Preliminary objection dismissed;Remainder inadmissible;Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicants were born in DATE and live in the town of Tver .

On an unspecified date the authorities brought proceedings against the applicants on suspicion of fraud .

On DATE the Moskovskiy District Court of the town of Tver tried and convicted both applicants on a charge of attempted large - scale fraud . Both applicants were also tried on a charge of forgery . On the latter charge , the court acquitted the first applicant and found the second applicant guilty . They were sentenced to DATE and CARDINAL months’ imprisonment respectively .

The applicants appealed against the judgment . Their appeal was examined and dismissed by ORG on DATE .

On DATE the Deputy President of ORG of GPE applied for supervisory review of the judgment of DATE , requesting a milder sentence .

By decision of DATE ORG examined and allowed the arguments set out in the special appeal . It reduced the applicants’ sentences to DATE and DATE and CARDINAL months’ imprisonment respectively and ordered that the first applicant be released accordingly .

NORP By decision of CARDINAL DATE the ORG released the second applicant on parole before the expiry of his prison sentence .

On DATE the applicants were arrested and placed in detention .

The applicants specified that TIME on DATE and QUANTITY a.m. on DATE they had first been held in a local police station before being transferred to IZ-CARDINAL/CARDINAL . According to both applicants , they were refused food and an opportunity to sleep . They did not make any allegations concerning the overcrowding of cells in that facility .

Both parties agreed that the applicants had been transferred to pre - trial detention centre IZ-CARDINAL/CARDINAL on DATE and that they had first been held in the local police station .

The applicants arrived at the pre - trial detention centre GPE in the town of Tver on DATE . The first applicant remained there until DATE and the second applicant until DATE .

According to the first applicant , DATE he had been detained in cell no . DATE .

On DATE he was transferred to cell no . CARDINAL . DATE and DATE he was held in cell no . DATE . From DATE he was detained in cell no . DATE . For DATE CARDINAL March CARDINAL he was detained in a punishment cell . On DATE he was transferred back to cell no . CARDINAL and remained there until DATE . DATE and DATE he was detained in cell no . CARDINAL . On DATE the first applicant left facility no . IZ-CARDINAL/CARDINAL for another penitentiary establishment to serve his prison sentence .

The Government submitted that the dates of detention in the various cells in facility no . IZ-CARDINAL/CARDINAL given by the first applicant were erroneous . The first applicant had been placed in cell no . DATE on DATE and had remained there for DATE . He was then transferred to cell no . CARDINAL , where he stayed until DATE . CARDINAL was detained in cell no . DATE . He was transferred to cell no . CARDINAL on DATE and remained there until DATE . DATE and DATE the first applicant was held in cell no . CARDINAL . From DATE he was held in cell no . DATE . On DATE the first applicant was transferred to cell no . CARDINAL , where he remained until he left facility no . IZ-CARDINAL/CARDINAL on DATE .

From the above , it follows that the parties agreed that the first applicant has been detained in cells no . DATE . In addition , the first applicant maintained that he had spent DATE in a punishment cell and the Government maintained that he had spent DATE in cell no . CARDINAL .

NORP The applicant submitted that cell no . CARDINAL measured QUANTITY . It had CARDINAL sleeping places and accommodated between CARDINAL and CARDINAL detainees .

The Government submitted that the cell measured QUANTITY and had CARDINAL sleeping places . It had a system of artificial and natural ventilation and was lit by CARDINAL CARDINAL-watt daylight lamps . The prison administration submitted a letter in which it certified that there had been CARDINAL inmates in the cell on DATE .

According to the first applicant , the cell measured QUANTITY , had CARDINAL bunk beds and was occupied by CARDINAL detainees at all times during his stay there .

According to the Government , the cell measured QUANTITY , had CARDINAL bunk beds and was lit by CARDINAL CARDINAL-watt DATE lamps . The prison administration submitted a letter in which it certified that there had been CARDINAL inmates in the cell on DATE . The cell had both natural and artificial ventilation systems .

According to the prison administration , on DATE , the date of the first applicant ’s departure from cell no . DATE , there had been CARDINAL inmates in the cell .

According to the first applicant , cell no . CARDINAL measured QUANTITY , had CARDINAL beds and accommodated between QUANTITY and QUANTITY detainees .

The Government submitted that the cell in question measured QUANTITY and had CARDINAL sleeping places . It had a system of natural and artificial ventilation and was lit by CARDINAL CARDINAL-watt DATE lamps . The prison administration submitted a letter in which it certified that there had been CARDINAL inmates in the cell on DATE and that on DATE , the date of the first applicant ’s departure from cell no . DATE , there had been CARDINAL inmates in the cell .

According to the first applicant , cell no . CARDINAL measured QUANTITY , with CARDINAL beds , and had held CARDINAL infected detainees at the time of the applicant ’s detention . It had a constantly high level of humidity as it was situated right above the prison baths . Also , every other night the only toilet in the cell was decontaminated with CARDINAL a bucket of chlorine - based reagent . Since the toilet flush was inactive during TIME , the chlorine - based reagent combined with the humidity and urine caused corrosive damage to GPE lungs and eyes .

According to the Government , the cell in question measured QUANTITY , had both artificial and natural ventilation systems and CARDINAL sleeping places and was lit by QUANTITY CARDINAL-watt DATE lamps . The prison administration submitted a letter in which it certified that there had been CARDINAL inmates in the cell on DATE .

The first applicant submitted that the punishment cell measured QUANTITY , with CARDINAL sleeping place and TIME inmates . The applicant submitted that there had no toilet in the cell and that detainees had used a bucket , which had been emptied once a day but had never been washed or decontaminated .

The Government submitted that this cell measured QUANTITY , had CARDINAL sleeping places , both natural and artificial ventilation , and was lit by QUANTITY bulb . The prison administration submitted a letter in which it certified that on DATE there had been CARDINAL inmates in the cell .

DATE and DATE the second applicant was detained first in cell no . CARDINAL and then in no . CARDINAL . During the period DATE and DATE he was held in cell no . CARDINAL . For DATE in DATE the second applicant was detained in the punishment cell .

The Government submitted that on DATE the second applicant had been detained in cell no . CARDINAL . As of DATE he was placed in cell no . CARDINAL . On DATE he was transferred to cell no . CARDINAL . As of CARDINAL DATE he was transferred to cell no . CARDINAL . From DATE to DATE he was detained in cell no . DATE .

From the above it follows that the parties agree that the second applicant spent some time in cells FAC . CARDINAL , DATE and CARDINAL . In addition , the second applicant maintains that he had spent DATE in a punishment cell and the Government maintained that he had spent DATE in cell no . CARDINAL .

The second applicant submitted that cell no . CARDINAL measured QUANTITY , had CARDINAL sleeping places and was occupied by CARDINAL inmates .

The Government submitted that the same cell measured QUANTITY , had CARDINAL sleeping places , artificial and natural ventilation systems , and was lit by QUANTITY bulbs . On DATE it had accommodated CARDINAL inmates . The prison administration submitted a letter in which it certified that on DATE there had been CARDINAL inmates in the cell .

The second applicant submitted that cells no . CARDINAL and no . CARDINAL measured QUANTITY , had CARDINAL bunk beds and accommodated CARDINAL detainees .

The Government submitted that cell no . CARDINAL measured QUANTITY and had CARDINAL sleeping places . Cell no . CARDINAL measured QUANTITY and had CARDINAL bunk beds . Both cells had natural and artificial ventilation and were lit by CARDINAL CARDINAL-watt DATE lamps . On DATE there had been CARDINAL inmates in cell no . CARDINAL . The prison administration submitted a letter in which it certified that on DATE there had been CARDINAL inmates in cell no . CARDINAL .

According to the second applicant , he had been detained for DATE in DATE in a punishment cell measuring QUANTITY , with CARDINAL bed and CARDINAL detainees .

