Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) (Conditional);Non-pecuniary damage - award

Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in LANGUAGE , LOC ( GPE ) .

In DATE the applicant , an officer in ORG , left his military unit in GPE and went to GPE for employment - related reasons . He settled in the town of Yasnogorsk , in LOC , QUANTITY to the north of NORP . DATE his spouse and their CARDINAL children , born in DATE and DATE , moved over from GPE and subsequently obtained NORP citizenship . In DATE the applicant ’s spouse bought a house in Yasnogorsk .

Until DATE , for unspecified reasons , the applicant lived separately from his spouse and children .

On DATE the NORP ORG recommended , at the applicant ’s spouse ’s request , that their elder daughter be admitted to a neurological hospital in GPE in order to treat her neurological condition . The certificate stated that the child should be accompanied by her mother .

The applicant did not apply for NORP citizenship , as he explained , because he had lost his NORP national passport in DATE . Neither did he make any attempts to regularise his stay in GPE or to register his residence in the country DATE .

In the meantime , on DATE the NORP authorities instituted criminal proceedings against the applicant under LAW of LAW ( “ the ORG ” ) for desertion . The offence was punishable by PERCENT five years’ imprisonment .

On DATE the military prosecutor ’s office of ORG ( “ the military prosecutor ’s office ” ) issued a bill of indictment and an arrest warrant against the applicant . On DATE the military prosecutor ’s office suspended the investigation on account of the failure to establish the applicant ’s whereabouts and put his name on a wanted list .

On DATE the military prosecutor ’s office issued a search warrant for the applicant .

On DATE the military prosecutor ’s office re - classified the charges against the applicant as aggravated desertion , punishable by DATE imprisonment , and charged him in absentia under LAW of the ORG .

On DATE ORG of the Interior ( “ the ROVD ” ) brought criminal proceedings against the applicant on suspicion of having threatened his spouse with death ( LAW , “ the ORG ” ) . On DATE the applicant was arrested and placed in remand centre no . CARDINAL .

On DATE the Yasnogorsk ORG of GPE ( “ the district court ” ) authorised the applicant ’s detention at the request of the ROVD . ORG ( “ the district prosecutor ’s office ” ) backed up the request , referring , in particular , to the fact that the applicant was wanted for a crime committed in GPE . The district court ordered the applicant ’s detention on the basis of Articles CARDINAL and CARDINAL of LAW ( “ the CCrP ” ) , stating as follows :

“ It can be seen from materials submitted to the ORG that Mr Shakurov is suspected of a minor criminal offence carrying a penalty of DATE imprisonment . He is unemployed , that he has no permanent income , and has not registered his residence in GPE . Therefore , the court agrees with the investigator that there are grounds to believe that , if at large , he , understanding the nature of the penalty he could face , may flee investigation and prosecution , continue criminal activities and put pressure on the victim and witnesses so that they alter their testimony , thus hindering the criminal proceedings ” .

The applicant did not appeal .

On DATE the district court extended the applicant ’s detention to CARDINAL DATE on similar grounds , with reference to Articles CARDINAL § CARDINAL and QUANTITY of the CCrP. The applicant did not exercise his right of appeal .

On DATE the Justice of the Peace of LOC discontinued the criminal proceedings against the applicant because of reconciliation between the parties , and ordered his immediate release . It is unclear whether the applicant was indeed released . On DATE he was placed in custody with a view to extradition ( see paragraph CARDINAL below ) .

In the meantime , on DATE the ORG received information concerning the criminal proceedings initiated against the applicant in GPE from their NORP counterparts .

On DATE the district prosecutor interviewed the applicant . As can be seen from the questioning record , signed by the applicant , the applicant explained that he had left GPE in DATE as he had faced workplace discrimination “ on account of his origins ” from his commanding officers , who had refused to consider his resignation requests . He had arrived in GPE with a view to obtaining NORP citizenship and getting employment . He had applied neither for NORP citizenship , as he had lost his NORP passport , nor for political asylum or refugee status , as he had not been subjected to persecution on political grounds in GPE . He considered himself a NORP citizen . The applicant understood that the NORP authorities wanted him for military desertion .

The prosecutor concluded as follows :

“ Presently , Mr LOC ’s extradition to the law - enforcement authorities of GPE is precluded by the criminal proceedings brought under LAW ORG , which are pending against him in GPE ” .

On DATE at an interview with a deputy district prosecutor the applicant added that he had left the military service also because of the very low wages and discrimination from his senior colleagues due to his poor command of NORP . Discrimination on that ground had been very common at his workplace . Thus , the commanding officers had “ fabricated ” criminal cases against CARDINAL servicemen . The applicant feared that he would be tortured by GPE security forces in the event of extradition , since it was common practice . He intended to submit an asylum request as he feared persecution on the grounds of his nationality and language skills . He considered that the criminal proceedings pending against him in GPE and the fact that his spouse and children lived in GPE and were NORP citizens were obstacles to his extradition to GPE .

On DATE the prosecutor ’s office of LOC ( “ the regional prosecutor ’s office ” ) forwarded the extradition material to ORG of ORG , stating as follows :

“ The measure of restraint with a view to ensuring Mr LOC ’s possible extradition has not been applied to him because it is not necessary . ”

On DATE or DATE ORG received a request for the applicant ’s extradition from its GPE counterpart , dated CARDINAL DATE . The request was reasoned by the charges brought against the applicant under LAW . Relying on LAW ( “ the FAC ” ) , the NORP authority assured its NORP counterpart that the applicant would not be extradited to a third country without the consent of GPE , that no criminal proceedings would be initiated and he would not be tried or punished for an offence which was not the subject of the extradition request and he would be able to freely leave GPE once the court proceedings had terminated and the punishment served .

On DATE ORG asked ORG of GPE to provide diplomatic assurances and conduct a check as to the applicant ’s allegations of workplace discrimination and torture in the event of his extradition to GPE .

On DATE the Russian ORG ( “ the ORG ” ) stated that the applicant had neither applied to register his residence in LOC nor to obtain migrant status or NORP citizenship .

On DATE ORG ( “ the ORG ” ) wrote to the regional prosecutor ’s office stating that it saw no obstacles to the applicant ’s extradition .

On DATE a district military prosecutor of ORG of GPE issued a statement in connection with the criminal proceedings pending against the applicant in GPE , which read as follows :

“ Following Mr Shakurov ’s statement at the interview of CARDINAL DATE [ ... ] , military prosecutors of the GPE command questioned the former commanding officer PERSON , the head of the human resources PERSON and [ some other ] officers . They clarified that the unit servicemen had mainly spoken NORP . Servicemen who had not mastered NORP had not been subjected to discrimination . Mr Shakurov had spoken good LANGUAGE and NORP . During the period of his service , he had submitted only one request , dated DATE , whereby he had asked to extend his term of office until DATE . That request had been granted . ”

On DATE ORG assured its NORP counterpart that the criminal proceedings against the applicant had been conducted without discrimination on account of his ethnic origin , religion , language or social status and that , if extradited , the applicant would not be subjected to ill - treatment and his right to defend himself , including through legal assistance , would be secured . The criminal proceedings would be carried out in strict compliance with LAW and international treaties .

On DATE ORG ordered the applicant ’s placement in custody with a view to extradition ( see paragraph DATE below ) .

On DATE and DATE ORG and the ORG informed ORG that there were no obstacles to the applicant ’s extradition to GPE .

On DATE the Deputy Prosecutor General granted the extradition request . The prosecutor decided to extradite the applicant under charges of desertion , a crime punishable under LAW ORG . He noted that the statute of limitations for the offence had not expired either in GPE or in GPE . He further pointed out that , in line with LAW and the CCrP , differences in the classification of the offence and its elements under the NORP and the NORP criminal law were not sufficient grounds for refusing extradition . The prosecutor also referred to the information provided by the ORG that the applicant was an NORP national who had not applied for NORP citizenship . The prosecutor concluded that there were no obstacles to his extradition to GPE .

On DATE and DATE the applicant sought judicial review of the extradition decision . He stated , in particular , that his decision to leave the NORP army had been wrongly classified as desertion ; that the statute of limitations for desertion had expired ; that , since he had not mastered the NORP language , he had been discriminated against in GPE , in particular by superior colleagues who had told him he should learn NORP ; that , if extradited , he ran the risk of being subjected to torture , a widespread practice in GPE , along with other human rights violations ; that he had been permanently residing in GPE for DATE and had no intention to return to GPE ; that his spouse and children were NORP citizens and that his disabled daughter needed costly medical treatment , unavailable in GPE .

From DATE ORG ( “ the regional court ” ) heard the applicant ’s case in the presence of his lawyer . The applicant specified that he had left GPE for GPE in order to ensure his family ’s well - being . He considered that after his departure , the NORP authorities had launched a search for him with a view to bringing him to justice for desertion . NORP policemen had threatened his spouse . He clarified that he would risk political persecution in the event of extradition for the reason that he had not mastered LANGUAGE , although he had studied it at school , and that he generally disapproved of the politics of GPE , although neither he nor his family had been politically or religiously active or persecuted . While in GPE , the applicant had used his GPE military officer ’s professional card ( удостоверение офицера ORG ) as an identity document and , consequently , had had no need to apply for asylum or refugee status there .

