgens and oestrogen”. The doctor concluded that “the marked, plausible and genuine nature of his gender dysphoria, together with the ‘real life test’, [made him] eligible for reassignment surgery, of which [he had] a legitimate expectation”.

The first applicant also produced a medical certificate issued on 3 April 2008 by another psychiatrist, Dr Ba., which certified that he had “typical Harry Benjamin syndrome” and that “there [were] currently no contraindications for the medical and/or surgical treatment entailed in the gender reassignment sought by the patient”.

The first applicant stressed that he had not originally intended to undergo mutilating gender reassignment surgery, but had resigned himself to it because the French courts’ case-law made it a precondition for a change in civil status.

The first applicant decided to undergo surgery in Thailand, performed by Dr S., whom he described as a “world-renowned specialist”. The operation was carried out on 3 July 2008. Dr S. issued the following medical certificate:

“... following a period of diagnosis by psychosexual specialists and an appropriate period of living full-time with a female identity, the above-mentioned person was diagnosed with a gender identity disorder (F64.0) defined as DSM IV, ICD-10. She was accepted for the appropriate surgical treatment, namely gender reassignment surgery.

... The surgery consisted of an orchidectomy, a vaginoplasty, a clitoroplasty and a labiaplasty, combined in a single operation. On completion of the operation the male sexual organs ... were replaced by organs that are female in appearance and function, with the exception of the reproductive organs. This involved removing the male reproductive organs, resulting in irremediable infertility.

In accordance with all established medical and legal definitions, the operation is irreversible and means that Mr [A.P.]’s male sexual identity has been permanently changed to a female sexual identity.”

In a certificate signed on 10 September 2008 Dr H. confirmed that the first applicant “[had] undergone irreversible male-to-female gender reassignment surgery”, and stressed that “the request for a change in civil status [was] compelling and admissible [and was] an integral part of the treatment”.

The first applicant produced four further certificates. The first, dated 26 May 2009, was signed by Dr W., a surgeon. It stated that the first applicant had undergone “a cosmetic laryngoplasty as part of maletofemale transitioning, after irreversible reassignment surgery was performed on the external genitalia”. In the second certificate, dated 27 May 2009, a speech therapist stated that she had “worked with [A.P.] for two years on feminisation of her voice”, and that “her voice and appearance [were] now wholly feminine and consistent with each other”. The third certificate, signed on 23 July 2009 by Dr B., a psychiatrist, read as follows:

“... [A.P.] is under supervision for typical Harry Benjamin syndrome, for which a gender reassignment process has been under way for several years. She has had hormone treatment and the surgery required to make her appearance and behaviour female. It is therefore legitimate, in the interests of her social and professional integration, for her civil status to be brought into line with her appearance and her wishes. ...”

In the fourth certificate, dated 16 March 2010, Dr P., a doctor specialising in fundamental psychopathology and psychoanalysis and a psychotherapist, stated that he had started psychotherapy sessions with the first applicant and, in particular, had “noted ... the consistency between Ms [A.P.]’s statements and her preferred gender identity”.

On 11 September 2008 the first applicant brought proceedings against State Counsel in the Paris tribunal de grande instance seeking a declaration that he was now female and that his first name was A. (a female forename). He submitted, in particular, the medical certificates of 12 April 2007 and 16 January and 10 September 2008, and the certificate issued by Dr S. On 16 October 2008 State Counsel requested a multi-disciplinary expert assessment, on the grounds that the applicant’s surgery had been performed abroad.

On 17 February 2009, in an interlocutory judgment, the Paris tribunal de grande instance stressed as follows:

“Where a diagnosis of gender identity disorder has been made following a thorough assessment and the person concerned has undergone irreversible physical changes for therapeutic purposes, it is appropriate to consider that, although the person’s new gender status is imperfect in that the chromosomal make-up is unchanged, he or she is closer, in terms of physical appearance, mindset and social integration, to the preferred gender than to the gender assigned at birth.”

However, the court further found:

“Irrespective of the status of the authors of the medical certificates produced in support of the application, the need for a firm diagnosis means that a multidisciplinary expert assessment should be carried out in order to establish the applicant’s current state from a physiological, biological and psychological perspective and to investigate the persistence of the alleged disorder in his past.”

The court appointed three experts – a psychiatrist, an endocrinologist and a gynaecologist – and requested them, after interviewing and examining the first applicant and consulting the medical certificates and operation reports submitted, to:

“(a) describe the applicant’s current physical state ... and the presence or absence of any external or internal genitalia of either sex; order, with the applicant’s consent, any samples and laboratory tests capable of establishing the biological and genetic characteristics of the applicant’s sex; state whether a mistake could have been made in the sex recorded on the birth certificate, or an organic or biological change could have occurred later; look for traces of possible surgery aimed at bringing about or completing a transformation of the genitalia or secondary sexual characteristics; state whether the patient has been treated with either medication or hormones; state whether the surgery or hormone treatment was carried out on account of pre-existing physical anomalies or because of the patient’s psychological state, leaving aside his deliberate intentions;

(b) describe [the first applicant’s] mental state and behaviour as regards his gender and, in so far as possible, indicate their origins and trace their development; report on any course of psychotherapy followed, specifying its duration and outcome; state whether the patient suffers from any mental disorder and, if so, specify the nature of that disorder;

(c) express a view on the possible existence of gender identity disorder, giving reasons for making or ruling out such a diagnosis; state whether, in the light of all the available individual medical data (physiological, biological and physical), the person concerned should be regarded as male or female.”

The court ruled that the costs of the expert assessment should be met by the first applicant, and ordered him to deposit a sum of 1,524 euros (EUR) for that purpose.

The first applicant refused to submit to an expert assessment on the grounds that this type of assessment, as well as being very costly, also failed to respect the physical and mental integrity of the person concerned. In his view the documents he had submitted, which had been written by specialist doctors and noted the genuine nature of his change of gender, were more than sufficient and it was not necessary to make him undergo a further battery of traumatic tests.

In an order of 13 March 2009 the Deputy President of the Paris Court of Appeal refused the first applicant leave to appeal against this interlocutory judgment.

On 10 November 2009 the Paris tribunal de grande instance rejected the first applicant’s request. It stressed that the certificates produced by the first applicant, however informative, did not answer the court’s questions regarding the origin, nature, persistence and consequences of the disorder in question, and that the doctors who had been consulted could not, in the space of a few lines intended to allow the operation to go ahead, carry out the work of three experts instructed on the basis of a very wide-ranging and detailed mandate. The court noted in particular that the certificates did not mention the applicant’s mental state and attitude with regard to his gender, or express a view as to the origin of the disorder and its development. Likewise, they did not specify whether the first applicant suffered from mental-health problems and whether he had followed a course of psychotherapy, nor did they provide any information on his current state, having been written prior to his gender reassignment. The court added that patients who underwent surgery in France submitted a comprehensive file covering all the disciplines concerned as a precondition of reassignment surgery, something which the doctor who had operated on the first applicant in Thailand had apparently not required. In order to have their costs covered by the social-security scheme, patients in France had to undergo a whole series of rigorous examinations. The court found that, in the light of the evidence in the file, the applicant should submit willingly to the expert assessment. In accordance with Article 11 of the Code of Civil Procedure, which authorised the courts to draw all the appropriate inferences from a party’s refusal to cooperate with an investigative measure, the court found that, in the absence of a multi-disciplinary expert assessment, the first applicant’s request had not been sufficiently substantiated.

Following an appeal by the first applicant the Paris Court of Appeal, in a judgment of 23 September 2010, upheld the judgment of 10 November 2009 in so far as it had rejected the first applicant’s request for the indication of gender on his birth certificate to be corrected.

First of all, the Court of Appeal inferred from Article 8 of the Convention that “where, following medical and surgical treatment undergone for therapeutic purposes”, a person with a gender identity disorder no longer possessed all the characteristics of his or her original sex and had taken on a physical appearance closer to that of the opposite sex, which matched his or her social behaviour, the principle of respect for private life warranted amending the civil-status records to indicate the sex corresponding to the person’s appearance.

However, the Court of Appeal found that, in the light of the documents submitted by the first applicant, it was “not established that he no longer possesse[d] all the characteristics of the male sex”. It stressed in that regard that, although the psychiatrists Bo. and Ba. had given a diagnosis of gender identity disorder in their certificates of 12 April 2007 and 3 April 2008, they had not noted the “absence of mental-health problems”. The Court of Appeal further noted that the hormone treatment referred to in the certificates issued by Dr H. on 16 January and 10 September 2008 dated back a long time. It also found that the certificate drawn up by Dr S., the doctor who had operated on the first applicant in Thailand on 3 July 2008, was “extremely brief” and consisted merely in a list of items of medical information that did not make clear whether the gender reassignment surgery had been effective. Furthermore, the documentation produced by the first applicant concerning the clinic, which had been taken from the Internet, was not sufficient to establish either the scientific and surgical reputation of the surgeon who had performed the operation or whether the surgery had complied with standard medical practice. Nor was this demonstrated by Dr W.’s certificate of 26 May 2009, “owing to the lack of any detail”.