According to the Government , the cell no . CARDINAL measured QUANTITY , had CARDINAL sleeping places and , according to the prison administration , on DATE had contained CARDINAL inmates .

The applicants submitted that they had taken walks in the detention centre courtyard DATE . The walks had lasted TIME depending on the PERSON mood . The courtyard was exposed to the elements and had no roof , and in bad weather the walks usually lasted TIME .

The Government did not comment on these allegations .

According to the applicants , detainees could not take a shower more than twice or CARDINAL times a month and the water in the shower was barely warm .

The Government submitted that the applicants had been allowed to take a shower once DATE for TIME .

The applicants also submitted that all the cells they had described lacked proper ventilation systems and were very hot in DATE and cold in DATE .

According to the ORG , all the cells referred to above had both artificial and natural ventilation systems . The windows in all of the applicants’ cells were double glazed and had a window leaf for ventilation . Furthermore , the heating system in the prison was fully operational and the temperature in the cells was within the permissible range ( + PERSON in DATE and + CARDINALo C in DATE ) .

According to the applicants , all the cells were infected with lice , fleas and bugs , none of the toilets in the cells offered detainees any privacy and the authorities had failed to provide them with fresh linen , blankets or crockery . They submitted CARDINAL photographs of a cell in the detention centre in question . None of the beds in the photographs had any bed linen on them .

The Government submitted that both applicants had been provided with an individual sleeping place and had a mattress , a pillow with CARDINAL pillowcases , CARDINAL blankets , CARDINAL sheets and CARDINAL towels . In addition , they were given a mug , a spoon and a bowl . The bed linen was changed once DATE after the inmates had taken a shower . There was a brick wall QUANTITY high separating the toilet area from the living area in all the cells . The authorities submitted plans of the interior of all the cells and their dimensions . They further submitted that during the relevant period they had carried out disinfection works , including fumigating and disinfesting each cell twice a month .

The applicants alleged that the catering had been extremely poor .

The Government submitted that inmates were given food CARDINAL times a day , in accordance with the relevant norms .

The applicants further submitted that all the cells had been heavily overcrowded and that during the preliminary stage of the proceedings visits to the prison by an investigator had coincided with their turn to sleep and their lunchtime , so that they were effectively deprived of sleep and food . The detainees had to sleep in turns and had no way of washing themselves or shaving .

The Government submitted that the cells in question had not been overcrowded . They referred to statements of the prison authority in this regard ( see , for more details , the sections below on specific cells ) .

The Government submitted in respect of the period DATE and DATE that the number of bunk beds in the establishment had remained constant , that there had been CARDINAL sleeping places in total , that CARDINAL cells ( nos . CARDINAL - CARDINAL , DATE , DATE , DATE , GPE , CARDINAL , DATE , CARDINAL , CARDINAL - CARDINAL , with a capacity ranging from CARDINAL to CARDINAL sleeping places ) had been used in that prison , and that the DATE total number of detainees during that period had been on average CARDINAL ( ranging from CARDINAL on DATE to CARDINAL on DATE ) .

The Government submitted detailed plans and dimensions in respect of each of the cells mentioned by the applicants .

The applicants submitted that for attendance at court hearings they had usually been taken out of the detention centre early in the morning , at TIME , and were not brought back until TIME While they were being moved , the applicants were kept either in a small space measuring QUANTITY along with another detainee , or in a bigger space measuring QUANTITY containing between CARDINAL QUANTITY detainees . No warm food or toilet facilities were provided during transport or in the detention cells of the court . While waiting for a hearing , between court sessions or while waiting for other detainees after the hearing , each of the applicants had been kept for TIME in a small unventilated cell in the courthouse measuring QUANTITY , together with CARDINAL other prisoners .

According to the applicants , they were transported to the courts on QUANTITY occasions each : DATE , DATE and DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE and DATE , and DATE . They also submitted that the prison vans had been unsuitable for transportation of prisoners because of the lack of artificial and natural ventilation or toilet facilities and overcrowding . They also pointed out that the actual distance travelled had been longer because the prison van had had both to deliver detainees to and collect them from CARDINAL different regional courts around the city . They submitted that it had taken TIME : CARDINAL for delivery and CARDINAL for collection and the return journey .

The Government submitted that the inmates had breakfast before going to court , were returned to the detention centre for lunch and had dinner after the court sessions . The ORG submitted a statement by PERSON , an official in charge of transportation of detainees , dated DATE , in which he certified that his convoy teams had never exceeded the limits of transport capacity of the prison vehicles . The ORG also submitted drawings of the interior of such vehicles . They could not provide more detailed information on the exact number of transported detainees as the relevant archived documents had been destroyed on CARDINAL DATE on the expiry of the storage time - limit .

The Government submitted that the first applicant had made CARDINAL return journeys on the following dates : DATE ( ORG ) , DATE ( ORG ) , DATE ( ORG ) , CARDINAL , DATE , DATE , DATE and DATE ( ORG ) , DATE ( ORG ) , and DATE ( ORG ) . The second applicant made CARDINAL return journeys on the following dates : DATE ( ORG ) , DATE ( ORG ) , CARDINAL , DATE , DATE , DATE and DATE ( ORG ) , DATE ( ORG ) , and DATE ( ORG ) .

The distance between facility no . IZ-CARDINAL/CARDINAL and LOC was QUANTITY respectively .

As regards the detention cells in ORG , the Government submitted that there were CARDINAL of them , each designed for QUANTITY persons , containing benches , artificial lighting , natural ventilation and measuring CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , QUANTITY respectively . The detainees were allowed to go to the WC room upon request .

The applicants referred to reports on human rights in GPE by ORG of DATE and DATE . A DATE report on the events of DATE stated that the situation in pre - trial detention centres in GPE was very bad overall , as the detention centres contained CARDINAL times more detainees than the number of places available ( CARDINAL detainees and CARDINAL places ) . The DATE report on the events of DATE mentioned GPE as being affected by the issue of overcrowded pre - trial detention centres and complaints about deficient catering . The DATE report on the events of DATE referred to CARDINAL of former inmates who spoke of arbitrariness and “ lawlessness ” in the detention centre in question .

According to the applicant , the newspaper ORG gazeta published an interview given by a number of officials , including Minister of Justice PERSON . PERSON , his deputy PERSON . ORG and the head of ORG of ORG , during a press conference in the GPE pre - trial detention centre . The applicant claimed that they had admitted that the numbers of inmates in NORP SIZOs and prisons exceeded capacity by PERCENT , the most difficult situation being in the cities of GPE and GPE , the towns of GPE and NORP and the republic of GPE .

Rule DATE provided that all inmates , whether suspects or defendants , had to be given , among other things : a sleeping place ; bedding consisting of CARDINAL mattress , CARDINAL pillow and one blanket ; bed linen consisting of CARDINAL sheets and a pillowcase ; a towel ; crockery and cutlery , including a bowl , a mug and a spoon ; and seasonal clothes ( if the inmate had no clothes of his own ) .

Rule CARDINAL stated that cells in pre - trial detention centres must be equipped , among other things , with a table and benches with enough seating for the number of inmates , sanitation facilities , tap water , day lamps and nighttime lighting .

Rule CARDINAL provided that prisoners were to receive food CARDINAL times a day , with warm meals provided in accordance with the norms laid down by the Government of GPE .

Under Rule CARDINAL , inmates had the right to have a shower at least once DATE for TIME . They were to receive fresh bed linen after they had taken a shower .

Rule CARDINAL provided that an inmate could receive visits from his lawyer , family members or other persons , subject to written permission from an investigator or an investigative body , the number of visits being limited to CARDINAL per month .

DATE . Order no . CARDINAL of ORG for the Execution of Sentences of DATE deals with implementation of the “ ORG - trial detention centres DATE ” programme .

The programme is aimed at improving the functioning of pre - trial detention centres so as to ensure their compliance with the requirements of NORP legislation . It expressly acknowledges the issue of overcrowding in pre - trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem .

