André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

NORP The applicant in the first case , Mr PERSON ( hereinafter also referred to as “ the first applicant ” ) , is an NORP national , who was born in DATE and lives in GPE , GPE . He was represented before the ORG by the law firm LAW , PERSON , ORG colleagues , GPE , GPE .

NORP The applicant in the second case , PERSON ( hereinafter also referred to as “ the second applicant ” ) , is a NORP national , who was born in DATE and lives in GPE .

NORP The instant applications relate to decisions by the domestic courts ordering the taking of cellular material from the applicants , who had both been convicted of criminal offences in the past . The measures were ordered pursuant to LAW domestic law below ) outside pending criminal proceedings at the prosecution authorities’ request with a view to determining the applicants’ DNA profiles for identification purposes on the occasion of future criminal proceedings .

The courts ordered in each case that in the event the applicants should refuse to voluntarily provide cellular material by means of a saliva sample , a blood sample was to be taken from them by a doctor in accordance with LAW ( see Relevant domestic law below ) . They further specified that any cellular material obtained from the applicants had to be handed over to the expert in charge of its examination without disclosing the applicants’ identity , that the sample was to be used exclusively for the molecular genetic examinations referred to in LAW and that it was to be destroyed without delay once it was no longer required for establishing the applicants’ DNA profiles .

In its related decision of CARDINAL DATE with respect to Mr PERSON ORG noted that the first applicant had been convicted by a judgment of ORG dated DATE of CARDINAL counts of drug trafficking and been sentenced to an aggregate prison sentence of DATE and DATE . On CARDINAL occasions the crime had been preceded by the offence of illicit importation of drugs and on CARDINAL occasions the first applicant had in addition instigated the illicit importation of drugs . ORG further pointed to CARDINAL previous convictions of PERSON in GPE for having infringed the Swiss Narcotics PERSON . It referred in this context to judgments by the Horgen ORG ( Bezirksgericht ) dated DATE and by ORG dated DATE imposing a prison sentence of DATE and DATE and a suspended prison sentence of DATE respectively .

In view of the seriousness of the offences committed in the past and the resulting negative criminal prognosis for the first applicant , ORG found that the order to take a DNA sample from him and the execution of such measure were proportionate .

By a decision of DATE ORG , endorsing ORG decision , dismissed the first applicant ’s related appeal and held that the conditions for the taking of an DNA sample pursuant to LAW were met in the instant case . In ORG opinion the considerable length of the prison sentence imposed on the first applicant by ORG in DATE showed that the underlying drug offences constituted serious crimes in the meaning of the said provision . In this connection and in particular in view of the considerable amount of drugs that had been trafficked it was irrelevant that the applicant had “ only ” dealt with marihuana . ORG further found that there were grounds to assume that criminal proceedings concerning serious offences would have to be conducted against the applicant in the future . The first applicant ’s negative criminal prognosis followed in particular from the fact that his conviction in DATE had not only related to a single spontaneously committed offence of drug trafficking but to a series of offences committed over the period from DATE to DATE . Moreover , he had previously been convicted of similar offences in GPE . The fact that his first conviction by the PERSON ORG dated back as long as DATE did not put into question his negative criminal prognosis . It had been demonstrated by the judgment of ORG dated DATE that the applicant had committed further drug - related offences in the period from DATE to DATE in GPE , i.e. prior to his conviction in GPE in DATE . ORG further specified that the applicant ’s potential expulsion to GPE did not have an impact on its assessment of the case . Pursuant to NORP criminal law crimes of the kind at issue were subject to NORP jurisdiction even when committed abroad . Moreover , the fact that an individual had his place of residence abroad did not prevent him from committing offences in GPE .

By written submissions to ORG dated CARDINAL DATE the first applicant argued that there was nothing to indicate that he would commit further offences similar to the ones that had been at the origin of his previous convictions . He invoked in particular that the crimes referred to by ORG in its decision of DATE dated back DATE and that he had already served prison sentences of a considerable duration in this respect . Furthermore , since he was supposed to be expelled to GPE after having served CARDINAL of his prison sentence , it was unlikely that he would reoffend in GPE and take the risk of having to serve the residual term of his prison sentence as a consequence .

On DATE ORG held that the first applicant ’s submissions did not provide any additional arguments that would require it to deviate from its previous decision of DATE .

By a decision of CARDINAL DATE ( file no . CARDINAL BvR CARDINAL/CARDINAL ) ORG dismissed the applicant ’s constitutional complaint without providing reasons .

NORP In its decision of CARDINAL DATE with respect to Mr GPE ORG , referring to the latter ’s criminal record since DATE , held that the repeated commission of offences by the second applicant in the past had reached a degree of unlawfulness equal to the commission of an offence of considerable significance within the meaning of LAW . In DATE the second applicant had been convicted by ORG of having caused bodily harm by dangerous means ( gefährliche GPE ) and had been sentenced to a suspended prison sentence of DATE . By a judgment of CARDINAL DATE ORG had found him guilty of CARDINAL counts of attempted coercion ( PERSON ) and had imposed a fine of CARDINAL euros payable in CARDINAL DATE instalments . On DATE the same court had convicted the second applicant of a further offence of having caused bodily harm by dangerous means and sentenced him to a suspended prison sentence of DATE . Finally , by a judgment of ORG ( Landgericht ) , GPE , of CARDINAL DATE , he had been found guilty of having persistently stalked a woman and had been sentenced to CARDINAL months’ imprisonment . As regards the CARDINAL incidents involving bodily harm in DATE and DATE the GPE ORG specified that the second applicant had sprayed tear or pepper gas into his respective GPE faces from a short distance leaving CARDINAL victim with painful skin irritations and the other with an eye inflammation .

In LOC opinion the manner in which the offences had been committed showed that the second applicant had a tendency to compromise considerably the physical well - being of others and that further serious criminal offences were to be expected from him in the future . The court further found that having regard to the intervals in which the offences had been committed , it could be expected that the second applicant would repeatedly commit further offences similar to the ones that had been at the origin of the criminal proceedings instituted against him in the past . Having regard to the nature of the offences at issue it was conceivable that DNA traces would be left at the scene of a future crime and the measure ordered by the court was thus justified and necessary for the purpose of establishing identity and gender on the occasion of future criminal proceedings .

By written submissions dated CARDINAL DATE the applicant appealed ORG decision . He maintained in particular that the offences committed by him in the past had not been of a gravity that justified an interference with his personal rights under LAW . He further complained that ORG had not complied with his request to hear him in person and had not adequately reasoned its decision .

By a decision of CARDINAL DATE the NORP - ORG dismissed the appeal holding that the conditions for the taking of a DNA sample pursuant to LAW had been clearly met in the instant case and that ORG order had consequently been proportionate . ORG held that , firstly , the CARDINAL incidents involving bodily harm that had been at the origin of the second applicant ’s convictions in DATE and DATE constituted serious offences in the meaning of the said provision . On each of these occasions the second applicant had shown aggressive behaviour towards third persons without having been particularly provoked by the latter . Both offences had been committed in a similar way and demonstrated a significant criminal energy on the part of the second applicant and his potential for aggression .

ORG further recalled that LAW put the repeated commission of offences on an equal footing with the commission of a serious crime for the purpose of justifying the taking of a DNA sample . ORG pointed out that the legislator had specified in this context that repeated offences in the context of so - called stalking of the type that had been at the origin of the second applicant ’s conviction by judgment of ORG in DATE , constituted an example where the repeated commission of an offence reached a degree of unlawfulness that was equal to the commission of a serious offence . The second applicant ’s previous convictions further showed that he had a tenacious and incorrigible character which was also reflected in his partly confused and incomprehensible submissions to ORG in the instant proceedings . Having regard to the second applicant ’s numerous past convictions , his personality and the circumstances under which the offences had been committed , ORG found that there clearly remained a risk that criminal proceedings concerning similar offences would have to be conducted against him in the future .

On DATE ORG , at the prosecution authorities’ request , revoked the suspension of the second applicant ’s prison sentence imposed by its judgment dated DATE ( see paragraph CARDINAL above ) . With reference to the conviction for stalking by ORG dated CARDINAL DATE which had meanwhile become final , ORG argued that the fact that the second applicant had reoffended in the course of his probationary period demonstrated that a suspended sentence was not sufficient to counter the risk of recidivism .

By a decision of CARDINAL DATE ( file no . CARDINAL BvR CARDINAL/CARDINAL ) ORG declined to consider the applicant ’s constitutional complaint of CARDINAL DATE against the NORP - ORG decision of DATE without providing reasons . It further held that , as a consequence , there was no need to decide on the applicant ’s request for interim measures .

While the applicants’ submissions suggest that the court orders were subsequently executed and DNA samples taken from each of them , neither of the applicants has specified on which date the intervention occurred and whether the samples were obtained by means of saliva or blood samples .