On DATE the regional court upheld the extradition decision and , relying on Articles CARDINAL § CARDINAL and CARDINAL § § CARDINAL of the ORG and LAW , rejected the applicant ’s appeal . The court established that the applicant had left GPE for purely economic reasons . Neither the applicant nor his extended family had been discriminated against or persecuted for political reasons in the requesting country . The alleged police threats towards his spouse were unsubstantiated . The NORP authorities had provided sufficient assurances that the applicant ’s rights would be fully respected in the event of extradition . The statute of limitations for desertion had not expired either under the NORP or the NORP law . The applicant ’s health was in a satisfactory condition and , as such , did not preclude him from being extradited . As regards the applicant ’s family situation , the court stated the following :

“ Mr LOC ’s argument that his departure from GPE in DATE was motivated by the necessity to provide medical treatment for his child is unsubstantiated . As can be seen from medical certificate no . CARDINAL appended to the case file , ORG of GPE recommended the treatment [ in GPE ] only on DATE at the relatives’ request .

Mr LOC ’s children have been living with his spouse , who has been taking care of them ” .

On DATE , DATE and DATE and DATE the applicant and his legal counsel appealed against the first - instance judgment . They challenged the charges against the applicant , argued that the regional court had failed to take into account the circumstances which had prompted his departure from GPE , underlined that his spouse and children were NORP citizens and expressed a fear for his life in case of extradition . As to the applicant ’s family life , the applicant ’s lawyer argued as follows :

“ The first - instance court did not properly take account of the difficult family circumstances of [ the applicant ] : his daughter ’s illness and disability status , the recommendation that her health care be sought in GPE , and the futility of [ the applicant ’s ] retirement applications to the military command and insufficiency of the emoluments ... ”

On DATE ORG of GPE ( “ the ORG ” ) dismissed the points of appeal and upheld the first - instance judgment . The hearing was held by video link and the applicant was legally represented . The appeal court found that the lower court had issued a lawful and reasoned decision . It pointed out that the applicant had been prosecuted for the crime of desertion punishable both in GPE and GPE , that the statute of limitations had not expired and that the NORP authorities had furnished the necessary diplomatic assurances . The court relied on LAW of the CCrP.

On DATE the district prosecutor submitted a request to place the applicant in custody with a view to extradition on the basis of Articles CARDINAL , CARDINAL and CARDINAL § CARDINAL of the CCrP.

On DATE the district court ordered the applicant ’s placement in custody pending extradition . The applicant was kept in remand centre no . CARDINAL . Relying on LAW of LAW and Articles CARDINAL , CARDINAL and CARDINAL § CARDINAL of the ORG , the district court stated as follows :

“ Under LAW of the ORG and LAW ORG , desertion is punishable by CARDINAL five years’ imprisonment .

[ ... ] Mr Shakurov is an NORP citizen . He has not applied to renounce his NORP citizenship .

Mr LOC has not applied for political asylum or refugee status in GPE . He has not had access to data under the NORP official secrets legislation or data which could affect NORP national security interests .

He has not been persecuted in GPE on political , racial or religious grounds or for any antisocial activity .

[ ... ] The criminal proceedings brought against him in GPE under LAW ORG were terminated on DATE in view of the parties’ reconciliation .

According to the materials submitted to ORG , ORG should receive documents from the NORP law - enforcement authorities in support of the lawfulness of the arrestee ’s extradition and carry out the extradition request . Given that the charges against [ the applicant ] constitute a crime both in GPE and GPE and that he previously absconded from the NORP investigation authorities , there are no grounds for denying his extradition under LAW CCrP ” .

ORG did not set a time - limit for detention .

The applicant and his counsel lodged an appeal . They claimed , in particular , that the statute of limitations for his prosecution in GPE had expired , that the applicant had been living in GPE for DATE and that his spouse and children were NORP citizens . The applicant asked the court to change the measure of restraint to an undertaking not to leave GPE or to quash it and grant him refugee status or political asylum .

On DATE the regional court upheld the detention order on appeal , supporting the district court arguments with the following :

“ Pursuant to LAW and LAW , the running of the statute of limitations is suspended in the event that the accused is being searched for .

Mr PERSON is an NORP citizen and has not obtained NORP citizenship . His residence in GPE is not in compliance with domestic law and can not be a ground for granting him NORP citizenship . He has not applied for political asylum or refugee status in GPE .

[ ... ] the court rejects as unsubstantiated the applicant ’s argument that he was unaware of the charges brought against him in GPE , the institution of criminal proceedings against him and the search warrant issued for him there .

His other arguments for appeal , such as his continuous residence in GPE and family situation , can not be taken into account for the purpose of ordering detention pending extradition .

The court observes that the district court committed no breaches of the ORG which could necessitate the quashing of its decision ” .

On DATE the district court extended the applicant ’s detention pending extradition to CARDINAL DATE , taking it to a total of DATE . The court relied on LAW The applicant and his lawyer attended the hearing . The court established that there were no grounds for altering the preventive measure , stating as follows :

“ According to the materials submitted to ORG , ORG should receive documents confirming the lawfulness of the arrestee ’s extradition from the NORP law - enforcement authorities and carry out the extradition procedure . Mr LOC is charged with an offence constituting a crime both in GPE and in GPE , he absconded from the NORP prosecuting authorities and no ground for denying extradition under LAW CCrP can be applied to his case .

Mr LOC ’s placement in custody as a measure of restraint was valid , lawful , well - grounded and conducted in compliance with the criminal - procedure laws .

The circumstances under which the measure of restraint was imposed on Mr LOC have not changed . ”

On DATE the applicant submitted his points of appeal . He specified that his application for political asylum had been disallowed ( see paragraph CARDINAL below ) and contested that he had absconded from the NORP law - enforcement authorities . He further reiterated his reasons for departing from GPE , such as his disapproval of the NORP political regime , discrimination against the LANGUAGE - speaking population and the ensuing lack of opportunity for his spouse to obtain a University degree , the absence of quality medical care and of educational prospects for the children , and a low standard of living . The applicant pursued his argument as follows :

“ I believe that the above - mentioned facts allow me to choose a place of residence for me and my family . I have always thought of GPE as my motherland ( although I was born in GPE ) .

I also ask the honourable court to consider that I have never been convicted , I have been officially married since DATE , my spouse is a NORP citizen , I have to provide for CARDINAL underage children ( one of whom has been suffering from a disability since childhood ) who are also NORP citizens , and I have been permanently residing in PERSON ( what else is needed to obtain NORP citizenship ? ) .

In view of the above , I ask you to quash the decision of the district court [ to extend the detention term ] . For , in the event of my extradition and unlawful conviction in GPE [ ... ] , I have rather substantiated reasons to fear persecution and I really fear for my life . ”

The points of appeal reached the regional court on DATE .

On DATE the regional court dismissed the applicant ’s appeal , addressing his arguments in full and rejecting them as unsubstantiated . The applicant ’s lawyer attended the hearing . With reference to LAW DATE of ORG , the regional court stated as follows :

“ Extending Mr Shakurov ’s detention pending extradition , the [ district ] court put forward convincing arguments . In view of the material in its possession , the judges’ panel agrees with these arguments ....

The personal situation of the accused , including his arguments for appeal , was taken into account by the [ district ] court . Although there is no information in the case file as to Mr LOC ’s child ’s disability , this fact can not cast doubt on the validity of the court ’s argument in favour of the extension of the detention term . ”

On DATE the district court extended the applicant ’s detention to DATE , taking it to a total of DATE . In doing so , the district court referred to LAW ORG and provided similar reasoning as in its decision of CARDINAL DATE ( see paragraph CARDINAL above ) . It also took into account the letter of ORG ( see paragraph CARDINAL above ) and the applicant ’s pending request for refugee status . The applicant and his lawyer attended the detention hearing . However , neither of them appealed .

On DATE the district court extended the applicant ’s detention to QUANTITY DATE under LAW ORG , taking it to a total of DATE . The hearing was held in the presence of the applicant and his legal counsel . They challenged the lawfulness of the charges pending against the applicant in GPE and claimed that LAW ORG was inapplicable to his case since the applicant had not been charged with a serious criminal offence and thus could not be detained for DATE under the CCrP.

With reference to the letter of the CARDINAL DATE of ORG ( see paragraph CARDINAL above ) , the court considered that aggravated desertion was a serious crime punishable by up to CARDINAL years’ imprisonment under LAW of the ORG and LAW . Therefore , LAW was applicable to the applicant ’s case with a view to extending his detention DATE . The court also took note of the refusal of his refugee application by the ORG on DATE ( see paragraph CARDINAL below ) . The court stated as follows :

“ As can be seen from the materials submitted to the court , PERSON has been charged with a criminal offence which is classified as serious both in the territory of GPE and in the territory of GPE . He has previously absconded from the NORP investigation authorities . Presently , ORG has granted the extradition request submitted by its NORP counterpart [ ... ] .

Mr LOC ’s placement in custody as a measure of restraint was valid , lawful , well - grounded and conducted in compliance with the NORP criminal - procedure laws .

On DATE the applicant appealed against the first - instance decision . He challenged the validity of the extradition request , claimed that the NORP authorities had failed to prove that he had been timely informed of the charges pending against him and their subsequent re - classification as aggravated desertion . Lastly , he complained that the first - instance court had disregarded his personal situation . On DATE the applicant ’s points of appeal reached the district court . On an unspecified date , the district court submitted the file to the regional court , which was the appeal - instance court for the detention issue . It is likewise unclear when the file in fact reached the regional court . The regional court issued its decision on CARDINAL DATE . It is undisputed , however , that , having received the file , the appeal court issued its decision within DATE , as required under the CCrP ( see paragraph DATE below ) .