NORP The programme mentions pre - trial detention centre IZ-CARDINAL/CARDINAL amongst the ones affected . In particular , the programme states that , on DATE , the detention centre had a capacity of CARDINAL inmates and in reality accommodated CARDINAL detainees , in other words , PERCENT more than the permitted number .

The relevant extracts from ORG of ORG for the prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the CPT ” ) read as follows :

“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG ’s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps signiﬁcantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .

A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...

Speciﬁc mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...

Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...

The ORG would add that it is particularly concerned when it ﬁnds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .

It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... ”

“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG ’s mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .

The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”

“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...

In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions .

The ORG frequently encounters devices , such as metal shutters , slats , or plates ﬁtted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that speciﬁc security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ... ”


Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr ORG , who was born in ORG in DATE , is an NORP national and is currently living in GPE . Until QUANTITY DATE , when he was deported , he lived in GPE , where his parents – who have lived there for DATE still reside , as do his CARDINAL brothers ( CARDINAL of whom is NORP and the other the father of CARDINAL NORP children ) and his QUANTITY sisters ( CARDINAL of whom is NORP and the other the wife of a NORP national ) .

The applicant went to school in GPE until DATE . He apparently worked in the construction industry for DATE and thereafter as a self - employed taxi - driver .

He is the father of CARDINAL children of NORP nationality , born in DATE . On DATE , in GPE , he married their mother , an NORP national who has been lawfully resident in GPE since DATE .

On CARDINAL DATE officers of ORG , assisted by customs officers , seized CARDINAL kilograms of hashish imported from GPE in a van adapted for the purpose . CARDINAL people , including the applicant , at whose GPE home QUANTITY of hashish were found , were committed for trial at ORG accused of drug offences and illegal importation of prohibited goods .

On DATE the ORG sentenced Mr Mehemi to CARDINAL years’ imprisonment , with ineligibility for parole during DATE , and CARDINAL customs fines , for possession and illegal importation of dangerous drugs .

In a judgment of CARDINAL DATE ORG upheld the judgment of CARDINAL DATE and ordered Mr ORG ’s permanent exclusion from NORP territory on the ground that “ public - policy considerations preclude the presence within NORP territory of an alien engaged as a principal in the offence of drug trafficking ” .

On DATE Mr Mehemi filed with ORG an application to have the permanent exclusion order rescinded . He relied in particular on LAW .

On DATE ORG refused the above application on the following grounds :

“ The defendant has not adduced any new evidence not examined by ORG when it decided to uphold ORG permanent exclusion from NORP territory .

It should be observed that ORG expressly mentioned in the reasons for its decision that NORP public - policy considerations precluded the presence within NORP territory of an alien engaged as a principal in the offence of drug trafficking .

It is untrue that the defendant has maintained no link with his nationality of origin , since he voluntarily opted for that nationality on reaching his majority , despite the fact that the circumstances of his birth would have allowed him , in the absence of any criminal conviction , to acquire NORP nationality as of right if he had not expressly declined it .

His various trips to GPE over DATE his arrest show that he has not severed all physical links with his nationality of origin .

Lastly , the order permanently excluding him from NORP territory is justified by the offence of importing drugs in the manner described in his conviction , now final , and by no means constitutes a disproportionate response to the seriousness of that offence , given that he had remained on NORP territory in order to facilitate the importation and subsequent distribution among desperate young people – with all the consequences which this type of offence involves – of very substantial quantities of hashish , the first drug turned to by addicts on their downhill slide , CARDINAL kilograms of it in this case , purely for financial gain .

It can not seriously be maintained that there has been any violation of the provisions of LAW .

On DATE the applicant appealed on points of law . In his statement of the grounds of appeal , dated DATE , his lawyer argued as follows :

… Contrary to what is said in the impugned judgment , Mr ORG , an NORP national , was never entitled to claim NORP nationality as of right ... Contrary to what is asserted there , he did not at any time decline NORP nationality … Pursuant to the legislation governing the consequences of NORP independence as regards nationality ( Ordinance no . CARDINAL of DATE , Decree no . DATE DATE and PERSON no . CARDINAL - CARDINAL of DATE ) , Mr ORG , who was born before DATE , was subject to the same rules as his parents , who , not having made the declaration of recognition of NORP nationality provided for in LAW DATE , became , as a result , NORP .

... Contrary to what ORG judges said , there was indeed disproportionality in the instant case between the isolated offence Mr ORG was found guilty of and his interests as defined and protected in LAW Mr ORG was born in GPE , is married to a national of a ORG member ORG and is the father of CARDINAL NORP children ... His whole family lives in GPE and … , contrary to what is stated in the judgment , he has not maintained links with his country of origin , his nationality DATE which he did not choose – not reflecting his actual position .

... Mr ORG CARDINAL NORP children were born in GPE and have always lived there ... They can not be uprooted and sent to a country they do not know with the sole aim of being allowed to remain with their father ... In any event , their mother could not follow them if they were , ... nor can Mr Mehemi go to GPE , on account of his exclusion from NORP territory .

In a judgment of CARDINAL DATE ORG dismissed the appeal in the following terms :

The ORG finds in this case that the measure concerned , which was imposed on the defendant following adversarial proceedings , was by no means a disproportionate response to the seriousness of the crime , and the grounds of appeal therefore contain no new evidence of a kind to warrant rescinding the measure .

In the light of the above findings and considerations , ORG justified its decision and did not infringe the principles or legislation relied on in the grounds of appeal .

It follows that the appeal can not be allowed .

While Mr ORG was in prison , on a date which has not been determined , his wife wrote to the NORP President in the following terms :

I would not ask you to plead in my favour for a reduction of my husband ’s sentence , as I know full well that that is impossible , but I beseech you to help me have his expulsion from NORP territory quashed . He was sentenced to DATE imprisonment – so be it . That must be the way of it because he committed a crime and I know perfectly well that he must pay for it ... But I can not bring myself to accept his expulsion , and for good reason . Please understand me , PERSON President , or at least try to : since my husband went to prison my children have not been themselves ; they are suffering terribly and are constantly having to be examined by psychologists . But it is not just my children and I who are suffering : there is also the whole of my husband ’s family , particularly his mother , who is DATE and a diabetic . She sees her grandchildren all the time and whenever they ask her where “ Dad ” is and when he will be coming back she can not help bursting into tears . This situation is having a terrible effect on her physical and mental health .

Things can not go on like this . I do not want my family and the future of my children to be destroyed , because what future can I give them without their father at their side ? ... ”

NORP The permanent exclusion order was enforced on DATE .

Article L. CARDINAL - CARDINAL of LAW formerly provided :

“ ... the courts ... may order an alien convicted of an offence under LAW to be permanently excluded from NORP territory .

Exclusion from NORP territory shall of itself entail the deportation of the convicted person at the end of his sentence .

Where a person , on conviction , is permanently excluded from NORP territory , he may not request the benefit of the provisions of LAW . ”

Law no . CARDINAL - CARDINAL of DATE replaced the last CARDINAL paragraphs by the following provisions :

“ However , exclusion from NORP territory shall not be imposed on :

a convicted alien who is the father or mother of a NORP child resident in GPE , provided that he or she is vested with or shares parental authority over that child or provides for its needs ;

Nor shall exclusion from NORP territory be imposed on a convicted alien who can prove either :

that he has been normally resident in GPE since reaching DATE at the most or for DATE ; or

that he has been lawfully resident in GPE for DATE .

The provisions of the CARDINAL preceding paragraphs shall not be applicable in the event of a conviction for ... importing or exporting [ toxic plants classified as drugs ] or for conspiracy to commit those offences .

Exclusion from NORP territory shall of itself entail the convicted person ’s deportation , where necessary after the end of his prison sentence . ”

LAW was repealed by Law no . CARDINAL of DATE .