Article CARDINALa to f of the German Code of Criminal Procedure ( Strafprozessordnung ) provide for the taking of DNA samples for the purpose of convicting suspects within the scope of pending criminal proceedings . By contrast , LAW regulates the taking of cellular material from suspects and convicts with a view to determining their DNA profile for use in future criminal proceedings . LAW g § CARDINAL in its current version , as also applicable at the time of the proceedings at issue , provides for such measure if a person is suspected of having committed or has been convicted of a criminal offence of considerable significance ( PERSON erheblicher GPE ) or of a crime against sexual self - determination and in the event the nature of the offence or the way it was committed , the personality of the concerned person or other information provide grounds for assuming that criminal proceedings will be conducted against him or her in future in respect of a criminal offence of considerable significance . Under these conditions cellular material may be obtained from the person concerned and subjected to molecular and genetic examination with a view to determining his or her DNA profile ( DNA - Identifizierungsmuster ) or gender for identification purposes in future criminal proceedings .

It is further specified in the provision that the repeated commission of criminal offences may reach a degree of unlawfulness ( GPE ) that is tantamount to a criminal offence of considerable significance . This alternative ground for the taking of cellular material has been introduced into LAW g § CARDINAL by the LAW on the revision of forensic DNA - analysis dated DATE ( Gesetz PERSON forensischen ORG , ORG I , p. CARDINAL ) . According to the explanatory memorandum to the LAW the repeated commission of offences does not automatically reach the same level of significance as a serious crime . An order for the taking of cellular material under this alternative is only admissible in the event the circumstances of a particular case taken together provide evidence that the repeated commission of offences reaches the same degree of unlawfulness as a serious crime in the meaning of the provision . While , for instance , repeated fare evasion for public transport would as a rule not reach such threshold , this could , by contrast , be the case in the event of repeated trespassing in the context of stalking .

The second paragraph of LAW stipulates that cellular material obtained may be used only for the aforementioned molecular and genetic examination and shall be destroyed without delay once it is no longer required for that purpose . Information other than that required for establishing the DNA profile or the gender may not be ascertained during the examination and tests to establish such information shall be inadmissible . Without the written consent of the person concerned , the taking of cellular material may be ordered only by a court and , in case of imminent danger ( Gefahr i m Verzug ) , by the public prosecution authorities including the officials assisting it ( section CARDINAL of LAW ) . Without the written consent of the person concerned , the molecular and genetic examination of cellular material may be ordered only by a court . The related court order shall specify in each case the determining facts relevant to ascertaining the seriousness of the criminal offence at issue , the information giving rise to the assumption that the accused will be the subject of criminal proceedings in the future , as well as an evaluation of the relevant circumstances .

Pursuant to LAW g read in conjunction with the second paragraph of LAW the courts shall appoint the experts responsible for the examination of the DNA material and determination of DNA profiles . The experts have to meet certain requirements with a view to ensuring their independence from the investigating authority as well as their professional integrity . They shall provide for the technical and organisational safeguards to ensure that inadmissible molecular and genetic examinations and unauthorised access to data are excluded . The cellular material to be examined shall be given to the expert with no indication of the name , address or date or month of birth of the data subject .

Article CARDINAL g § CARDINAL states that the data obtained may be stored at ORG ( Bundeskriminalamt ) and be used in accordance with the relevant provisions of ORG ( Bundeskriminalamtgesetz ) . Data may only be transmitted for the purpose of criminal proceedings , preventive aversion of dangers ( Gefahrenabwehr ) or international legal assistance in respect thereof .

In the event of the taking of cellular material by means of a blood sample LAW apples mutatis mutandis . The taking of blood samples is to be effected by a physician in accordance with the rules of medical science , provided no detriment to the concerned person ’s health is to be expected . Blood samples or other body cells taken may be used only for the purposes set out in LAW and shall be destroyed without delay as soon as they are no longer required for such purposes .

Since DATE ORG maintains a national DNA database in which DNA profiles obtained in compliance with ORG to g of LAW are stored . ORG contains rules on the storage and use of such DNA profiles . According to section CARDINAL of ORG , ORG in its capacity as central agency for police information and intelligence in connection with the prevention and prosecution of criminal offences of federal , international or considerable significance , shall collect and analyse all relevant information for carrying out such task . Pursuant to LAW a convict ’s personal data may be saved in files for the use in future criminal proceedings in the event particular circumstances give reason for believing that the person concerned will commit criminal offences of considerable significance . Personal data taken from an individual suspected of having committed a criminal offence have , as a rule , to be deleted in the event the proceedings against the concerned person have been definitely discontinued or once the suspect has been acquitted ( section CARDINAL § CARDINAL ) . The data compiled in the national DNA database may be made available to the Federal and NORP police authorities and according to LAW the public prosecution authorities may retrieve information from the database for the purpose of administering criminal justice . Section CARDINAL of ORG stipulates that personal data saved in files have to be deleted once their storage has become inadmissible or in the event the retention of the data is no longer necessary for the performance of ORG Office’

By a judgment of DATE ( CARDINAL BvR CARDINAL/CARDINAL ; CARDINAL ORG and CARDINAL BvR CARDINAL/CARDINAL ) ORG held that the provision of LAW was constitutional . It emphasised that the scope of the provision was limited to the determination of a suspect ’s or convict ’s DNA profile for the purpose of establishing identity in future criminal proceedings and that the cellular material obtained in this respect had to be destroyed once the DNA profile was determined . The DNA profile as such did not allow for conclusions to be drawn as regards the personal characteristics of a concerned individual such as his or her hereditary dispositions , character traits or diseases and did not enable for an individual ’s personal profile to be established . In ORG opinion the core area of personality ( PERSON ) that enjoyed absolute protection under constitutional law was thus not affected by the measures permitted under LAW .

ORG found , however , that the determination , retention and future use of DNA profiles constituted an interference with the constitutionally guaranteed right to self - determination over personal data ( informationelles Selbstbestimmungsrecht ) . Any restriction of such right was only permitted if prescribed by law and in the event it was justified by an overriding public interest and complied with the principle of proportionality . ORG specified in this respect that while LAW was not aimed at the prevention of future criminal offences , it did however facilitate the investigation of future crimes of considerable significance and thus served the proper administration of justice . ORG further held that the provision was sufficiently precise to qualify as a law from a constitutional point of view . The term “ criminal offence of a considerable significance ” could be found in a number of provisions of LAW and had been defined in the established case law of the domestic courts as comprising crimes of medium gravity ( mittlere ORG ) which seriously compromised law and order and were of a nature that could considerably affect the population ’s sense of legal certainty ( GPE ) .

The court finally held that the precautionary ( “ vorsorglich ” ) taking of evidence permitted under LAW did not infringe the principle of proportionality . The taking of such evidence could only be ordered in the event the concerned person had previously been convicted of an offence of considerable significance and in the event there were concrete indications that further proceedings concerning criminal offences of considerable significance were to be conducted against him or her in the future . Moreover , by strictly limiting the use of cellular material collected for the purposes defined in the LAW and by making its destruction compulsory once the concerned person ’s DNA profile was established , the legislator had provided for safeguards to prevent abuse of cellular material obtained .

ORG specified that when ordering a measure pursuant to LAW had to establish and clarify the circumstances of each particular case . In their assessment they had to take into account the available criminal files and records with respect to the person concerned and had to provide plausible reasons for their assumption that it was likely that the latter would commit further crimes of considerable significance in the future .

By a subsequent judgment dated DATE ( CARDINAL BvR CARDINAL/CARDINAL ) LAW further held that the possibility of ordering the taking of a DNA sample in the event the repeated commission of criminal offences showed a degree of unlawfulness similar to the commission of a serious criminal offence - an alternative introduced by LAW on the revision of forensic DNA - analysis dated DATE - did not give rise to concerns from a constitutional point of view . With reference to the explanatory memorandum to the said LAW see above paragraph CARDINAL ) , ORG noted that this alternative did not allow the domestic courts to automatically conclude that the repeated commission of offences justified an order for the taking of cellular material . By contrast , the domestic courts were obliged to have regard to the specific circumstances of the individual case and in particular the personality of the person concerned and the manner in which the offences had been committed . On this basis they had to proceed to an overall assessment of the degree of unlawfulness reflected in the offences committed and to be expected in the future while always observing the principle of proportionality in their decision - making .

For a summary of relevant ORG and ORG legal instruments and an overview of relevant national legislation in a selection of ORG member states , reference is made to the ORG ’s judgment in PERSON and GPE v. GPE [ ORG ] , ORG . CARDINAL and CARDINAL/CARDINAL , § § CARDINAL to CARDINAL , ECHR DATE .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested by ORG on suspicion of drug trafficking .