As indicated , on CARDINAL DATE the regional court examined the applicant ’s arguments and dismissed them as unsubstantiated . Both the applicant and his lawyer were present at the hearing . The regional court stated , inter alia , that the district court had taken its decision in compliance with LAW and DATE of the ORG , ORG of DATE and ORG . The district court had considered the extradition request to the extent that the international treaties and LAW of the ORG so allowed . The applicant ’s personal situation had also been taken into account . In view of the above , the regional court concluded that :

“ Hence , as a result of real judicial review , the [ district ] court reasonably and rightly established that Mr LOC ’s term of detention should be extended .

At present , Mr LOC ’s detention does not fall foul of LAW CARDINAL ( c ) of LAW [ ... ] or LAW of LAW , according to which individual rights and freedoms can only be restricted by LAW in so far as it is necessary for the protection of the constitutional order , morals , health and legal interests of other citizens . ”

On DATE the district court , at the request of the Deputy Regional Prosecutor of DATE , extended the applicant ’s detention to CARDINAL DATE , taking it to a total of DATE . Relying on Article CARDINAL of the ORG , the court provided similar reasoning as on DATE ( see paragraph CARDINAL above ) . As an additional ground for extension , the court referred to the pending judicial review in respect of ORG Office ’s decision to grant the extradition request .

The applicant and his legal counsel attended the hearing .

DATE . On DATE the applicant submitted his points of appeal . Yet again , he challenged the charges brought against him in GPE and argued that the statute of limitations had expired . He referred to LAW § DATE of the CCrP. On DATE the points of appeal reached the district court . On an unspecified date , the district court submitted the file to the regional court . Whereas it is unclear when the file reached the regional court , it remains undisputed that , having received the file , the appeal court issued its decision within DATE , as required under the CCrP ( see paragraph DATE below ) .

On DATE the regional court dismissed the applicant ’s appeal with similar reasoning as on DATE and also referred to LAW , LAW and LAW . Relying on the ruling of DATE of ORG , the regional court highlighted that in extending detention with a view to extradition , a court was to apply LAW of the ORG , according to which detention can be extended to DATE .

The applicant did not attend the hearing but was represented at it .

On DATE a deputy regional prosecutor requested to extend the applicant ’s detention for DATE , taking it to a total of DATE . The prosecutor took note of the refusal of the applicant ’s asylum and refugee status requests ( see paragraphs CARDINAL , DATE and DATE below ) , against which the applicant did not appeal . The prosecutor also pointed to the application of Rule CARDINAL of ORG to the applicant ’s case , stating as follows :

“ Up to present ORG has not lifted Rule CARDINAL of ORG and , therefore , Mr Shakurov can not be extradited and should be remanded in custody in accordance with LAW

The prosecutor requested to extend the applicant ’s detention , inter alia , “ with a view to ensuring his detention until ORG examines his application and with a view to surrendering him to the NORP law - enforcement authorities for the purpose of prosecution . ”

On DATE the district court granted the prosecutor ’s request and extended the applicant ’s detention to CARDINAL DATE under LAW Both the applicant and his legal counsel attended the hearing . The applicant argued that the term of his detention pending extradition had started running on DATE when the district prosecutor interviewed him following the receipt of information on the charges pending against him in GPE ( see paragraph CARDINAL above ) . The applicant ’s lawyer asked the court to release the applicant since the term authorised under LAW ORG had expired and LAW had been applied to his case . The court established that the applicant ’s placement in custody with a view to extradition had been ordered on DATE and rejected the applicant ’s argument as unsubstantiated . In extending the detention term , the court relied on LAW ORG and gave similar reasoning as on DATE ( see paragraph CARDINAL above ) .

On DATE and DATE the applicant and his legal counsel introduced their points of appeal . They reiterated that the applicant ’s term of detention with a view to extradition had started running on CARDINAL DATE at the latest . Yet on CARDINAL DATE the court deciding on the extension of his detention on criminal charges in GPE had been aware that the applicant had been wanted for a crime committed in GPE ( see paragraph CARDINAL above ) . In accordance with LAW , detention could be extended beyond DATE only in view of particularly serious charges , which was not his case . The prosecutor had wrongly construed Rule CARDINAL of ORG as a ground for extending his detention pending examination of his application by the ORG . Since the application of Rule CARDINAL barred the applicant from extradition , his continuous detention was unlawful and contrary to LAW ( f ) of the LAW . The applicant had no intention to flee GPE and asked the appeal court to consider his family situation .

On DATE the regional court dismissed the applicant ’s and his lawyer ’s points of appeal , who both attended the hearing . The regional court upheld the grounds for extending the applicant ’s detention put forward by the district court and emphasised that his detention was not in breach of LAW . The court established that the date of the applicant ’s detention pending extradition had started running on DATE , reasoning as follows :

“ Contrary to the assertions of the [ applicant ’s ] lawyer , the fact that the NORP law - enforcement authorities had been searching for Mr Shakurov for the purpose of prosecution was not the ground for the court ’s order to place him in custody [ on CARDINAL DATE ] .

The fact that the extradition check was launched when PERSON was being held in custody on criminal charges brought against him in GPE is no reason for calculating the term of his detention pending extradition from this date .

Thus , pursuant to LAW ORG , a foreign national who is being prosecuted or is serving a penalty for a crime committed in the NORP territory can not be surrendered until the prosecution is terminated , the penalty is lifted on any valid ground or the sentence is served .

On DATE the justice of the peace [ ... ] terminated Mr LOC ’s prosecution under LAW ORG [ ... ] , lifted the measure of restraint and released him .

Thereafter the district prosecutor submitted a court request under LAW and CARDINAL of the ORG to place Mr Shakurov in custody pending his possible extradition to GPE .

On DATE the district court granted the said request . Therefore , the term of Mr Shakurov ’s detention with a view to extradition under LAW ORG started running from DATE . ”

On DATE the district prosecutor ordered that the applicant be released under house arrest for the reason that the maximum authorised detention term had expired and that Rule CARDINAL of ORG had been applied to his case . The prosecutor relied on provisions of LAW and DATE of the ORG , in particular LAW . The applicant was released .

On DATE the applicant appealed .

On DATE the regional prosecutor ’s office quashed the decision of CARDINAL DATE .

On DATE the district court discontinued the proceedings on the ground that the impugned decision had been quashed and the applicant had consequently recalled his complaint of DATE .

On DATE the district prosecutor ’s office ordered the applicant not to leave his town of residence .

On DATE the applicant lodged a request for political asylum and refugee status with the ORG department in LOC ( “ the regional FMS ” ) . He submitted , in particular , that he disapproved of the politics of GPE and the low - quality medical care , that he had left GPE for work - related reasons and that he and his family had been discriminated against there , owing to their insufficient command of the NORP language .

On DATE and CARDINAL DATE the regional ORG stated that the applicant ’s request for political asylum could not be processed in view of the visa - free regime between GPE and GPE . Consequently , the regional ORG advised the applicant to apply for refugee status .

On DATE the applicant submitted an application for refugee status , as indicated . He provided the same reasoning as in the request of CARDINAL DATE .

On DATE , at an interview with a regional ORG officer , the applicant stated that in the event of his extradition to GPE he feared prosecution and imprisonment for desertion , a crime that he had not committed .

On DATE the applicant submitted that the statute of limitations for desertion had expired and that he had not been notified of the launch of the criminal proceedings against him in GPE .

On DATE the regional ORG rejected the applicant ’s request for refugee status . The ORG found that the applicant faced no risk of persecution on account of his origin , religion , nationality or belonging to a particular social group . ORG that the applicant might face owing to his allegedly insufficient command of the NORP language did not amount to persecution on account of his origin . The applicant had left GPE for economic reasons . The ORG concluded that he did not wish to return to GPE so as to avoid prosecution for the crime with which he had been charged . The ORG also noted that since the applicant ’s arrival in GPE in DATE he had made no steps to claim refugee status until his arrest and subsequent detention with a view to extradition .

The applicant did not appeal against the above decision .

The applicant submitted CARDINAL requests for temporary asylum , on DATE and DATE . The second request emphasised the applicant ’s risk of being subjected to torture as a result of politically motivated persecution in the event of extradition . He supported his argument with references to the systematic practice of torture described by international human rights reports .

DATE . On DATE the regional ORG rejected his first application on the ground that the applicant ’s health was in a satisfactory condition , that he did not require any medical care and that , in the event of his extradition to GPE , he would face no risk of being subjected to torture or ill - treatment , or being involved in an internal or international conflict . With reference to a report of ORG no . CARDINAL fms of DATE ( № CARDINAL фмс , “ the ORG report ” ) and an information notice from the ORG on the socio - political and socio - economic situation in GPE of DATE ( “ the information notice ” ) , the regional ORG stated that there was no information as to the practice of ill - treatment in respect of persons extradited to GPE and those detained in NORP prisons . The notice emphasised ongoing reforms of the NORP judiciary and the abolition of the death penalty in the country as of DATE . It also specified that GPE had ratified over CARDINAL international human rights treaties . Copies of the report and the information notice were not submitted to the ORG .

On DATE the regional ORG granted a DATE ’s temporary asylum to the applicant , valid until DATE . The ORG reasoned that ORG had allowed the extradition request , that Rule CARDINAL of ORG had been applied to the applicant ’s case and that , otherwise , his stay in GPE would remain irregular until ORG delivered its judgment .

Everyone has a right to liberty and security ( Article CARDINAL § CARDINAL ) . Detention is permissible only on the basis of a court order . The length of time for which a person may be detained prior to obtaining such an order must not exceed TIME ( LAW ) .