The Court of Appeal went on to observe that the first applicant had refused persistently on principle to submit to an expert assessment and had not cooperated in the assessment ordered by the lower court, “on the irrelevant pretext of protection of his private life, even though the aim [had been] to establish that a person presenting with a gender identity disorder no longer possessed all the characteristics of the sex assigned at birth”. The court stressed that “the possible interference with private life [had been] proportionate to the requirement to establish the person’s gender identity, which [was] a component of civil status that [was] subject to the publicorder principle of inalienability”.

The Court of Appeal found, however, that the fact that the first applicant was known by a female forename – as was clear from numerous statements from those close to him – allied to his conviction that he was female, the fact that he had had various medical treatments and operations, and the “reality of his social life”, meant that he had a legitimate interest in changing his male forenames to female ones. The court therefore ordered that his forenames be corrected on his birth certificate.

The first applicant appealed on points of law against the judgment of 23 September 2010.

He argued, firstly, that the right to respect for private life meant that gender reassignment should be authorised for persons whose physical appearance was closer to that of the opposite gender, to which their social behaviour corresponded. He criticised the Court of Appeal’s refusal of his request to have the indication of his gender amended because he had refused to cooperate in an expert assessment aimed at determining the origins of his gender identity disorder and its development, and at ascertaining that he no longer had all the characteristics of the male sex. In his view, in ruling in this way after noting that he was known by a female forename, that he was convinced that he belonged to the female sex, and that he had had various medical and surgical treatments and lived in society as a woman, the Court of Appeal had breached Article 8 of the Convention. The first applicant referred, in particular, to the position of the Commissioner for Human Rights of the Council of Europe as set out in his issue paper of October 2009 entitled “Human rights and gender identity”, and to Resolution 1728 (2010) of the Parliamentary Assembly of the Council of Europe on discrimination on the basis of sexual orientation and gender identity (see paragraphs 73 and 75 below).

Secondly, he argued that it had been fully established by the medical certificates he had submitted that he was transgender, that he had undergone surgery which made him a woman, and that his physical appearance and social behaviour were female. In ruling that these documents were insufficient to establish the existence of the conditions required for gender reassignment, and criticising him for not cooperating with the expert assessment, the Court of Appeal had therefore distorted the evidence.

Thirdly, he alleged a violation of Article 14 of the Convention taken in conjunction with Article 8, taking the view that the Court of Appeal, in finding that he should have submitted to the expert assessment and in dismissing his appeal, had based its assessment on discriminatory grounds.

On 7 June 2012 the Court of Cassation (First Civil Division, Bulletin 2012, I, no. 123) dismissed the appeal in the following terms:

“... In order to substantiate a request to have the gender markers on a birth certificate corrected, the person concerned must demonstrate, in view of the widely accepted position within the scientific community, that he or she actually suffers from the gender identity disorder in question and that the change in his or her appearance is irreversible. After examining the documents submitted, without distorting them, and having noted, firstly, that the certificate describing surgery performed in Thailand was very brief (being confined to a list of items of medical information and saying nothing about the effectiveness of the operation) and, secondly, that [the first applicant] refused in principle to undergo the expert assessment ordered by the first-instance court, the Court of Appeal was entitled to refuse the application for correction of the gender markers on the appellant’s birth certificate ...”

The second applicant was born in 1958 and lives in Le PerreuxSurMarne.

He submitted that, although he had been entered in the register of births as male, he had been aware from a very young age of belonging to the female gender.

Owing to social pressure he had tried to hide his true nature and had married twice while living with the male identity entered on his birth certificate. However the marriages, from which he had children, had ended in divorce.

He dressed as a woman and was perceived by others as a woman. Since 2004 he had been undergoing treatment with feminising hormones and had undergone genital reconstruction surgery.

On 17 March 2009 the second applicant brought proceedings against State Counsel in the Créteil tribunal de grande instance seeking an order for his birth certificate to be corrected by replacing the word “male” with “female” and replacing his male forenames with the name “Émilie”. He referred in particular to a certificate issued in 2004 by Dr B., a psychiatrist and specialist in transgender issues, stating that the second applicant was a transgender person.

The court gave judgment on 9 February 2010. It noted that the second applicant had merely filed a few invoices dated 2008 and issued in the name of “Émilie” Garçon, four statements made by witnesses in 2008 saying that they had known the second applicant for a number of years, knew that he was a “transgender” person (or “transsexual”, as one of them put it) and had seen him “evolve as a woman without any apparent difficulty”, and a certificate dated 23 April 2009 signed by the endocrinologist Dr T., according to which the second applicant had been receiving treatment for gender dysphoria since 2006 and taking feminising hormones since 2004, a treatment that was well tolerated and effective. Noting also that the second applicant had not submitted the certificate from Dr B., the court found that he had not “[demonstrated] that he was actually transgender as claimed”. As he had not demonstrated that he actually suffered from the alleged disorder, his request had to be refused, since a change to the indication of gender in civil-status documents “was possible only in order to make a proven de facto situation official”. The court held that it had to refuse the request for a change of forename on the same grounds, as that request was merely secondary to the request for a change in civil status.

On 27 January 2011, following an appeal by the second applicant, the Paris Court of Appeal upheld the judgment of 9 February 2010 giving the following reasons:

“... While the principle of the inalienability of civil status precludes the law from recognising a change wilfully sought by an individual, it does not imply that civil status cannot be changed.

Where a genuine gender identity disorder that is medically recognised and untreatable has been diagnosed following a rigorous assessment, and the transgender person has undergone irreversible physical changes for therapeutic purposes, it is appropriate to consider that, although the person’s new gender status is imperfect in that the chromosomal make-up is unchanged, he or she is closer, in terms of physical appearance, mindset and social integration, to the preferred gender than to the gender assigned at birth. In these circumstances, and since under Article 57 of the Civil Code the birth certificate must mention the sex of the individual concerned, the principle of change should be accepted.

In the present case Émile Maurice Jean Marc Garçon ... was entered in the civilstatus registers as male.

It is up to the appellant to give reasons, in particular on the basis of medical evidence, why he should be regarded as female as he requests.

The appellant claims to be a transgender person who has lived with a female gender identity for several years. He argues that the disparity between his preferred gender and the gender assigned to him at birth is sufficient to warrant a change in civil status without his first having to demonstrate that he has undergone gender reassignment surgery.

Regarding the medical aspect he has simply submitted, as he did before the firstinstance court, a certificate issued by Dr [T.] dated 23 April 2009, written on the headed paper of Dr [D. S.-B.], in which that doctor ‘certifies that the endocrinologist Dr [S.-B.] has been treating Mr Émile (Émilie) Garçon for gender dysphoria ... since 2006’, and specifies that the appellant has been receiving treatment with feminising hormones since 2004 and that the treatment is well tolerated and effective.

This medical certificate stating that the appellant followed a course of feminising hormone treatment from 2004 to 2009 does not in itself demonstrate the existence of a permanent physical or physiological change and hence the irreversible nature of the gender reassignment process.

An expert assessment appears pointless since the appellant, who rejects the idea of having to undergo genital surgery, does not mention any plastic surgery performed in connection with the current course of hormone treatment, and has not produced any opinion by a psychiatrist capable of demonstrating the existence and persistence of the alleged disorder, although Émile Garçon’s birth certificate states that he has been married twice ... and divorced twice ...”

The second applicant appealed on points of law against the judgment of 27 January 2011. He argued in particular that, in refusing his requests on the pretext that he had not demonstrated either the existence of “permanent physical or physiological change and hence the irreversible nature of the gender reassignment process”, or “the existence and persistence of the alleged disorder”, the Court of Appeal had breached Article 8 of the Convention, since the right to respect for private life implied the right for individuals to define their sexual identity and to have their civil-status documents amended to reflect their preferred gender identity, without having to demonstrate the existence of a gender identity disorder or gender dysphoria, or to undergo a prior process of irreversible gender reassignment. Making the right to amendment of civil-status documents subject to proof of having undergone an irreversible process of gender reassignment amounted to requiring the holders of that right to be sterilised in order to exercise it, thereby interfering with their dignity and with due respect for their bodies and the intimacy of their private lives. The second applicant inferred from this that there had been a violation of Article 8 on account of the fact that the Court of Appeal had required him to furnish proof of having undergone that process. He added that it was discriminatory and contrary to Article 14 of the Convention to make this right subject to such proof and to proof of a gender identity disorder or gender dysphoria.

On 13 February 2013 the Court of Cassation (First Civil Division) dismissed the appeal on points of law in the following terms:

“... In order to substantiate a request for correction of the gender markers on a birth certificate, the person concerned must demonstrate, in view of the widely accepted position within the scientific community, that he or she actually suffers from the gender identity disorder in question and that the change in his or her appearance is irreversible.