Article CARDINAL of the Criminal Code provides :

Any person who has incurred a disability ... as an automatic consequence of a criminal conviction or on whom such disability ... has been imposed by the convicting court in its judgment ... may request the court which convicted him ... to rescind the disability ... , in whole or in part , or vary its duration .


Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant ’s home as well as the office premises of his various companies were searched on CARDINAL , DATE and DATE and various materials were seized . The search warrants referred to an investigation into debtor ’s dishonesty involving the company PERSON as well as a book - keeping offence . Both offences were suspected to have been committed by the applicant between PERSON and CARDINAL DATE .

On DATE the public prosecutor questioned the applicant in connection with other criminal proceedings which were pending against the applicant before ORG ( käräjäoikeus , tingsrätten ) of PERSON in respect of acts allegedly committed in DATE relating to the company ORG ( “ U. ” ) .

On DATE the estates of CARDINAL wound - up companies , including NORP , reported an offence against the applicant for alleged offences of debtor ’s dishonesty .

On DATE the applicant was interrogated by the police . On DATE he was charged with the offence of NORP dishonesty , allegedly committed DATE . The estate of the wound - up company PERSON was indicated as one of the complainants .

On DATE he received a summons to appear before ORG on DATE . The summons had wrongly indicated ORG in GPE as the hearing venue instead of GPE . On DATE the applicant was brought to the hearing of ORG of Tuusula , the court having found that the applicant had no legal excuse for not having been present at the first hearing .

At the hearing on DATE the applicant demanded that the charges against him be adequately particularised .

In a further letter of indictment dated DATE the prosecutor presented alternative charges of aggravated tax fraud and aiding and abetting that crime .

On DATE the applicant initiated civil proceedings against bank ORG and requested that they be joined to the criminal proceedings . ORG rejected this request .

At the hearing on DATE the prosecutor , basing himself on a letter of indictment of DATE , specified the charges .

On DATE , at its CARDINALth hearing , ORG issued its judgment . It convicted the applicant of debtor ’s dishonesty and sentenced him to QUANTITY months’ unconditional imprisonment . He was ordered to pay MONEY ( ORG , CARDINAL euros ( ORG ) ) in damages .

The applicant appealed , appending his own writ of appeal to that of his counsel , PERSON In addition , he lodged numerous further submissions both within and outside the requisite time - limit , the last one in DATE . Originally , the applicant requested an oral hearing and , in any case , that ORG should reduce his sentence . In DATE he requested that the case be referred back to ORG to be decided by a different composition of judges or , in the alternative , that the charges against him be dismissed as CARDINAL judge had allegedly been partial and he had been refused leave to examine a witness .

In DATE ORG , as requested , cancelled PERSON ’s appointment and appointed GPE as the applicant ’s new legal aid counsel .

NORP In its judgment of DATE ORG rejected his appeal and increased the sentence to a term of imprisonment of DATE and DATE . Having regard to the contents of the applicant ’s appeal as filed within the time - limit , ORG saw no need for an oral hearing . The court took into account CARDINAL of the applicant ’s further submissions as CARDINAL submissions lodged by his new counsel , in so far as the requests therein had not deviated from his original appeal as filed within the requisite time - limit . Insofar as the applicant had alleged procedural defects ORG considered most of his submissions belated as they had not been lodged within DATE of the judgment of ORG .

On DATE ORG refused the applicant leave to appeal .

Under LAW , LAW ( oikeudenkäymiskaari , rättegångsbalken , as amended by Act no . CARDINAL/CARDINAL and in force at the relevant time ) any party who considered that the proceedings before a district court were being unjustifiably delayed by an adjournment had the right to lodge a complaint with a ORG within DATE from the date of the adjournment . Under the said provision the district court could adjourn the case upon request by a party , for example if the said party wished to adduce further evidence . The court could not adjourn the hearing proprio motu save on special grounds . LAW , section CARDINAL ( CARDINAL ) was repealed with effect from DATE , when new provisions generally prohibited adjournments .

Chapter CARDINAL of LAW ( rikoslaki , strafflagen , Act no . CARDINAL/CARDINAL ) was amended with the effect as of DATE . Section CARDINAL , Article CARDINAL sets out the grounds mitigating the punishment that are to be taken into consideration , including “ a considerably long period that has passed since the commission of the offence ” , if the punishment that accords with established practice would for this reason lead to an unreasonable or exceptionally detrimental result .

The Government referred to ORG precedent ORG CARDINAL concerning the relevance of the length of the proceedings when determining a sentence . In that case the defendants were sentenced to prison for DATE and DATE for aggravated tax - fraud . Their sentences were mitigated because of the length of the proceedings , which was DATE .


Preliminary objection allowed (non-exhaustion of domestic remedies)

When she lodged her application , PERSON had been working since DATE in the Secretariat of ORG ; she was at the same time studying at ORG and , in DATE , obtained a degree in law ( licence en droit ) . Subsequently , she was enrolled as a DATE pupil at FAC ; she is entered on the roll of pupils as " PERSON " .

At birth , on DATE , the applicant possessed all the physical and biological characteristics of a child of the female sex and she was entered on the birth register of the ORG district ( GPE ) as the daughter of PERSON , with the forenames PERSON , PERSON , PERSON , PERSON .

However , according to her , from DATE she became conscious of a dual personality : although physically female she felt herself psychologically of the male sex . After going through a period of depression on this account , she attempted suicide in DATE and had to be treated in hospital ( see paragraph CARDINAL of the Commission ’s report ) .

From DATE onwards , the applicant - who will henceforth be referred to in the masculine , the male sex being the CARDINAL assumed by PERSON for social purposes at the time the application was lodged with the Commission - sought a solution to his problem by having a " sex - change " carried out on his body .

In DATE , CARDINAL specialists , Doctor NORP and Doctor PERSON , respectively a neurologist and endocrinologist , found that the symptoms shown by the applicant unquestionably indicated transsexualism . In addition to having before them the report of a NORP psychiatrist , they had also consulted a NORP psychiatrist , Doctor PERSON .

Whilst the doctors considered the use of psychotherapy ineffective in this field , they concluded , in the light of NORP , LANGUAGE and NORP research , that surgical treatment offered excellent prospects of success . They also took note of the fact that the applicant had consistently refused to accept the first kind of treatment and they believed it probable that he would attempt to commit suicide if the second kind were not adopted .

Accordingly , they decided to apply hormone therapy , followed by surgery .

On being advised of the purposes , methods and effects of the treatment , the applicant stated his readiness to accept the risks . He therefore underwent hormone therapy which , after DATE led to appearance of the secondary sexual characteristics of a male , such as hair growth and change of voice .

In DATE and DATE in GPE , CARDINAL surgeons , Mr. PERSON and Mr. PERSON , successfully performed on him CARDINAL operations of sexual conversion ( bilateral mammectomy ; hysterectomy - bilateral ovariectomy ) . Mr. PERSON had previously sought the consent of ORG : on DATE , the Secretary of ORG had sent him the following reply : " As the problem you raise is a medical one , you should act according to your conscience but we must most strongly advise you to take all possible precautions in view of the very delicate nature of this type of operation . "

Subsequently , the applicant received a phalloplasty carried out in CARDINAL stages , from DATE , by Professor PERSON , a surgeon at ORG in GPE .

The treatment has without any doubt substituted an outwardly male physique for a female physique , but the chromosomes remain those of the female sex .

Part of the cost was borne by ORG ; the NORP administrative department issued the applicant with an employment card made out in the name of Mr. PERSON .

On DATE , the applicant filed a " petition for rectification of a civil states certificate ( " requête en rectification d’un acte de l’état civil " ) : he requested ORG to direct that his birth certificate should henceforth read " a child of the male sex with the forenames PERSON , PERSON , PERSON , born on ... , son of ... " . He relied , inter alia , on a decision delivered on DATE by ORG , which had adopted a similar solution in another case ( see paragraph CARDINAL below ) .

