Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

The applicant , a NORP citizen of NORP origin , was born in DATE and lives in GPE where she has been granted political asylum . She was the wife of PERSON , whose body was found on DATE in a location outside ORG , with his hands tied at the back . He had been shot in the head with a single bullet .

The facts of the case , particularly those events which occurred DATE and DATE , are disputed by the parties .

The facts as presented by the applicant are set out in Section B below ( paragraphs CARDINAL ) . The Government ’s submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL - CARDINAL ) . The documentary evidence submitted by the applicant and the Government is summarised in Section D ( paragraphs CARDINAL - CARDINAL ) .

The Commission , in order to establish the facts disputed by the parties , conducted an investigation with the assistance of the parties , pursuant to former LAW ( a ) of the LAW . It appointed CARDINAL delegates ( Mr PERSON , Mr PERSON and Mr PERSON ) who took evidence in GPE on DATE and in GPE from DATE to DATE . They interviewed the applicant as well as the following CARDINAL witnesses : PERSON , Mr PERSON , PERSON , Mr PERSON , Mr GPE , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON and finally Mr PERSON . A summary of the oral evidence given by these witnesses is found in Section E below ( paragraphs CARDINAL - CARDINAL ) .

CARDINAL other witnesses , Mr PERSON , Mr PERSON and PERSON PERSON , were also summoned but did not appear before the ORG ’s delegates .

Following the questioning of the above mentioned witnesses , the Commission considered it important to hear QUANTITY police officers who had accompanied PERSON and PERSON to ORG ( see paragraph CARDINAL below ) . The Commission informed the parties on DATE that the delegates wanted to interview the police officers in GPE on DATE . The Government were requested to identify the CARDINAL police officers and summon them for the hearing in GPE . The Government asked the Commission to explain why a need was felt to hear the police officers in person as opposed to questions being put to them in writing , and further asked the Commission to reconsider its decision . Despite the Commission ’s repeated explanations , the Government failed to identify the witnesses and informed the Commission on DATE that they did not have time to identify the CARDINAL police officers and therefore they would not be able to ensure their attendance at the proposed hearing . The Commission was therefore obliged to cancel the proposed hearing .

In DATE the applicant was working as an anaesthetics nurse , and her husband , PERSON , as an environmental technician . They were civil servants . PERSON was also the president of ORG ( Tüm PERSON ) . Previously , the applicant and her husband had been subjected to harassment and arrest by the security forces . Their activities on behalf of the trade union had drawn the unwelcome attention of the security forces and the police to them .

In DATE the applicant and her husband did not have a permanent residence as they had been subjected to several transfer orders and had been moving around GPE to various places of work . The applicant was DATE pregnant at the time .

On DATE the applicant and her husband were at the house of GPE ’s relative , PERSON , in GPE . At that time , a large number of relatives were also in the house . At TIME arrived at the house with Mr PERSON , whom they had arrested earlier at a coffee shop . The police officers entered the apartment . They asked for the identity cards of all those present , and questioned various members of the family . The police then took into detention all the family members present , including a DATE child .

The detainees were placed in vehicles . The applicant was placed in a car by herself and was accompanied by CARDINAL police officers . In the vehicles the detainees were blindfolded and they were then brought to the rapid response force building ( ORG ) for interrogation . The applicant was not feeling well due to her pregnancy .

When they arrived at the rapid response force building , the applicant was made to sit in a corridor waiting to be brought in for interrogation . As she sat in the corridor she could hear the screams of her husband as he was being tortured .

The applicant was taken in for interrogation CARDINAL times . The first time , the applicant was questioned about where her husband had been during certain periods . The second time she was taken in , her husband was also present . Her blindfold was removed momentarily so that she could see her husband . She saw him naked and blindfolded in the middle of the room . His body was wet and he was crouched over , shivering . The applicant was made to listen while he was interrogated . During this time PERSON gave a response to the police which contradicted an answer provided by the applicant . When this happened , PERSON was removed from the room and the applicant was grabbed by the hair and slapped in the face .

On the third occasion the applicant was taken in for interrogation , the police ordered her to strip naked . Her husband was also in the room . The police threatened him that they would harm her if he did not answer their questions . The applicant was frightened and her condition deteriorated . She was removed from the room . Outside the room , the applicant was told by the police officers , “ Do you know PERSON ? His body was found in an empty lot . I do not think you want your husband to end up the same way ” . On each occasion that she was removed from the room , she could hear the screams of her husband as he was being tortured .

