Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Vincent A. De Gaetano;Georges Ravarani

The applicant company is a limited liability company established under Lithuanian law with its registered office in Vilnius.

In September and October 2012, for about two weeks, the applicant company ran an advertising campaign introducing a clothing line by designer R.K. The campaign featured three visual advertisements which were displayed on twenty advertising hoardings in public areas in Vilnius and on R.K.’s website (hereinafter “the advertisements”).

The first of the three advertisements showed a young man with long hair, a headband, a halo around his head and several tattoos wearing a pair of jeans. A caption at the bottom of the image read “Jesus, what trousers!” (Jėzau, kokios tavo kelnės!).

The second advertisement showed a young woman wearing a white dress and a headdress with white and red flowers in it. She had a halo around her head and was holding a string of beads. The caption at the bottom of the image read “Dear Mary, what a dress!” (Marija brangi, kokia suknelė!).

The third advertisement showed the man and the woman together, wearing the same clothes and accessories as in the previous advertisements. The man was reclining and the woman was standing next to him with one hand placed on his head and the other on his shoulder. The caption at the bottom of the image read “Jesus [and] Mary, what are you wearing!” (Jėzau Marija, kuo čia apsirengę!).

On 28 September and 1 October 2012 the State Consumer Rights Protection Authority (Valstybinė vartotojų teisių apsaugos tarnyba – hereinafter “the SCRPA”) received four individual complaints by telephone concerning the advertisements. The individuals complained that the advertisements were unethical and offensive to religious people.

After receiving those complaints, the SCRPA asked the Lithuanian Advertising Agency (Lietuvos reklamos biuras – hereinafter “the LAA”), a self-regulation body composed of advertising specialists, to give an opinion on the advertisements. On 2 October 2012 a seven-member commission of the LAA decided by five votes to two that the advertisements breached the General Principles and Articles 1 (Decency) and 13 (Religion) of the Code of Advertising Ethics (see paragraph 37 below). The LAA commission held:

“In the commission’s view, the advertisements may lead to dissatisfaction of religious people. [The advertisements might be seen as] humiliating and degrading people because of their faith, convictions or opinions. Religious people always react very sensitively to any use of religious symbols or religious personalities in advertising, so we suggest avoiding the possibility of offending their dignity.

In this case the game has gone too far. (Šiuo atveju užsižaista per daug.)

Humour is understandable but it can really offend religious people. We suggest finding other characters for communicating the uniqueness of the product.

It is recommended ... to have regard for the feelings of religious people, to take a more responsible attitude towards religion-related topics in advertising, and to stop the dissemination of the advertisements or change the characters depicted therein.”

On 8 October 2012 the SCRPA received a complaint from a law firm in Kaunas concerning the advertisements. The complaint stated that the advertisements degraded religious symbols, offended the feelings of religious people and created “a danger that society might lose the necessary sense of sacredness and basic respect for spirituality” (kyla pavojus visuomenei nustoti būtinos sakralumo pajautos ir elementarios pagarbos dvasingumui). It asked the SCRPA to fine the applicant company and to order it to remove the advertisements as being contrary to public order and public morals.

The SCRPA forwarded the aforementioned complaints and the LAA opinion (see paragraphs 10-12 above) to the State Inspectorate of Non-Food Products (Valstybinė ne maisto produktų inspekcija – hereinafter “the Inspectorate”). On 9 October 2012 the Inspectorate informed the applicant company that the advertisements were possibly in violation of Article 4 § 2 (1) of the Law on Advertising as being contrary to public morals (see paragraph 34 below). It stated:

“The Inspectorate, having examined the material presented to it, is of the view that the advertisements use religious symbols in a disrespectful and inappropriate manner. Religious people always react very sensitively to any use of religious symbols or religious personalities in advertising. The use of religious symbols for superficial purposes may offend religious people. Advertisements must not include statements or visuals which are offensive to religious feelings or show disrespect for religious people.”

The applicant company submitted written explanations to the Inspectorate. It firstly submitted that in the advertisements the word “Jesus” was used not as an address to a religious personality but as an emotional interjection which was common in spoken Lithuanian, similar to “oh my God!”, “oh Lord!”, “God forbid!” (Dievuliau, Viešpatie, gink Dieve) and many others. The applicant company argued that, because of its common use to express one’s emotions, that word had lost its exclusively religious significance. It further submitted that the people depicted in the advertisements could not be unambiguously considered as resembling religious figures, but even if they were, that depiction was aesthetically pleasant and not disrespectful, unlike various kitschy and low-quality religious items typically sold in markets. It further contended that, in the absence of a State religion in Lithuania, the interests of one group – practising Catholics – could not be equated to those of the entire society. It lastly submitted that the LAA opinion had been based on emotional assessment but not on any proven facts, as demonstrated in particular by such phrases as “religious people always react very sensitively to any use of religious symbols or religious personalities in advertising” or “the game has gone too far” (see paragraph 11 above). The applicant company therefore argued that the advertisements had not breached any law and that holding to the contrary would be detrimental to the right to freedom of thought and expression, protected by the Constitution.

On 27 November 2012 the Inspectorate drew up a report of a violation of the Law on Advertising against the applicant company. The report essentially repeated the contents of the Inspectorate’s previous letter to the applicant company (see paragraph 13 above), adding that “advertisements of such nature offend[ed] religious feelings” and “the basic respect for spirituality [was] disappearing” (nelieka elementarios pagarbos dvasingumui). It was forwarded to the SCRPA.

On 29 January 2013 the SCRPA asked the Lithuanian Bishops Conference (Lietuvos vyskupų konferencija), which is the territorial authority of the Roman Catholic Church in Lithuania, for an opinion on the advertisements. On 5 March 2013 the latter submitted the following opinion:

“Religious symbols are not just simple signs, pictures or logos. In the Christian tradition, a religious symbol is a visible sign representing the invisible sacred reality.

The advertisements ... make both visual and written references to religious sacred objects, such as a rosary, the names of Jesus and Mary, and the symbol of the Pietà.

Christ and Mary, as symbols of faith, represent certain moral values and embody ethical perfection, and for that they are examples of appropriate behaviour and desirable life for the faithful. The inappropriate depiction of Christ and Mary in the advertisements encourages a frivolous attitude towards the ethical values of the Christian faith, and promotes a lifestyle which is incompatible with the principles of a religious person. The persons of Christ and Mary are thereby degraded as symbols of the sacredness of the Christian faith. For that reason, such depiction offends the feelings of religious people. The degrading and distortion of religious symbols by purposely changing their meaning is contrary to public morals, especially when it is done in pursuit of commercial gain, and must therefore not be allowed, in line with Article 4 of the Law on Advertising.”

On 21 March 2013 the SCRPA held a meeting in which representatives of the applicant company, the State Inspectorate of NonFood Products and the Lithuanian Bishops Conference participated. A representative of the Bishops Conference repeated its previous position (see paragraph 16 above) and stated that it had received complaints from about a hundred religious individuals concerning the advertisements. Representatives of the applicant company also expressed essentially the same position as in their previous submissions to the Inspectorate (see paragraph 14 above). They in particular argued that the people depicted in the advertisements differed in several aspects from the depiction of Jesus and Mary in religious art, and that an educated and cosmopolitan society would not equate every picture with such art. They further submitted that the advertisements had relied on wordplay and they had been meant to be funny but not to offend anyone.

On the same day the SCRPA adopted a decision against the applicant company concerning a violation of Article 4 § 2 (1) of the Law on Advertising (see paragraph 34 below). It noted that the concept of “public morals” was not defined in any legal instruments, but it necessarily implied respect for the rights and interests of others. It also stated that “advertising must be tasteful and correspond to the highest moral standards” and that “advertising which might humiliate or degrade people because of their faith, convictions or opinions must be considered immoral and unacceptable”. The SCRPA considered that “the elements of the advertisements taken together – the persons, symbols and their positioning – would create an impression for the average consumer that the depicted persons and objects were related to religious symbols”. It further stated:

“When determining whether the use of religious symbols in the present case was contrary to public morals, [the SCRPA] notes that religious people react very sensitively to any use of religious symbols or religious persons in advertising, especially when the chosen form of artistic expression is not acceptable to society – for example, the bodies of Jesus and Mary are adorned with tattoos. [The SCRPA] also agrees with the Lithuanian Bishops Conference that the use of religious symbols for commercial gain in the present case exceeds the limits of tolerance. [The SCRPA] considers that using the name of God for commercial purpose is not in line with public morals. With that in mind, [the SCRPA] notes that the inappropriate depiction of Christ and Mary in the advertisements in question encourages a frivolous attitude towards the ethical values of the Christian faith, promotes a lifestyle which is incompatible with the principles of a religious person, and that way the persons of Christ and Mary are degraded as the sacred symbols of Christianity ...