The term “ court ” is defined by LAW ( CCrP ) of DATE as “ any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by LAW ” ( LAW ) . The term “ judge ” is defined by the ORG as “ an official empowered to administer justice ” ( LAW ) .

A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace , a regional court or ORG ( LAW ) .

LAW of the CCrP governs the application of preventive measures . Detention is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a criminal offence punishable by DATE imprisonment where it is impossible to apply a more lenient preventive measure ( LAW ) . A court request for detention is submitted by an investigator ( следователь ) with the support of the head of the investigative authority or by a police officer in charge of the inquiry ( дознаватель ) with the support of a prosecutor ( LAW ) . A request for detention should be examined by a judge of a district court or a military court of a corresponding level in the presence of the person concerned ( LAW ) .

A judge ’s decision on detention is amenable to appeal before a higher court within DATE after its delivery date ( LAW of the CCrP ) . A statement of appeal should be submitted to the first - instance court ( LAW ORG ) . While the ORG contains no time - limit during which the first - instance court should send the statement of appeal and the case file to the appeal - instance court , Order no . CARDINAL of DATE by ORG of ORG of GPE requires that , “ after the expiry of the DATE time - limit for appeal ” , the first - instance court should submit the detention file to the higher court . Having received this file , second - instance courts should examine appeals lodged against the judge ’s decisions on detention within DATE ( LAW ) .

DATE . The period of detention pending investigation of a criminal case must not exceed DATE ( LAW ) but may be extended DATE by a judge of a district court or a military court of a corresponding level . Further extensions DATE may be granted with regard to persons accused of serious or particularly serious criminal offences ( Article CARDINAL § CARDINAL ) . Extensions DATE may be granted as an exception with regard to persons accused of particular serious criminal offences ( Article CARDINAL § CARDINAL ) .

A measure of restraint can be applied with a view to ensuring a person ’s extradition in compliance with the procedure established under LAW ) .

LAW of the CCrP ( FAC ) governs the procedure to be followed in the event of extradition .

A court is to review the lawfulness and validity of a decision to extradite within DATE of receipt of a request for review . The decision should be taken in open court by a panel of CARDINAL judges in the presence of a prosecutor , the person whose extradition is sought and the latter ’s legal counsel ( Article CARDINAL § CARDINAL ) .

Article CARDINAL § CARDINAL lists the conditions under which extradition can not be authorised . Thus , the extradition of the following should be denied : a NORP citizen ( LAW ) or a person who was granted asylum in GPE ( LAW ) ; a person in respect of whom a conviction became effective or criminal proceedings were terminated in GPE in connection with the same act for which he or she has been prosecuted in the requesting ORG ( LAW ) ; a person in respect of whom criminal proceedings can not be launched and a conviction can not become effective in view of the expiry of the statute of limitations or under another valid ground under LANGUAGE law ( LAW ) ; or a person in respect of whom a NORP court established obstacles to extradition , in accordance with the legislation and international treaties of GPE ( LAW ) . Finally , extradition should be denied if the act that gave grounds for the extradition request does not constitute a criminal offence under the ORG ( LAW ) .

In the event that a foreign national , whose extradition is being sought , is being prosecuted or is serving a penalty for another criminal offence in GPE , his extradition may be postponed until the prosecution is terminated , the penalty is lifted on any valid ground or the sentence is served ( LAW ) .

Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , ORG or his deputy is to “ take measures ” in order to decide on the preventive measure in respect of the person whose extradition is being sought . The preventive measure is to be applied in accordance with the established procedure ( LAW ) .

Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body , a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of GPE ( Article CARDINAL § CARDINAL ) .

Verifying the compatibility of section CARDINAL § CARDINAL of the Law on ORG in the GPE of DATE , ORG ruled that a foreign national liable to be expelled from the NORP territory could not be detained for CARDINAL without a court order .

Assessing the compatibility of LAW of the CCrP with LAW , ORG reiterated its settled case - law to the effect that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW CARDINAL § CARDINAL of LAW in all cases , including extradition proceedings .

In ORG view , the absence of specific regulation of detention matters in LAW did not create a legal lacuna incompatible with LAW . LAW ORG provided that , in executing a request for legal assistance , the requested party would apply its domestic law , that is the procedure laid down in the GPE That procedure comprised , in particular , LAW and the norms in its LAW ( “ Preventive measures ” ) , which , by virtue of their general character and position in Part I of the LAW ( “ General provisions ” ) , applied to all stages and forms of criminal proceedings , including proceedings for the examination of extradition requests .

The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in LAW were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without complying with the procedure established in the ORG or in excess of the time - limits fixed in the LAW .

The Prosecutor General asked ORG for official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person ’s detention with a view to extradition .

ORG refused the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time - limits for holding a person in custody with a view to extradition . That matter was within the competence of the courts of general jurisdiction .

The Constitutional Court reiterated its settled case - law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for NORP nationals . A foreign national or stateless person may not be detained in GPE for more than TIME without a judicial decision . That constitutional requirement served as a guarantee against excessively long detention beyond TIME , and also against arbitrary detention as such , in that it required a court to examine whether the arrest was lawful and justified .

ORG held that LAW , read in conjunction with LAW , could not be construed as permitting the detention of an individual for DATE on the basis of a request for his or her extradition without a decision by a NORP court . A custodial measure could be applied only in accordance with the procedure established in LAW and within the time - limits fixed in the Code .

ORG dismissed as inadmissible a request for a review of the constitutionality of LAW of the ORG , stating that this provision “ does not establish time - limits for custodial detention and does not establish the reasons and procedure for choosing a preventive measure , it merely confirms a prosecutor ’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused . Therefore the disputed norm can not be considered to violate constitutional rights of [ the claimant ] ... ”

In Ruling no . CARDINAL , adopted by LAW of ORG of GPE on DATE ( “ the Ruling of CARDINAL DATE ” ) , it was stated that , pursuant to LAW ORG , only a court could order the placement in custody of a person in respect of whom an extradition check was pending and where the authorities of the country requesting extradition had not submitted a court decision remanding him or her in custody . The judicial authorisation of placement in custody in that situation was to be carried out in accordance with LAW of the ORG and following a prosecutor ’s request for that person to be placed in custody ( paragraph CARDINAL of the Ruling ) . In deciding to remand a person in custody a court was to examine if there were factual and legal grounds for the application of that preventive measure . If the extradition request was accompanied by a detention order of a foreign court , a prosecutor was entitled to remand the person in custody without a NORP court ’s authorisation ( LAW ORG ) for a period not exceeding DATE , and the prosecutor ’s decision could be challenged in the courts under LAW

In extending a person ’s detention with a view to extradition a court was to apply LAW

When carrying out actions requested under LAW , to which GPE and GPE are parties , an official body applies its country ’s domestic laws ( LAW ) .

Extradition for the institution of criminal proceedings can be sought with regard to a person whose acts constitute crimes under the legislation of the requesting and requested parties and are punishable by imprisonment of DATE ( Article CARDINAL § CARDINAL ) .

Upon receipt of a request for extradition , the requested country should immediately take measures to search for and arrest the person whose extradition is being sought , except in cases where no extradition is possible ( Article CARDINAL ) .

NORP The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition . The petition must contain a reference to a detention order and indicate that a request for extradition will follow ( LAW ) . If the person is arrested or placed in detention before receipt of the extradition request , the requesting country must be informed immediately ( LAW ) .

A person detained pending extradition pursuant to LAW must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within DATE of the date of placement in custody ( LAW ) .

For relevant reports on GPE in the period DATE , see PERSON v. GPE , no . CARDINAL , § § DATE , DATE .

The UN Special Rapporteur on Torture stated to the CARDINALnd Session of the UN Human Rights Council on DATE the following :

“ The practice of torture in GPE is systematic , as indicated in the report of my predecessor PERSON visit to the country in DATE . Lending support to this finding , my mandate continues to receive serious allegations of torture by NORP law enforcement officials ... Moreover , with respect to the events in DATE in GPE , the ORG High Commissioner for Human Rights reported that there is strong , consistent and credible testimony to the effect that NORP military and security forces committed grave human rights violations there . The fact that the Government has rejected an international inquiry into the LOC events , independent scrutiny of the related proceedings , and that there is no internationally accepted account of the events , is deeply worrying . Against such significant , serious and credible evidence of systematic torture by law enforcement officials in GPE , I continue to find myself appealing to ORG to refrain from transferring persons to GPE . The prohibition of torture is absolute , and GPE risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture . I reiterate that diplomatic assurances are not legally binding , undermine existing obligations of GPE to prohibit torture , are ineffective and unreliable in ensuring the protection of returned persons , and therefore shall not be resorted to by GPE . ”

NORP In DATE ORG considered the third periodic report of GPE ( CAT / C / UZB/CARDINAL ) and adopted , inter alia , the following conclusions ( CAT / C / UZB / CO/CARDINAL ) :

“ CARDINAL . ORG is concerned about :

( a ) Numerous , ongoing and consistent allegations concerning routine use of torture and other cruel , inhuman or degrading treatment or punishment committed by law enforcement and investigative officials or with their instigation or consent , often to extract confessions or information to be used in criminal proceedings ;

( b ) ORG reports that such acts commonly occur before formal charges are made , and during pre - trial detention , when the detainee is deprived of fundamental safeguards , in particular access to legal counsel . This situation is exacerbated by the reported use of internal regulations which in practice permit procedures contrary to published laws ;

( c ) The failure to conduct prompt and impartial investigations into such allegations of breaches of the Convention ...