The ministère public ( Attorney - General ’s department ) submitted on CARDINAL DATE that the petition should be disallowed : it was argued that PERSON had not established , as he was obliged to do under the legislation in force , that the initial record of his sex was tainted by an error , whereas the case decided in GPE did concern such an error .

ORG dismissed the petition on DATE on the ground that the petitioner had not demonstrated that the Registrar had made a mistake when drawing up the birth certificate ; indeed , the petitioner ’s submissions showed just the opposite since he did not claim to have been " fundamentally " a man from the outset .

PERSON appealed to ORG on DATE . He contended that a transsexual has by definition the sex opposite to that which is apparent at the time of his birth and criticised ORG for disregarding the concept of transsexualism . According to him , the rectification being claimed was therefore a pressing legal necessity . He also requested ORG to be guided by equity , humanity and the interests both of society and of himself in arriving at its decision . He maintained that , on this basis , the ORG would accept that he was a man who no longer possessed the characteristics of a woman ; that it was inconceivable not to recognise the consequences of transsexualism where it had been duly established ; that the decision under appeal led to results that were absurd and harmful to the social order , for example the possession of patently incorrect identity documents .

The parquet ( Attorney - General ’s department ) submitted that the appeal should be dismissed , relying on the following arguments . There was controversy in medical circles regarding the syndrome known as transsexualism . Moreover , the assertion that PERSON had always belonged " fundamentally " to the male sex was not corroborated by the facts ; ORG had made no mistake in recording what outward appearances revealed . In point of fact , some lawyers questioned whether , in the absence of an error , the only conceivable legal remedy did not consist of an " action d’état préalable " ( a " preliminary action pertaining to personal status " ) ; their views probably had force , but in the present proceedings the issue had not been put in that manner . Admittedly , the appellant had an affliction which caused him considerable suffering in human and personal terms ; if this were the only aspect to be considered , it might perhaps have been possible to grant his petition . From the point of view of public policy ( ordre public ) , on the other hand , the petition prompted the most serious reservation : its acceptance might provoke numerous other petitions and it would be dangerous to encourage indirectly by this means the proliferation of treatment whose effects , being irreversible , might subsequently be regretted by the patients themselves . Finally , the perpetual calling in question of certain situations , particularly in the realm of personal status , conflicted with the requirements of a rational organisation of the community : it would tend to an increase in personal problems and engender a climate of insecurity and instability in family and social relationships .

ORG dismissed PERSON appeal on DATE . It held that , before it could be rectified , a civil status certificate had to contain an error committed when it was drawn up and that there was no provision in the laws as they then stood that allowed " account to be taken of artificial changes to and individual ’s anatomy " , such as those in the present case , " even if they correspond[ed ] to his deep - seated psychical tendencies " . However , " neither the physical examination of the appellant ... nor the proposed scientific evidence as to the biological aetiology of transsexualism " were capable of evidencing the existence , from the very outset , of " physical characteristics of the male sex or even ( of ) transsexual tendencies " .

PERSON decided not to take his case to ORG . According to PERSON to the ORG ’s report , he had previously consulted " a number of qualified persons " . In addition , Mr. PERSON , a lawyer practising before ORG , advised the applicant after the event , on DATE and in DATE , that in his view such an appeal would have had no prospects of success ( see the verbatim record of the hearings of DATE before the ORG and paragraph CARDINAL below ) .

The applicant has not , until now , sought authorisation to change his forenames , authorisation which may be granted by the Government in pursuance of an Act of DATE supplementing the LAW of CARDINAL Germinal , DATE XI - DATE ( see paragraph CARDINAL below ) . He has an identity card bearing his female forenames , but with a photograph corresponding to his present outward appearance .

In GPE , there is no legislation dealing with transsexualism . In the only case of the kind which appears to have given rise to a criminal prosecution , ORG held , on DATE , that sex - change treatment and operations did not of themselves constitute criminal offences . They depended on the free decision of doctors and surgeons , acting according to their conscience and with the ORG consent .

The drawing up of civil status certificates , including birth certificates , is regulated by LAW . Under LAW , declarations of birth have to be made before ORG for the district . The certificate is drawn up immediately in the presence of CARDINAL witnesses and states , amongst other things , the child ’s sex and forenames ( Articles CARDINAL and DATE ) .

Rectification of civil status certificates is governed by Articles CARDINAL of the Judicial Code . The person concerned has to file a petition with ORG ( Article CARDINAL ) . The President of the ORG designated to hear the matter gives directions for the petition to be communicated to the ministère public and appoints a judge - rapporteur ; the petitioner is invited to appear at a hearing in order to present his case ( Article CARDINAL ) . The operatives provisions of any judgment ordering rectification are transmitted to ORG who will forthwith enter particulars thereof on his registers and endorse them in the margin of the certificate to be amended ; thereafter , the certificate will only be issued bearing the rectifications ordered ( Article CARDINAL ) .

The Government referred the ORG to a judgment dealing with the construction of these provisions : in the case of a couple who had obtained a judicial separation but later resumed co - habitation , ORG of First Instance held on DATE that " rectifying a civil status certificate " involves making thereto " such additions , deletions or modifications as may be necessary to cause it to be in conformity with the law and with the true state of affairs regarding the status of the person or persons it concerns " , including the situation where " a certificate , though properly prepared in the first place , no longer corresponds to the true state of affairs " .

Several NORP courts have had the occasion to hear petitions for rectification filed by persons who had undergone sex - change treatment in circumstances varying somewhat from CARDINAL case to another . ORG of GPE ( DATE ) and GPE ( DATE ) dismissed the actions , whereas that of GPE ( DATE ) upheld the petition . Another case also resulted in a favourable decision for the petitioner , although the person concerned , unlike NORP PERSON , had not received a phalloplasty ( ORG , DATE ) .

ORG has never been called on to consider the issue .

According to the Government , any civil status certificate may also be modified so as to coincide with the person ’s current situation by means of an action d’état ( an action pertaining to personal status ) . This " bringing into conformity " only has effect as regards the future . Up to the present time , apparently no one has instituted such an action with a view to obtaining recognition of a new sexual identity .

Since DATE , the date on which the above - mentioned LAW DATE came into force ( see paragraph CARDINAL above ) , any person who has grounds for changing his forenames may apply to the government authorities setting out his reasons ( section CARDINAL ) . If the application is allowed , the government authorities grant leave for the change by LAW ; on request by the person concerned , ORG will then enter particulars of LAW on his registers and endorse them in the margin of the birth certificate . Any short form birth certificate subsequently issued must state the new forenames and not the former ones .

At the present time , at last seven transsexuals have taken advantage of this LAW , implementation of which in a given case has no legal bearing on the person ’s sex .

The short - form certificates of civil status which third parties may procure do not state the descent or sex of the persons concerned ( LAW CARDINAL , first sub - paragraph , of LAW ) , but only their place and date of birth , family name and forenames .

On the other hand , certified copies of the full certificate may be obtained by the individual himself , his spouse or surviving spouse , his legal representative , his ascendants , descendants or rightful heirs , the public authorities and persons having a family , scientific or other legitimate interest ( LAW CARDINAL , second sub - paragraph ) .

Identity cards , passports and driving licences do not specify the sex of the holder .


No violation of Art. 10 with regard to the interim injunction;Violation of Art. 10 with regard to the permanent injunction;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

On DATE the applicant company acquired the publishing rights for a book entitled FAC ( “ The Big Secret ” ) from a Mr Gonod , a journalist , and a Dr PERSON , who had been private physician to President PERSON for DATE . The book gave an account of the relations between PERSON and the President , describing how the former had organised a medical team to take care of the latter , who had been diagnosed with cancer in DATE , DATE after he had first been elected President of GPE . It recounted in particular the difficulties PERSON had encountered in concealing the illness , given that President PERSON had undertaken to issue a health bulletin DATE .

The book was due to be published in DATE , while President PERSON was still alive . However , following the President 's death on DATE , the authors and PERSON decided to postpone its publication .