In addition, the inappropriate depiction of Christ and Mary in the advertisements was not only likely to offend the feelings of religious people but actually offended them because [the SCRPA] has received complaints about them ... and the Lithuanian Bishops Conference has received a letter expressing dissatisfaction of the [nearly a hundred] religious individuals, which demonstrates that the feelings of religious people have been offended.

It must be emphasised that respect for religion is undoubtedly a moral value. Accordingly, disrespecting religion breaches public morals.”

Accordingly, the SCRPA concluded that the advertisements had breached Article 4 § 2 (1) of the Law on Advertising (see paragraph 34 below). When determining the penalty, it took into account several circumstances: the advertisements had been displayed in public places and must have reached a wide audience, and there had been complaints about them; at the same time, the advertisements had only been displayed for a few weeks and only in the city of Vilnius; the applicant company had stopped displaying them after it had been warned by the authorities, and it had cooperated with the SCRPA; it had been the first such violation committed by the applicant company. As a result, the applicant company was given a fine of 2,000 Lithuanian litai (LTL – approximately 580 euros (EUR); see paragraph 36 below).

The applicant company brought a complaint concerning the SCRPA’s decision (see paragraphs 18 and 19 above) before an administrative court. It argued that the persons and objects shown in the advertisements were not related to religious symbols: neither the characters themselves nor their clothes, positions or facial expressions were similar to the depiction of Jesus Christ and the Virgin Mary in religious art; the only physical similarity was the long hair of the man but every man with long hair could not be presumed to be a depiction of Jesus. The applicant company also submitted that the expressions “Jesus!”, “Dear Mary!” and “Jesus [and] Mary!” were widely used in spoken language as emotional interjections, and the advertisements had used them for the purpose of wordplay, not as a reference to religion.

The applicant company further argued that the Law on Advertising did not explicitly prohibit all use of religious symbols in advertising but only when such use may offend the sentiments of others or incite hatred (see paragraph 34 below). It submitted that the advertisements were not offensive or disrespectful in any way, and that the SCRPA had not justified why they “exceeded the limits of tolerance” or why “using the name of God for commercial purposes [was] not in line with public morals” (see paragraph 18 above). The applicant company also submitted that complaints by a hundred individuals (see paragraphs 10, 12 and 17 above) were not sufficient to find that the majority of religious people in Lithuania had been offended by the advertisements.

Lastly, the applicant company submitted that the advertisements were a product of artistic activity and were therefore protected freedom of expression, guaranteed by the Constitution.

On 12 November 2013 the Vilnius Regional Administrative Court dismissed the applicant company’s complaint. The court considered that the SCRPA had correctly assessed all the relevant circumstances (see paragraphs 18 and 19 above), and concluded that “the form of advertising used by [the applicant company was] prohibited because it distort[ed] the main purpose of a religious symbol (an object of religion) respected by a religious community – that purpose being to refer to a deity or to holiness”.

The applicant company appealed against that decision. In its appeal it repeated the arguments raised in its initial complaint (see paragraphs 2022 above). It also provided four examples of other advertisements for various products which had depicted religious figures, religious symbols and Catholic priests – one of those was an advertisement for beer depicting a wooden figure of Jesus, common in the Lithuanian folk art (Rūpintojėlis). The applicant company argued that such examples strengthened its argument that the use of religious symbols in advertising was not prohibited as such, unless it was offensive or hateful – and it submitted that its advertisements did not fall into either of those categories, as they did not include any slogans or visuals directly degrading religious people or inciting religious hatred.

On 25 April 2014 the Supreme Administrative Court dismissed the applicant company’s appeal. The court held:

“The entirety of the evidence in the present case gives grounds to conclude that the advertisements displayed by [the applicant company] are clearly contrary to public morals, because religion, as a certain type of world view, unavoidably contributes to the moral development of the society; symbols of a religious nature occupy a significant place in the system of spiritual values of individuals and the society, and their inappropriate use demeans them [and] is contrary to universally accepted moral and ethical norms. The form of advertising [chosen by the applicant company] does not conform to good morals and to the principles of respecting the values of the Christian faith and its sacred symbols, and [the advertisements] therefore breach Article 4 § 2 (1) of the Law on Advertising.

In its appeal [the applicant company] alleges that there are no objective grounds to find that the advertisements offended the feelings of religious people ... It must be noted that the case file includes a letter by almost one hundred religious individuals, sent to the Lithuanian Bishops Conference, expressing dissatisfaction with the advertisements in question. This refutes [the applicant company’s] arguments and they are thereby dismissed as unfounded.”

On 21 August 2014 the President of the Supreme Administrative Court asked that court to examine whether there were grounds for reopening the proceedings in the applicant company’s case (see paragraphs 40 and 41 below). He considered that it was necessary to assess whether the decision of 25 April 2014 (see paragraph 25 above) had adequately addressed the applicant company’s arguments related to the permissible restrictions of freedom of expression, guaranteed by the Constitution and various international legal instruments, and whether it had properly examined the necessity and proportionality of restricting that freedom, in line with the relevant case-law of the European Court of Human Rights. The President submitted that if any such shortcomings were identified, that would give grounds to believe that the Supreme Administrative Court had incorrectly applied the substantive law and that its case-law was developing in an erroneous direction.

On 20 November 2014 a different panel of the Supreme Administrative Court refused to reopen the proceedings in the applicant company’s case. It emphasised that proceedings which had been concluded by a final court decision could be reopened only when there had been a manifest error in the interpretation or application of the law, and not when it was merely possible to interpret that law differently.

The court observed that the freedom of expression, guaranteed by the Constitution, was not absolute and could be restricted (see paragraphs 31 and 42-44 below), and one of the permissible restrictions was provided in Article 4 § 2 (1) of the Law on Advertising (see paragraph 34 below). It stated that the decision of 25 April 2014 (see paragraph 25 above) had not denied the applicant company’s right to freedom of expression, but it had sought to balance that right against public morals, and the latter had been given priority. The court considered that the decision of 25 April 2014 had not denied the essence of the applicant company’s right and had not been manifestly disproportionate because the fine had been close to the minimum provided in law (see paragraph 36 below), so there were no grounds to find that the law had been interpreted or applied incorrectly.

The court further observed that the advertisements had had a purely commercial purpose and had not been intended to contribute to any public debate concerning religion or religious symbols. Referring to the judgments of the European Court of Human Rights in Müller and Others v. Switzerland (24 May 1988, § 35, Series A no. 133) and OttoPremingerInstitut v. Austria (20 September 1994, § 50, Series A no. 295A), it stated that it was not possible to discern throughout Europe a uniform conception of the significance of religion in society and that even within a single country such conceptions might vary; for that reason it was not possible to arrive at a comprehensive definition of what constituted a permissible interference with the exercise of the right to freedom of expression where such expression was directed against the religious feelings of others, and a certain margin of appreciation was therefore to be left to the national authorities in assessing the existence and extent of the necessity of such interference. The Supreme Administrative Court considered that the panel which had adopted the decision of 25 April 2014 had taken into account the fact that Catholicism was the religion of a very big part of the Lithuanian population and that the use of its most important symbols in the advertisements, which distorted their meaning, offended the feelings of religious people.

The Supreme Administrative Court thus concluded that the decision of 25 April 2014 had adequately justified the restriction of the applicant company’s freedom of expression and had correctly applied Article 4 § 2 (1) of the Law on Advertising.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1976 in Havana, Cuba, and lived in the Moscow Region prior to his arrest on 6 April 2007.

On 6 June 2008 the Moscow Regional Court convicted the applicant of armed robberies, illegal possession of firearms and other offences and sentenced him to twelve and a half years’ imprisonment.

The applicant was detained in the following facilities:

(a) until September 2008: remand prison IZ-77/4 in Moscow;

(b) from 28 September to 9 October 2008: remand prison IZ-55/3 in Omsk;

(c) from 9 October 2008 to 9 April 2009: correctional colony IK-9 in the Omsk Region;

(d) from 9 April to 28 May 2009: remand prisons in Omsk and Moscow;

(e) from 28 May 2009 to 12 January 2010: correctional colony IK-9 in the Omsk Region;

(f) from 12 January to 26 March 2010: correctional colony IK-3 in the Omsk Region;

(g) between an unspecified date and 7 December 2010: the applicant received treatment at medical facility LIU-2 (UKh-16/2) in the Omsk Region;

(h) after 7 December 2010: correctional colony IK-6 in the Omsk Region.