DATE he was placed in pre - trial detention by the prosecutor attached to ORG .

On DATE the prosecutor committed the applicant for trial .

On DATE ORG convicted the applicant of drug trafficking and sentenced him to DATE and DATE imprisonment .

The sentence was upheld on appeal by ORG ( decision of DATE ) and on appeal on points of law by ORG ( final decision of DATE ) .

On DATE the applicant requested the revision of the judgment , arguing that he was in possession of new relevant evidence that would prove his innocence and that he was willing to deliver it in person to the prosecutor . On DATE ORG declared his application inadmissible .

The applicant was held in detention from DATE until his release on CARDINAL DATE .

DATE and DATE he was held in the detention facilities at FAC . From DATE he was detained for the most part in ORG and ORG in GPE . For short periods of time , from DATE , he served his sentence in the penitentiaries in GPE , PERSON , GPE and GPE .

The applicant described the cells in ORG as overcrowded and dirty , alleging that he contracted skin infections and scabies and caught fleas .

As for ORG , he claimed that he shared a QUANTITY . m room equipped with CARDINAL beds with CARDINAL other detainees . The room was infested with bedbugs and the walls were mouldy . Warm water was available once DATE for TIME and heating was available in DATE for TIME . The cell was ventilated through a window , but the door was constantly closed . The window pane was missing and the inmates put up a blanket in order to cover it .

Outdoor exercise was allowed DATE for TIME .

NORP The food was bad , and meat was available only on NORP holidays and in the event of inspections .

The detainees were taken for medical check - ups once DATE and when treatment was needed they were advised to seek medicine from their families .

The Government provided official information , submitted by ORG authorities , concerning the size and facilities of all the cells that the applicant had occupied during his detention .

In PERSON , he stayed in the following cells : nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL which were all QUANTITY . m in size and accommodated DATE inmates at the time ; no . CARDINAL which was QUANTITY . m in size and accommodated CARDINAL - CARDINAL inmates at that time ; and in no . CARDINAL which was CARDINAL sq . m in size and accommodated CARDINAL inmates .

The official documents did not give the exact number of bunks per cell .

Each cell had a window and separate sanitary facilities with CARDINAL toilets and a sink with drinking water . Hot water was available only in a special bathing area where the inmates were taken once DATE .

Each DATE heating was available DATE , according to a pre - established schedule .

NORP The inmates were responsible for the cleaning of their cells , using products put at their disposal by the penitentiary . Pest control measures and insecticide treatments were carried out each trimester .

The applicant was allowed TIME of outdoor exercise per day .

In ORG , the applicant shared a QUANTITY . m cell with a maximum of CARDINAL co - detainees . It had CARDINAL bunk beds . A QUANTITY . m room with a toilet and cold water was attached to the cell . Hot water was available twice DATE TIME The cells and the toilets had windows .

As in PERSON , the inmates cleaned their own cells and pest control measures were carried out each trimester .

Outdoor exercise was allowed for TIME each day .

According to the prison medical record , the applicant was registered on DATE as a drug user , with the last dose being taken TIME before the consultation . He was also recorded as suffering from posttraumatic stress , as a consequence of bone fractures suffered in DATE .

On DATE and DATE he was recorded as suffering from withdrawal syndrome .

From DATE he went on hunger strike .

On DATE the applicant was taken to the medical care centre after having attempted to commit suicide .

Regular check - ups were organised for the DATE bone fractures . Several investigations were undertaken in the context of his requests for early release . On DATE an orthopaedist in ORG recommended surgery to remove the internal fixation ( osteosynthesis ) of the fractures . The repeated examinations and expert reports by the penitentiary doctors and by ORG ( Institutul Naţional de Medicină Legală PERSON the INML ” ) consistently concluded that adequate treatment and surgical intervention were possible in the penitentiary medical system .

However , the applicant refused to be operated on in the penitentiary hospitals .

NORP In letters of complaint sent to various authorities and to the Court , the applicant and his wife claimed that the painkillers that he had received in prison had been insufficient for the pain associated with his bone fractures . From DATE the applicant was given additional medicine for stomach ache , which he attributed to the painkillers prescribed .

On CARDINAL occasions the applicant requested early release from prison on medical grounds , arguing that the bone fractures he had suffered in DATE needed further treatment .

His first request was rejected on DATE by ORG , based on a medical expert report of DATE which had concluded that the applicant 's conditions were treatable in the penitentiary hospitals . The applicant appealed . A new expert report ordered in the case also concluded that the applicant was medically fit for detention . Therefore , on DATE ORG upheld the above judgment . ORG also found that , in so far as the applicant 's conditions were treatable in the penitentiary hospitals , his repeated requests to be treated in a civilian hospital or abroad were an abuse of process .

His second request for release , filed with ORG on DATE , was finally rejected on DATE , after numerous postponements caused by the applicant 's refusal to undergo a medical examination . The expert report drafted on DATE after the applicant 's examination concluded once again that his conditions were treatable in the penitentiary hospitals .

The domestic legislation on the execution of sentences , in particular PERSON no . TIME , Emergency Ordinance no . CARDINAL ( “ Ordinance no . CARDINAL ” ) and PERSON no . CARDINAL/CARDINAL , is described in GPE v. GPE , no . CARDINAL , § § DATE , DATE .

The relevant findings and recommendations of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) are described in GPE v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON GPE ( no . CARDINAL , § § DATE , DATE ) . In particular , the ORG notes that in the report on the DATE visits , the ORG expressed concern at the limited living space available to prisoners and the insufficient space provided by the regulations in place at that date . It also noted that prisoners were sometimes obliged to share a bed and that the toilets were not sufficiently separate from the living space .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Remainder inadmissible;Just satisfaction dismissed (out of time)

The applicant was born in DATE and lives in GPE .

On DATE ORG ordered ORG PERSON ” to pay the applicant ORG CARDINAL,CARDINAL.CARDINAL in salary arrears and compensation for the delay in its payment .

On DATE ORG of Lugansk instituted enforcement proceedings .

On DATE ORG informed the applicant that the decisions in his favour had not been executed due to the substantial number of enforcement proceedings against the debtor and the debtor 's lack of funds .

On DATE the applicant was paid the amount due to him in full .

NORP In DATE the applicant instituted proceedings in ORG of GPE against the same company , seeking compensation for its failure to pay him the judgment debt of DATE .

On DATE the court rejected the applicant 's claim as unsubstantiated . On DATE and CARDINAL DATE , respectively , ORG and ORG upheld the decision of DATE .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE and DATE , DATE ) .


Violation of Art. 2 with regard to death of applicant's son;Violation of Art. 2 with regard to failure to carry out effective investigation;No violation of Art. 3 in respect of applicant's son;Violation of Art. 3 in respect of applicant;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 13;Not necessary to examine Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The facts of the case , particularly concerning events from DATE to CARDINAL DATE when PERSON was held in custody by the security forces , were disputed by the parties . The Commission , pursuant to former LAW ( a ) of the LAW , conducted an investigation with the assistance of the parties .

The Commission heard witnesses in GPE from DATE . These included the applicant ; PERSON , the public prosecutor at Cizre who signed the request for the extension in detention of PERSON ; Dr PERSON , doctor at ORG who treated PERSON for a bullet wound to the knee ; PERSON Can who examined PERSON at ORG ; Major PERSON , the LOC gendarme commander who apprehended PERSON ; PERSON who was present at ORG apprehension ; Colonel PERSON , who was in charge of transferring PERSON from ORG ; PERSON , PERSON and PERSON , who worked in GPE provincial gendarme interrogation department at the time of PERSON arrival at GPE ; and ORG , a “ confessor ” , who had previously joined the ORG and had later given himself up to the authorities .

The DATE ’s findings of fact are set out in its report of DATE and summarised below ( Section A ) . The applicant accepts the ORG ’s findings of fact . The Government ’s submissions concerning the facts are summarised below ( Section B ) .

In DATE , the NORP region in the south - east corner of GPE , close to the GPE and NORP borders , was the scene of intense terrorist activity . The town of GPE was close to the GPE mountains , where there were numerous ORG camps and shelters . The road between ORG , the provincial centre , was subject to attack , necessitating military protection for convoys passing on the main road between the CARDINAL towns .

NORP The district gendarme commander in Cizre at the time was Captain PERSON . The provincial gendarme headquarters , commanded by a colonel , was located in GPE , as was the CARDINALrd gendarme border brigade . Though the CARDINAL commands were distinct , it appeared from the evidence that the provincial gendarme command headed by a colonel was subordinate to the brigade command under a general . There was an interrogation centre at the provincial gendarme command , where the CARDINAL interrogators PERSON , PERSON and PERSON worked .