On DATE the DATE newspaper ORG published an article which revealed that President PERSON had been suffering from prostate cancer since the beginning of his first DATE term of office and pointed out that the public had not been officially informed about his illness until DATE . The article also stated that President PERSON had dismissed PERSON in DATE , choosing instead to be treated with medicine described by the applicant company as “ alternative ” .

Those revelations were the subject of extensive comment in the media . Questions were asked , in particular , about the quality of the treatment received by President PERSON .

A former cultural adviser to President PERSON had already claimed in a book entitled PERSON des adieux , published by ORG in DATE , that the President had not received proper treatment . In addition , shortly after the President 's death , CARDINAL of his brothers made similar allegations . The head of the cancer treatment department at FAC did likewise , in particular asserting on the radio station LOC CARDINAL that “ for DATE [ President PERSON had been ] given nothing but magical cures , and these techniques were completely ineffective in treating his illness ” .

On DATE , however , ORG published a statement by the President of ORG ordre des médecins ( ORG ) to the effect that “ according to the information in [ his ] possession , the President [ had ] received perfectly appropriate treatment ” . Furthermore , on DATE the President 's widow and children had issued a statement emphasising that they maintained their trust in the medical team that had looked after him .

As PERSON considered that his reputation had been called into question , it was decided to publish FAC on DATE . The following text appeared on the back cover :

“ On DATE PERSON was elected President of GPE .

On DATE , DATE , medical examinations revealed that the head of ORG was suffering from cancer . Statistically , he had DATE to live .

A handful of doctors resolved to fight the illness , driven by the obsession to save the President and to obey his instruction that the NORP public should know nothing about the matter . It became a ORG secret .

Only PERSON , private physician to PERSON during his CARDINAL terms of office , could have provided us with the astonishing account of how the President cheated death for DATE , taking each day at a time .

These revelations will transform our image of a man who led GPE for DATE . ”

On an urgent application lodged on DATE by President PERSON 's widow and children , who complained of a breach of medical confidentiality , an invasion of President PERSON 's privacy and injury to his relatives ' feelings , the President of the GPE tribunal de grande instance issued an injunction on DATE prohibiting the applicant company and PERSON from continuing to distribute FAC , on penalty of MONEY ( ORG ) per book distributed , and instructed a bailiff “ to procure all documents containing details of the print run and the number of copies in circulation ” .

The urgent - applications judge based her decision on the following grounds :

“ All people , regardless of their rank , birth or function , have the right to respect for their private life .

This protection extends to their relatives where the relatives are justified in asserting their right to respect for their own private [ and ] family life .

What is in issue in the instant case are disclosures by President PERSON 's private physician , who treated and attended to him for DATE and in whom the patient and his family placed their trust .

They were made in breach of provisions that lay down a duty of professional confidentiality , all the more strictly where medical confidentiality is concerned , and the person who made them may be liable to the penalties provided for in LAW of LAW .

By their very nature , they constitute a particularly serious intrusion into the intimate sphere of President PERSON 's private family life and that of his wife and children .

The resulting interference is especially intolerable in that it has occurred within DATE of President PERSON 's death and burial .

Since this is a case of blatant abuse of freedom of expression resulting in a manifestly unlawful infringement of the claimants ' rights , it is within the power of the urgent - applications judge to order measures capable of putting an end to the infringement or limiting its scope . ”

In a judgment of DATE , ORG upheld the injunction and gave the claimants DATE to apply to a court with jurisdiction to examine the merits of the case , indicating that if such an application was made , the injunction and penalty for non - compliance would remain in force until a ruling was given on the merits , but that if no such application was made , those measures would cease to have effect on the expiry of the DATE period .

The judgment began by noting the definition of medical confidentiality in LAW , and emphasised that “ the death of the patient does not release a medical practitioner from the duty of confidentiality ” . It went on to quote the text on the back cover and identified some CARDINAL disclosures made in the book , together with page references , about facts “ of which PERSON had become aware in the performance of his professional duties as physician to PERSON ” and which “ as such ... [ were ] manifestly covered by the rules of medical confidentiality ” . The judgment stated :

... the disclosure , through publication of the book FAC , of facts covered by the duty of medical confidentiality by which the co - author of the book is bound is manifestly unlawful .

The innermost feelings of PERSON and of PERSON children have been offended by this public disclosure of information pertaining both to the character and private life of their husband and father and to their own sphere of intimacy by the private physician to the late NORP President , in whom the latter had placed his trust , under the protection of a lawfully established duty of professional confidence of which all medical practitioners are solemnly reminded when the Hippocratic oath is read out on their admission to the profession .

... prohibition of the distribution of a book can only be an exceptional measure .

However , in view of the space they occupy , the above passages from FAC , which disclose facts covered by the duty of medical confidentiality by which the co - author of the book is bound , can not be separated from the rest of the book without depriving it of its fundamental content and thereby disfiguring it .

Accordingly , the decision by the first - instance judge to prohibit the [ applicant ] company and PERSON from continuing to distribute the book Le Grand Secret was based on a precise assessment of the interim measure likely to put an end to the manifestly unlawful infringement resulting from such disclosures .

Although the first edition of the book in question was marketed before the date of the injunction appealed against , and although information published in the book has been divulged by various media since the injunction was issued , the ensuing circumstances are not capable of putting an end to the manifestly unlawful infringement that would necessarily result from resumed distribution of the book .

Consequently , the injunction issued by the first - instance judge should remain in force .

However , the necessarily temporary nature of such a measure dictates that its validity should be limited in time by such means as to afford the parties an opportunity to submit argument in the dispute between them , within a reasonable time , before a court with jurisdiction to examine the merits of the case .

To that end , the respondents should be given DATE , from the date of delivery of this judgment , to bring their dispute before such a court . It should further be specified that if an application for an examination of the merits is made within this period , the injunction will remain in force , unless the court in question rules otherwise , until the delivery of its decision , but that if no such application is made within this period , the injunction will immediately cease to have effect . ”

In a judgment of DATE , ORG dismissed appeals on points of law by the applicant company and PERSON against the judgment of DATE .

ORG considered that ORG had established the existence of a manifestly unlawful infringement by holding that disclosures made in the book about the development of PERSON condition had been in breach of medical confidentiality , and that it had been exclusively within ORG jurisdiction to rule that the injunction prohibiting the continued distribution of the book , as an interim measure valid for a limited period only , was the only means of putting an end to the infringement pending a decision on the merits .

NORP In the meantime , on DATE , the GPE public prosecutor had summoned PERSON to appear in ORG on a charge of breaching professional confidence during DATE and DATE , DATE and DATE and DATE by having disclosed information to PERSON and Mr PERSON , the managing director of Editions PERSON , about President PERSON 's health and the treatment he had been prescribed . Mr PERSON and PERSON had also been summoned to answer a charge of aiding and abetting that offence . President PERSON 's widow and CARDINAL children had applied to join the proceedings as civil parties but had not filed claims for damages .

In a judgment of DATE , ORG found PERSON guilty of breaching professional confidence and PERSON and PERSON guilty of aiding and abetting the same offence . It sentenced PERSON to DATE imprisonment , suspended , and fined Mr PERSON and Mr PERSON FRF CARDINAL and FRF CARDINAL respectively . The judgment emphasised , in particular , that by signing a publishing contract on CARDINAL DATE , and subsequently by delivering his manuscript with a view to its publication , PERSON had publicly disclosed confidential information entrusted to him , and that “ publication of an entire book based on a breach of medical confidentiality amounted , on Mr PERSON part , to a serious breach of his professional duties , calling for a stern reminder of the law ” .

As no appeal was lodged , the judgment became final on DATE .