As regards the conditions in the IK-9 facility, the Government submitted a number of certificates concerning various aspects of Mr Butko’s detention which were issued by the facility director on 11 May 2012, as well as a copy of a director’s letter to the Omsk regional prosecutor dated 19 April 2012, from which it is apparent that Mr Butko was assigned to Unit 6 (бригада №6). According to the floor plan, the living areas measured 281.33 sq. m, of which the dormitory comprised 164.2 sq. m. There were 86 sleeping places and the average population ranged between 80 and 86 detainees, their number being logged by the officer on duty. The dormitory was ventilated through openings in the windows. The bath and laundry complex – which detainees were allowed to visit once a week between 6.30 a.m. and 9 a.m. or between 6 p.m. and 9 p.m., two units at a time – was equipped with eight shower heads, two plunge pools and one steam room. The facility was equipped with 28 toilets, all of them located in heated areas. Toilet bowls were screened by partitions.

The Government produced copies of the prosecutor’s infringement reports detailing various aspects of the detention regime. It appears from the report dated 24 September 2009 that the total population of the IK-9 facility was 1,350 persons. The report of 12 March 2010 read, in the relevant part, as follows:

“The inspection uncovered a number of gross violations of the law as regards material conditions of detention.

The statutory living space of two square metres per inmate ... is not available in many units. For instance, the premises occupied by Unit 3 measure 232 sq. m but accommodate 126 convicted detainees.

The premises are not equipped with the necessary amenities; there are no toilets inside the living areas (except in Unit 3). There are two installations within the facility, one of them accommodating 12 toilets, the other 16, which are used by all the detainees. It follows that the statutory number of toilets (1 toilet for every 10 persons) is not available. Their sanitary condition is not satisfactory; privacy when using the toilet is not ensured ...

A number of detainees who are or were serving their sentence in the facility ... have written letters to the European Court of Human Rights, and the above-mentioned violations of law relating to the material conditions of detention may result in unfavourable outcomes for the State.”

The applicant disputed the Government’s factual submissions. He submitted that there had been at least 100 detainees in Unit 6. All of them had shared one large space, filled to the maximum with double bunk beds, bedstands and stools, leaving a narrow passage of only 35 cm between beds and a marginally wider passage of 60 cm between two rows of beds. At the head of each bed, two bedstands sat on top of each other. There had been no ventilation and the windows remained sealed shut in winter. Detainees had been prohibited from staying in the dormitory from 8 am to 6 pm, and from sitting down or lying down on the bed at any time before the night call. During the day, detainees had been allowed to be either outdoors or in the recreation room.

The recreation room (комната временных развлечений) measured approximately six by eight metres. There were six tables for reading and writing and a large number of stools. The only TV set was switched on according to the timetable. In bad weather, up to eighty detainees would remain in the recreation room without any activity.

The washroom measured no more than six square metres, and contained five wash basins with cold water taps. No hot water was available. Detainees had been forbidden from washing any clothing, except socks or handkerchiefs, and from taking off their undershirts. They had only been allowed to clean their faces, brush their teeth, wash their hands or shave.

The premises occupied by Unit 6 also included a pantry (комната питания), that is to say a room where inmates could keep and eat their own food. It was open from 9 a.m. to 10 a.m., from 1.30 p.m. to 2.45 p.m. and from 6 p.m. and 8.30 p.m. No more than five persons at a time were allowed into the pantry.

Hygienic facilities were in short supply. The entire population of the facility, more than a thousand detainees, used the two available toilet installations: one had 16 pans and the other 12 pans. Pans were not screened by any partitions. Detainees were taken in groups of two units, that is to say approximately 200 persons, to the bath and laundry complex once a week. It was open from 6.30 a.m. to 9 a.m. and from 6 p.m. to 9 p.m. and was equipped with eight shower heads, two ice-cold plunge pools and a non-functioning steam room.

The applicant adduced in evidence a written statement from his codetainee Mr K., who had been held in the same unit in 2008 and 2009. According to his statement, on 10 December 2009, Unit 6 had contained between 112 and 120 detainees. The dormitory measured 10.1 by 12.1 metres, that is to say a total floor area of 122.21 square metres. The pantry measured no more than seven square metres. The recreation room was approximately eight metres long by five metres wide. The washroom measured 5 by 1.3 metres and was equipped with five sinks. Mr K. also confirmed that the entire facility population had had to use the two available toilet installations located in separate, unheated outhouses, one with 12 pans and the other with 20 pans.

Upon his arrival at the IK-3 facility on 12 January 2010, Mr Butko spent the first seven days in the quarantine unit and was later assigned to Unit 9. He claimed that he had been ill-treated while quarantined. He further submitted that the dormitory of Unit 9 was cold, that the light was dim, and that the premises were generally in disrepair.


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

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo

The applicant was born in Zimbabwe and lives in London.

The applicant arrived in the United Kingdom in May 2001 and was granted six months’ leave to enter as a visitor. In or around 2003 he began suffering from a mental illness which led to his hearing voices in his head and at least two suicide attempts.

In 2004 and 2005 the applicant was convicted of a number of driving offences, including driving otherwise than in accordance with a licence, using a vehicle while uninsured and driving whilst disqualified. He was also convicted of resisting or obstructing a police officer and failing to surrender to custody. No custodial sentence was passed.

On 18 April 2005 the applicant made an application for asylum. However, the application was refused on 22 June 2005 on non-compliance grounds as the applicant had failed to attend his substantive asylum interview. Notice of this decision was served on the applicant on 27 June 2005. On the same day, he was served with notice of liability to removal as an overstayer.

The applicant did not appeal against this decision. When he subsequently failed to comply with his reporting conditions he was treated as an absconder.

On 13 August 2007 he was convicted of possessing Class A drugs with intent to supply and sentenced to three years’ imprisonment. He did not appeal against conviction or sentence.

While serving his sentence the applicant was prescribed a variety of antipsychotic drugs. This was the first time he had received any treatment for his mental illness as he had previously declined to engage with psychiatrists and other health care professionals.

The applicant made a second asylum application on 27 March 2008. In doing so, he described two violent incidents he had experienced in Zimbabwe: first, he claimed that in 2000 he had been attacked by Zanu-PF supporters with knives, sticks and sandbags while protesting about gay rights; and secondly, he claimed that later that same year he had been arrested for demonstrating and beaten on his back and the soles of his feet while detained at a police station.

On 30 October 2008 the applicant was interviewed in relation to his second asylum claim.

On 14 November 2008 the applicant was served with a notice of liability to automatic deportation. As a consequence, when he completed his sentence on 28 November 2008 he remained in detention under the Secretary of State for the Home Department’s immigration powers.

On 20 February 2009 the applicant was admitted to hospital for a psychiatric assessment and was sectioned for six days after his mental health deteriorated significantly.

On 26 May 2009, a further asylum interview took place following which the applicant submitted further evidence in support of his claim.

On 22 October 2009, an interview took place with the applicant for the purposes of obtaining a travel document. The applicant refused to provide bio-data for the purposes of the travel document asking to contact his solicitor first.

On 3 November 2009 the applicant’s representatives asked the Government to allow them more time to submit medical evidence supporting the applicant’s second asylum claim. The Government did not indicate whether they responded to this request.

On 3 December 2009 the applicant applied for bail which was refused on 9 December because the tribunal judged he posed an unacceptable risk of absconding.

On 16 February 2010 the Secretary of State enquired of the applicant’s representatives about their intentions concerning the medical report. The applicant’s representatives indicated they had requested an appointment and asserted that it would be unreasonable for the Secretary of State to make a decision without awaiting the outcome. On 10 June 2010 the Secretary of State telephoned the applicant’s representatives again to ask what their intentions were regarding the medical report. The representatives indicated they would reply in writing.

On 22 June 2010 the applicant was interviewed again to obtain further bio-data to issue a travel document but he would not provide further details.

On 28 June 2010 the applicant’s representatives wrote to the Secretary of State. The letter stated that his detention was unlawful and that he should be released. The representatives sent a second letter to the Secretary of State on 8 July 2010, in which they again requested that the applicant be released due to his medical conditions and pursuant to the Secretary of State’s policy on not detaining mentally ill persons.