During an operation conducted in or around the Cudi district of Cizre by the police and district gendarmes early in the morning of DATE , PERSON was shot in the knee and taken into custody by gendarmes under Captain PERSON ’s command at TIME . In the search report of DATE detailing this incident , it was stated that PERSON had been found in possession of a PERSON rifle , handgun and hand grenades . According to this report and the oral evidence of Captain PERSON , PERSON immediately revealed to the gendarmes his name , that his code name was “ LOC and that he had come to Cizre to carry out actions for the ORG . Captain PERSON considered that it was apparent from what PERSON told him that he was a commander . However , he did not recall that PERSON made any offer to him to give assistance in finding ORG locations . PERSON , who was also on the scene at this time , heard PERSON give his name and code name and say that he was from the mountain . He did not hear PERSON volunteer any assistance to the security forces .

After this initial exchange with the gendarmes at the scene of his capture , PERSON was taken to ORG where he was admitted for treatment by PERSON at TIME . PERSON had no recollection of PERSON but was of assistance in deciphering his report for ORG . This recorded that PERSON had an entry and exit wound to the knee , with injury to the front lower right knee joint . He was conscious and at that point his life was not in danger . Due to the lack of equipment and orthopaedic expertise , PERSON recommended his transfer to GPE .

At a time unknown the same day , PERSON was handed over to Captain PERSON , an officer from the GPE provincial gendarmerie who was in command of the convoys going between GPE and GPE .

The Commission requested , on numerous occasions , the records which indicated the places and times of PERSON detention following his apprehension . No record was provided indicating where he was held in Cizre between his treatment in hospital and his transfer to the GPE convoy . Captain PERSON thought that PERSON must have been entered in the LOC gendarme records as he was detained pursuant to the authority of the NORP public prosecutor . Records provided by the Government from NORP district gendarmerie contained no entry concerning PERSON .

The decision to transfer PERSON to GPE was taken by the DATE gendarme border brigade . Captain PERSON had reported the capture of PERSON to the brigade command and they requested his transfer to GPE . The transfer record of DATE also referred to the brigade ’s request . The reason for the transfer was not expressed in that document . Captain PERSON considered that PERSON would have had to go to GPE as he was a commander with information about the GPE mountains and it was the forces in GPE who conducted operations in that region .

The only record relating to PERSON detention after his arrival in GPE was an entry in the ORG polyclinic record . This was dated DATE , giving no time . Neither Captain PERSON nor the doctor who gave treatment had any recollection of the incident , so were unable to provide any explanations as to exactly when he arrived or to whom he was delivered . Dr Can , who treated PERSON , considered on the basis of his entry in the hospital record that he would have treated the injury , placing a long leg splint or supervising an assistant in doing so . He was of the opinion that PERSON would not have been admitted to the hospital as his notes made no reference to this step being taken or considered necessary . The follow up treatment which he stated would be necessary DATE antibiotics , which would most likely have been handed to the patient on the spot , and the requirement for the wound to be dressed at DATE intervals – did not require continuous hospital care .

Of the CARDINAL officers identified by the Government as having interrogated PERSON at the GPE provincial gendarme headquarters DATE PERSON , PERSON and PERSON – CARDINAL , PERSON , remembered interrogating PERSON . No logs or records were provided by the ORG from the interrogation department recording PERSON interrogation , nor the interrogation notes which the witnesses said would have been taken . The Government denied that these documents existed . The only source of information about the interrogation of PERSON therefore was the oral evidence of PERSON and the brief comments which appeared in various gendarme reports following PERSON ’s alleged escape .

According to PERSON , he interviewed PERSON on CARDINAL occasion , while PERSON was confined to bed either in the hospital or infirmary . He remembered taking notes which they gave to their superiors . He could recall that the information related to the area where the person had carried out activities but did not mention any alleged offer to assist the security forces by showing locations . The Delegates had also requested the infirmary records concerning PERSON presence and treatment . The Government stated the infirmary records contained no information about PERSON .

Though the Commission did not exclude that the hospital or infirmary records were inaccurate , it noted that in its experience it had found the records made by doctors to be generally reliable , if sometimes brief , whereas the inaccuracy of , and omissions from , gendarme records had been the subject of adverse findings in a number of cases . Further , it found the testimony of the interrogation officers to be unconvincing , giving the impression of being selective or piecemeal accounts . From their evidence , it was generally expected for the same officers to follow through a suspect ’s interrogation to the stage when a statement was taken by the district gendarmerie who had the responsibility at the end of the custody period to deliver the suspect to the public prosecutor for judicial procedures to be followed . PERSON had no explanation however for why he only visited PERSON once . While PERSON removal from the interrogation process must have been unexpected or unusual , he apparently knew nothing about it – nor about PERSON ’s apparent involvement in an operation to locate shelters or his apparent escape afterwards . The ORG was not persuaded that a suspect in respect of whom the provincial gendarmerie had commenced interrogation would or could be transferred elsewhere without some information or explanation being provided to the officers involved in the interrogation . Furthermore , a single , apparently brief interrogation did not account for the CARDINAL DATE extended custody periods which were requested by the FAC district gendarmerie on behalf of those holding PERSON .

The evidence of the interrogation officers was therefore unable to provide any approximate date as to when any interrogation took place or any reliable basis on which to reach any finding as to where PERSON was held after his examination by Dr Can . Though his wound should have been dressed DATE and Dr Can would have expected himself , or another doctor , to check the patient ’s state after DATE or DATE , there is no evidence that he received any follow - up medical care after DATE .

A custody period of DATE from the date of apprehension was granted by the NORP public prosecutor at the request of the district gendarme commander . A further period of DATE was granted by him on DATE on the request of the district gendarmerie .

According to a hand written incident report dated DATE , TIME , signed by a gendarme captain group commander PERSON and gendarme first lieutenants PERSON and PERSON , both of whom were team commanders , PERSON escaped from the security forces while assisting them on an operation in the GPE mountains to find ORG shelters .

According to the evidence of the doctors who treated him , it was probable that PERSON was not rendered completely immobile by the injury to his knee . With the long leg splint , he would have been able to hobble , with a crutch or assistance . In DATE after the injury , he would have been in considerable pain . By DATE , a period of DATE after his injury , he would have been expected to have made some recovery . PERSON , the orthopaedics expert , estimated that the splint would have had to stay on for DATE and that a patient might be able to run as well as walk within the same range of time . He pointed out that with sufficient motivation a person could run , notwithstanding a high level of pain . In the absence of medical notes , the ORG was unable to reach any firm conclusions as to what state of fitness PERSON would have been in on DATE . It found it highly unlikely however that he was fully fit or able to walk or run normally at this date .

The Commission found that the incident report of CARDINAL DATE was an unreliable document . The report stated that PERSON ran off after a clash broke out , under cover of the fading light , precipitation and rocky terrain . It did not mention how many gendarmes were involved in the operation , how many were guarding the suspect and whether – and if not , why not – the suspect was restrained or handcuffed in some way . No details were given of the steps taken to recover the suspect . The times given on the report were particularly implausible . It was stated that the clash broke out at TIME following which there was a sequence of events – the escape , the discovery of the escape , an unsuccessful search , the monitoring of various radio conversations between terrorist – culminating in the drawing of the report and its signing by the CARDINAL officers at TIME .

In these circumstances , the ORG considered that it was of crucial importance that the CARDINAL signatories of the report gave explanations of the document and what they in fact saw and did . The Delegates in requesting the ORG ’s assistance in summoning them to give evidence emphasised that the ORG should at the same time identify the officers who personally witnessed PERSON escape as the Commission had experience that the signatories of reports did not necessarily have any direct knowledge of the contents . At the taking of evidence in DATE , ORG informed the Delegates that they had been unable to find CARDINAL officers who signed the report and that they had recently received information that the names used were code names . In reply to the FAC request for steps be taken to identify the officers who used these code names in DATE , the ORG stated that it was not possible to identify the CARDINAL officers . The Delegates also requested the other operation records or details which could cast light on the incident . The Government stated that no other records existed .

No document was provided recording authorisation for the transfer of PERSON to any particular operational command at GPE . In particular , there was no contemporaneous document or record indicating that he was transferred from the provincial gendarme interrogation unit elsewhere . It had not been established by the written or oral evidence that PERSON had in fact offered to show locations during his interrogation .

The Government relied principally on the evidence of CARDINAL ex - ORG members or “ confessors ” – the written statements taken from ORG and PERSON , and the oral evidence of ORG – as substantiating the allegation that PERSON had escaped and rejoined the ORG in the GPE mountains on DATE . The ORG however did not find this material to be reliable or , on certain crucial aspects , credible . It referred , inter alia , to the lack of any explanation as to how the CARDINAL confessors came to be identified at the same time as persons with relevant information about PERSON ; that ORG and PERSON statements of CARDINAL DATE referred to injuries suffered by PERSON in DATE and made no reference to the injury which he had received in DATE ; and the fact that ORG statement of CARDINAL DATE stated that he joined the ORG in DATE becoming a friend of PERSON before his capture in Cizre , though that latter event occurred on DATE .