ORG has also received credible reports that some persons who sought refuge abroad and were returned to the country have been kept in detention in unknown places and possibly subjected to breaches of the Convention ...

ORG remains concerned that despite the reported improvements , there are numerous reports of abuses in custody and many deaths , some of which are alleged to have followed torture or ill - treatment ... ”

NORP In DATE ORG issued a report entitled “ Nowhere to Turn : Torture and Ill - Treatment in GPE ” , which provides the following analysis :

“ Prolonged beatings are CARDINAL of the most common methods used by the police and security agents to frighten detainees , break their will , and compel them to provide a confession or testimony . They often start beating and kicking detainees with their hands , fists , and feet and then continue using truncheons , filled water bottles and various other tools ...

Several individuals reported that they were either tortured with electric shocks or forced by police to watch as others were tortured with it ...

Police and security officers sometimes use gas masks or plastic bags to effect near asphyxiation of detainees . After forcing an old - fashioned gas mask over the head of the victim , who in some cases is handcuffed to a chair , the oxygen supply is cut ... ”

The ORG Special Rapporteur on Torture stated to the CARDINALrd Session of ORG on DATE the following :

“ CARDINAL . The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by NORP law enforcement officials ...

In light of the foregoing , there is little evidence available , including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in DATE ... ”

Amnesty International issued on CARDINAL DATE a document entitled “ GPE : A Briefing on Current Human Rights Concerns ” , stating the following :

“ ORG believes that there has been a serious deterioration in the human rights situation in GPE since the so - called PERSON events in DATE . ...

Particularly worrying in the light of GPE ’s stated efforts to address impunity and curtail the use of cruel , inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill - treatment by law enforcement officials and prison guards , including reports of the rape of women in detention . ...

Despite assertions by GPE that the practice of torture has significantly decreased , ORG continues to receive reports of widespread torture or other ill - treatment of detainees and prisoners .

According to these reports , in most cases the authorities failed to conduct prompt , thorough and impartial investigations into the allegations of torture or other ill - treatment . ORG is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other ill - treatment remains the exception rather than the rule .

Allegations have also been made that individuals returned to GPE from other countries pursuant to extradition requests have been held in incommunicado detention , thereby increasing their risk of being tortured or otherwise ill - treated and have been subjected to unfair trial . In CARDINAL case in DATE , for example , a man who was returned to GPE from GPE was sentenced to CARDINAL years’ imprisonment after an unfair trial . His relatives reported that , upon his return to GPE , he was held incommunicado for DATE during which time he was subjected to torture and other ill - treatment in pre - trial detention . He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible . ”

In DATE ORG released its DATE World Report DATE . The chapter entitled “ GPE ” , in so far as relevant , states as follows :

“ GPE ’s human rights record remains abysmal , with no substantive improvement in DATE . Authorities continue to crack down on civil society activists , opposition members , and independent journalists , and to persecute religious believers who worship outside strict state controls ...

Criminal Justice , ORG , and Ill - Treatment

Torture remains rampant in GPE . Detainees’ rights are violated at each stage of investigations and trials , despite habeas corpus amendments that went into effect in DATE . The NORP government has failed to meaningfully implement recommendations to combat torture that the ORG special rapporteur made in DATE .

Suspects are not permitted access to lawyers , a critical safeguard against torture in pre - trial detention . Police use torture and other illegal means to coerce statements and confessions from detainees . Authorities routinely refuse to investigate defendants’ allegations of abuse .

ORG

The NORP government ’s cooperation with international institutions remains poor . It continues to deny access to all CARDINAL ORG special procedures that have requested invitations , including those on torture and human rights defenders ... ”

NORP The applicant referred to a document entitled “ On Torture and Arbitrary Detention in GPE and GPE . Report to ORG Special Mechanisms ” , which was issued on DATE by ORG ( CIVICUS ) . In so far as relevant , it stated the following :

“ [ ... ] DATE after the special rapporteur on torture concluded that systemic torture exists in GPE , torture [ ... ] continues to be a routine component of investigations and detention and is a common practice in the penal systems . Forms of torture include .

• Bludgeoning with batons

• Genital mutilation

PERSON and female rape and sodomy

• Psychological humiliation and degradation

• Electrocution

Other at risk groups include :

• Refugees and asylum seekers who are often deported from other ORG countries back to GPE ... ”

Chapter “ GPE DATE ” of the ORG DATE report DATE , released in DATE of DATE , in so far as relevant , states as follows :

“ Despite assertions by the authorities that the practice of torture had significantly decreased , reports of torture or other ill - treatment of detainees and prisoners continued unabated . In most cases , the authorities failed to conduct prompt , thorough and impartial investigations into these allegations .

GPE again refused to allow ORG on torture to visit the country despite renewed requests ” .

In support of his allegation of the risk of ill - treatment in GPE , in particular , poor conditions of detention and a lack of medical assistance in prisons , the applicant also referred to a news item available on the Internet site http://www.fergananews.com . This document described the case of Colonel PERSON , formerly a citizen of GPE who had taken NORP citizenship and had been prosecuted for treason in GPE . At a certain point after his conviction Mr PERSON had suffered a stroke and had been transferred to another prison , without his family being informed thereof .


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

The applicants were born in DATE and DATE respectively . The first applicant lives in GPE , GPE , while the second applicant lives in PERSON , GPE .

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

On DATE PERSON filed a real estate claim against the applicants with ORG in ORG . The value of the dispute ( vrednost spora ) stated by the plaintiff was CARDINAL “ old dinars ” .

Following a remittal and a redenomination of the NORP currency , on DATE ORG ruled in favour of the applicants and noted that the value of the dispute was now CARDINAL “ new dinars ” .

Following CARDINAL remittals , on DATE and CARDINAL DATE respectively , ORG twice ruled in favour of the applicants , and on both occasions reaffirmed that the value of the dispute was MONEY .

On DATE ORG accepted the appeal filed by the plaintiff and , in so doing , ruled partly in his favour .

The applicants , who were represented by legal counsel , thereafter filed an appeal on points of law ( revizija ) .

On DATE ORG , however , rejected this appeal , stating that the applicants were not entitled to lodge it given that the value of the dispute in question was QUANTITY , the applicable statutory threshold . In particular , the court acknowledged that the parties had agreed , on DATE , that the value of the dispute should be MONEY , but observed that there was no separate ORG decision to this effect in the case file . Therefore , the relevant amount was the MONEY , as stated in the plaintiff ’s original claim , which was clearly less than the MONEY threshold under the relevant civil procedure rules ( see paragraphs CARDINAL and DATE below ) . Lastly , implicitly relying on its Opinion of CARDINAL DATE , ORG noted that the Government ’s Decree of DATE had provided that until DATE both old and new dinars would be valid legal tender based on the ratio that CARDINAL new dinar was worth MONEY . The “ plaintiff ” himself , however , had “ not amended the value of the dispute in new dinars ” by DATE ( see paragraph CARDINAL below ) .

The applicants were served with ORG decision on DATE .

Article CARDINAL § CARDINAL provides that an appeal on points of law ( revizija ) is “ not admissible ” in pecuniary lawsuits where the value of the dispute , as indicated by the plaintiff in his or her claim , does “ not exceed CARDINAL ... [ new ] dinars ” , this threshold having been introduced in DATE .

NORP However , Article CARDINAL provides , inter alia , that , should the value of the dispute stated by the plaintiff be “ obviously too high or too low ” , the court itself shall resolve the issue . This must be done , at the latest , at the preliminary hearing or , if one is not held , before the beginning of the main hearing at first instance .

Articles CARDINAL § § CARDINAL and CARDINAL and CARDINAL § CARDINAL provide that a civil claim may , with the consent of the parties , be amended / increased until the conclusion of the main hearing at first instance .

Article CARDINAL provides , inter alia , that the ORG shall reject any and all appeals on points of law which it deems inadmissible .

Lastly , ORG CARDINAL and CARDINAL - CARDINAL provide , inter alia , that the ORG shall , should it accept an appeal on points of law lodged by CARDINAL of the parties concerned , have the power to overturn the impugned judgment or quash it and order a retrial before the lower courts .

ORG opined that where an appeal on points of law would have been available according to the rules in force at the time when the civil claim had been brought , but where , following the redenomination , the value of the dispute in question clearly remained below the threshold of MONEY , an appeal on points of law could not be filed . If the parties , however , agreed to amend the value of their dispute so as to raise it above the said threshold by DATE , at the latest , an appeal on points of law would be admissible ( NORP shvatanje utvrđeno na sednici PERSON odeljenja ORG od CARDINAL . DATE . godine , published in ORG Bulletin no . CARDINAL ) .

Articles QUANTITY increased the minimum requirement for an appeal on points of law from MONEY to QUANTITY , but specified that , in respect of all suits brought earlier , the applicable amount would still be QUANTITY .

LAW entered into force on DATE , thereby repealing LAW DATE . LAW of the former , however , provides that in all cases which were brought before that date the applicable legislation , as regards an appeal on points of law , shall be the legislation which was in force prior to DATE .

Article QUANTITY provides , inter alia , that a meeting of a division ( sednica odeljenja ) of ORG shall be held if there is an issue as regards the consistency of its case - law . Any opinions ( pravna shvatanja ) adopted thereupon shall be binding for all panels ( veća ) of the division in question .


Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

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

In DATE the applicant brought an action for damages against ORG following the death of her husband during his military service in GPE .