Furthermore, after noting that [the second applicant] had merely produced a certificate issued by a doctor on 23 April 2009 on the headed paper of a different doctor, in which the former certified that the latter, an endocrinologist, was treating [the second applicant] for gender dysphoria, and which stated that the patient had been receiving treatment with feminising hormones since 2004, the Court of Appeal found that this medical certificate alone did not demonstrate the existence or persistence of a gender identity disorder, or the irreversible nature of the gender reassignment process. These are not discriminatory conditions nor do they infringe the principles set out in Articles 8 and 14 of the European Convention on Human Rights or Articles 16 and 16-1 of the Civil Code, as they are based on a fair balance between the requirements of legal certainty and the inalienability of civil status on the one hand, and the protection of private life and respect for the human body on the other ...”

The third applicant was born in 1952 and lives in Essey-les-Nancy.

He submitted that, although he had been entered in the register of births as male, he had been aware from a very young age of belonging to the female gender. He had lived with a woman from 1975 to 1991 and they had had a child together in 1978.

The third applicant said that he had hidden his true nature for a long time as he had been afraid of being bullied and later of losing custody of his daughter. Once his daughter was grown up he had adapted his appearance and social conduct to match his female gender identity. While most of the documents he used in everyday life reflected his gender identity, this was not the case of his civil-status documents, passport, driving licence, vehicle registration papers or entry in the national identity register. As a result, he was constantly obliged to refer to his transgender identity, to the detriment of his private life.

On 13 June 2007 the third applicant brought proceedings against State Counsel in the Nancy tribunal de grande instance seeking an order for his birth certificate to be corrected by replacing the word “male” with “female” and for his forenames to be replaced by the name “Stéphanie”.

The Nancy tribunal de grande instance delivered an initial judgment on 7 November 2008. It pointed out that it was “now unanimously recognised by both domestic and European case-law that transgender persons [had] the right to respect for their private life” and were therefore entitled to have their gender and forenames amended on their civil-status documents. However, the court stressed that a number of conditions had to be met, stating as follows:

“[T]he gender identity disorder [must] be established not only medically (usually by a multi-disciplinary team of doctors, surgeons, an endocrinologist, a psychologist and a psychiatrist), but also judicially, either by means of an expert assessment (although the court is not required to order one) or on the basis of medical certificates produced by the person concerned establishing with certainty that he or she has undergone medical treatment and surgery in order to achieve gender reassignment.”

The court went on to find as follows:

“Persons wishing to have their gender changed in their civil-status documents must demonstrate that they have undergone medical and surgical treatment for therapeutic purposes and have had previous surgery to remove the external characteristics of their original sex.

Hence, only ‘genuine’ transgender persons can have the gender markers in their civil-status documents changed, that is to say, persons who have already undergone an irreversible gender reassignment process.

In other words, a court may order individuals’ civil-status documents to be amended to reflect their preferred new gender only after they have genuinely altered their sexual anatomy to make it conform as closely as possible to their preferred gender.

These medical and surgical conditions are explained by the fact that a genuine gender identity disorder, which is characterised by ‘a deeply held and unshakeable feeling of belonging to the opposite gender to one’s genetically, anatomically and legally assigned gender, accompanied by an intense and consistent need to change one’s gender and civil status’, must be distinguished from other related but different concepts such as transvestism, which is based solely on reversible outward appearance and does not entail a change of anatomical sex.

In the present case, although S. Nicot is female in appearance and has provided documents and invoices issued to him by certain bodies in the name of Ms Stéphanie Nicot, these factors do not enable the court to assess whether he has actually changed gender. At the hearing, when questioned by the President regarding any treatment he may have undergone, S. Nicot took a militant stance – as he is perfectly entitled to do – and invoked the confidential nature of his private life ...”

The court therefore stayed the proceedings concerning the third applicant’s requests and ordered him to “produce in the proceedings any medical documents relating to the medical and surgical treatment undergone and capable of demonstrating that he [had] actually changed gender”.

The third applicant refused to produce any medical documents, taking the view that he had demonstrated sufficiently that he was physically and psychologically female and was integrated socially as a woman. He simply stated that his general practitioner had prescribed hormone treatment for him which meant that he had female secondary sexual characteristics such as breasts. State Counsel concluded that it was not possible to amend his civil status without proof of gender reassignment surgery.

In a judgment of 13 March 2009 the Nancy tribunal de grande instance noted that the third applicant had not produced medical and surgical evidence of gender reassignment, and therefore rejected his request. The judgment reiterated the reasoning of the judgment of 7 November 2008. The court stated as follows:

“[A change of gender in civil-status documents may be granted only to] ‘genuine’ transgender persons, that is, to persons who have already undergone irreversible gender reassignment, and not to persons who merely claim to be ‘transgender’ on the grounds that they are regarded socially as belonging to the gender corresponding to their outward appearance, but who oppose any gender reassignment surgery or refuse to provide medical and surgical evidence of such reassignment having been carried out by means of medical treatment and surgery.”

The court went on to find as follows:

“Granting S. Nicot’s request would effectively amount to the creation by the courts of a ‘third gender’, namely persons of female appearance who nevertheless continue to have a male external sexual anatomy but can marry a man. In the opposite case, a person who is male in appearance would continue to have female genitalia and could thus give birth to a child!!! As the case-law currently stands, such a situation is wholly prohibited.”

In a judgment of 3 January 2011 the Nancy Court of Appeal upheld the judgment of 13 March 2009. It stressed in particular that “the request for a change in civil status [did] not necessarily require proof of surgical change such as the removal or alteration of the genitalia, or plastic surgery”, but implied that “the irreversible nature of the gender reassignment process be established in advance”. The court went on to find that the third applicant “[had] not provided such intrinsic proof, which [could] on no account derive from the fact that he [was] regarded by others as female”. It added that respect for private life could not result in the third applicant being exempted from this “obligation to provide proof, which [was] not designed to confuse transgenderism and transsexualism but which, besides the inalienability of civil status, [was] aimed at ensuring the consistency and reliability of civil-status records”. That requirement, which was legitimate and in no way discriminatory, was not in breach of Article 14 of the Convention, and it was not the court’s task to remedy the deficiencies in the evidence adduced by the third applicant.

The third applicant lodged an appeal on points of law against the judgment of 3 January 2011. He argued that the right to respect for private life entailed the right to define one’s gender identity and to have civil-status documents amended to reflect one’s preferred gender, without a prior obligation to undergo an irreversible gender reassignment process and provide proof thereof. In finding that he should have furnished proof of this irreversible process, the Court of Appeal had therefore breached Article 8 of the Convention, especially since neither the principle of the inalienability of civil status nor the need for consistency and reliability of civil-status records made it necessary for individuals to undergo an irreversible process of gender reassignment, and provide proof thereof, in order to have their civilstatus documents amended. The third applicant added that it was discriminatory and contrary to Article 14 of the Convention to make individuals’ right to have their civil-status documents amended to reflect their preferred gender conditional upon proof that they had undergone irreversible gender reassignment.

The third applicant’s appeal was examined at the same time as the second applicant’s.

On 13 February 2013 the Court of Cassation (First Civil Division) dismissed the appeal on the following grounds:

Given that [the third applicant] has not furnished intrinsic evidence of the irreversible nature of the gender reassignment process in his case, which cannot derive from the sole fact that he is seen by others as female, the dismissal of his claims by the Court of Appeal did not infringe the principles laid down under Articles 8 and 14 of the Convention ..., but rather struck a fair balance between the requirements of legal certainty and the inalienability of civil status on the one hand, and the protection of private life on the other ...”


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

Between 1986 and 1987 the applicants took part in the clean-up operation at the Chernobyl nuclear disaster site. They were subsequently registered disabled and became entitled to various social benefits and compensation paid on a regular basis.

Considering these benefits insufficient, the applicants together with other 482 people, sued the Russian Ministry of Finance for additional compensation corresponding to non-pecuniary damage suffered as a result of their participation in the operation.

On different dates in January and April 2011 the Nalchik Town Court of Kabardino-Balkaria (“the Town Court”) allowed their claims in part and awarded each claimant, including the applicants, compensation ranging between 1,100,000 Russian roubles (RUB) and RUB 1,800,000 for nonpecuniary damage.

No appeals were lodged against these judgments within the statutory ten-day time-limit. The judgments became final. Some judgments in respect of several applicants remained unenforced (see “Enforcement status” in the Appendix).

On different dates in 2012 and 2013 the domestic courts granted the defendant authority’s request to extend the time-limit for appeal essentially on the ground that the defendant authority had not been served with the impugned judgments. Subsequently the regional Supreme Court quashed the judgments delivered in the applicants’ favour on the grounds that they had been based on retrospective application of the law. The applicants were ordered to repay the sums received under the judgments.

The applicants lodged a supervisory review application. There is no indication that they requested the enforcement proceedings to be suspended pending the examination of their supervisory review application.