The Secretary of State replied to these letters on 12 July 2010 in the following terms:

“1. The Secretary of State, having considered the particulars of your client’s case, is satisfied that the presumption in favour of release is outweighed by the seriousness of the offence, risk of harm to the public, and risk of absconding and that your client’s detention is justified and lawful.

It has been decided that your client should be detained because:

- Your client is likely to abscond if given temporary admission or release.

- Your client does not have close enough ties (e.g. family or friends) to make it likely that he will stay in one place.

- Your client has previously failed to comply with conditions of his stay, temporary admission or release.

- Your client has previously absconded.

- Your client has used or attempted to use deception in a way that leads us to consider he may continue to deceive.

- Your client has not produced satisfactory evidence of his identity, nationality, or lawful basis to be in the United Kingdom.

- Your client has previously failed or refused to leave the United Kingdom when required to do so.

- It is conducive to the public good for your client to be detained.”

On 26 July 2010 the Secretary of State set a time limit of 31 August 2010 for the provision of further information in support of the applicant’s asylum claim.

On 28 August 2010 the applicant was examined by Dr S. and her expert report, dated 3 October 2010, was sent to the Secretary of State on 22 November 2010.

Dr. S noted that the applicant had a number of scars which accorded with his description of the first assault by supporters of Zanu-PF. She also noted that he had a clear history of a psychotic illness which was characterised by many first-rank symptoms of schizophrenia. He was being treated but still experienced some symptoms, including auditory hallucinations and ideas of reference. In addition, he had symptoms of posttraumatic stress disorder, including poor sleep, nightmares, intrusive daytime thoughts, and physical symptoms of fear, hopelessness and isolation.

On 3 November 2010 the detention centre where the applicant was detained raised concerns about his mental health. He was assessed by the Health Care Manager as unsuitable for detention under the Mental Health Act on 8 November 2010 and on 12 November 2010 as not requiring compulsory mental health treatment.

On 16 November 2010 the applicant applied to the tribunal for bail but withdrew his application on 19 November.

On 22 November 2010, the medical report was provided to the Secretary of State.

On 14 January 2011 the applicant submitted his application for permission to apply for judicial review, in which he challenged his continuing detention on the grounds that it was contrary to the Secretary of State’s published policy on the detention of persons suffering from serious mental illness (“the mental health concession”); that it was contrary to the Secretary of State’s published policy on the detention of persons who had been victims of torture (“the torture concession”); and that it was contrary to the principles set down in R v. Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 (“the Hardial Singh principles”). The applicant also claimed damages for unlawful detention.

On 18 January 2011, the applicant’s representatives sent a new medical report and informed the Secretary of State that they were no longer relying on the medical report provided on 22 November 2010.

On 8 February 2011 the Secretary of State refused the applicant’s second asylum claim and made a deportation order pursuant to section 32(5) of the United Kingdom Borders Act 2007. The applicant’s appeal was dismissed on 7 April 2011. On 4 May he was refused permission to appeal against that decision.

On 3 June 2011 the applicant was refused permission to apply for judicial review on the papers by Mr Justice Calvert-Smith. In refusing permission, he observed that the mental health concession only applied where the detainee was suffering from a serious mental illness which could not be satisfactorily managed within detention. As a consequence, he concluded that the applicant’s condition fell short of the severity required.

With regard to the torture concession, the judge noted that the alleged torture which had happened some eleven years previously and which was said to be the cause or part cause of the mental illness the claimant was suffering from could have no bearing on the reasonableness or otherwise of the current detention. Finally, he found that the Hardial Singh principles were not infringed because:

“a. the 1st principle is not engaged.

b. The 2nd and 3rd principles are not infringed. The dangers of absconscion and reoffending are and have always been real in view of the claimant’s behaviour between July 2005 and his arrest in respect of the drugs matter. The recent decision of October 2010 means that the detention is not open-ended.

c. the 4th principle is not infringed. There has been no lack of expedition by the defendant since the expiry of the claimant’s sentence in late 2008.”

The applicant was released from detention on 15 September 2011 after being granted bail by the Upper Tribunal.

On 28 October 2011 the applicant was again refused permission to apply for judicial review by Mr Justice Ouseley at a renewed oral hearing in which he heard from representatives for both parties. In the renewed application, the applicant had contended that his detention became unlawful on 28 June 2010, when the pre-action letter was sent to the Secretary of State. However, Mr Justice Ouseley rejected that claim and found that the applicant had no arguable case. In particular, he noted that there was no evidence to suggest that his mental illness could not be satisfactorily managed in detention; that there was no independent evidence that he had been tortured because his scarring was only consistent with an assault by Zanu-PF supporters which did not amount to torture, and there was no scarring consistent with his allegations of ill-treatment at the police station; and finally, that there was nothing to indicate the applicant’s prospects of removal at the relevant time were nil or that efforts did not take place to effect his removal.

On 22 February 2012 the Court of Appeal, Civil Division refused the applicant permission to appeal the decision of 31 October 2011, finding that the High Court had been correct on every point. There was no independent evidence of torture and the fact that the mental health concession had been clarified on 26 August 2010 to refer to satisfactory management in detention did not mean that the position was otherwise before that date.

In the meantime, the applicant had challenged the decision to refuse his asylum claim and sought to appeal to the Court of Appeal. On 28 April 2012 the Secretary of State agreed that the decision of 8 February 2011 refusing the applicant’s asylum claim was flawed and that the case should be remitted to the Upper Tribunal.

On 20 November 2012 the Upper Tribunal allowed the applicant’s asylum appeal on human rights grounds. On 30 January 2013 the deportation order was revoked and the applicant was subsequently granted discretionary leave until 25 September 2013. He applied for further discretionary leave on 26 September 2013. According to the observations submitted, a decision on that application remains outstanding.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

The applicants were born in 1982 and 1981 respectively.

On 22 April 2006 upon receipt of intelligence reports that the youth branch of the PKK would be holding a meeting in the premises of a cooperative, the police officers, under the orders of the magistrates’ court, conducted a search in the premises of the co-operative of which the applicants were members. The police seized several documents and CDs that contained propaganda materials related to the youth branch of the PKK.

On the same day the applicants were taken into custody on suspicion of being members of a terrorist organisation.

On 24 April 2006 the Urfa Magistrates’ Court ordered the applicants’ detention on remand.

On 27 April 2006 and 28 April 2006, respectively, the applicants filed objections against their pre-trial detention. The courts rejected their request on the basis of the case-file, without holding a hearing.

During the pre-trial stage, the magistrates’ court continued to examine, by virtue of Article 108 of Law no. 5271, the necessity of applicants’ continued detention every thirty days on the basis of the case file, without holding an oral hearing. The applicants also filed objections against their continued pre-trial detention, namely on 15 June, 12 July, 17 July, 1 August and 17 October 2006. All these objections were examined on the basis of the case file and were rejected by the domestic courts.

On 10 October 2006 the Diyarbakır Public Prosecutor filed an indictment with the Diyarbakır Assize Court charging the applicants, along with twenty three other persons, with aiding and abetting a terrorist organisation under Article 314 of the Criminal Code (Law no. 5237).

On 30 November 2006 the Diyarbakır Assize Court held its first hearing and the applicants appeared before the court. On the same day, the applicants were released pending trial.

On 4 November 2008 the Diyarbakır Assize Court acquitted the applicants of the charges against them. In the absence of an appeal, this judgment became final on 12 November 2008.


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

András Sajó;Egidijus Kūris;Nebojša Vučinić

The applicants were born in 1976 and 1977 respectively and live in Budapest.

On 28 June 2001 the applicants brought a real-estate action against their mother and grandmother. On 23 November 2006 a first-instance decision was given. On 12 June 2007 the appeal judgment was adopted. In November 2009 the Supreme Court’s decision on the applicants’ petition for review was served.


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

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

The applicant was born in 1961 and lives in Mississauga, Canada.

In 2009 the applicant got married in Canada to E.N., a Polish national. They continued living in Canada and their son was born there in September 2010. The child obtained Canadian nationality at birth. It is unknown to the Court whether he also holds Polish nationality. The family lived in the applicant’s apartment. The applicant worked full time and was the sole financial provider for the family. In February 2011 he took thirty-three weeks’ parental leave.

In April 2011 the family went to Poland on holiday. They agreed to return to Canada in July 2011 and aeroplane tickets were purchased to this end.

The couple split up in May 2011 and E.N. refused to return to Canada with the child. Soon afterwards the applicant went back to Canada alone. He briefly returned to Poland in July 2011 when his son underwent emergency surgery.