On DATE ORG of PERSON granted the applicant 's claim . Her award consisted of a lump - sum compensation of MONEY ( ORG ) and DATE payments of ORG CARDINAL,CARDINAL.CARDINAL , subject to future adjustment to a statutory rate . The DATE payments were not paid to the applicant .

In DATE the applicant brought new proceedings to obtain the adjustment of the outstanding DATE payments .

On DATE ORG of PERSON granted the applicant 's claim . It made an adjustment of the DATE payments increasing them retrospectively to RUR CARDINAL,CARDINAL . It awarded the applicant arrears of RUR CARDINAL,CARDINAL.CARDINAL in respect of the period from DATE to CARDINAL October CARDINAL .

On DATE the applicant obtained an execution order , which she submitted to ORG of GPE for payment .

On DATE , after the case had been communicated to the Government , the applicant was paid PERSON , and on DATE she was paid ORG .


No violation of Art. 6;No violation of Art. 13

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä

The applicant married PERSON in DATE . They had CARDINAL children . The marriage broke down and the applicant applied for divorce . PERSON left the marital home at DATE . The children remained with the applicant who , in DATE , had applied to ORG ( “ the CSA ” ) to obtain financial support from their father for bringing up the children . There had been an oral agreement that he pay GBP CARDINAL maintenance per week towards the support of the children . According to the applicant , some payments had been voluntarily made but they had rapidly ceased . She only had a limited income from a part - time evening job and child benefit and even when she obtained full - time secretarial employment in DATE she was struggling financially .

The ORG did not send a Maintenance Enquiry Form ( ORG ) to PERSON until DATE , which resulted in the applicant losing the opportunity to receive maintenance for the period prior to that date .

On DATE Mr K returned the ORG accepting paternity . Insufficient information was given to allow a full maintenance assessment to be made . An interim maintenance assessment ( ORG ) was issued with effect from DATE .

Mr K ’s liability changed many times after DATE , inter alia as his employment changed and it proved difficult to obtain information .

According to the summary in the later High Court judgment , the key features were as follows :

By DATE arrears of GBP CARDINAL,CARDINAL had accumulated .

The ORG negotiated an agreement with PERSON that he would pay under the ORG , GBP MONEY per week plus GBP CARDINAL towards arrears .

On DATE a liability order was applied for because he had breached the agreement . The order was discontinued when regular payments were resumed .

On DATE the Secretary of ORG issued an apology to the applicant for the inconvenience caused by the delay in issuing the ORG and paid her GBP CARDINAL,CARDINAL.CARDINAL , comprising the amount of child support she might have received up to that point if the ORG had been sent at the proper time , namely ORG ( inclusive of interest ) , and ORG ex gratia compensation .

On DATE , the ORG issued a further apology about the service which she had received and made an additional " consolatory " compensation payment of GBP CARDINAL .

NORP In DATE and DATE , the ORG paid the arrears not yet received plus interest for the delay .

On DATE a second application for a liability order was granted for GBP CARDINAL,CARDINAL.CARDINAL , covering arrears from DATE to CARDINAL DATE . Payments were not made and bailiffs were instructed to levy distress , but were unsuccessful .

On DATE the liability order was registered as a county court debt . Consideration was given to a committal order but the policy was to use this only as a last resort .

On DATE a deduction of earnings order ( ORG ) was issued for GBP MONEY per month , increased to GBP CARDINAL on DATE . Following this Mr K again stopped paying . EOs on the company of which he was a director proved unsuccessful . In an interview with the CSA Mr K alleged that he had stopped paying as CARDINAL of the qualifying children had been living with him for DATE and a third had moved in recently , while the fourth had gone to live with the mother in GPE . The ORG was aware of the changed circumstances of the children and had taken this into account in assessments . Having established that the applicant was permanently resident in GPE the case was closed on DATE with effect from DATE . Arrears remained due however and the ORG continued to seek to enforce them .

On DATE a committal hearing was held . Mr K admitted owing GBP CARDINAL for the period CARDINAL DATE to DATE and ORG for the period DATE until DATE . He agreed to pay the former sum by DATE and the latter sum at GBP DATE from DATE .

Payment was not made in DATE . He was contacted on DATE and told that unless payment was made by DATE committal proceedings would be restored . A payment of GBP CARDINAL was made on DATE .

The applicant brought proceedings under LAW DATE ( ORG ) , seeking a declaration that the provisions of LAW DATE were incompatible with LAW as they denied a parent with care of children access to court in connection with disputes as to whether the absent parent had paid or ought to pay sums due under a maintenance assessment or as to the manner in which the obligations under the maintenance assessment should be enforced and seeking damages under LAW ORG based on the ORG ’s undue delay after DATE in taking steps to enforce the child maintenance assessments obtained in this case . She maintained that she had expended much energy and suffered much stress in attempting to get the ORG to obtain payments for her and had been repeatedly told that the dispute was between the ORG and Mr K and did not involve herself ; she believed that she would not have received a fraction of the money eventually paid if she had not continually pressurised the ORG and complained of their inaction and inability to obtain maintenance for her .

On DATE , Mr Justice Wall found that the applicant had a civil right to seek maintenance for her children from their father , such right being an autonomous substantive right , plainly recognised in LANGUAGE law and provided for by domestic legislation . The exclusion of the claimant from the enforcement process imposed a procedural bar on the prosecution / enforcement of the claim which engaged LAW . He found that the court was given jurisdiction by the ORG such that if the ORG had acted in any way incompatible with the claimant ’s LAW rights she could bring an action for damages under section CARDINAL , while any decision by the CSA not to enforce or any failure to enforce timeously or effectively would be subject to challenge by judicial review . On this basis the scheme under LAW was ORG compliant and she was not entitled to a declaration of incompatibility . He issued directions with a view to an eventual trial as to whether there had been undue delay and to determine any damages . This part of the order was stayed pending appeal to ORG .

On DATE , ORG upheld the Secretary of ORG ’s appeal and dismissed the applicant ’s cross - appeal . It held , as summarised in the head note :

" that LAW DATE introduced a new child support system , its self- contained nature being a critical feature of its effect in domestic law ; that the scheme was built firmly on the central premise that the assessment , collection and enforcement of maintenance orders should be in the hands of ORG and consequentially it redefined the rights and obligations of parents and those caring for children ; that there was no justification for departing from the general principle that LAW was concerned only with disputes recognisable as such under domestic law and founded on the existence of an underlying right ; that under the scheme the applicant had no legal right in domestic law to a child maintenance payment of any particular amount or at all ; and that , accordingly , she was unable to assert that she had an arguable civil right under LAW which entitled her to a determination by a court . ”

The Court of Appeal further held that the judge had erred in finding that she had a right to damages to supplement her limited right of judicial review ; damages could only be awarded where the LAW was incompatible with LAW did not become incompatible because of a lack of entitlement to damages for its incompatibility .

On DATE , ORG , by a majority of CARDINAL , rejected the applicant ’s appeal .

Lord GPE of PERSON stated in rejecting the appeal :

" [ CARDINAL ] That a caring parent in the position of PERSON was given no right of recovering or enforcing a claim to child maintenance against an absent or non - resident parent was not a lacuna or inadvertent omission in the DATE Act : it was the essence of the new scheme , a deliberate departure from the regime which had previously obtained . The merits of that scheme are not for the ORG in its judicial capacity to evaluate . But plainly the scheme did not lack a coherent rationale . The state has an interest , most directly in cases where public funds are disbursed , but also more generally that children should be adequately supported . It might well be thought that a single professional agency , with the resources of the state behind it and an array of powers at its command , would be more consistent in assessing and more effective and economical in enforcing payment than individual parents acting in a random and uncoordinated way . It might also be thought that the interposition of an independent , neutral , official body would reduce the acrimony which had all too frequently characterised applications for child maintenance by caring against absent or non - resident parents in the past which , however understandable in the aftermath of a fractured relationship , rarely enured to the benefit of the children . For better or worse , the process was deliberately changed .

[ CARDINAL ] The DATE Act can not in my opinion be interpreted as conferring any right on a parent in the position of PERSON She is of course the person to whom child maintenance will be paid , directly or indirectly and subject to any deduction of benefit , as the person who incurs the expense of bringing up the children . But the right which she had enjoyed under the former legislation was removed , and the right to recover the maintenance has been vested in the CSA ... "

Baroness PERSON of GPE , dissenting , found that prior to the DATE Act a father had , at common law , a duty to maintain his legitimate minor children which had always been unenforceable in the courts . However it had been expanded and reinforced by CARDINAL kinds of statutory obligation : a private law obligation to make the payments ordered by a court under various statutes ( e.g. matrimonial and family proceedings ) and a public law obligation to reimburse the ORG for benefits paid for the children . The new scheme which transferred the task of assessing and collecting maintenance from the courts did not however remove these obligations or the corresponding right of the child to benefit from them . The obligation of a parent to maintain his children and the right of the children to have the benefit of the parental obligation to maintain them were not wholly contained in the CARDINAL LAW . LAW left all previous law intact save precluding courts from using their powers in cases where the ORG was supposed to do it for them . Accordingly the children ’s civil right to parental support survived the DATE Act which acted not only as a limit to the extent of the obligation but also as a limit to its enforcement . Article CARDINAL was therefore engaged .