Between June and August 2013 the Presidium of the regional Supreme Court partially quashed the appeal judgments as regards the applicants’ obligation to reimburse the sums paid.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant was born in 1967 and is detained in Smolensk.

Between 25 July and 1 August 2005 the applicant was held in the IZ76/1 remand prison in Yaroslavl in connection with the criminal proceedings against him. According to the applicant, his cell measuring six square metres was equipped with four sleeping places and accommodated up to seven inmates. The applicant was allowed to take a one-hour daily walk in a recreation yard measuring eight square metres. According to the floor plans provided by the Government, the applicant’s cell measured 7.88 square metres and contained two sleeping places.

After his conviction had become final, the applicant served his sentence in the IK-5 facility, a correctional colony located in the Smolensk Region. Between 9 and 20 January 2007 the applicant was held in disciplinary cell no. 4. He submitted that this cell measured twelve square metres and offered six sleeping places while actually accommodating up to thirteen inmates. During his detention in this cell, the applicant was taken, together with twenty-five other inmates, for a one-hour daily walk to an outside recreation area which measured twenty square metres. According to the documents provided by the Government, disciplinary cell no. 4 measured 15.4 square metres, contained eight sleeping places but accommodated only six inmates. The outside yard provided 4.8 square metres for each inmate.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Georgieva;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born on 8 September 1989 and lives in Dubrovnik.

On 4 March 2008, at around 7.00 p.m., the Dubrovnik Police Station (Policijska uprava Dubrovačko-neretvanska, Policijska postaja Dubrovnik; hereinafter: the “police”) received an anonymous call informing the police that a mass fight was planned in the vicinity of the Naval High School in Dubrovnik (Pomorsko-tehnička škola u Dubrovniku). Three police officers were immediately sent to the scene.

When the police officers arrived at the scene there was no fighting going on but inside the school they found the applicant with an injury on his forehead. He was immediately taken to hospital and examined by a doctor. The applicant’s medical record of 4 March 2008 reads:

“Diagnosis

VLC reg supraorbicularis lat dex

Medical history and status

Allegedly took part in fighting and sustained a cut of three centimetres above the right brow bone. He did not lose consciousness, he recollects the event, he did not vomit. No neurological symptoms.

The wound was treated, no sign of fracture.

An antibiotic is recommended, bandage every third day in clinic.

Follow-up by a surgeon if necessary.”

On the same date the applicant was interviewed by the police. He stated that he had been standing in front of the school together with his classmates and that all of a sudden he had been hit on the head with a rock, which had knocked him to the ground. His friends had helped him to stand up and carried him inside the school. He himself had not been involved in any fighting and had had no idea that something might happen.

On 23 May 2008 the applicant lodged a criminal complaint with the Dubrovnik Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Dubrovniku; hereinafter: the “State Attorney’s Office”) against unknown perpetrators, under Articles 99 and 331 of the Criminal Code (see paragraph 54 below), alleging that on 4 March 2008 he had been injured by a group of hooligans in front of his school. One of them, who he could not identify, had thrown a rock at his head hitting him on the forehead. Blood had immediately started to run and one of his friends had to carry him inside the school.

The applicant submitted the medical record of 4 March 2008 and explained that his father had erased part of the text on the medical record which suggested that he had taken part in a fight because he had not wanted to have something untrue noted on the record.

On 29 May 2008 the State Attorney’s Office forwarded the applicant’s criminal complaint to the police and requested a report on the matter.

In the period between 5 and 30 June 2008 the police interviewed several people, including the doctor who had drafted the medical report of 4 March 2008. He considered that the applicant’s injury should be classed as a minor bodily injury. The police also questioned V.Č. and I.N., two of the applicant’s schoolmates, who confirmed his version of events.

The police also obtained a medical opinion of 6 June 2008 recommending that the applicant undergo further neurological examination.

On 2 July 2008 the police informed the State Attorney’s Office of the results of their preliminary investigation. The relevant part of the police report reads:

“... a group of boys from Mokošica, headed by P.H., in which G.V. and M.P. and several other unidentified individuals were involved, went to the front of the Naval High School on 4 March 2008 in order to take revenge [for a previous fight between a student from the Naval School and P.H.]. When the students from the school saw the group of boys from Mokošica they ran away or headed back into the school, while a group of students attempted to leave the schoolyard passing by the [group of boys from Mokošica]. At that point the boys from the Mokošica group started to throw rocks at them and one rock hit Tomislav Remetin on his head, causing him a minor bodily injury, namely a cut on his forehead. Then some students from Lapad, among whom was A.N., started to throw rocks back. During this clash one rock hit M.P. from the group of boys from Mokošica on his head, causing him a cut on his forehead, which was a minor bodily injury.”

In connection with the attack, on 20 November 2008 the applicant underwent another medical examination. The doctor found no damage to his brain but an inflammation of his sinuses and referred him for further treatment.

On 18 May and 6 July 2009 the applicant’s father was allowed to inspect the case file kept by the State Attorney’s Office.

On 27 December 2010 the applicant asked for information concerning his case from the police on the grounds that he wanted to lodge an application with the Court.

On the same date he lodged a civil claim for damages with the State Attorney’s Office on account of his physical and mental suffering caused by the attack. He pointed out that the police report had identified a number of individuals who had taken part in the attack and that a number of people had been interviewed. He further argued that he, and his father, had already orally requested that the police and the State Attorney’s Office provide copies of the relevant documents from the case file but that their request had been denied. He therefore asked for copies of all the relevant reports on the grounds that he wished to lodge an application with the Court.

The police replied on 28 December 2010 and 12 January 2011 informing the applicant that he should submit his request for information to the State Attorney’s Office.

On 8 February 2011 the State Attorney’s Office informed the applicant that he could come and inspect the case file if he so wished. The State Attorney’s Office also pointed out that the police had not identified the persons who had injured him, which meant that the case was being treated as a criminal complaint against an unknown perpetrator, and that it has been all the time open to the applicant to lodge a criminal complaint against any individual he suspected of committing the offence.

On 22 February 2011 the applicant asked the State Attorney’s Office to allow him to copy the relevant documents from the case file because he wanted to institute proceedings before the Court, pointing out that by the letter of 8 February 2011 he had only been allowed to inspect, and not copy, the case file.

By letters of 4 July and 27 July 2011 the State Attorney’s Office informed the applicant that he could come on 14 July and 19 August 2011 to inspect and copy the case file.

In the meantime, on 5 July 2011, the applicant lodged an application with the Court. He did not go to the State Attorney’s Office to inspect the case file.

On 19 December 2010, at around 4.35 a.m., the police were informed that there was a fight in bar C. in Dubrovnik. Two police officers were immediately sent to the scene.

At the scene the police officers found several people, including the applicant and M.K., with visible injuries.

On the same date the applicant was examined by a doctor, who found that he had several cuts on his head and shoulder, which were characterised as minor bodily injuries.

The police also interviewed the applicant and several other people. The applicant stated that he had been drinking in bar C. with his friend M.K. At one point a man had approached them and head-butted the applicant for no reason. After that, several other people had started to throw glasses and bottles at the applicant and, after he had fallen to the floor, to kick him. He managed to escape from the bar but then he realised that he had left his t-shirt, shoes and necklace behind in the bar. He had therefore returned to search for his things but was again attacked by the same group, who continued throwing bottles and glasses at him and, once he had fallen to the floor, to kick him. He managed to escape from the bar again and was then attended to by the police and other emergency services.

On 22 December 2010 the police indicted the applicant and seven other people in the Dubrovnik Minor Offences Court (Prekršajni sud u Dubrovniku) on charges of breach of the public peace and order. There is no information on the outcome of these proceedings.

On 27 December 2010 the applicant asked for information concerning his case from the police on the grounds that he wanted to lodge criminal complaints before the domestic authorities and an application with the Court.

The police replied on 28 December 2010 and 12 January 2011 informing the applicant that he should submit his request for information to the Dubrovnik Minor Offences Court.

On 12 January 2011 the applicant again asked the police to provide him with all relevant documents in their possession, arguing that the police had been trying to cover up the attack, which he claimed had been perpetrated by the group from the Mokošica neighbourhood.

On the same date the police replied, reiterating their previous advice that the case file had been forwarded to the Dubrovnik Minor Offences Court.

On 16 March 2011 the applicant lodged a criminal complaint with the State Attorney’s Office against G.M., M.T. and P.S., alleging that they had attacked him and his friend M.K. in bar C. He pointed out that they were part of a group from the Mokošica neighbourhood and that he had already been attacked by individuals from the same group on 4 March 2008. However, there had been no response by the domestic authorities to this attack. Lastly, he stressed this was a group of “skinheads” which had been terrorising the whole city.

On 29 March 2011 the State Attorney’s Office invited the applicant for an interview and requested that the police provide all the information they had concerning the offence.

On 1 April 2011 the police replied that they had instituted minor offences proceedings in the Dubrovnik Minor Offences Court concerning the events in question.