On 31 October 2011 the applicant lodged an application to have his child returned under the Hague Convention. This application was registered with the Kielce District Court on 23 January 2012.

On 27 November 2012 the Kielce District Court decided to obtain an expert report from the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny “the RODK”). The experts were ordered to assess whether there was a grave risk that the boy’s return abroad would expose him to physical or psychological harm or otherwise place him in an intolerable situation. A copy of this decision has not been submitted to the Court.

The applicant and E.N. were invited to appear at an interview at the RODK which was scheduled for 30 November 2012. It appears that the domestic court’s decision to order the RODK report contained an instruction that the examination should go ahead whether or not the applicant was present. The applicant did not come to the appointment at the RODK. As a result, the report was based only on the statements of the child and his mother and on four volumes of the domestic court’s case file. It was prepared by two experts in psychology and was issued on 7 December 2012.

In their report, the RODK experts took notice of the fact that for the past year and a half the child (who was two years old at the time of the psychological examination) had lived away from and almost without any contact with his father. They also observed that the child had a strong emotional bond with his mother; he was developing well and spoke Polish; and that E.N. had ensured the child’s security, well-being and development.

The experts concluded that “the child’s separation from his mother would disturb his sense of security, belonging and stability, and [that] it would be adverse to his development – in particular, psychological [development] – [and] it would be against his best interests. In view of the above, moving the child to his father’s care [posed] a grave risk to his emotional [and] social development, [and] could cause a situation [which] for a two-year-old child [would be] difficult to bear.”

Apart from the RODK report, the domestic court obtained the following evidence: testimony from the applicant, E.N. and the members of both families and medical reports.

On 2 January 2013 the Kielce District Court, with Judge I.G. presiding, dismissed the applicant’s Hague Convention application (IIRNsm 87/12).

The first-instance court held that the child had been wrongfully retained in Poland by his mother within the meaning of the Hague Convention. It also considered that, in line with Article 17 of the Hague Convention, the interim orders concerning the issues of custody over the child and his residence which had been granted by the Canadian and Polish family courts (see paragraphs 33, 34 and 36 below) were viewed as irrelevant to the case at hand.

The district court also considered that the RODK report was thorough, clear and of a high evidentiary value. Relying on the report and the remaining evidence, the family court established that since his birth the child had been under the constant good care of his mother (who had not worked in Canada). The child had a strong emotional bond with the mother, did not remember the applicant and did not perceive him as a parent. The applicant did not show any interest in the child. Since July 2011, he had seen his son only once, in March 2012, despite the fact that he had been in Poland for a month. He had also stopped paying child support and had not shown any interest in him. The domestic court also made an additional observation that the applicant had sold his apartment in Canada and it was unknown if his new living conditions were adequate for his two-year-old child to move into.

In view of the above it was ultimately held that separating the two-year-old boy from the mother and returning him to his father in Canada would be traumatic and hard to bear for the child. This, in turn, would pose a threat to the child’s emotional and social development and would perturb his sense of security and stability.

The applicant appealed, arguing that the first-instance court had erred in that, inter alia, it had given a broad and not restrictive interpretation of Article 13 (b) of the Hague Convention and had dismissed his application even though it had not been established that the child was at a grave risk of physical or psychological harm if returned to Canada. The applicant also challenged the RODK experts’ report, arguing that it was unconvincing and inconsistent with the evidence obtained.

On 9 July 2013 the Kielce Regional Court (II Ca 551/13) dismissed the appeal in the relevant part.

The appellate court observed that international and domestic practice required that Article 13 (b) be given a restrictive reading to the effect that, in principle, any unfavourable consequences of the child’s separation stemming from the order to surrender the child by the abducting parent did not give rise to a grave risk of physical or psychological harm within the meaning of that provision. It also noted that the aim of the Hague Convention would be achieved if the abducting parent returned with the child. If no objective obstacles to the abducting parent’s return were present, it could be inferred that the parent was refusing to return and was acting in his or her own interest and not the interest of the child.

The appellate court reasoned that the application of the abovementioned principles was more complex in cases concerning very young children. The Hague Convention stipulated only a maximum age requirement for children whose return could be sought under its provisions (the age of 16). It also protected (under Article 12) very young children from possible harmful effects of the return if it was shown that the parent seeking the return had not taken care of the child before the abduction or that the child had already adapted to the new environment. Following this approach, separating an abducted child from the parent who had a dominant role in the child’s life would not fall within the Article 13 (b) exceptions unless objective obstacles to the parent’s return could be shown to be present. This approach however, was difficult to accept in cases concerning abductions of infants by mothers because of the special relationship between them. This was true even in the absence of any objective obstacles to the mother’s own return because any separation of an infant from his or her mother would inevitably be contrary to the child’s best interests.

The appellate court held that the utmost importance had to be attached to the child’s contact with his mother and his separation from her would place the boy in an intolerable situation. The domestic court relied on the following elements of the case: the applicant’s son had arrived in Poland with both parents at the age of six and a half months, in April 2011; since then the child had been taken care of solely by his mother; the most important element in his life was his contact with the mother; he did not have any memories of his life in Canada; and the applicant had not considered the child’s remaining in Poland illegal prior to October 2011. The appellate court also observed that by not appearing at the RODK interview, the applicant had waived his right to demonstrate that he could establish adequate contact with his young child and that the applicant had only seen his child once since the latter’s departure from Canada.

Since July 2011, the applicant has visited his son once, in March 2012 during a month-long stay in Poland.

In the applicant’s submission, he had made countless attempts to see his son. In particular, he had applied to the courts to have a meeting with his child away from E.N.’s house on 23 November 2011 and on an unspecified date in February 2012. Copies of these applications have not been submitted to the Court.

In the Government’s submission, the applicant had not enquired about or sought contact with the child.

On 23 February 2012 the applicant lodged an application with the competent domestic court for arrangements to be made to secure the effective exercise of his right of contact during the Hague Convention proceedings. He wished to meet with his son away from E.N.’s house one day before and on the day of the court hearing. He submitted that he had not seen his child since August 2011 and that the child’s mother and grandparents had been very hostile towards the applicant when he had tried to visit his son at home. The applicant submitted that the application had been made under Article 21 of the Hague Convention. A copy of this application has not been submitted to the Court.

On 2 March 2012 the Kielce District Court, with I.G. as the presiding judge, decided to return the application for an interim order on the right of contact as unsubstantiated. It was considered that the applicant had not demonstrated that the child’s mother, apart from her allegedly hostile attitude, had obstructed his contact with the child. The domestic court relied on the applicable provisions of the Code of Civil Procedure and did not make any reference to Article 21 of the Hague Convention.

The applicant stated without submitting a copy of the relevant document that on 1 July 2013 the domestic court had decided to grant him a right to a supervised visit with his son for two hours daily in E.N.’s house. The applicant had been in Canada at that time and thus had not exercised his right.

The applicant also submitted that on 9 July 2013 the appellate court had dismissed his request, presumably for a different schedule of his visits. A copy of this decision is not in the case file.

On an unspecified date, the Polish family court granted the applicant a right to contact with his child. The details of this decision are unknown to the Court.

On 3 June 2014 the Kielce Regional Court issued a decision, presumably concerning the applicant’s right of contact with his son (IC 2240/11). A copy of this decision has not been submitted by the Court.

The applicant lodged an interlocutory appeal against this decision. On 10 September 2014 the applicant’s lawyer completed this appeal by submitting that E.N. had been hindering the father’s right of contact which he had tried to enforce in line with the court’s order. The outcome of these proceedings is unknown.

On 1 September 2011 E.N. petitioned for divorce in Poland. Divorce proceedings are currently pending before the Kielce Regional Court.

On 22 November 2011 the Kielce Regional Court gave an interim order, establishing the child’s residence as being with the mother. It appears that the applicant participated in the court hearing via a live video link. He refused to answer any questions.

On 27 October 2011 the Ontario Superior Court of Justice in Canada held that the child’s retention in Poland was wrongful and issued an interim order granting full custody of the child to the applicant, authorising him and the law-enforcement authorities to apprehend the child and ordering E.N. to surrender the child without delay. To this effect, a wanted notice for E.N. was issued by Interpol for the offence of kidnapping.

E.N.’s appeal against this ruling was dismissed on 3 April 2012.

On 21 August 2012 the Ontario Superior Court of Justice found E.N. to be in contempt of court for, inter alia, failing to comply with the interim order described above. No sentence was pronounced on that occasion.