In assessing whether the limitations on enforcement of those rights was compatible with the ORG , ORG noted that there was undoubtedly a legitimate aim . Although the non - enforceability by the custodial parent in non - benefit cases was not a necessary feature of comparable child support schemes elsewhere in the common law world , the matter had been debated . That possibility was rejected as the ORG did not want to create CARDINAL law for the rich and CARDINAL for the poor . There were also cases where the parent with care was sometimes in receipt of benefits and at other times not . She concluded that this was just the sort of policy choice in a socio - economic field which the courts were usually prepared to leave to the judgment of ORG , which was best able to make the decision as to which scheme would most effectively secure the recognition and enforcement of the children ’s rights generally . It would be difficult to hold that the scheme as a whole was incompatible with the children ’s rights to a speedy determination and enforcement of their claims . That said , she considered that the public authority charged by ORG with securing those rights was under a duty to act compliantly with LAW . She would therefore have allowed the appeal and restored Mr Justice Wall ’s order .

Meanwhile , all money owed to the applicant was paid by DATE and her case was closed .


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving a prison term in FAC . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON .

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

On DATE the applicant had a motor accident and suffered injuries to his spine . Following the accident , the applicant underwent several operations as well as other medical treatment and rehabilitation . He was diagnosed with vertebral fracture , tetraplegia and spastic paraplegia and is incontinent . He is classified as PERCENT disabled .

On DATE the applicant was detained in PERSON in connection with a criminal investigation opened in respect of him . On DATE the applicant was transferred to ORG ( GPE lišene slobode - “ the ZPH ” ) . He was accommodated in a room measuring QUANTITY together with CARDINAL other patients . With no assistance from staff , he could not wash or relieve himself unless his roommates helped him to do so . Owing to his disability , the applicant was unable to leave his bed because the space between the beds was not wide enough for the wheelchair . He alleges that the bathroom and toilet were in a poor state of repair and always dirty and smelly . During his stay in the ZPH the applicant did not leave the surgical ward .

NORP The medical documentation submitted confirms that the applicant is severely disabled and reliant on a wheelchair to move around . During his stay in the ZPH the applicant was diagnosed with hepatitis C.

On DATE the ORG ( PERSON u GPE ) found the applicant guilty of trafficking in illegal substances and sentenced him to CARDINAL years’ imprisonment .

On DATE the applicant petitioned a sentence - execution judge of ORG and complained about the conditions in which he had been kept . He sought immediate transfer to an institution where he could be provided with adequate medical care . It appears that he received no reply .

On DATE the applicant lodged a constitutional complaint about the conditions of his detention in the ZPH .

In a medical certificate of CARDINAL DATE the head of the surgical ward of the ORG stated that the ZPH had no adequate accommodation for the applicant and that they were not in a position to ensure that he could go outside .

On DATE the applicant was transferred to PERSON .

According to the applicant the conditions of his detention in that prison , as regards the size of his cell and the time he spends outdoors , have ameliorated . However , he had to buy a wheelchair adapted for his needs at his own expense . He also needs an electric bed , which would be more suitable for his condition . The mattress he sleeps on is also inadequate . He does not have a cupboard or a table next to his bed . The medical personnel leave the prison LOC DATE at TIME and after that time he is dependent on the QUANTITY other inmates who share his cell . Thus , they shower him , change his urinary sheath , transfer him from his bed to his wheelchair and clean him when he accidentally relieves himself in bed . Also , since his arrival at FAC he has developed a bed sore on his foot and his cellmates change the bandages on that wound . They also help him change his clothes , cut his nails and shave him . In this respect he depends on their goodwill .

According to the Government the applicant is held in a cell measuring QUANTITY , together with CARDINAL other inmates who voluntarily help him in maintaining his personal hygiene and his physiological needs . The cell has central heating and is never locked . The applicant has the opportunity to spend time outdoors anytime TIME He uses a toilet and shower adapted for wheelchair users and is under the constant supervision of a doctor , a nurse and a paramedic . He has his meals in the prison canteen or sometimes in his cell . In his free time he watches television on his own television set in his cell . He also often goes to a bowling alley adapted for people with disabilities . All the entrance areas at the prison are adapted for wheelchair users . The applicant has the right to go to a nearby town for TIME a month .

On CARDINAL DATE the applicant gave oral evidence before ORG in the proceedings concerning the conditions in the ZPH ( see paragraph CARDINAL above ) . He repeated his complaints as regards the conditions and lack of adequate medical care in the ZPH . He made no complaints as regards his placement in FAC . The relevant part of the ORG decision referring to the applicant ’s statement as regards PERSON reads :

“ The applicant says that he was transferred to PERSON on DATE and speaks well of the conditions in that institution . ”

On DATE ORG accepted the applicant ’s complaint and found a violation of his constitutional right to humane treatment and respect for his dignity guaranteed under LAW . It found that the ZPH had no facilities for persons in the applicant ’s condition and also ordered ORG to secure the “ unhindered movement of prisoners with special needs ” in the ZPH within DATE . It did not make a decision as to where the applicant should be detained in the future .

On an unspecified date the applicant filed a claim for damages with the NORP State Attorney ’s Office , asking that a settlement be reached in the matter . The ORG authorities offered to pay him MONEY ( HRK ) in compensation , which he refused . On DATE he brought a civil action against the ORG in ORG ( PERSON GPE ) seeking compensation in the amount of HRK CARDINAL . These proceedings are still pending .

The relevant articles of LAW ( Ustav PERSON ) provide :

“ No one shall be subjected to any form of ill - treatment ... ”

“ All detainees and convicted persons shall be treated in a humane manner and with respect for their dignity .

Section CARDINAL(CARDINAL ) of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL ) reads :

“ CARDINAL . Everyone may lodge a constitutional complaint with ORG if he or she deems that a decision ( pojedinačni akt ) of a ORG body , a body of local and regional self - government , or a legal person with public authority , which has decided on his or her rights and obligations , or with respect to a suspicion or accusation of a criminal act , has violated his or her human rights or fundamental freedoms , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : constitutional rights ) ... ”

The relevant provisions of LAW ( Zakon o obveznim odnosima , ORG nos . CARDINAL/CARDINAL and CARDINAL ) read as follows :

“ ( CARDINAL ) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by LAW .

( CARDINAL ) The right to respect for one ’s personal integrity within the meaning of this LAW includes the right to life , physical and mental health , good reputation and honour , the right to be respected , the right to respect for one ’s name and privacy of personal and family life , freedom , et alia .

“ Damage is ... infringement of the right to respect for one ’s personal dignity ( nonpecuniary damage ) . ”

The relevant part of section ORG ) of LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) reads as follows :

“ A person intending to bring a civil suit against GPE shall first submit a request for settlement to the competent ORG .

Where the request has been refused or no decision has been taken within DATE of its submission , the person concerned may file an action with the competent court .

The relevant provisions of ORG o izvršavanju kazne zatvora , ORG nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) read as follows :

“ ( CARDINAL ) An inmate may lodge a request for judicial review of any acts or decisions unlawfully denying him , or limiting , any of the rights guaranteed by LAW .

( CARDINAL ) NORP for judicial review shall be decided by the sentence - execution judge . ”

( CARDINAL ) A sentence - execution judge protects the rights of prisoners , supervises the legality of the execution of a prison term and ensures equality of prisoners before the law .

( CARDINAL ) A sentence - execution judge takes acts and decides in respect of :

Judicial review of [ ORG ] rights by deciding on appeals lodged against a decision of a prison governor in cases prescribed by this LAW ;

“ ( CARDINAL ) Proceedings before a sentence - execution judge are initiated at first instance upon a request by a party or by a judge and at second instance upon an appeal .

( CARDINAL ) A sentence - execution judge acts so as to , according to basic principles , ensure the effective protection of the rights and interests of the prisoner concerned . ... The judge shall allow the parties to submit their observations about the facts [ presented by ] and allegations put forward by the opponent , and to present new facts and call for evidence .

( CARDINAL ) The parties to the proceedings are the prisoner and the prison or penal institution .

( CARDINAL ) A prisoner has the right to a lawyer of his or her own choice . Such a lawyer shall have qualifications required for a defence lawyer in criminal proceedings . When a prisoner does not ensure legal representation within TIME , the proceedings shall continue without legal representation .

( CARDINAL ) A prisoner may ask for a legal - aid lawyer when he does not have sufficient means to pay for legal representation and is not able to represent his own interests .

( CARDINAL ) A sentence - execution judge may consult all official documents concerning a prisoner , pay a visit to the prison or penal institution concerned and establish the relevant facts in any other manner .

( CARDINAL ) A sentence - execution judge may hold a hearing in appropriate premises of a prison or penal institution . ”

( CARDINAL ) NORP Parties to the proceedings , a prisoner ’s representative and the persons listed in LAW may lodge an appeal against a decision of a sentence - execution judge adopted at first instance ...

( CARDINAL ) The appeal shall be lodged with a sentence - execution judge , who shall immediately forward it to a judicial panel of a county court . That panel shall decide within DATE ... ”

“ ( CARDINAL ) A sentence - execution judge , at the request of the convict ... may issue a decision on suspension of the execution of a prison term ...

( CARDINAL ) The sentence - execution judge shall adopt a decision under subsection ( CARDINAL ) of this section within DATE of conducting the proceedings where the reasons for suspension have been established .

( CARDINAL ) ORG may be granted on the following grounds :

Serious illness or serious exacerbation of a chronic illness which can not be treated in prison .

( CARDINAL ) The execution of a prison term on the ground under subsection CARDINAL ) of this section may be suspended for as long as the illness lasts ...