On 13 April 2011 the State Attorney’s Office questioned the applicant and the record of his statement, together with the criminal complaint, was forwarded to the police on 14 April 2011 with an order for further investigation into the matter.

On 26 April 2011 the State Attorney’s Office questioned M.K., who confirmed the applicant’s version of events and described how he himself had also been attacked.

On 17 May 2011 the police reported to the State Attorney’s Office that they had questioned several people and were searching for other witnesses to the events.

On 19 May 2011 the State Attorney’s Office urged the police to speed up their work.

On 20 May 2011 the police submitted a report to the State Attorney’s Office.

On 30 May 2011 the State Attorney’s Office asked an investigating judge of the Dubrovnik County Court (Županijski sud u Dubrovniku) to conduct a judicial investigation concerning the applicant’s complaints.

In the period between 13 and 14 June 2011 the investigating judge questioned the applicant and several other individuals and commissioned a medical expert report concerning the applicant’s injuries.

The medical expert submitted his report on 14 July 2011. The relevant part of the report reads:

“The medical records indicate that Tomislav Remetin sustained cuts on the area of his left brow and right shoulder, and abrasions on the right elbow.

Each of these injuries itself and all the injuries taken together represent a minor bodily injury. ... ”

On 28 July 2011 the State Attorney’s Office rejected the applicant’s criminal complaint against P.S. on the grounds that there was no reasonable suspicion that he had committed any offence against the applicant. The applicant was instructed that he could take over the criminal prosecution against P.S. as subsidiary prosecutor.

On the same date, the State Attorney’s Office indicted G.M. and M.T. in the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) on charges of violent behaviour. The relevant part of the indictment reads:

“... on 19 December 2010, at around 3.00 a.m., in Dubrovnik, in bar C., based on a previous agreement, for no particular reason and in order to act violently, together with other unidentified persons, G.M. approached Tomislav Remetin, who was sitting at the bar, and head-butted and punched him several times on the head, after which M.T., together with other unidentified persons, continued to punch [Tomislav Remetin] all over his head and body, also throwing bottles and glasses at him, which made Tomislav Remetin leave the bar in fear, and after he had returned for his things, G.M. approached him again and punched him several times on the head, while other unidentified persons also started to punch and kick [Tomislav Remetin], and, after Tomislav Remetin fell to the floor, continued to hit him, which caused Tomislav Remetin [to suffer] cuts on the area of his left brow and right shoulder, and abrasions on the right elbow, which are minor bodily injuries, and subjected him to helplessness and feelings of anguish and inferiority ...”

On 1 September 2011 the president of the trial panel of the Dubrovnik Municipal Court to whom the case had been assigned asked the president of the Dubrovnik Municipal Court to exempt him from the case on the grounds of his friendship with the applicant’s father. The president of the court agreed to exempt him from the case on 9 September 2011.

On 19 June 2012 the Dubrovnik Municipal Court, in a separate set of proceedings, issued a penal order in respect of an individual, M.N., on charges of making death threats against the applicant with the aim of intimidating him to withdraw his criminal complaint. It would appear that these proceedings are still pending.

The first trial hearing before the Dubrovnik Municipal Court, scheduled for 22 January 2013, was adjourned due to the absence of a defence lawyer.

Another hearing, scheduled for 27 March 2013, was also adjourned because the applicant wished to retain a lawyer to represent him in the proceedings.

A further hearing was held on 26 June 2013 at which the trial court heard the applicant’s evidence and questioned another witness. It also commissioned a medical expert report.

The medical expert submitted his report on 1 August 2013. He found that the applicant had sustained a number of cuts on his face around the left eye and right shoulder, as well as abrasions of the right arm. He found no other objectively identified injuries.

According to the available information no further procedural actions were taken and the proceedings are still pending before the Dubrovnik Municipal Court.


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

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

The applicant was born in 1950 and lived in Budapest.

Having been a judge since 1 January 1978 and a member of the Supreme Court since 1 March 1994, on 15 November 2009 he was appointed Vice-President for a six-year term by the President of the Republic, after being proposed for the post by the President of the Supreme Court.

The mandate of the President of the Supreme Court was prematurely terminated, upon the entry into force of the Fundamental Law on 1 January 2012, in reaction to his criticisms and publicly expressed views regarding proposed judicial reforms (see Baka v. Hungary [GC], no. 20261/12, § 151, 23 June 2016).

In connection with these events, a proposal for the termination of the applicant’s mandate as Vice-President was submitted to Parliament on 23 November 2011, and was adopted on 28 November 2011 in the form of section 185 of Act no. CLXI of 2011 on the Organisation and Administration of the Courts (“the AOAC”) (see Baka, cited above, § 30). Accordingly, as of 1 January 2012, the applicant was removed from his position as Vice-President, three years and ten months before the scheduled expiry of his mandate. He remained in office as president of one of the Civil Law division benches of the Kúria (the historical appellation by which the Supreme Court was renamed in 2012).

On 7 February 2012 the applicant lodged a constitutional complaint with the Constitutional Court challenging the termination of his position. In its judgment no. 3076/2013. (III. 27.) AB, adopted by eight votes to seven, the Constitutional Court rejected the constitutional complaint. It held that the premature termination of the applicant’s term of office as Vice-President had not violated the Fundamental Law, since it had been sufficiently justified by the full-scale reorganisation of the judicial system and important changes made in respect of the tasks and competences of the President of the Kúria. It noted that the Kúria’s tasks and competences had been broadened, in particular with regard to the supervision of the legality of municipal council regulations (for the relevant parts of the Constitutional Court’s judgment see Baka, cited above, § 55).

Seven judges dissented and considered that the changes concerning the judicial system, the new Kúria and the person of its president had not fundamentally affected the status of the Vice-President. The position of the Vice-President within the organisation of the supreme judicial instance had not changed. Under the Act LXVI of 1997 on the Organisation and Administration of the Courts, the Vice-President was already entitled to act in the stead of the President of the Supreme Court only with regard to managerial tasks at the Supreme Court, but not with regard to his or her functions as President of the National Council of Justice (see Baka, cited above, § 56). The dissenting judges concluded that the premature termination of the applicant’s term of office had not been sufficiently justified by the reorganisation of the judicial system; and that it had weakened the guarantees in respect of the separation of powers, had been contrary to the prohibition on retroactive legislation, and had breached the principle of the rule of law and the right to a remedy.

On 6 July 2012, as a consequence of the lowering of the judges’ mandatory retirement age pursuant to section 90 (ha) of Act no. CLXII of 2011 on the Legal Status and Remuneration of Judges (“the ALSRJ”) (see Baka, cited above, § 52), the President of the Republic released the applicant from his duties as a judge with effect from 31 December 2012.

In its judgment no. 33/2012. (VII. 17) AB of 16 July 2012, the Constitutional Court declared unconstitutional and consequently annulled the provisions on the compulsory retirement age of judges (see Baka, cited above, § 53). On the basis of that judgment, the Budapest Labour Court found, in a first-instance judgment of 21 March 2013, that the termination of the applicant’s judicial service had been unlawful and reinstated him – without, however, ordering his reinstatement in his previous position as president of one of the Civil Law division benches of the Kúria.

Following the Constitutional Court’s judgment of 16 July 2012, Parliament adopted a modified scheme governing the reduction of judges’ compulsory retirement age and provided different options for those who had already been affected by the unconstitutional legislation (see Act no. XX of 2013 referred to in Baka, cited above, § 54). The applicant opted not to be reinstated and received lump-sum compensation for the termination of post as a judge.


Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Non-pecuniary damage - claim dismissed

Aleš Pejchal;André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Mark Villiger

The applicant was born in 1973 and was detained in London at the time he lodged his application.

On 9 October 2009 the Public Prosecutor ordered an investigation against the applicant on charges of rape and indecent assault on a girl under the age of sixteen, with the aggravating circumstance that the perpetrator held a position of authority over her.

On 4 December 2009 the applicant was arrested in the United Kingdom under a European Arrest Warrant. The Government indicated that the applicant was presented with the European arrest warrant, which contained a statement in English of the facts and of the nature of the offences with which he was charged. The applicant submitted that he had been placed in “detention pending extradition” in a British prison, and that it did not transpire from the criminal file that the European arrest warrant had been served on him at that precise time.

On 17 December 2009 the applicant was surrendered to the Luxembourg authorities. At 2.45 p.m. he was officially served with the European arrest warrant on his arrival at Luxembourg airport, and at 3.20 p.m. he was questioned at the police station in the presence of an interpreter. It transpires from the police report of 17 December 2009 that “[the applicant] initially refused to make any statement. With repeated reference to British legislation, he claimed his right to legal assistance. After having received the requisite explanations regarding the procedure to be followed in cases such as his, he agreed to take part in the questioning”. The applicant was informed of the victim’s statements and the suspicions against him, and was questioned on the facts. He stated his version of events and contested all the charges against him, denying any guilt. At the end of the interrogation he requested legal assistance for the following day’s interrogation before the investigating judge. At 7.15 p.m. he was transferred to Luxembourg Prison.