On 11 September 2012 the Ontario Superior Court of Justice confirmed the interim decision of 27 October 2011, granting a final order of the applicant’s exclusive custody of the child. The Canadian court also requested the assistance of the Polish courts in securing the immediate apprehension and return of the child pursuant to the Hague Convention.

On 22 May 2013 the Ontario Superior Court of Justice allowed the divorce between the applicant and E.N.


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression;Freedom to impart information);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev

The applicant is a journalist for DN.no, a Norwegian Internet-based version of the newspaper Dagens Næringsliv (“DN”), published by the company DN Nye Medier AS.

On 23 June 2010 Mr X was indicted for market manipulation and insider trading under the 1997 Act on the Trade of Financial Assets (verdipapirhandelloven). He was accused of having requested Mr Y, an attorney, to draft a letter concerning the Norwegian Oil Company (“DNO”), a limited liability company quoted on the stock exchange. The letter, addressed to a trustee company representing the interests of bond holders in DNO (“the bond trustee company”), gave the impression that it had been written on behalf of a number of bond holders who were seriously concerned about the company’s liquidity, finances and future. In fact, it had been written only on Mr X’s behalf. He had owned only one bond, which he had acquired the same day as he had asked attorney Y to draft the letter.

Mr X had sent a copy of the above-mentioned letter by fax to the applicant on Friday 24 August 2007, and in this connection he had a telephone conversation with her. The following day, on Saturday 25 August 2007, the applicant wrote an article entitled “Fears of DNO collapse” (“Frykter at DNO rakner”), in which she expressed strong concerns about the content of Attorney Y’s letter, a central feature in the article.

The price of DNO stock fell by 4.1% on Monday 27 August 2007, the first trading day after the content of the letter had become known in the press. On the same day, a new article on the topic was published in DN. Other media also reported on the first article, including an online newspaper (Hegnar online) which on 28 August 2007 reported that an analyst had stated that he would not be surprised if the letter had been sent by a person with a short-position or who wanted cheap stocks. The Oslo stock exchange (Oslo børs) suspected market manipulation and, having looked into the matter, forwarded the case to the Financial Supervisory Authority (Kredittilsynet) with suspicions that Mr X had infringed the Act on the Trade of Financial Assets. During subsequent questioning by the Financial Supervisory Authority, Mr X confirmed that he had initiated the letter and been the source of the article in DN.

The applicant was questioned by the police on 19 June 2008. They informed her that Mr X had told the police that he had given her the letter. She was handed a signed statement from Mr X in which he confirmed this. The applicant was willing to say that she had received the letter on which the article was based by fax on Friday 24 August 2007, at 5.35 p.m. She also stated that the article had been published on DN.no at 3 a.m. on 25 August 2007. The applicant further explained that she had considered the information in the letter as price-sensitive. She had no particular thoughts as to how many persons were behind the letter, beyond the fact that it had been signed on behalf of several bond holders. The applicant refused to give additional information, referring to the journalistic principles on protection of sources.

During the criminal case against Mr X in February 2011 before the Oslo City Court (tingrett), the applicant was summoned as a witness. She refused to answer questions about possible contacts between her and Mr X and other sources, if any, related to the publication by DN.no on 25 August 2007. Relying on Article 125 of the Code of Criminal Procedure and Article 10 of the Convention, she argued that she was under no obligation to give evidence on those points.

The prosecutor requested that the court impose on the applicant an order to testify. In the court records (“rettsboken”), his arguments in favour of issuing such an order are restated as having included the following:

“The prosecutor rose to speak and argued that the witness had an obligation to give testimony about her contact with the defendant in connection with the letter to [the bond trustee company] of 24 August 2007 and asked the court to make a decision on the matter. The prosecutor further justified the obligation of the witness to make a statement and argued that undoubtedly in this case it was desirable to hear her explanation, even if the prosecuting authority found the case adequately disclosed (fullgodt opplyst) without her statement. The press was sometimes abused by investors to take actions liable to affect the share price. The element of abuse should suggest that in a case like this the press would also have an interest in making a statement in order to avoid being abused in this way. Whether or not consent had been given by the source to the witness making her statement had no bearing on the obligation to give evidence. ...”

From the same records, it appears that Mr X, through his counsel and cocounsel, had submitted that he had described his contact with the applicant and that she could contribute nothing further of interest.

By a decision of 15 February 2011, the City Court held that the applicant had a duty to give evidence about her contacts with Mr X in relation to the letter of 24 August 2007 from Attorney Y to the bond trustee company. As to the scope of that duty, the City Court held:

“The obligation to make a statement is, however, limited to the contact with the defendant as a source and not her communication with possible other unknown sources with whom she has been in contact and who may be protected by the protection of sources.”

The prosecutor then stated, according to the hearing protocol, “that he would not ask for postponement of the case as the prosecuting authority considers the case to be sufficiently disclosed (“tilstrekkelig opplyst”) even without the statement of the witness [the applicant]”. It was then clarified that the applicant’s appeal against the order would not be forwarded to the High Court until after the City Court’s judgment in the case against Mr X had been delivered.

On 3 March 2011 the City Court convicted Mr X in accordance with the indictment and sentenced him to one year and six months’ imprisonment, of which nine months were suspended for a probationary period of two years.

The judgment contains the following passage:

“One of the witnesses pleaded, as a journalist, the protection of sources under Article 125 of the Code of Criminal Procedure and was not willing to explain about her potential contact with the accused. The court held that the witness had an obligation to explain about her contact with the accused since he, as the source of the DN.no article, was known and the court ruled accordingly. An appeal was immediately made against the decision. No motion for extension was made (pending a final decision) as according to the prosecutor the case was sufficiently disclosed (tilstrekkelig opplyst) even without the statement by [the applicant] and this was used as a basis by the court.”

On 28 March 2011 Mr X appealed to the Borgarting High Court (lagmannsrett) against the City Court’s assessment of the evidence and application of the law in relation to the issue of guilt, its procedure and the sentence (see paragraphs 34-36 below).

The applicant appealed to the Borgarting High Court against the City Court’s order of 15 February 2011. It rejected the appeal by a decision of 28 April 2011, finding it generally decisive whether the source was known. In this case, it had been established beyond reasonable doubt that Mr X had been the applicant’s source.

An appeal by the applicant to the Supreme Court was rejected by three votes to two on 30 September 2011 (Norsk Retstidende – Rt. 2011 page 1266). The appeal had been directed at the High Court’s assessment of evidence as well as its application of the law. The disagreement in the Supreme Court concerned primarily the interpretation of the first paragraph of Article 125 of the Code of Criminal Procedure, according to which, inter alia, journalists may refuse to answer questions as to who is the source of information confided to them for use in their work (see paragraph 37 below). The two factions of the Supreme Court disagreed, in particular, as to whether this provision was applicable if the source had stepped forward or the identity of the source had otherwise been established.

The majority observed that it did not appear from the wording of Article 125 § 1 of the Code of Criminal Procedure that it was relevant whether the source had disclosed his or her role or that this role had in other ways become known. However, the wording could not be given decisive weight. It emerged from the preparatory work that the legislature had not, with the chosen formulation, taken a stance on the issue at stake in the present case. There was therefore greater reason to assess whether the rationale underpinning the main rule, namely the right not to answer questions concerning the identity of the source, could also be given significant weight when the person, who had been the source of the information, had given evidence concerning his or her role and had confirmed being the source. It was difficult to see that this should be the case.

If the imposition of an obligation on the press to give evidence were limited to cases where the source had come forward, the person who was considering giving information to the press would know that it was up to him or her to determine whether the person who received the information would have an obligation to give evidence. There was thus no cogent reason why such a conditional obligation to give evidence should lead to increased scepticism towards providing information to the press. The same would, to a great extent, be true if the obligation to give evidence also applied when the identity of the source had become known in some other way. While the possibility that the identity of the source might be disclosed could well constitute a deterrent, it would hardly make much difference if information already known was also confirmed by the recipient of the information.

An obligation on the press to give evidence in such cases was not thought likely to weaken the public’s general trust that the press would protect its sources. The situation under review did not concern the disclosure of sources but rather whether the person’s role had become known by other means.

The majority further disagreed with the applicant’s view that there was no reason to treat a situation, where the informant had identified himself or herself as the source, differently from those cases where the source had consented to being identified. A person who so consented could do so, trusting that the recipient of the information would respect the protection of sources as long as the identity of the source was unknown. Once an informant had confirmed that he was the source, this fact would become known. Should the recipient of the information then refuse to give evidence, this would normally appear futile. In such a situation, an exemption from the obligation to give evidence would in reality not constitute a protection against having to disclose the source, but rather a right to avoid contributing to the elucidation of a criminal case.