( CARDINAL ) ORG suspension shall not exceed DATE , save for [ a suspension granted ] on the ground under subsection CARDINAL ) of this section . ”

“ ( CARDINAL ) ORG shall be provided with medical treatment and regular care for their physical and mental health ... ”

“ Conditional release is the release of a convict before his or her prison term has expired . ... ”

“ ( CARDINAL ) A request for conditional release may be lodged by the convict ...

( CARDINAL ) ORG , a convict suffering from a serious illness may be conditionally released after CARDINAL of his or her prison term has expired where the prison regime does not provide conditions for his or her treatment . ”

“ ( CARDINAL ) A request ... for conditional release shall be decided on by a commission composed of a president and CARDINAL members . The commission shall be appointed by the Minister of ORG . CARDINAL of its members shall be judges recommended by ORG , one of whom shall be the President of the Commission . CARDINAL of its members shall be a Deputy ORG Attorney recommended by the ORG Attorney ; and CARDINAL shall be a sentence - execution judge appointed according to the location of the prison . CARDINAL member shall be from ORG ... ”


CASE OF HACHETTE FILIPACCHI ASSOCIES v. FRANCE

In its CARDINAL DATE edition the NORP DATE magazine ORG , published by the applicant company , featured an article in its “ News ” section entitled ' PERSON assassinée ' ( GPE ) , concerning the murder of the Prefect PERSON in GPE , Corsica , on DATE .

The article was illustrated by a photograph of the scene , taken moments after the murder , showing the prefect 's body lying on the ground .

The article was published DATE after the murder , by which time the news had been extensively covered and commented on in the media , both in the printed press and on television , including the national channels .

The magazine 's CARDINAL - page colour photograph showed Mr PERSON 's lifeless body lying on the ground , his face turned partly towards the camera . In the right hand corner of the picture , under the headline ' PERSON assassinée ' , the following commentary could be read :

“ On this GPE pavement , on DATE at TIME , PERSON , ORG , wrote a tragic page in our history with his blood . No prefect had been killed in GPE since PERSON in DATE ... In DATE the bullets fired into the back of this unarmed man , who was on his way to listen to PERSON 's “ Heroic Symphony ” , will shake all those who thought terror was something you get used to out of their stupor . In the book of condolences opened at the prefecture , many NORP , proud as they are reputed to be , will write their “ shame ” . They will applaud President PERSON when , at the memorial in GPE to all those who gave their lives for GPE , he reaffirms the values of the Republic . Values which , DATE , have become a challenge . ”

On DATE PERSON widow and children lodged an urgent application against several companies ( including the applicant company ) seeking the seizure , under LAW , of all copies of magazines containing the aforesaid photograph ( including ORG ) and prohibition of their sale on penalty of fines . They also sought an award of damages in the sum of MONEY ( ORG ) payable jointly and severally by the defendants .

The claimants submitted that the purpose of publishing the photograph of the bloody , mutilated body of ORG was by no means to inform the public but purely commercial , and constituted a particularly intolerable infringement of their right to respect for their private life .

NORP The defendant companies replied that the picture of a person who died in a public place because of the post he occupied could not constitute either a violation of his family 's right to respect for their private life or a manifestly unlawful infringement warranting the intervention of the urgent - applications judge when the picture had been published in the context of a political and judicial event that amounted to a national tragedy and , furthermore , had been published and disseminated by numerous other press agencies and television channels , including public ones .

By an order of CARDINAL DATE , the President of the GPE tribunal de grande instance , under LAW of LAW , found against the applicant company and the other defendant companies for the following reasons :

“ ... the claimants contend that , in spite of being put on notice , the DATE magazines ORG and ORG published in their editions which went on sale on CARDINAL DATE a photograph of the bloody , mutilated body of PERSON , ORG , who was murdered in GPE on DATE ;

... it is established that the public 's right to information authorises a newspaper to inform its readers , in words or in pictures , of any exceptional event that amounts , as in this case , to a national tragedy , drawing it to the attention of public opinion ;

... this fundamental right has its limits only in a publication which is particularly intolerable , because the excessively serious nature of the text or picture is liable to cause the victims unbearable distress , the nature and extent of which are for the urgent - applications judge to determine , in keeping with the provisions of LAW of LAW ;

... in the instant case the publication of the photograph showing the dead body of Prefect PERSON lying in the street can not but constitute an intolerable injury to the feelings of the claimants , who have undergone a particularly serious emotional shock in view of the exceptional circumstances of the murder ;

... the need for information can not justify the existence of such an infringement DATE even if the photograph in issue , which was taken in a public place , was touched up and published by different news sources – without every effort being made to preserve the dignity of the murdered prefect 's body and show a minimum of consideration for the feelings of the claimants , for whom time had not yet alleviated the horror of their ordeal ;

... however ... a seizure order would be unenforceable in practice , and disproportionate to the nature of the infringement complained of , for which compensation could be sought in court ... ”

The urgent - applications judge ordered the applicant company to publish the following statement at its own expense in the following issue of ORG , in a box measuring QUANTITY by QUANTITY , under the heading “ Court - ordered statement ” in bold characters QUANTITY high :

“ By order of CARDINAL DATE , the GPE tribunal de grande instance , acting on an application in urgent proceedings , declared that the photograph published by ORG in its DATE issue , showing the dead body of the Prefect PERSON , caused PERSON and her children considerable distress . ”

The applicant company appealed against that order , submitting that the measure concerned amounted to a violation of press freedom and the right to inform guaranteed under LAW . It argued that the photograph in issue was the dark , subdued image of a historic event and , as such , could not constitute an intrusion into the PERSON family 's private life . The applicant company also disputed the alleged indecency of the photograph .

In a judgment delivered on DATE ORG upheld the interim order , but modified the content of the statement . Having had regard , in particular , to LAW , ORG ruled that :

“ ... under the provisions of LAW , exercise of the right to freedom of expression may be subject to such penalties as are prescribed by law and are necessary in a democratic society for the protection of the rights of others ;

... LAW embodies a penalty that meets the requirements of the aforesaid provisions , namely that judges may , without prejudice to a right to compensation for damage sustained , order any measures , such as seizure , attachment and others , that may prevent an intrusion into private life or cause it to cease ; in the event of urgency such measures may be ordered on an interlocutory application . ”

... in the instant case ... the offending photograph , as published ... by the DATE ORG , clearly shows the body and face of PERSON , lying on the ground in a street in GPE in the moments following his murder on DATE ;

... the publication of that photograph at a time when PERSON close family was still in mourning , as it was done without their consent , constituted a gross intrusion into their grief and , accordingly , the intimacy of their private life ;

... in the presence of such an intrusion an urgent - applications judge who finds , as in the instant case , that he is unable materially to make the intrusion cease , by a seizure measure , for example , is empowered by the last of the laws mentioned above to prescribe any other appropriate measure ;

... it follows that the measure of publishing a statement prescribed by the first judge is legally justified under the provisions of LAW , provided that its purpose is to cause the intrusion into the PERSON family 's private life to cease ;

... in order to satisfy that requirement , the content of the statement should be modified in the manner prescribed in the operative provisions of this judgment , and the decision ordering its publication should be combined with a fine ... ” .

ORG ordered the publication , in the first issue of ORG to be published after the judgment had been served , of a statement worded as follows :

“ ... in bold characters QUANTITY high , under the heading “ Publication of court judgment ” , in a box measuring QUANTITY :

“ In a judgment of DATE , ORG ordered the publication of the following statement :

The photograph of the body of PERSON lying on the ground in a street in GPE which appeared in edition CARDINAL of the DATE ORG , dated DATE , was published without the consent of PERSON family , who consider its publication as an intrusion into the intimacy of their private life ” ... ”

The applicant company lodged an appeal on points of law , claiming among other things that there had been a violation of LAW .

In a judgment of DATE ORG dismissed the appeal for the following reasons :

“ ... having noted that the photograph published clearly showed the body and face of the murdered prefect lying on the ground in a street in GPE , ORG was able to rule that the picture concerned showed disregard for human dignity and that its publication was illegal , its decision thus being legally justified with regard to the requirements of LAW ... ” .

The PERSON family brought no proceedings on the merits .

Article CARDINAL reads as follows :

“ In all urgent cases the President of the tribunal de grande instance may order any interim measures which are not seriously disputable or are justified by the existence of a dispute . ”

Article CARDINAL reads as follows :

“ The president may order at any time , even in the event of a serious dispute , such measures to preserve or restore the present position as are necessary either to prevent imminent damage or to put an end to a manifestly unlawful infringement .

Where the existence of an obligation is not seriously disputable , he may award an advance to the entitled party , or order the execution of the obligation , even if it is an obligation to take action . ”

Article CARDINAL provides :

“ Everyone has the right to respect for his private life .

Judges may , without prejudice to a right to compensation for damage sustained , order any measures , such as seizure , attachment and others , that may prevent an intrusion into private life or cause it to cease ; in the event of urgency such measures may be ordered on an interlocutory application . ”

Article CARDINAL of the Civil Code provides as follows :

“ The law ensures the primacy of the person , prohibits any infringement of a person 's dignity and guarantees respect for the human being from the beginning of life . ”

Section CARDINAL , paragraph CARDINAL , of the version in force at the material time DATE which was repealed on DATE – provided :

“ [ A fine of MONEY ] shall be applicable in established cases of publication , by any means , of photographs , engravings , drawings or portraits reproducing all or part of the circumstances of any of the crimes and offences provided for in chapters I , II and VII of part II of book II of the Criminal Code . ” [ which cover murder , among other things ] .