The ORG also found that ORG oral evidence was inconsistent and unconvincing . His story changed under questioning and gave the impression of embroidery . It was not reconciliable with uncontroverted facts . For example , ORG was insistent that he spent a DATE training course with PERSON after he joined the ORG in DATE , which explanation formed the basis for his claim of forming a close friendship with PERSON , whereas PERSON was apprehended in Cizre in TIME of DATE . ORG were accordingly not satisfied that he had seen PERSON after DATE as asserted . It concluded that the ORG ’s claim that PERSON escaped while assisting the security forces on an operation was not substantiated by the evidence given and could not be regarded as established as a fact or a significant probability . There was accordingly no explanation for what happened to PERSON after he was treated by Dr Can at ORG on DATE .

The applicant was informed on DATE that his son had been apprehended and injured in a clash in LANGUAGE . Arriving in Cizre on DATE , he went to see the public prosecutor immediately . He was told to come back after DATE extended custody period . Meanwhile , the applicant sought to visit , or discover further information , about his injured son by approaching the gendarmerie in GPE and Cizre but was turned away . On the expiry of DATE period , at DATE or beginning of DATE , he returned to the public prosecutor handing in a written petition . The public prosecutor signed the petition and he took it to the district gendarme commander who referred him back to the public prosecutor . During DATE period to end , the applicant returned to the public prosecutor repeatedly seeking for news and on CARDINAL occasion , the public prosecutor contacted the district gendarmerie by telephone .

On the expiry of the second period , the applicant returned to the public prosecutor . On DATE , he handed in a further written petition which stated that he had no news although DATE had passed from DATE second custody period . He requested information and stated that he feared for his son ’s life . On or DATE , the public prosecutor informed him that it was reported that his son had escaped . The written report from the district gendarmerie to the prosecutor was dated DATE but it was possible that the information was received by the public prosecutor prior to this date . The applicant informed the public prosecutor orally that he did not believe this story and that he believed his son had been tortured and killed .

The public prosecutor at Cizre took no steps to investigate the alleged escape of PERSON while in custody in reaction either to the applicant ’s expressed fears or to the fact that a prisoner awaiting judicial procedures had somehow been permitted to escape . On DATE , the public prosecutor issued a decision of withdrawal of jurisdiction and transferred the file concerning PERSON as a suspected member of the ORG to ORG ( ORG ) public prosecutor . It stated as an apparent fact that he had escaped to rejoin the ORG . The steps taken by the ORG prosecutor were related to investigating his membership of ORG and not related to investigating his disappearance .

The applicant returned to Cizre in DATE to see the public prosecutor , who informed him that the case had been transferred to ORG .

Following the communication of the case to the respondent Government by the ORG in DATE , it appears that an investigation was briefly pursued by the Cizre public prosecutor ( file no . MONEY ) This was limited to an enquiry dated DATE to the NORP district gendarme command for the names of the officers who signed the report of DATE to be identified . Following a letter dated CARDINAL DATE from the FAC district gendarmes which stated that enquiries should be addressed to the GPE gendarme border regiment command , and that the special operations group command were responsible , the NORP public prosecutor declined jurisdiction in a decision of DATE , transferring his file to the GPE public prosecutor .

NORP The GPE public prosecutor had meanwhile commenced an investigation ( prel . DATE ) under the prompting of GPE . At this stage , the following steps were taken :

– on DATE , a request was made to the DATE gendarme border regiment for the identities of the personnel of the special operations group involved in the operation of CARDINAL DATE to be identified ;

– on DATE , a statement was taken from the applicant on CARDINAL DATE by the ORG public prosecutor ;

– on DATE , a statement was taken from ORG by a public prosecutor ;

– on DATE and DATE , an urgent reminder was sent requiring a response to the above request of DATE ;

– on DATE , a request for information about the identities of personnel was sent to GPE provincial gendarme command who replied on CARDINAL DATE that it was ORG who had taken PERSON ;

– following receipt of a letter on DATE , in which ORG command denied knowledge of the CARDINAL names on the report of DATE but named CARDINAL officers ( LOC , NORP and Çetin ) as being group commander and team commanders at that time , a request was made for those QUANTITY officers to be asked a list of CARDINAL specific questions , namely , about whether they were serving in ORG at the time , whether they or ORG received PERSON , whether they knew the names on the report and where it would be possible to identify the names on the report ;

– on DATE , a request was made of the NORP public prosecutor for the transfer record concerning PERSON .

On DATE , the GPE public prosecutor issued a decision of withdrawal of jurisdiction , stating that it had not been possible to identify the officers involved in the alleged incident . The decision concluded that the matter should be investigated under LAW as it concerned special operations teams and that the file was to be transferred to the GPE provincial administrative council .

The investigation was taken over by ORG who by letter of DATE appointed Major PERSON , a gendarme officer from the provincial gendarme command to investigate the allegations that PERSON had been killed and to identify the perpetrators . This stage of the investigation lasted until DATE . During this period , Major PERSON again asked ORG specifically to identify the CARDINAL persons who signed the report . He received the reply on DATE that the names were not found in the records and that the records had been burned in DATE with the result that the names of the personnel who were on operation in GPE at the time could not be determined . Major PERSON requested medical records and transfer details about PERSON from the Cizre district gendarmerie . Via a rogatory request , he obtained statements from the applicant , ORG , Captain PERSON and the CARDINAL officers previously named as having served in GPE special operations at the relevant time . They stated , inter alia , that PERSON had not been delivered to them and that code names were not permitted , though Captain PERSON was noted as recognising his signature on the incident report of DATE . On the basis of this information , Major PERSON found in his report of CARDINAL DATE , that it was established that PERSON had been taken to GPE mountain to locate ORG shelters by teams from the CARDINALrd gendarme border brigade special operations group command and that he had escaped on DATE . The statements of ORG and PERSON were referred to as supporting this . The report noted that there were no interrogation records concerning PERSON though it appeared that Captain PERSON had transferred him to ORG . The report concluded that it was not possible to establish the identities of the suspects , the identities of the persons of the report not being ascertainable due to changes in military personnel , the failure to keep records properly and the destruction of records . In those circumstances , a prosecution could not be brought . The provincial governor accepted this conclusion and the proceedings were terminated .

The investigation documents concerning the enquiries by the GPE public prosecutor and Major PERSON , the gendarme officer appointed by ORG were submitted to the Commission by the Government on DATE , after the Commission had closed the taking of evidence and invited the parties to submit their oral observations . These documents included information about the possible identification of special operations group officers involved in the PERSON incident . Though the names of CARDINAL officers were known to the investigating authorities in DATE , the Government did not bring them to the attention of the ORG or its Delegates who could have taken the decision to call them to give oral evidence . The ORG found that in failing to provide it with this information during the taking of evidence , the ORG had fallen short of its obligations under former LAW ( a ) of the LAW to furnish all the necessary facilities to the Commission in its task of establishing the facts of the case .

PERSON was apprehended on DATE by the security forces during an armed clash with ORG terrorists . During interrogation , PERSON said that he knew certain hideouts used by ORG members in the GPE mountains . Upon this information , a search team went to the mountains with PERSON . This area was used frequently by the ORG . A clash started between the ORG and the security personnel . Benefiting from this clash , PERSON escaped and was lost immediately in the near darkness . He was not handcuffed and knew the area very well . It was very probable that he re - joined the ORG following his escape . He would have been able to run even though his leg was injured .

As PERSON escaped from the security forces , the Government stated that it was not for them to prove that he is still alive and they can not give an explanation for his whereabouts .

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .

Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . It is also an offence for a government employee to subject CARDINAL to torture or ill - treatment ( Article CARDINAL in respect of torture and Article CARDINAL in respect of ill - treatment ) or to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil servants ) .

The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutor ’s offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor ’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG prosecutors and courts established throughout GPE .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by the Law of DATE on the prosecution of civil servants ( sometimes referred to as LAW ) , which restricts the public prosecutor ’s jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect ’s status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the ORG . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor ’s authority .

If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person ’s life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender ’s superior .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

“ All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG ’s strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people ’s lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

DATE of Legislative Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph DATE above ) , provides :

“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant ’s guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative act ” or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim ’s right to bring an action against the authority on the basis of its joint liability as the official ’s employer ( LAW ) .


Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in LANGUAGE .