On the morning of 18 December 2009 he was questioned by the investigating judge in the presence of an interpreter. In that connection, the minutes of the interrogation read as follows: at 9.02 a.m. the investigating judge checked the identity of the applicant – who now held accused (Beschuldigter) status – and informed him that a criminal investigation (Untersuchungsverfahren) had been initiated against him concerning the offences with which he had been charged. The applicant was then informed of his right to choose a defence lawyer from among the members of the Bar Association or to obtain the assistance of an officially appointed lawyer. The applicant availed himself of that right, and was assigned Mr W. as his officially appointed lawyer. The applicant was questioned in the presence of his lawyer and an interpreter; he made statements on the facts and confirmed his statements to the police. The interrogation ended at 10.53 a.m.

It transpires from the case file that the applicant, who had been remanded in custody, was released on 10 March 2010 by the Luxembourg District Court subject to his remaining in Luxembourg, reporting regularly to the police and refraining from contacting his victim.

By a judgment of 31 March 2011 the criminal division of the District Court sentenced the applicant to a seven-year prison term accompanied by a three-year partial probation period. The judges reiterated the statements from the victim, the witnesses and the applicant during the judicial and police investigations and during the court hearing. They mentioned the fact that the applicant had constantly changed his “version of events”, and pointed out that according to a credibility analysis none of the evidence gathered had cast any legitimate doubts on the truthfulness of the victim’s statements.

On 7 February 2012 the criminal division of the Court of Appeal upheld the first-instance judgment.

The judges observed that the applicant had contested the charges against him throughout the proceedings and that he was maintaining his objections before the Court of Appeal. They held that the district court had provided a detailed and exhaustive list of the statements by the victim, the applicant and the various witnesses and experts questioned.

They pointed out that the applicant’s lawyer had complained about the fact that after the applicant’s extradition from the United Kingdom had had been heard by the police on his arrival in Luxembourg without the benefit of legal assistance, which he had requested but been denied; the judges therefore concluded as follows:

“As regards the failure to provide for the assistance of a lawyer during the question by police, it transpires from police report SPJ/JEUN/2009/6926-5/COES of 17 December 2009 that the accused had initially requested the assistance of a lawyer during the questioning which was to take place in the police station, but that after the applicable procedure had been explained to him he had agreed to give statements without the assistance of counsel.”

In their analysis of the charges against the applicant, the judges noted, among other things, that the latter had not always been consistent in his statements. With particular regard to one of the episodes in issue, they referred to the difference between the statements which he had made during the police questioning and his depositions during the first-instance and appeal hearings.

On 22 November 2012 the Court of Cassation dismissed the applicant’s appeal on points of law. In particular, it declared ill-founded a submission under Article 6 § 3 of the Convention, on the following grounds:

“Whereas it transpires from the discussion of the submission that the [applicant] complains that the Court of Appeal merely found a violation of the rights of the defence without drawing the requisite conclusions from that finding;

Whereas, however, the Court of Appeal held that ... [see quotation in paragraph 18];

That, in reaching such a decision the Appeal did not find a violation of the rights of the defence as alleged by the appellant but, on the contrary, concluded that there had been no violation of the rights of the defence inasmuch as the accused had recorded his agreement to making statements in the absence of counsel;

It follows that the impugned judgment did not violate Article 6 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as alleged by the applicant; ...”

The applicant left Luxembourg for the United Kingdom (at an unspecified date), and on 20 December 2012 the prosecution issued a European arrest warrant for the purposes of executing the 7 February 2012 judgment.

On 12 June 2013, in response to a request from the British authorities (the Extradition Unit of the Crown Prosecution Service) dated 29 May 2013, a representative of the Principal State Prosecutor provided those authorities with information on judicial procedures in Luxembourg. As regards the hearing of 17 December 2009, the representative stated in particular that it had transpired from the police report that the applicant, whose statements had been translated by the interpreter, had neither been assisted by a lawyer or been offered legal assistance. As regards the interrogation of 18 December 2009, the representative explained that a lawyer officially appointed by the investigating judge had assisted the applicant during the interrogation and for the duration of the ensuing domestic proceedings. She added that anyone asking to consult his or her officially appointed or freely chosen lawyer, before an interrogation, was allowed to do so; contrary to his assertions, the applicant’s access to his lawyer before the interrogation of 18 December 2009 had not been restricted.

On 19 August 2013 the British court authorised the applicant’s surrender to the Luxembourg authorities in order to serve his sentence in Luxembourg; the applicant’s appeal against that decision was dismissed on 20 December 2013. According to the case file, the applicant is currently incarcerated in Luxembourg Prison.


CASE OF PIVDENBUDTRANS, ZAT AND OTHERS v. UKRAINE

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

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

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 civil proceedings and of the lack of any effective remedy in domestic law. In application no. 14819/09, the applicant also raised other complaints under the provisions of the Convention.


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

The applicant was born in 1967 and lives in Budapest.

At the material time the applicant was a managing director of a tour operator limited liability company, HTC Kft.

On an unspecified date criminal investigations were opened against HTC Kft and another limited liability company on suspicion of bankruptcy fraud. On 8 September 2000 the Budapest VI/VII Police Department ordered the search of the applicant’s flat and vehicle, since there were grounds to believe that as the managing director of HTC Kft, he kept certain company documents at home.

On 14 February 2007 the applicant was heard as suspect on charges of bankruptcy fraud.

On 18 May 2007 the Budapest VI/VII District Public Prosecutor’s Office preferred a bill of indictment against the applicant, charging him with bankruptcy fraud.

The first hearing was held by the Pest Central District Court on 3 November 2009.

On 21 April 2012 the Pest Central District Court acquitted the applicant. The judgment became final on 1 August 2012.


András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant company, SC Red Credit SRL, was a Romanian legal entity based in Constanța, founded in 2002. It was initially represented before the Court by its administrator, V.D. From 2013, after the case was communicated to the Government, submissions in respect of the case were made by Ms L. Memet, a legal adviser practising in Constanța.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

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

The applicant company was authorised to operate as a jewellery pawnbrokers.

According to the Single Control Register, on 25 September 2007 the applicant company had gold stock weighing 3,624 grams.

On 26 September 2007 the Constanța Tax Agency (“the CTA”) and the Constanța Consumer Protection Agency (“the CCPA”) carried out an inspection of the activities of the applicant company and other companies sharing the same commercial space.

On the same date the CCPA produced an inventory report of the applicant company’s jewellery stock which had been on display for sale. The report was drawn up in the presence of a representative of the applicant company, who had stated that some of the jewellery had been sold at different prices depending on quality.

On 3 October 2007 the CCPA produced a contravention report fining the applicant company 7,000 lei (RON – approximately 2,100 euros (EUR)) because on 26 September of that year it had displayed gold jewellery for sale without a licence to sell precious metals, alloys or stones. In addition, it ordered that the gold jewellery that had been on display for sale, which weighed 2,527 grams and was worth RON 111,683 (approximately EUR 33,140), be confiscated.

According to the contravention report, the CCPA had cooperated with the Constanța Tax Agency (“the CTA”) to produce it.

The representative of the applicant company who signed the contravention report objected to it on the grounds that the measure taken had been unjust.

The applicant company challenged the report of 3 October 2007 in the domestic courts.

On 4 July 2008 the Constanța District Court allowed the applicant company’s action, set aside the report of 3 October 2007 and ordered the return of the confiscated jewellery. It held that according to the European Court of Human Rights’ (“the Court”) case-law, proceedings seeking to challenge contravention reports fall under the criminal head of Article 6 of the European Convention of Human Rights (“the Convention”) and therefore the domestic authorities had to comply with the procedural guarantees set out in that Article with regard to criminal proceedings, including the right to be presumed innocent. The court further held that the fine had been imposed on the applicant company under general legal provisions and had been intended as a punishment to deter it from reoffending. Consequently, the burden of proof with regard to the applicant company’s guilt was on the CCPA. However, the agency had not submitted any evidence which proved the applicant company’s guilt.

The CCPA lodged an appeal on points of law (recurs).

By a final judgment of 23 December 2008 the Constanța County Court allowed that appeal, quashed the judgment of the lower court and upheld the report of 3 October 2007. It held that according to the documents available, on 26 September 2007 the applicant company had only been authorised to hold precious metals. However, it had only obtained authorisation to sell them on 2 October 2007. Moreover, according to the inventory report signed by the applicant company’s representative without any objection, the report had concerned the items which had been on display for sale. Also, according to the Court’s case-law, the contravention proceedings had to comply with the procedural requirements provided for under the criminal head of Article 6 of the Convention, which concerned both the rebuttal of the right to be presumed innocent and a relative presumption of truth in favour of the contravention report drafted by a State authority following its own perception of the events. Consequently, the burden of proof would have been on the State authority which had drafted the contravention report and the report could have been set aside only if the State authority’s representatives had not been present when the contravention had happened and it had failed to prove the statements made in the report. But the representatives of the said authority had been present when the contravention had been committed and the report had reflected their own perceptions. The report therefore had to be presumed to reflect the truth and the burden of proof had been reverted to the applicant company in order to rebut that presumption.