Alongside those proceedings , on DATE President PERSON 's widow and CARDINAL children had brought proceedings against PERSON and PERSON ( both in his personal capacity and as the statutory representative of the applicant company ) in the GPE tribunal de grande instance , seeking an order prohibiting resumption of the publication of FAC or , in the alternative , deleting certain pages and paragraphs . They also sought an award of damages . They argued , in particular , that the book contained disclosures that breached medical confidentiality and invaded President PERSON 's privacy in such a way as to interfere with the feelings and personal life of his widow and children . They further submitted that some of these “ indiscretions ” amounted to direct personal attacks on their own sphere of intimacy .

In a judgment of DATE , the GPE tribunal de grande instance ordered PERSON , PERSON and the applicant company jointly and severally to pay damages of ORG CARDINAL,CARDINAL to PERSON and ORG CARDINAL to each of the other claimants , and maintained the ban on distribution of FAC . The judgment stated , inter alia :

Merits of the applications

A reading of the book FAC reveals that its contents include :

( a ) a description of the President 's ' health regime ' at the time when arrangements were being made for the ' medical care ' with which he was to be provided throughout his time in office ( pages ... ) ;

( b ) a reference to the initial symptoms of his illness ( page ... ) and an account of the medical examinations which he underwent in DATE ( page ... ) ;

( c ) the results of these examinations and the subsequent discussions between PERSON and his doctors ( pages ... ) ;

( d ) a description of the medical examination carried out on PERSON by Professor [ S. ] on DATE , and an account of the conversation in which Professor [ S. ] and PERSON informed PERSON of the nature of his illness and the forms of medical treatment it required ( pages ... ) ;

( e ) a description of a treatment protocol prescribed by Professor [ S. ] and PERSON and the manner in which the treatment was administered to PERSON ( pages ... ) ;

( f ) an indication of the pseudonym under which biological tests concerning PERSON were carried out by a private laboratory ( page ... ) and of the frequency and nature of such tests ( pages ... ) ;

( g ) a description of certain physical disorders that affected PERSON and an indication of the medicine he was given in order to treat them and prevent their recurrence ( pages ... ) ;

( h ) a description of anxiety attacks suffered by PERSON ( pages ... ) ;

( i ) a description of the side - effects of the medical treatment received by PERSON ( page ... ) ;

( j ) information on developments in PERSON health and the impact of such developments on his behaviour ( pages ... ) ;

( k ) a description of the circumstances in which certain health bulletins on PERSON were drawn up ( pages ... ) ;

( l ) a description of other medical practitioners ' dealings with PERSON and the power struggles between various members of his medical team ( pages ... ) ;

( m ) an account of the operation performed on PERSON on DATE ( pages ... ) ;

( n ) a description of the medical treatment which PERSON received and the medical examinations he underwent in DATE ( pages ... ) ;

The events described in the above passages from FAC became known to PERSON in the performance of his professional duties as physician to PERSON or members of his entourage . Although they do not relate directly to medical facts , PERSON could only have become aware of them while practising his profession ; accordingly , they were manifestly covered by the duty of medical confidentiality by which he was bound . They were disclosed unlawfully , firstly when PERSON , wishing to provide the public with a ' chronological account ' of the head of ORG 's illness , contacted the journalist PERSON and wrote the manuscript for the book in conjunction with him ; subsequently , when the manuscript was submitted to PERSON in DATE with a view to its publication by PERSON ; and finally , when the book went on sale DATE after PERSON death , the publisher laying emphasis in the text on the back cover on the fact that only PERSON , through his privileged position in relation to the head of ORG , could have written this ' astonishing account ' .

Neither PERSON alleged desire to restore the truth by informing the public about facts that had been kept from them for DATE ... nor the fact that while PERSON was alive incomplete bulletins about his health were published , which the physician nonetheless agreed to sign , serve as justification for the disclosures in question . The duty of medical confidentiality is general and absolute and does not allow medical practitioners to transform themselves into guarantors of the proper functioning of ORG institutions or into historical witnesses .

Furthermore , nothing can release medical practitioners from their obligation to remain silent , since the duty of professional confidence exists not only to protect the interests of those who confide in them , but also to guarantee the reputation that medical practitioners must enjoy among all those who require medical assistance .

Although a practitioner whose competence or integrity has been called into question may be required to breach the duty of confidence in order to prove the quality of his treatment or his good faith , this is subject to the condition that such disclosure is limited to the strict requirements of his defence in court and does not , as in the instant case , take the form of deliberate public divulgence of information .

Redress

The specific purpose of civil liability is to restore as precisely as possible the balance that has been upset by the damage and to return the victim , at the expense of the party held liable , to the position in which he or she would have been had the prejudicial act not occurred . This principle means that , when affording redress for non - pecuniary damage , the courts are able not only to award damages to the victim in compensation for the harm already sustained , but also to prevent any subsequent damage by ordering the elimination of its cause .

The offence caused to the LOC and PERSON by the disclosure of their own doctor 's deliberate breaches of the necessary confidentiality of his relations with both PERSON and themselves over DATE , the publisher 's desire to draw attention to the book in a spectacular manner by rushing to print and sell it immediately after the announcement of PERSON death ( the possibility of a mere coincidence of events can not be seriously entertained ) , the advance communication of extracts from the book to certain sections of the press for obvious promotional purposes , and the book 's substantial initial print run ( CARDINAL copies were distributed and sold from DATE ) justify an award of damages to the claimants as set out in the operative provisions of this judgment ... and the continuation of the prohibition on the distribution of the book ordered by the urgent - applications judge .

In this connection , ... prohibition of the distribution of a piece of writing entailing an infringement of human rights ... [ is ] , regard being had to the principles governing civil liability , [ a ] legally acceptable means of redress designed to put an end to the injury suffered by the victim and to prevent the recurrence of the damage that would necessarily result from resumption of the distribution of the piece of writing .

Contrary to what PERSON maintained in his submissions , the time that has elapsed since PERSON death can not have had the effect of definitively putting an end to the infringement observed when the book was published and rendering lawful the distribution of a book purporting to be a ' witness account of the historical truth about the President 's CARDINAL terms of office , to which the NORP people should have access ' ... , when the defendant is not authorised to give a historical analysis of facts which became known to him in the performance of duties in which he was bound by absolute confidentiality .

Although , in spite of the injunctions of DATE and CARDINAL DATE prohibiting distribution of the book , information contained in FAC has been divulged through various media , the ensuing situation is not capable of preventing the injury and damage that would result for the claimants from resumed distribution of the book , with the particular light which the comments of a doctor shed not only on relations with members of the family circle with whom he was in close contact , but also on the most intimate reactions of PERSON to his illness .

In view of the space they occupy , the above passages from FAC , which disclose facts covered by the rules of medical confidentiality , can not be separated from the rest of the book without depriving it of its fundamental content and thereby disfiguring it ... ”

On an appeal by the applicant company , PERSON and PERSON , ORG gave judgment on DATE . It cleared Mr PERSON on the ground that the production and sale of FAC did not constitute a separate tort from the one attributable to the applicant company . It also declared inadmissible the action brought by the PERSON family in so far as it concerned the protection of President PERSON 's private life , pointing out in that connection that “ the possibility for anyone to prohibit any form of disclosure about [ their private life ] is only open to the living ” . As to the alleged invasion of the privacy of the LOC themselves , ORG noted that certain passages from the book in issue “ entail[ed ] invasions of the LOC ' privacy ” , but considered that such infringements could not , “ regrettable though they may have been , justify – regard being had , in particular , to their sporadic occurrence in the book – prohibiting publication of the book as a whole ” .

However , holding that PERSON had breached the duty of medical confidentiality by which he was bound , ORG ordered him and the applicant company jointly and severally to pay damages in the amount determined in the first - instance judgment , and upheld the decision to maintain the ban on distribution of the book . The judgment of CARDINAL DATE stated , in particular :

The breach of medical confidentiality

It was established in the judgment [ of ORG ] of DATE , which has become final and binding on the civil courts , that PERSON breached the duty of medical confidentiality by which he is bound .