In DATE the Pest Central District Court found the applicant , a recidivist offender , guilty of attempted blackmail and plunder and sentenced him to DATE imprisonment . On appeal , ORG , on CARDINAL DATE , re - characterised his actions as offences of “ taking the law into one ’s own hands ” , attempted aggravated assault and a violation of personal liberty , but reduced his sentence to DATE imprisonment .

NORP In DATE the applicant was charged with aggravated assault . In the ensuing proceedings the applicant was assisted by court - appointed defence counsel .

After holding CARDINAL hearings , ORG found the applicant guilty as charged on DATE . ORG took account of the protraction of the proceedings as a mitigating factor and sentenced him to CARDINAL years’ imprisonment . ORG relied on documentary evidence , the opinion of a forensic medical expert and the testimony of several witnesses as well as the applicant .

The applicant appealed , seeking acquittal on the ground that the judgment was ill - founded . ORG notified the applicant ’s lawyer that it would determine the appeal at deliberations in camera . In reply , the lawyer put forward his arguments in detail and requested the court to hold a public hearing . He asserted that the court should hear further witnesses in order to establish the facts fully .

On DATE ORG held deliberations in camera and upheld the applicant ’s conviction . The applicant , his lawyer and the prosecution were not present . ORG reviewed the entirety of the proceedings and upheld their lawfulness . Furthermore , it considered that the findings of fact by the first - instance court were not ill - founded within the meaning of section CARDINAL(CARDINAL ) of LAW , and were thus suitable for appellate review without taking further evidence . This consideration enabled the court to hold deliberations in camera , pursuant to section CARDINAL(CARDINAL ) of LAW , without the attendance of either the defence or the prosecution .

Act no . ORG of DATE on the [ New ] Code of Criminal Procedure provides , in so far as relevant , as follows :

“ ... ( CARDINAL ) An appeal may concern questions of fact or law . ”

“ ( CARDINAL ) The second - instance court shall base its decision on the facts as established by the first - instance court unless the first - instance judgment is ill - founded ....

( CARDINAL ) The first - instance judgment is ill - founded if :

a ) the facts have not been explored ;

b ) the first - instance court has failed to establish the facts or the findings of fact are deficient ;

c ) the findings of fact are in contradiction with the contents of the documents ;

d ) the first - instance court has drawn incorrect conclusions from the findings of fact in regard to a further fact . ”

“ ... ( CARDINAL ) In order to eliminate the ill - foundedness of the first - instance judgment , evidence may be taken if the findings of fact have not been established or are deficient . Evidence shall be taken ... at a hearing . ”

“ ( CARDINAL ) Within DATE of receiving the file , the president of the panel in charge shall schedule , in order to deal with an appeal , deliberations in camera ( tanácsülés ) , a public session ( nyilvános ülés ) or a hearing ( tárgyalás ) . ... ”

“ ( CARDINAL ) The second - instance court shall hold a public session , if – the first - instance judgment being ill - founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions , or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence .

( CARDINAL ) The second - instance court shall summon to the public session those persons whose hearing it deems necessary ... ”

“ ( CARDINAL ) The second - instance court shall notify the public prosecutor and DATE if they are not summoned – ... the defendant and his lawyer of the public session . ... ”

“ ( CARDINAL ) In order to take evidence , a hearing ( tárgyalás ) ... shall be scheduled . ”

“ ( CARDINAL ) The court ’s final decision on the merits is susceptible to a [ ORG ] review ( felülvizsgálat ) if ...

c ) the decision has been adopted amidst procedural irregularities within the meaning of section CARDINAL(CARDINAL ) subparagraphs II to PERSON . ”


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

András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE the applicants exposed , in the course of an event which they considered a “ political performance ” – necessitated by what they perceived as a general political crisis in the country following the tumultuous events of DATE , several items of dirty clothing on a rope attached to the fence around ORG in GPE . They stated that the symbolic meaning of this expression was “ to hang out the nation ’s dirty laundry ” . The applicants spent TIME on the scene , during which time they answered some questions from journalists who appeared on the scene . Afterwards , the applicants left on their own motion .

On DATE , the website of the daily paper PERSON published a short article covering the incident , in which the applicants explained that the “ performance ” was meant to be provocative and for that reason had not been notified to the police . It was specified that the event had been prepared clandestinely , that only a few journalist had been invited and that no other protester had participated .

Subsequently the GPE V ORG fined each applicant MONEY ( ORG ) ( MONEY ) for the regulatory offence of abusing the right to peaceful assembly . It was considered that their act had constituted an “ assembly ” which should have been declared to the authorities DATE in advance .

The applicants complained about the decision of the GPE CARDINALth ORG without offering any particular arguments .

On DATE ORG upheld the police decision , finding that the applicants , in breach of the relevant legal provisions , had failed to notify the police of their ‘ demonstration’ and that the sanction imposed was proportionate to the gravity of the offence and adequate to motivate the applicants to abide by the law in the future . The court relied on the report of the police officer involved , the pictures recorded by the street cameras and the contents of the websites covering the incident .

On DATE the applicants requested that a hearing be held in the case . At the hearing of DATE the court heard the second applicant and the police officer . The first applicant did not wish to make a statement . The second applicant first made contradictory statements as to who had been notified of the event in advance , but finally confirmed , in reply to a question put by the judge , that an announcement of the event had been published on the website of the applicants’ organisation . In their closing statements , counsel for the applicants claimed that the applicants had not invited anybody to the event and that they had wrongly assumed that their actions had been lawful .

Based on the evidence before it , ORG was satisfied that the event had been publicly announced and thus it had been an “ organised event ” falling within the scope of section CARDINAL of LAW ( as opposed to a cultural event as argued by the applicants ) , that the applicants had been aware that they should have notified the police of their performance and that the fine was necessary to prevent the applicants from further breaches of the law . It therefore upheld the decision of DATE .

The decision of DATE was served on DATE .

Act No . III of DATE on ORG ( “ the LAW ” ) provides as follows :

“ ( CARDINAL ) In the framework of the exercise of the right to assembly , peaceful gatherings , marches and demonstrations ... may be held where the participants may freely express their opinion .

( CARDINAL ) The participants of an assembly are entitled to make their jointly formed position known to all interested parties ... ”

“ The following shall not be covered by the Act :

a ) meetings falling within the ambit of LAW ;

b ) religious services , events and processions organised in the premises of legally recognised churches ;

c ) cultural and sport events ;

d ) events related to family occasions . ... ”

“ The organisation of an assembly to be held in public shall be notified to the police department having jurisdiction over the venue of the assembly DATE in GPE to ORG – a minimum of DATE prior to the planned date of the assembly . The obligation to notify the police lies with the organiser of the assembly . ”

“ If the holding of an assembly subject to prior notification seriously endangers the proper functioning of the representative bodies or the courts , or the circulation of traffic can not be secured by another route , the police may ban the holding of the assembly at the place or time indicated in the notification , within TIME of the receipt of the notification . ”

Act No . ORG of DATE on Administrative Offences ( as in force at the relevant time ) provides as follows :

“ Anyone who organises or holds a gathering , march or demonstration subject to notification without notification or the provision of prior information of the planned new date , or despite a prohibiting decision of the police , may be punished by a fine of MONEY ... ”

According to decision no . PERSON . ( XI.CARDINAL.)AB of ORG :

“ [ ... T]he ORG holds that the enforcement of the fundamental constitutional right of assembly should be protected not only from undue interferences by the ORG but also from others , such as persons who dislike a certain demonstration or hold a counterdemonstration , as well as other persons who disturb public order . In other words , the ORG also has positive obligations in guaranteeing the enforcement of the right of assembly . The judgments of ORG in cases related to the right of assembly support this view . ...

It follows that the authorities are even allowed to use force , where needed , in order to secure the holding of lawful assemblies , and they shall prevent others from disturbing such assemblies . ...

... The necessity of the obligation of notification to assemblies to be held on public LOC is justified by the fact that ... such LOC constitute an area , road , street or square with unlimited access for everyone . This means that both the participants of the assembly and everyone else who does not participate should have equal access to the public ground . ... The ORG ’s obligation to respect and protect fundamental rights is not limited to abstaining from violating such rights but includes the obligation of guaranteeing the conditions necessary for their enforcement ... ; in order to prevent a potential conflict between CARDINAL fundamental rights ... the authority should be statutorily empowered to ensure the enforcement of both fundamental rights ... This requirement justifies the obligation of notifying the authority in advance of the assembly to be held on public ground ...

... The aim and the agenda of the assembly are pieces of information necessary for the authority partly for the assessment of whether the planned assembly is to be prohibited on the ground of seriously endangering the operation of the representative organs or of the courts , or on the ground of causing disproportionate prejudice to the order of traffic ... , and partly for determining the probability of [ any incident occurring during the event warranting police intervention or dispersal ] . ...