Interpreting Article 125 § 1 of the Code of Criminal Procedure in the light of certain statements made in the preparatory work (Ot.prp. nr. 55 (1997-1998), pp. 17 and 18) as followed up in the Supreme Court’s caselaw (Rt. 1995 page 1166 and 2003 page 28), the majority held that this provision did not apply when the source had come forward and had confirmed his or her role. The same ought probably to apply when the identity of the source had been established beyond reasonable doubt by other means. If the state of the evidence was such that confirmation by the journalist of the identity of the source could not be said to assist in identifying the source, it seemed unquestionable to maintain the obligation to testify.

As to whether a more wide-reaching protection of journalistic sources followed from Article 10 of the Convention, the majority had regard to the Strasbourg Court’s case-law, including Goodwin v. the United Kingdom (27 March 1996, Reports of Judgments and Decisions 1996II), Financial Times Ltd and Others v. the United Kingdom (no. 821/03, 15 December 2009) and the Chamber judgment in Sanoma Uitgevers B.V. v. the Netherlands (no. 38224/03, 31 March 2009 – noting that the Grand Chamber had decided the latter case on a different ground). They observed that in the two British cases, a violation had been found under the necessity test even though strong countervailing arguments had been present. The majority further noted that there was no decision where the Court had examined the situation where the source had come forward and where in this sense there was no source to protect (“ingen kilde å beskytte”). The principal justification for source protection, as elaborated by the Court in its case-law, was based on the consequences that the disclosure of a source’s identity might have for the free flow of information. However, these considerations did not apply where the source had confirmed his or her participation.

Against this background, one could safely assume that no violation of the Convention would arise where a source had come forward and the obligation of the witness to give evidence had been expressly limited so as not to include questions that might lead to other sources being revealed. Also, the charge in this case had been based on the fact that the journalist had allowed herself to be used by the source in his efforts to manipulate the bonds market in a criminal manner. It was a serious criminal case, where it seemed likely that the applicant’s evidence might significantly assist in elucidating the concrete circumstances of the defendant’s contact with her.

The minority observed that, should the applicant be ordered to testify concerning her possible contact with Mr X about Attorney Y’s letter of 24 August 2007 to the trustee company, she would have to confirm or deny that Mr X was the source for her article on DN.no on 25 August 2007. By making a statement on this matter, she might also inadvertently reveal other potential sources. The legal question at hand was whether a journalist might rely on source protection if the source, without the journalist having revealed it, could be identified with more or less certainty by other evidence.

The wording of Article 125 of the Code of Criminal Procedure was absolute and granted members of the press, broadcasting and other media the right to “refuse to answer questions concerning who is ... the source”. The provision made no exception for cases where the identity could be established with more or less certainty in some other way.

The protection of sources by journalists was, according to the European Court’s case-law, “one of the basic conditions for press freedom” (Goodwin, cited above, § 39). The purpose was not to protect the source, but rather the public interest in free communication of news and opinions (Rt. 2010 page 1381). If journalists were allowed to protect their sources, they would obtain information enabling them to uncover matters in society that were worthy of criticism more easily than they would otherwise. The fact that it was for the journalist to decide to what extent he or she would rely on such protection reflected that it was not the source who was protected. If the journalist was willing to reveal the source, the source could not prevent it.

If it were a precondition for the protection of journalistic sources that no other proof of the source had been presented, such protection would be undermined. This would enable a source to be tracked down, even if a requirement for waiver of source protection was that the source be identified with a criminal standard of proof. If the hearing of evidence on the identity of a source were to be allowed, the media’s working conditions would become considerably more constricted and society’s interest in free communication of information and opinions would suffer.

If consent to source disclosure by a potential source should have the effect of removing source protection, the actual source might easily be identified and source protection would be undermined. In the present case Mr X had stated that he was the source. A situation where someone claimed to be the source ought to be considered in the same way as where the source consented to disclosure of his or her identity. A person might incorrectly claim to be the source so that the actual source might be identified by a process of elimination. And even if it were true that this person was the source, it would erode the journalist’s right to source protection should the person who was the source be able to cancel the journalist’s right. In addition, journalists often had several sources. If a journalist could be ordered to describe his or her contact with a person who claimed to be the source, his or her contact with other sources might also be revealed.

Equally, a combination of someone claiming to be the source and other evidence confirming this, should not lead to source protection being removed. Effective source protection was necessary in order to ensure free communication of information and opinions. It should not be permissible for press journalists to confirm or deny that a person claiming to be the source was in fact the source, even where there was weighty evidence to this effect. As mentioned above, it was not the source, but society’s interest in free communication of news and opinions, which was to be protected.

The prosecutor had argued that Mr X had used the applicant as a tool to commit serious crimes, and this would have constituted a relevant argument, had the case been one concerning a possible individual exception to the right to non-disclosure of sources made under the third paragraph of Article 125. However, the prosecutor had not relied on that paragraph of the provision, and the source’s motive could not render the principle of source protection as such inapplicable. Within the ambit of Article 10 of the Convention, freedom of speech did not protect only information and views that were positively received, but also those which offended, shocked or disturbed the State or parts of the population. Therefore, the fundamental right of journalists to protect their sources could not be dependent on the sources’ motives.

Mr X’s appeal against the City Court’s judgment of 3 March 2011 (see paragraph 17 above) was examined by the High Court, which summoned and heard the applicant as a witness on 13 January 2012. She answered certain questions but affirmed that she still would not reply to questions about her contacts with Mr X. The court records contain the following passage:

“When heard as a witness [the applicant] stated that she had received Attorney [Y]’s letter by fax on 24 August 2007 at 5.35 p.m. She does not wish to answer questions about who she had received the letter from or on her possible contact with Mr [X] during the period before or after this point in time. The presiding judge pointed out to the witness that after a legally enforceable decision by the Supreme Court she was obliged to give evidence about her contacts with Mr [X]. The presiding judge underlined that an omission to reply to such questions could constitute a ground for the imposition of a fine for an offence against the good order of court proceedings [“rettergangsbot”]. It was emphasised that the duty to reply lay on the witness personally and that a possible fine would be imposed on her personally.”

On account of her refusal to comply, the High Court, by a decision of 25 January 2012, ordered the applicant to pay a fine of 30,000 Norwegian kroner (NOK), approximately 3,700 euro (EUR) for an offence against the good order of court proceedings, failing which she would be liable to ten days’ imprisonment. The applicant did not appeal against that decision.

By a judgment of the same date, the High Court convicted Mr X on the charges and sentenced him to one year and six months’ imprisonment.


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Sri Lanka)

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

The applicant, Mr X, is a Sri Lankan national of Tamil origin, who was born in 1979 and resides in Switzerland.

During the 1990s the applicant was a member of the Liberation Tigers of Tamil Eelam (“the LTTE”) and participated in armed resistance against the Sri Lankan Government. In late 2003 he was detained in Colombo for about three months. The applicant stated that during this time he had been ill-treated. He furthermore stated that he had been threatened and subjected to surveillance after his release.

On 2 April 2007 the applicant left Sri Lanka for Italy, where he lived until May 2009. His wife, who had remained in Sri Lanka, had allegedly been subjected to searches and questioning by the Sri Lankan police and security forces. She left Sri Lanka on 13 March 2009 and joined the applicant in Italy.

On 25 May 2009 the applicant and his wife illegally entered Switzerland and applied for asylum on grounds of political persecution in Sri Lanka. The applicant emphasised that, as a member of the LTTE, he had participated in armed resistance against the Government of Sri Lanka and had been ill-treated in detention.

On 8 December 2009 the applicant’s wife gave birth to their first child.

In a decision taken on 1 June 2011, the Federal Migration Office (“the FMO” – now the State Secretariat for Migration) held that the applicant and his wife did not fulfil the criteria necessary to obtain refugee status because they had failed to present sufficient evidence in support of their claim. Furthermore, the FMO rejected the applicant’s asylum application and ordered the execution of their deportation order to Sri Lanka, finding it enforceable, legal and reasonable (möglich als auch rechtmässig und zumutbar).

On 9 June 2011 the applicant’s wife gave birth to their second child.