It was rightly observed in that decision that breach of professional confidence was made a criminal offence not only in the public interest but also in the interests of private individuals , in order to guarantee the security of the confidential information which they are required to entrust to certain persons on account of their status and profession . The duty of medical confidentiality is founded on the relationship of trust essential to the provision of medical treatment , whereby patients are assured that anything they tell their doctor or cause him to see , hear or understand , as a person in whom such information must be confided , will not be disclosed by him .

DATE paragraph , of LAW provides that medical confidentiality covers ' everything that has come to the attention of medical practitioners in the practice of their profession , that is , not only what has been confided in them but also what they have seen , heard or understood ' .

Since PERSON was in the company of Mr PERSON solely on account of his position as his doctor , all the information he recounts in his book , which he learned or observed while practising his profession , is covered by the duty of medical confidentiality by which he is bound vis - à - vis his patient , although it may also constitute interference with the patient 's private life or sphere of intimacy .

The PERSON family have inherited from Mr PERSON the right to bring proceedings against the appellants . Although FAC was published after PERSON death , it should be noted that the book was in fact the subject of a publishing contract signed on DATE ] , prior to his death .

Accordingly , the Mitterrands have inherited from the deceased the right both to obtain redress for the breaches of medical confidentiality resulting from the disclosure of confidential information to PERSON in DATE and DATE and to PERSON in DATE , as the criminal court held , and to obtain compensation for the consequences of the decision taken on DATE to publish the book ; this possibility is not excluded by the judgment of CARDINAL DATE and is not contrary to the principle of res judicata in relation to that judgment .

Redress

The exercise of freedom of expression , a principle with constitutional status set forth in LAW ... , carries with it duties and responsibilities ; it may be subject to such formalities , conditions , restrictions or penalties as are prescribed by law and are necessary in a NORP society , for example for the protection of health , for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence .

In the instant case the prohibition of the book complained of is necessary since it is the only means of putting an end to the damage sustained and to the criminal offence which it constitutes ... ”

In a judgment of DATE , ORG dismissed an appeal on points of law by PERSON and the applicant company . In response to their ground of appeal based on LAW , it held :

“ ... ORG held that all the information published had been obtained by PERSON in the performance of his professional duties as private physician to PERSON , so that it was covered by the rules of medical confidentiality , although it could also constitute interference with the right to respect for private life . After observing that the breach of medical confidentiality had been established by a criminal court , ORG , pointing out that the exercise of freedom of expression could be subject to certain restrictions , in particular for the protection of the rights of others , justified its decision in law in holding , in the exercise of its exclusive jurisdiction , that discontinuing the distribution of the book was the only means of putting an end to the criminal offence and the damage sustained , its assessment of which is not subject to appeal ... ”

However , partly allowing an appeal on points of law by the ORG , ORG quashed and annulled the judgment of DATE in so far as it had cleared PERSON , and remitted the case , on that point , to a differently constituted bench of ORG . The outcome of that aspect of the proceedings has not been specified by the parties .

The parties have stated that an electronic version of the text of FAC is available on the Internet . They have not indicated who decided to disseminate the text in this form or the date when it became available .

The obligation of medical confidentiality incumbent on medical practitioners is set forth in the following provisions of LAW ¨Practitioners :

“ The duty of professional confidentiality , established in the interests of patients , shall apply to all medical practitioners as provided by law .

Such confidentiality shall cover everything that has come to the attention of medical practitioners in the practice of their profession , that is , not only what has been confided in them but also what they have seen , heard or understood . ”

“ Medical practitioners must ensure that persons who assist them in their practice are informed of their obligations regarding professional confidence and comply with them .

They must ensure that those around them do not breach the confidentiality attaching to their professional correspondence . ”

“ Medical practitioners must protect from any indiscretion the medical documents concerning persons whom they have treated or examined , irrespective of the content or form of such documents .

The same shall apply to any medical information that may be in their possession .

When using their own experience or documents for the purposes of academic publishing or teaching , medical practitioners must ensure that individuals can not be identified . Failing this , the consent of the persons concerned must be obtained . ”

Breaching professional confidence is a criminal offence under LAW of LAW , which provides :

“ The disclosure of confidential information by persons who are entrusted with it either on account of their position or profession or on account of a temporary function or assignment shall be punished by DATE imprisonment and a fine of CARDINAL . ”

ORG has held that “ what the law intended to guarantee is the security of confidential information which individuals are required to disclose to persons whose position or profession makes it necessary , in the general public interest , to confide such information in them ” ( ORG ( PERSON . crim . ) , DATE , ORG . crim . ) no . CARDINAL ) . ORG has further held that “ the obligation of professional confidence , as set forth in Article CARDINAL - CARDINAL of LAW in order to ensure the necessary trust in the practice of certain professions or the performance of certain duties , is incumbent on medical practitioners , save where the law provides otherwise , as a duty inherent in their position [ and ] , subject only to this proviso , is general and absolute ” ( PERSON . crim . , DATE , ORG . crim . no . CARDINAL ) , and that “ no one is entitled to release them from it ” ( PERSON . crim . , DATE , ORG . crim . no . CARDINAL ) . In a case concerning a lawyer , it has held that “ the obligation of professional confidence , as set forth in LAW , is incumbent on lawyers as a duty inherent in their position [ and that ] knowledge by others of facts covered by the confidentiality rule does not mean that they are no longer confidential and secret ” ( PERSON . crim . , CARDINAL DATE , ORG . crim . no . CARDINAL ) .

Article CARDINAL - CARDINAL of LAW ( in its wording resulting from PERSON no . DATE of DATE ) provides :

“ Article CARDINAL - CARDINAL shall not apply in cases where the law requires or authorises disclosure of confidential information . Nor shall it apply to :

( CARDINAL ) NORP persons who inform the judicial , medical or administrative authorities of acts of deprivation or ill - treatment , including sexual assault , of which they have knowledge and which have been inflicted on a minor DATE or a person unable to protect himself or herself because of his or her age or physical or mental condition ;

( CARDINAL ) medical practitioners who , with the victim 's consent , bring to the attention of a public prosecutor acts of ill - treatment which they have noted in the practice of their profession and which cause them to suspect that sexual assault of any nature has been committed ;

( CARDINAL ) NORP health or welfare professionals who inform the prefect , or , in GPE , the Commissioner of Police , of the danger posed to themselves or others by persons who consult them and whom they know to be in possession of a weapon or to have indicated their intention to acquire CARDINAL .

No disciplinary measures may be taken where a medical practitioner has reported acts of ill - treatment to the relevant authorities in accordance with this LAW . ”

ORG has held that , although professional confidentiality is a strict obligation , it can not prohibit medical practitioners whom a patient has attempted to involve in fraud by causing them , through deception , to issue a certificate falsely attesting to the existence of illness or disability from proving that they acted in good faith by giving evidence , in judicial proceedings relating to the fraud , about the means used to falsify their examination and impede their judgment , thereby causing them to issue the certificate ( PERSON . crim . , DATE , ORG . crim . no . CARDINAL ) . The Government pointed out , however , that that was possible only on condition that the disclosure was limited to the strict requirements of the medical practitioner 's defence in court and did not take the form of a deliberate public disclosure ; they referred in that connection to a GPE judgment delivered by ORG on DATE , although they did not produce it or cite its publication reference . The applicant company produced a judgment of CARDINAL DATE in which ORG of ORG held that “ pursuant to LAW [ by which ' persons making a donation ... must be of sound mind ' ] , which amounts to authorisation within the meaning of Article CARDINAL - CARDINAL of LAW , practitioners are released from their obligation not to disclose facts which become known to them in the practice of their profession ; since the purpose of professional confidence is to protect the non - professional who confided such facts in the professional , they may be disclosed not only to the non - professional but also to persons with a legitimate interest in ensuring this protection ” . ORG inferred from this that the trial courts could rule that an expert appointed in proceedings for the determination and partition of an estate should have access to the deceased 's medical records without being blocked on grounds of medical confidentiality by the practitioner in possession of the records .