... The failure to notify the authorities of an assembly DATE or the holding of an assembly in a manner significantly different from that specified in the notification – can not be interpreted as an insignificant administrative omission . Such a failure deprives the authority of the opportunity to assess whether the planned assembly would seriously disturb the operation of the representative organs or of the courts , or the order of traffic . To impose no sanction on holding the assembly at a time , location , or route other than that notified would make it useless to require a notification and would allow for abusing the right of assembly ... ”

According to decision no . CARDINAL/CARDINAL . ( II.CARDINAL.)AB of ORG :

“ ... The aim of assemblies held on the basis of the right to assembly is to enable the citizens exercising their right to assembly to form joint opinion and to share their views with others or jointly express those views . ”

According to Decision no . CARDINAL/CARDINAL . ( ORG of ORG :

“ III . [ The term ‘ ORG ] , as used in the LAW ... , refers to joint expressions of opinions within fixed time - limits . ... The bodies applying the law must assess whether the notification pertains to a peaceful , joint expression of opinions falling under the scope of [ LAW ] or to a different use of the public area .

IV . ... In DATE ’s constitutional democracies , the primary purpose of assemblies held on public ground is the joint representation and demonstration of the opinions and views already formed . The main connection between freedom of expression and freedom of assembly is the joint , public expression of the opinion . The significance of the right of assembly as a communication right is increased by the fact that , in contrast with the press , it ensures for everyone the right to participate directly , without access barriers , in forming the political will . ...

... Several types of assemblies on public ground may fall within the category of peaceful spontaneous assemblies . Indeed , spontaneous assemblies are not generated in a previously planned and arranged manner since they are the result of the actions of several persons who act , more or less , independently . ...

In the system of [ LAW ] , assemblies not requiring notification include , on the one hand , events excluded from the scope of [ the LAW ] ( events of electoral , religious , cultural , sport or family nature ) . On the other hand ... it is not necessary to file a notification of assemblies falling under [ the LAW ] . but not held on public ground ... Furthermore , LAW of [ the LAW ] does not apply to spontaneous assemblies held without prior organisation . Namely , the provision at issue requires the notification of “ organising an assembly ” to be held on public ground , and the statutory obligation is imposed on the organiser .

... The notification obligation ... forms a constitutional restriction on the right of assembly . This statutory provision is justified , on the one hand , by the need to have the public order secured by the police ... The notification and its confirmation by the police is a guarantee that the police shall implement the necessary tasks related to the security of the event . ... ”

The Guidelines on Freedom of Peaceful Assembly Adopted by ORG at its CARDINALrd Plenary Session ( GPE , DATE ) provide as follows :

“ ... For the purposes of the Guidelines , an assembly means the intentional and temporary presence of a number of individuals in a public place for a common expressive purpose ...

An assembly , by definition , requires the presence of CARDINAL persons . ”


The applicant , ORG , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Mr ORG , a lawyer practising in PERSON . The respondent Government are represented by their Agent , PERSON of ORG .

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

I.

In DATE the applicant was carrying out his business through some private limited companies in GPE . He emigrated from GPE to GPE on DATE .

As to the income DATE , the applicant failed to fulfil his obligation to file his tax return . Thus , in DATE ORG in ORG made a discretionary assessment , that the applicant for DATE had had MONEY ( SEK ) as income from employment , SEK CARDINAL as income from capital , and that his taxable property amounted to SEK CARDINAL,CARDINAL,CARDINAL . At the same time , pursuant to LAW ( Taxeringslagen CARDINAL:CARDINAL ) a tax surcharge of SEK CARDINAL,CARDINAL was imposed on the applicant , which he did not appeal against .

In DATE , a search was carried out at the premises of the applicant ’s auditor . In this connection information was found , which indicated that the applicant ’s taxable income for DATE had been considerably larger than ORG has assessed in DATE . Accordingly , ORG carried out an additional assessment . By decision of DATE the applicant ’s income from employment , capital , and taxable property was increased by respectively SEK CARDINAL,CARDINAL , SEK CARDINAL,CARDINAL,CARDINAL , and SEK CARDINAL , resulting in an additional tax calculated at SEK CARDINAL . By decision of CARDINAL DATE an additional tax surcharge was imposed pursuant to chapter DATE , section CARDINAL of LAW , amounting to SEK CARDINAL,CARDINAL equal to MONEY of the additional income tax levied .

The applicant appealed against ORG decision of CARDINAL DATE to ORG in GPE ( GPE i GPE Län ) , which rejected his appeal by judgment of CARDINAL October CARDINAL . On DATE , ORG in GPE ( ORG ) , confirmed this decision . Leave to appeal was refused by ORG on DATE .

II .

In the meantime , by indictment of CARDINAL DATE the applicant was charged inter alia pursuant to sections CARDINAL and CARDINAL of LAW ( Skattebrottslagen , CARDINAL:CARDINAL ) with aggravated tax fraud in that he had failed to file his tax return for DATE allegedly with the intent of evading tax .

On DATE before ORG in GPE ( PERSON ) the prosecution applied for the detention of the applicant on remand in absentia . The applicant , being absent but represented by counsel , applied for the criminal trial against him to be dismissed by invoking LAW of LAW no . CARDINAL to the LAW . By decision of DATE the court found against the applicant .

On DATE , on appeal , ORG ( NORP över GPE ock Blekinge ) upheld the decision and ORG ( Högsta Domstolen ) refused the applicant ’s request for leave to appeal on DATE .

The applicant reported himself voluntarily to the police in ORG in DATE , whereupon the criminal trial against him commenced before ORG in GPE .

Having heard inter alia the applicant ’s auditor as a witness , by a judgment of DATE ORG in PERSON convicted the applicant of aggravated tax fraud as it found it established that he had failed to file his tax return for the income DATE with the intent of evading part of the tax due , amounting in total to SEK CARDINAL,CARDINAL,CARDINAL . The applicant was sentenced to DATE imprisonment .

On appeal , by judgment of DATE ORG upheld the conviction but increased the sentence to CARDINAL years’ imprisonment .

Leave to appeal against the judgment to ORG was refused on DATE .

Taxes and tax surcharges

Income tax and property tax are determined by the county tax authorities , to which taxpayers are obliged to submit information relevant to the assessment of taxes . For the purpose of securing timely , sufficient and correct information , there are provisions stipulating that , under certain circumstances , the tax authorities may impose administrative sanctions in the form of special charges - tax surcharges and delay charges DATE on the taxpayer . The said charges were introduced into NORP tax legislation in DATE ( up till then a taxpayer ’s submission of incorrect information could only be sanctioned within the penal system ) . According to the preparatory notes ( Government PERSON ) the main purpose of the reform was to create a more effective and fairer system of penalties than the old one , which was based entirely on criminal penalties determined by the ordinary courts following police investigation and prosecution . Unlike sanctions for tax offences , the administrative charges are determined solely on objective grounds , without regard to any form of intent or negligence on the part of the taxpayer .

A tax surcharge is imposed on a taxpayer in CARDINAL situations : if he or she , in a tax return or in any other written statement , has submitted information of relevance to the tax assessment which is found to be incorrect ( chapter CARDINAL , section CARDINAL of LAW ) or if , following a discretionary assessment , the tax authority decides not to rely on the tax return ( chapter CARDINAL , LAW ) . It is not only statements expressly submitted that may lead to the imposition of a surcharge ; concealment , in whole or in part , of relevant facts may also be regarded as incorrect information . However , incorrect claims are not penalised ; if the taxpayer has given a clear account of the factual circumstances but has made an incorrect evaluation of the legal consequences thereof , no surcharge is imposed . The burden of proving that the information is incorrect lies with the tax authority . A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the tax authority can not base its tax assessment on it or if he or she has not filed a tax return despite having been reminded of the obligation to do so ( chapter CARDINAL , section CARDINAL ) . In the latter case the decision to impose a tax surcharge will be revoked if the taxpayer files a tax return within a certain time - limit . The surcharge amounts to MONEY of either the income tax which ORG would have failed to levy if it had accepted the incorrect information or the income tax levied under the discretionary assessment ( the corresponding provisions on value - added tax and employer ’s contributions stipulate that the surcharge equals MONEY of the supplementary tax levied on the taxpayer . In certain circumstances , the rates applied are MONEY or MONEY respectively , for the various types of tax ) .

Notwithstanding the fact that the taxpayer has furnished incorrect information , no tax surcharge will be imposed in certain situations , for example when the tax authority has corrected obvious miscalculations or written errors by the taxpayer , when the information has been corrected or could have been corrected with the aid of certain documents that should have been available to the tax authorities , such as a certificate of income from the employer , or when the taxpayer has corrected the information voluntarily ( chapter CARDINAL , section CARDINAL ) .