The court further held that in the inventory report the applicant company’s representative had stated that some of the jewellery had been sold at different prices depending on quality. Furthermore, the contravention report had been signed by the applicant company’s administrator, who had objected to it on the grounds that the measure taken had been unjust, but had not contested the fact that he had been selling jewellery. The contravention report had been lawful and had contained all the lawfully required information. Moreover, the contravention and inventory reports contained similar information about the quantity and value of the items mentioned in them and had been signed by both parties without any objection in this respect. Furthermore, these inconsistencies would not have rendered the contravention report null and void and the applicant company had not proven that it had incurred damage that could have been remedied solely by setting aside the report. Furthermore, absence from the contravention report of information that the fine could have been paid immediately or within forty-eight hours had not rendered the report unlawful.

Lastly, the court held that all of the reasons outlined above rendered the applicant company’s argument that the contravention had not existed inadmissible, because it had never intended to sell the jewellery that it had been holding.

On 10 September 2009 the applicant company signed a merger by acquisition (fuziune prin absorbție) with another company, namely SC IFN Master Credit SRL. They agreed, inter alia, that the latter company would acquire the applicant company that day and take over the applicant company’s assets and liabilities. V.D. was an associate of SC IFN Master Credit SRL.

On 28 September 2010 the applicant company was struck off (radiată) the Constanța Register of Commerce following the merger.

On 1 October 2013 Ms Memet submitted to the Court a power of attorney signed by the former administrator of the applicant company authorising her to represent it.

In 2014 SC IFN Master Credit SRL changed its name to S.C. Master Credit Stand-By SRL and then to SC Master C. Stand-By SRL.

In January and March 2014, part of the observations on the admissibility and merits of the case were submitted by Ms Memet in a document headed “SC Master Credit Stand-By SRL v. Romania”. She did not submit within any of the time-limits allotted by the Court a power of attorney or any other document authorising her to represent SC IFN Master Credit SRL, SC Master Credit Stand-By SRL or SC Master C. Stand-By SRL. Furthermore, neither she nor the companies submitted within the relevant time-limits any documents signed directly by any of the companies themselves or by V.D. expressly stating that they wished to continue the application.

“Carrying out unauthorised operations with precious metals and stones is a contravention punishable by a fine of 5,000 [EUR 1,515] to 10,000 lei [EUR 3,030] and by confiscation of the goods subject to the contravention.”

The relevant legal provisions concerning the amendments to the legal rules applicable in respect of legislation concerning contraventions are set out in the case of Anghel v. Romania (no. 28183/03, §§ 35-39, 4 October 2007).

Article 250 of Law no. 31/1991 on commercial companies provided, inter alia, that following a merger the assets and debts of the acquired company were transferred to the acquiring company in accordance with the terms of the merger plan.

Rule 47 § 7 of the Rules of Court (former Rule 47 § 6) provides that applicants shall keep the Court informed of any change of address and of all circumstances relevant to the application.


CASE OF SÜLEYMAN DEMİR AND HASAN DEMİR v. TURKEY

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The applicants were born in 1951 and 1973 respectively and live in Hakkari. The first applicant is the father of the second applicant.

İ.D., a non-commissioned officer, telephoned the second applicant and asked him to tell his father, the first applicant, to go to the Çukurca Gendarmerie Station. At around 5 p.m. on 17 July 2007 the first applicant, accompanied by the second applicant, went to the gendarmerie station. On their arrival the second applicant waited at the entrance to the station and the first applicant was taken into Major M.C.’s office, where he was subjected to ill-treatment by M.C. and İ.D. who was also an officer at the same station. The two officers accused the first applicant of providing support to the PKK (Kurdistan Workers’ Party, an illegal armed organisation), and of making propaganda for a political party, the DTP (Democratic Society Party). Using box tape, officers M.C. and İ.D. attached a hand grenade to the first applicant’s face. An object was forcefully put into his nose and mouth, and he was threatened that his eyes would be gouged out. He was also repeatedly hit with an object on the left side of his face and on his chest. The ill-treatment and accusations continued for approximately one hour with accompanying threats to kill him and his family members.

After his release the first applicant and his son returned to their home in their village and later the same day the first applicant went to a hospital in the nearby town of Çukurca where he was examined and a report was drawn up setting out his injuries.

On 17 July 2007 the first applicant went to the Çukurca Gendarmerie Station following the request of Major M.C. He was not, however, subjected to ill-treatment.

On 18 July 2007 the first applicant filed a criminal complaint with the local prosecutor, alleging that he had been beaten and threatened at the Çukurca Gendarmerie Station.

Subsequently, criminal proceedings were brought against the officers İ.D. and M.C. and those proceedings are still pending.

The following information appears from the documents submitted by the parties.

According to a medical report issued at Çukurca Hospital at 7.30 p.m. on 17 July 2007, there was an ecchymosed swelling and two blood-clotted small lacerations on the left side of the first applicant’s face. The report also mentioned a restriction in the movement of his arms and chest pain. After his examination at the hospital the first applicant was transferred to the Hakkari State Hospital where he was examined once more and subsequently discharged.

On 18 July 2007 the first applicant made a formal complaint to the Hakkari prosecutor’s office against the military officers İ.D. and M.C. for having subjected him to ill-treatment, insults and intimidation. On the same day his statement was taken by the prosecutor.

Subsequently the applicant was referred to the Forensic Medicine Institute’s Hakkari branch for a medical examination. On 27 July 2007 the Institute reported that the applicant had ecchymosed swelling on his left cheekbone and restriction and pain on the movement of his left arm and shoulder.

On 27 July 2007 the Hakkari prosecutor decided that he did not have jurisdiction ratione loci to examine the complaint and referred the file to the Çukurca prosecutor.

On 1 August 2007 the Çukurca prosecutor decided that he also did not have the requisite jurisdiction, and referred the case file to the prosecutor’s officer at the Van Military Criminal Court.

On 1 November 2007 the Van military prosecutor and a military officer took statements from İ.D. and witness statements from a number of other military officers who worked at the same military station. In his statement İ.D. denied the charges against him. He also mentioned that the first applicant had been invited to the gendarmerie station to be warned not to threaten individuals in order to influence their votes in the forthcoming elections. All officers who testified as witnesses stated that they had not seen the alleged ill-treatment or any physical signs of it on the applicants. One of the officers, T.P., also testified that M.C. had ordered him to leave his door slightly ajar during the meeting because he had thought that the first applicant might subsequently make false accusations against him.

On 5 September 2008 the Van military prosecutor decided not to open an investigation into the first applicant’s allegations. On 23 September 2008 the first applicant lodged an objection against that decision.

On 10 December 2008 a statement was taken from M.C. by the military prosecutor. M.C. stated that he had invited the first applicant to the gendarmerie station and talked to him for about thirty minutes; he had not subjected him to any ill-treatment.

Having examined the first applicant’s objection, the Ağrı Military Court decided on 14 August 2009 that the witness statements of the military officers revealing the facts of the incident contained fundamental inconsistencies which cast doubt on their reliability. It therefore quashed the Van military prosecutor’s decision and ordered that criminal proceedings be brought against the two military officers.

In accordance with that decision, on 31 August 2009 criminal proceedings were instigated before the Van Military Court against İ.D. and M.C. for the offence of wilful injury and intimidation by an agent of the State, contrary to sections 86 and 106 of the Criminal Code.

On 11 February 2010 the second applicant was heard as a witness before the Van Military Court, and stated the following:

“(...) on the day of the incident we received a telephone call at our house. The caller asked me and my father to go to the military quarters before the evening. Then I found my father and at around 5 p.m. we went to the military quarters (...) there was a checkpoint on the road, we passed the checkpoint and after approximately 100 metres we arrived at the main entrance (...) I stayed at the main entrance, they took my father in, he walked to the military quarters which was 50-60 metres ahead. Approximately an hour later they brought my father back, he was not able to walk [unaided]. I held him by his arms and took him to the checkpoint where I phoned F.D. [who works as] a village guard [in our village]. He came to the checkpoint with his car [and] we took my father to the village in [his] car. (...) My father’s state [of health] was not good (...) so we put him in the car owned by K.D., [who is] the headman [of our village]. We passed through the road checkpoint again and went to the Çukurca Hospital. (...) When we were leaving, my father’s face was covered with blood; he was not able to walk without support. By the time we got to the checkpoint I had cleaned his face.”

Taking the second applicant’s statement into account, the court summoned and heard the village guard F.D. and headman K.D. as witnesses. F.D. stated the following:

“(...) The [applicants] were near the civilian parking area outside the entrance [of the gendarmerie station]. When I saw them, I went closer to them. There was blood on the face and mouth of Süleyman Demir. His shirt was covered with blood, and also there were bruises and swelling on his eyes, lips and face; he looked like he had been beaten up.”