On 5 July 2011 the applicant and his wife appealed against the FMO’s decision to the Federal Administrative Court, requesting that it annul the deportation order according to which the authorities of the Canton of St Gallen had to deport them no later than 27 July 2011, by force if necessary (pursuant to points 3, 4, and 5 of the operative part of the FMO’s decision of 1 June 2011). However, the applicant did not challenge the FMO’s decision refusing to grant him asylum or to recognise him as a refugee (points 1 and 2 of the operative part of the FMO’s decision of 1 June 2011).

In its judgment of 1 October 2012, the Federal Administrative Court rejected the applicant’s appeal on the merits. The court held that the FMO had violated the applicant’s right to be heard by refusing to grant him and his wife access to certain documents in its possession, namely a country report of 22 December 2011 on the conditions in Sri Lanka, which had been established during an official mission of the FMO in September 2010. Nevertheless, since the FMO had provided the parties with access to these documents at a later date, the Federal Administrative Court concluded that the original violation had been remedied.

The Federal Administrative Court further held that there was no impediment to enforcing the deportation order. In particular, weighing the preponderance of the evidence (mit beachtlicher Wahrscheinlichkeit), it held that neither the applicant’s submissions nor the official file indicated that he or his wife would be subjected to treatment contrary to Article 3 of the Convention if they returned to Sri Lanka.

On 2 November 2012 the applicant and his wife applied to the Federal Administrative Court to have its judgment of 1 October 2012 reconsidered. The applicant claimed that the court had not adequately considered all the relevant evidence. He also submitted a copy of an LTTE magazine cover from 1997, which included his photograph. He also submitted a letter from his sister dated 19 October 2012, as well as confirmation from the Human Rights Commission of Sri Lanka that he had lodged a complaint with that institution on 5 October 2012.

In its judgment of 27 November 2012, the Federal Administrative Court rejected the applicant’s application for reconsideration, holding that there were insufficient grounds to reopen the case. It emphasised that the application for reconsideration was an extraordinary remedy, which could not be used to submit facts which could have been raised during the ordinary proceedings.

On 21 August 2013 the applicant and his family were deported to Sri Lanka. Upon arrival at the airport in Colombo, they were detained and questioned for thirteen hours. Following that, the applicant’s wife and children were released, whereas the applicant was incarcerated and illtreated in Boosa Prison. According to his wife, when she visited the applicant in prison she noted that his face appeared swollen and concluded that her husband had been beaten.

On 6 December 2013 a representative of the Swiss Embassy and a senior protection officer of the UNHCR visited the applicant in the prison governor’s office. During this visit, the representatives noted that the applicant was visibly afraid to speak and that a free conversation with him was impossible.

Following this, the applicant’s family was relocated to Switzerland.

On an unknown date the applicant was transferred to a so-called “rehabilitation” prison, from which he was released on 12 April 2015.

After his release, the applicant applied for a visa on humanitarian grounds to the Swiss authorities in order to return to Switzerland and submit a fresh asylum application. On 21 April 2015 the FMO allowed the applicant to return to Switzerland and he did so on 25 April 2015.

On an unspecified date the applicant submitted a fresh asylum application to the Swiss authorities and on 26 June 2015 his application was granted.

In his application to the Court, the applicant pointed out that in a parallel case another Tamil, Mr Y, had been deported from Switzerland to Sri Lanka on 25 July 2013, that is to say almost a month before the applicant’s own deportation. According to Y’s lawyer, upon his arrival in Sri Lanka he had been detained and subjected to ill-treatment which had led to his hospitalisation.

Furthermore, on 2 August 2013 Y’s lawyer had written to the Swiss Minister of Justice and to the director of the Migration Office asking that all deportations of Tamils to Sri Lanka be suspended.

The director of the FMO commissioned an external investigation into the expulsions of the applicant and Y. The report delivered by Prof. W. Kälin on 23 February 2014 concluded that, due to a combination of several shortcomings of the Swiss authorities, the individual risk of illtreatment of the two Tamils in Sri Lanka had not been properly assessed.

In addition, the UNHCR also carried out an assessment of the decision-making process of the FMO in the applicant’s case and identified a number of shortcomings. These consisted of, in particular, the prolonged lapse of time between the asylum application (May 2009) and the execution of the deportation order (August 2013); the fact that the situation in Sri Lanka had changed considerably after the end of the civil war in 2009; the involvement of several FMO employees in different phases of the decision-making process throughout an extended period of time; the fact that the applicant’s hearing had been partly held in a superficial manner and that the authorities had not conducted additional investigations.

The results of both reports were made public on 26 May 2014.

On 10 December 2013 the FMO adopted an internal report on the arrest of the applicant by the Sri Lankan authorities.

After the end of the civil war in Sri Lanka, in 2011 Switzerland resumed deportations of Tamils to that country. The practice was again stopped in September 2013, following the expulsion and ill-treatment of the applicant and Y.

Subsequently, the FMO analysed the situation in Sri Lanka in the light of the results of its missions to that country, the case-law of international courts, the practices of other countries and the reports of international organisations. As a consequence, the FMO has modified its practice concluding that the assessment of risk would now be carried out following criteria developed by the European Court of Human Rights in all cases involving deportations or Sri Lankan nationals.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1962 and lives in Shadrinsk.

On 20 August 2003 the Shadrinsk Town Court of the Kurgan Region convicted him of murder and sentenced him to ten years’ imprisonment. On 29 October 2003 the Kurgan Regional Court upheld the conviction on appeal.

The applicant is HIV-positive and at the material time also suffered from tuberculosis and hepatitis.

On 25 December 2008 the applicant was transferred to the LIU OF73/3 medical facility (лечебно-исправительное учреждение) in the Kurgan Region and was detained in the following wards:

(a) quarantine ward 24 from 25 to 30 December 2008 and from 18 to 30 June 2009;

(b) ward 25 from 30 December 2008 to 28 May 2009 and from 30 June to 21 September 2009; and

(c) ward 26 from 21 September to 3 November 2009.

According to the applicant, the wards were severely overcrowded. For instance, ward 25 measured approximately 80 square metres, was equipped with fifteen two-tier bunk beds and housed twenty-seven inmates. Passages between the beds, lengthwise, were as narrow as fifty centimetres and were used by four inmates. The wards were poorly lit as the windows were covered with louvre shutters blocking access to natural light.

According to the Government, ward 24 measured 61.49 square metres, had sixteen sleeping places and accommodated up to sixteen inmates. Ward 25 measured 67.5 square metres, was equipped with thirteen two-tier bunk beds and housed up to twenty-six inmates. Finally, ward 28 measured 49.4 square metres and accommodated fifteen inmates. The applicant was provided with an individual sleeping place at all times. All wards had access to natural light.

In support of their submissions, the Government provided original floor plans and ward population registers containing information about the exact number of inmates in each ward for the whole period the applicant was in the LIU OF-73/3 facility. They also submitted a prosecutor’s report dated 11 October 2010 regarding the conditions there. It indicated, in particular, that windows in all wards were fitted with metal louvre shutters.

On 9 February 2009 the medical facility authorities issued an order introducing visiting fees for inmates and their families. The calculation table annexed to the order specified that a fee of 320 Russian roubles (approximately 9 euros) per day per person would be payable, covering maintenance charges, prison staff salaries, the depreciation of visiting room equipment, bed linen and cleaning products.

On 14 April 2009 the director of the Federal Service for the Execution of Sentences sent a letter to the heads of Russian penal facilities, reminding them that charging visitors and detainees for family visits was in breach of Article 89 of the Code on the Execution of Sentences (see paragraph 17 below) and that facility administrations must bear the costs of providing rooms for long-term visits. Only additional services are payable by detainees in accordance with the Internal Regulations of Correctional Facilities (see paragraph 20 below).

On 22 April 2009 the applicant was authorised to see his two daughters on a long-term family visit. He calculated that a three-day visit from them would cost RUB 1,920, which was far beyond their means. His daughters did visit him, but stayed only one day instead of the expected three, as they did not have enough money on them to stay any longer.

On 22 August 2009 the applicant’s daughters visited their father again, this time free of charge.

On 29 April 2010 the applicant received a letter from the Court dated 19 March 2010 in the correspondence department of the OF-73/2 correctional facility, to which he had been transferred in February 2010. It was handed over to him in an open envelope and he was told to sign a copy which had been attached to his personal file.


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

All the applicants were parties to civil proceedings in which the firstinstance and appeal courts found in their favour. These judgments became final but were subsequently quashed by the supervisory review courts on the grounds of incorrect application of substantive law (for more details see the Appendix).


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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.