Moreover , in certain circumstances , a tax surcharge will be remitted . Thus , taxpayers will not have to pay a surcharge if their failure to submit correct information or to file a tax return is considered excusable owing to their age , illness , lack of experience or comparable circumstances . The surcharge should also be remitted when the failure appears excusable by reason of the nature of the information in question or other special circumstances , or when it would be manifestly unreasonable to impose a surcharge ( chapter CARDINAL , section CARDINAL ) . The phrase “ the nature of the information ” primarily covers situations where a taxpayer has had to assess an objectively complicated tax question . According to the preparatory documents ( Government PERSON , p. CARDINAL ) , the expression “ manifestly unreasonable ” refers to situations in which the imposition of a tax surcharge would be disproportionate to the fault attributable to the taxpayer or would be unacceptable for other reasons . If the facts of the case so require , the tax authorities must have regard to the provisions on remission , even in the absence of a specific claim to that effect by the taxpayer ( chapter CARDINAL , section CARDINAL ) . In principle , however , it is up to the taxpayer to show due cause for the remission of a surcharge .

If dissatisfied with a decision concerning taxes and tax surcharges , the taxpayer may , before the end of DATE after DATE , request the tax authority to reconsider its decision ( chapter CARDINAL , sections TIME ) . A decision concerning surcharges may also be reviewed at the taxpayer ’s request after the expiry of this time - limit , if the decision on the underlying tax issue has not yet become final ( chapter CARDINAL , section CARDINAL ) . The tax authority may also , on its own motion , decide to review its own earlier decision . A review to the taxpayer ’s disadvantage must be made before DATE following the assessment year unless the taxpayer , inter alia , has submitted incorrect information during the course of the tax proceedings or has failed to file a tax return or to furnish required information , in which case the time - limit normally expires at DATE after DATE ( chapter CARDINAL , sections CARDINAL and CARDINAL - CARDINAL ) .

The tax authority ’s decision may also be appealed against to a county administrative court . As with requests for reconsideration , an appeal has to be lodged before DATE after DATE ( chapter CARDINAL , sections CARDINAL and CARDINAL ) , unless it concerns a tax surcharge based on a tax decision that has not yet become final ( chapter DATE , section CARDINAL ) . Following the appeal , the tax authority must reconsider its decision as soon as possible and , if it decides to vary the decision in accordance with the taxpayer ’s request , the appeal will become void ( chapter DATE , section CARDINAL ) . If the decision is not thus amended , the appeal is referred to the county administrative court . If special reasons exist , an appeal may be forwarded by the tax authority to the county administrative court without reconsidering the assessment ( chapter DATE , section CARDINAL ) . Further appeals lie to an administrative court of appeal and , subject to compliance with the conditions for obtaining leave to appeal , ORG .

A tax surcharge is connected to the tax in respect of which it has been imposed in that a successful objection to the underlying tax has an automatic effect on the tax surcharge , which is reduced correspondingly ( chapter CARDINAL , LAW ) . The tax surcharge may , however , be challenged separately , if grounds for reduction or remission exist ( see above ) .

Decision concerning taxation can also be reconsidered on the tax authorities’ own initiative . A review to the taxpayer ’s disadvantage must be made before DATE following DATE . However , in some situation such a review may be made until DATE following DATE , so - called additional assessment ( eftertaxering ) . This is the case , inter alia , if the taxpayer has provided incorrect information during the course of the tax proceedings or has failed to file a tax return despite the obligation to do so ( chapter CARDINAL , sections CARDINAL of LAW ) . An additional assessment shall only be made if an amount of some importance is at stake . When undertaking an additional assessment the tax authority has to decide about additional tax , i.e. tax that is imposed after the imposition of final tax has been concluded . It may also decide to impose a tax surcharge according to the principles above .

Criminal law provision

A taxpayer who has not fulfilled his obligation to submit correct and relevant information to the tax authorities or who , with the object of evading tax , has failed to file a tax return or a similar document may be subjected to a criminal charge according to provisions laid down in LAW . For the taxpayer to be convicted on such a charge it has to be established that the failure to submit correct information or to file a tax return is the result of criminal intent or gross negligence on his part . A charge under the provisions of LAW is brought in accordance with the rules governing criminal proceedings in general , which means among others things that a taxpayer can only be convicted upon prosecution and trial by the general courts and that the burden of proof is on the prosecutor . It follows from sections DATE of LAW that a taxpayer who intentionally submits incorrect information in writing to the tax authorities or who fails to file a tax return , thereby causing risk of an erroneous taxation to his advantage , shall be sentenced to a penalty ranging from a fine for petty offences to imprisonment for a maximum of DATE for cases of aggravated tax crime ( grovtt skattebrott ) .

The fact that a tax surcharge has already been imposed on the same grounds as those forming the basis of the criminal charge is no bar to criminal proceedings . Moreover , a decision to impose a tax surcharge has no binding force or any other effect that might prejudice the determination of the criminal charge . When considering the penal sanction , however , the general courts are supposed to pay attention to the fact that a surcharge has been imposed ( cf . Government PERSON , pp CARDINAL and CARDINAL ) . A criminal charge should be brought against a taxpayer only if the evaded tax is of some significance . According to an agreement between ORG ( Riksåklagaren ) and ORG ( PERSON ) the tax authorities shall not normally inform the prosecutor unless the evaded tax amounts to CARDINAL per cent of the basic amount for national security purposes ( which in DATE amounted to SEK CARDINAL,CARDINAL ) . In addition , section CARDINAL provides that an indictment shall not be brought for a petty tax offence , unless there are special reasons therefore .

Tax surcharges and the Convention in NORP case law

In a judgment delivered on DATE ORG considered whether a person could be convicted of a tax offence in criminal proceedings following the imposition of a tax surcharge in tax proceedings ( case no . B CARDINAL - CARDINAL , published in Nytt juridiskt arkiv ( ORG ) DATE , p. CARDINAL ) . Having noted that , under NORP law , a surcharge is not considered a criminal penalty and thus does not prevent trial and conviction for a tax offence relating to the same act , ORG went on to examine the matter under LAW . It first considered , in the light of ORG case - law , that there were weighty arguments for regarding LAW as being applicable under its criminal head to proceedings involving a tax surcharge . Even assuming this to be the case , it held , however , that the principle of ne bis in idem , as set forth in LAW no . CARDINAL to the LAW , did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied as it was a matter of CARDINAL different offences . It underlined in this connection that the imposition of tax surcharges requires neither intent nor negligence , while in order to be convicted of tax fraud it must be established that the accused had a criminal intent .

In a judgment delivered on DATE ORG considered whether the imposition of a tax surcharge in tax proceedings could be upheld following a person ’s conviction of a tax offence in criminal proceedings ( case no . DATE , published in PERSON ( RÅ ) DATE , ref CARDINAL ) . ORG recalled inter alia :

“ that taxation in GPE is largely based on information given by the individual and certification by him or her of information received from other sources . The purpose of the tax surcharge is to emphasise , inter alia , that the individual is required to be meticulous in fulfilling the duty of filing a tax return and the related obligation to submit information . In principle , carelessness is not acceptable . Furthermore , the taxpayer must normally have an understanding of what information is of relevance to the examination of a claim in order to avoid the risk of incorrect information being considered to have been given and a surcharge imposed . In other words , the taxpayer is required to have a certain knowledge of the tax rules ” .

ORG concluded that the applicant had not been punished twice for the same offence as prohibited by LAW no . CARDINAL to the LAW , notably in that :

“ a tax surcharge is a general and standardised sanction the purpose of which is , inter alia , to prevent inaccuracy when complying with the legal obligation to complete a tax return . Provided there is no ground for remission it is always set at CARDINAL of CARDINAL fixed percentages . It is imposed regardless of intent or negligence . If a person intentionally submits incorrect information or fails to file a tax return , an additional sanction may be imposed for tax fraud . The intent , which the prosecutor must prove , is CARDINAL of the essential elements of this offence . The offence leads either to imprisonment or , having regard to the personal circumstances of the accused , some of the other possible punishments . Thus , in comparison with the grounds required for imposing a tax surcharge , in order to convict an accused of tax fraud , another essential requirement must be fulfilled . Accordingly , in the sense of ORG , it is a question of CARDINAL different offences . ”

Recently , ORG ) , which is composed of CARDINAL judges from the CARDINAL highest courts in GPE , scrutinised a Government PERSON proposing amendments to LAW and commented in this connection on the principle of ne bis in idem . The ORG considered , inter alia , in the light of the decision GPE and GPE v. GPE ( dec . ) , nos . CARDINAL and CARDINAL , decision of DATE , ORG CARDINAL-VI , that is was reasonable to assume that the fundamental conditions for tax surcharges and intentional tax offences differed in such a way that no conflict with LAW no . CARDINAL to the LAW would arise ( opinion of DATE of ORG ) .