K.D. stated the following:

“(...) When I went to their house Süleyman Demir told me that he had been beaten up by the Köprülü brigade commander Major M. and that he had been feeling sick. (...) However, I did not see any signs of battery and his clothes were normal.”

On 26 August 2010 a medical expert from the Van State Hospital was summoned before the Van Military Court in order to determine whether the first applicant’s injuries could have been caused as a result of illtreatment. Having examined the medical reports, the expert stated that it was not possible to establish the cause of the injuries.

On 4 November 2010 the Van Military Court decided that it did not have jurisdiction ratione materiae to try the case, and forwarded the case file to the Çukurca Criminal Court of First Instance.

On 20 April 2011 the Military Supreme Court approved the decision of lack of jurisdiction.

On 16 June 2011 a criminal case was lodged before the Çukurca Criminal Court of First Instance against İ.D. and M.C. for simple injury and intimidation.

On 21 November 2012 the Çukurca Criminal Court of First Instance decided that it did not have jurisdiction to try the case either and forwarded the case file to the Çukurca Magistrates’ Court’s Criminal Division. According to the information provided by the parties, the proceedings are still pending before Çukurca Magistrates’ Court Criminal Division.


Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant, Ms Ljiljana Milisavljević, is a Serbian national who was born in 1966 and lives in Belgrade.

The applicant was a journalist employed at Politika, a major Serbian daily newspaper. In September 2003 she was requested by the editorial board to write an article about Ms Nataša Kandić.

Ms Nataša Kandić is a Serbian human rights activist primarily known for her activities in investigating crimes committed during the armed conflicts in the former Yugoslavia, including those crimes committed by Serbian regular and irregular forces. She was also recognised as one of the most vocal advocates for full cooperation of the Yugoslav and later Serbian authorities with the International Criminal Tribunal for the former Yugoslavia (hereinafter “the ICTY”).

At the time relevant to this case, between 40% and 64% of the Serbian population considered the ICTY to be a major security threat to the Republic of Serbia. Some 54% of the population was against cooperation with the ICTY, which would include arrests and transfers of Serbian suspects to this institution. In 2003, the ICTY’s assessment of Serbia’s cooperation with that court was that it was “neither full nor proactive”. The level of cooperation was further negatively influenced by the assassination of the Serbian Prime Minister Dr Zoran Đinđić in March 2003, a major political figure open to full cooperation with the ICTY. Ms Kandić herself came under attack by a significant portion of the Serbian political elite and general population. As a consequence, she was involved in several incidents.

The applicant’s article on Ms Kandić appeared in Politika on 7 September 2003. The integral translation of the impugned article, titled “The Hague Investigator”, reads as follows:

“‘Even my son blames me for protecting everybody but the Serbs’, says the director of the Fund for Humanitarian Law.

Ms Nataša Kandić, founder and Executive Director of the Humanitarian Law Centre for Serbia, Montenegro, and Kosovo and Metohija, a non-governmental organisation aimed at promoting human rights for minorities, last week, again, defended herself ‘from the Serbian patriotism surge’.

On the occasion of the International Day of the Disappeared commemoration, at the gathering of the Association of Families of Missing and Kidnapped Persons in Kosovo and Metohija organised in the centre of Belgrade, following a short argument she slapped one of the participants. After this incident the Belgrade police submitted a request for the initiation of prosecution proceedings against her, and the Association of Families of the Missing lodged a lawsuit, demanding that she pay 30,000,000 Serbian dinars (RSD) for the insult to the families of those kidnapped and killed.

Recently our media have also reported that this ‘prominent advocate of human rights and democratic reform in Serbia’ was awarded the annual Central European and Eurasian Law Initiative Award (CEELI) from the American Bar Association on 9 August during the ABA Annual Meeting luncheon in San Francisco. Former winners of this award were Petar Stoyanov from Bulgaria, Emil Constantinescu from Romania, Vaclav Havel from the Czech Republic, Stjepan Mesić from Croatia ...

It was also reported that at the beginning of May the American magazine Time published a list of thirty-six individuals dubbed the European heroes, among which was Nataša Kandić, too.

The Serbian campaigner for the truth on war crimes, a lonely voice of reason in Serbia or the Soros mercenary, the one who was named by all the banished FRY spies, has won many awards, including the Human Rights Watch Award, but none of them were awarded to her in Serbia.

Nataša Kandić provokes stormy reactions wherever she appears. While the West lauds and praises her, in Serbia she is spoken about with contempt and accused of anti-Serbian politics. Most of all they blame her for never pursuing the crimes against Serbs but exclusively dealing with those committed by Serbs against other ethnicities.

Although she has been called a witch and a prostitute and is permanently under threat (this year she has also had to cancel her appearance at a local TV station owing to a bomb threat), she says: ‘This is simply the part of this job. I don’t think that they hate me, only my message’.

Nevertheless, she once made a public complaint: ‘Even my son has accused me of protecting everybody except the Serbs.’ Although later, she adds, she heard him defending her concern for the weak.

Nataša Kandić was born in 1946 in Topola, to her father Radoslav and mother Vera. In 1966 she went to study in Great Britain and upon her return she enrolled in the Faculty of Philosophy at the University of Belgrade. She participated in the 1968 student demonstrations. In the 1970s she started working in the Belgrade municipality of Palilula.

Afterwards she worked in the city trade union. During the mid-1990s she went to the Centre for Antiwar Action to work as a technical secretary, but before long she left it after a conflict with Ms Vesna Pešić. With a group of like-minded people she founded the Humanitarian Law Centre at the beginning of 1993.

A year later, on the invitation of Ms Jeri Laber, the Helsinki Watch Executive Director, she left for New York. Upon discussion with top people at the Hague Tribunal, the Humanitarian Law Centre took charge of its work in respect of the socalled Serbian crimes against Muslims in Bosnia and Herzegovina, as well as violations and abuses of Muslim and Croatian minority rights in the FRY. That is how this organisation became the [ICTY] ‘investigator’. Starting from the second half of the 1990s the Centre became involved in the Kosovo and Metohija issues.

During the NATO campaign she frequently travelled the Belgrade-Kosovo and Metohija-Montenegro routes. Her email messages sent via the Internet to foreign friends and collaborators are the evidence of her time and work in Kosovo and Metohija.

With Lazar Stojanović, the Plastični Isus (‘Plastic Jesus’) director, she has a son Stefan, who lives in New York and is involved in graphic animation.”

On 10 November 2003 Ms Kandić started a private prosecution against the applicant. She claimed that the entire piece had been written with the intent of belittling her in the eyes of the public, to present her as a traitor to Serbian interests and as a “paid servant of foreign interests and a prostitute who sells herself for money”. She further claimed that the points introduced in the article were maliciously misrepresented, and that the article contained untruths and blatant insults. She explicitly refused to lodge any civil compensation claim within these proceedings.

The applicant, in her defence, stated that she was not expressing her own opinion of Ms Kandić, whom she did not intend to insult, and that she had written the entire article on the basis of the documentation of other magazines. She put the citations within quotation marks, but she omitted them when she was not literally citing but paraphrasing (“ono što nije stavila pod navodnike predstavljaju navode koji nisu citati, već ih je prepričavala iz drugih listova”). She provided details as to what phrases were taken from which articles and magazines, including from which article and magazine she had taken the phrase that Ms Kandić had been called a witch and a prostitute.

On 1 September 2005, after a remittal, the First Municipal Court (Prvi opštinski sud) in Belgrade found that the applicant had committed a criminal offence of insult when having stated for Ms Kandić “although she has been called a witch and a prostitute” and gave her a judicial warning. The court established that the impugned phrase had been indeed previously published in another article by another author in a different magazine. However, the applicant did not put it in quotation marks which meant that she agreed with it, thus expressing her opinion. The court concluded that there was therefore an intention to insult Ms Kandić. In view of no aggravating circumstances and a number of mitigating ones (the applicant had a clean record, was employed and of mature age (u zrelom dobu)), she was given a mere judicial warning (sudska opomena), on the grounds of Articles 41 and 59 of the General Criminal Code (see paragraph 18 below). No prison sentence or fines were imposed.

On an unspecified date thereafter the applicant appealed. She reiterated that the impugned words were not her own opinion, but an opinion of another author. The fact that she wrote also on the negative attitudes towards the private prosecutor and her work could not and must not make her, the applicant, criminally liable. She also submitted that such an attitude towards the freedom of press could have long-reaching consequences.

On 5 July 2006 the Belgrade District Court (Okružni sud) upheld the first-instance decision endorsing the reasons given therein.

In separate proceedings, on 2 October 2006 the Belgrade First Municipal Court ordered the applicant to pay Ms Kandić RSD 33,125 (around 386 euros (EUR)) in respect of costs and expenses. The applicant did not appeal against that decision.

The applicant submitted in her observations that she had been later discharged from Politika and that “her conviction [...] appear[ed] to have been the cause [thereof]”.