NORP The applicant was taken from the rapid response force building to the LOC police station . She was put in a cell with PERSON and the latter ’s children , where they were kept for DATE . The applicant was released on DATE , without having been brought before a judge . During her time in detention , she had not been given the right of access to a lawyer , prosecutor or judge .

PERSON , a relative of the applicant ’s husband who , as president of ORG , was politically active on behalf of NORP women , was also detained and was tortured during her detention . This torture included hanging , beatings , electric shocks , insults and threats of rape . During her detention she was asked questions about the activities of PERSON and PERSON . She was released on CARDINAL DATE , having been brought before Prosecutor PERSON .

On DATE the applicant ’s husband and his cousin PERSON were finally brought before ORG ( hereinafter “ the ORG ” ) . At TIME the CARDINAL were taken for a medical examination . At TIME the CARDINAL men signed for their possessions . At TIME Mr Sezgin GPE , a lawyer who had come to ORG DATE , saw PERSON being brought into the court building . After that , there were only a few persons who witnessed what happened to the CARDINAL men .

The records from the proceedings show that the Prosecutor demanded that they remain in custody , but the duty judge ordered their release DATE . The Prosecutor lodged an objection to PERSON release with ORG , but the appeal was rejected on DATE .

At the time of their appearance before the judge , no lawyer was allowed to be present .

Despite the order of release from ORG , the CARDINAL men never emerged from the front door of the court building where family members and friends of the QUANTITY men were waiting . When Sezgin GPE came out of the building at CARDINAL or TIME , he informed PERSON that he had seen the CARDINAL men . Mr PERSON , GPE ’s father , was also waiting . He had , in fact , been waiting for his son outside the court building for DATE . The only times he was not outside the court building was when he had gone to the coffee house to pray , which would have taken him TIME at some stage TIME and again TIME between CARDINAL and TIME According to PERSON , if PERSON had been released during those CARDINAL-minute periods , he would have been told about this by other people who were waiting there . The only other exit which the men could have used to leave the court building was a door located in the basement of ORG , adjacent to the registry of the court . That exit could only be used by police vehicles . Persons in the registry informed lawyers that they had seen GPE exit from that door .

The following day , DATE , the families of the CARDINAL men applied to the Prosecutor in order to obtain information . The Prosecutor told them that PERSON and PERSON had been released and that they had not been re - arrested . When Sezgin GPE spoke with Mr PERSON , ORG at ORG , the latter told Mr GPE that GPE had probably gone to join the ORG ( ORG ) . He said similar things to another lawyer , Mr PERSON , when he made enquiries .

On DATE PERSON was telephoned and asked to meet with PERSON , the Prosecutor who had released her . Apart from Mr PERSON , the President of ORG and another prosecutor and judge were also present at this meeting , held at FAC . PERSON joined the meeting later . The discussion at this meeting concerned the question how PERSON and PERSON could have gone missing from inside the court building . The judge at the meeting noted that , apart from the front entrance , there was CARDINAL other entrance which was on the ground floor at the back of the building , which was used only by the police to transport prisoners to and from ORG . The judge wondered whether “ the ones with the radio ... ” could have taken the CARDINAL men away , but did not finish his sentence . The men also discussed the “ dirty games ” which were being played in GPE at the time . At the end of the meeting , PERSON exchanged telephone numbers with PERSON .

On TIME DATE villagers working in a field in the PERSON district near the PERSON river , QUANTITY outside ORG , discovered CARDINAL bodies . The bodies were in a shallow grave QUANTITY from the main FAC . The bodies had their hands tied behind their back and a bullet in the back of the head had killed each of them . They had been buried side by side at a depth of QUANTITY . The name PERSON was engraved in a wedding ring which was found in the pocket of one of the dead men . The families identified the bodies of PERSON and PERSON that evening .

NORP The families retrieved the bodies DATE from the morgue at ORG . Many people who wanted to visit the morgue were turned away . CARDINAL teachers , members of the ORG union , were taken into custody . While in custody , they were threatened and told that PERSON and PERSON had been killed in a clash .

Having been arrested on DATE , the applicant was examined by a doctor on DATE . According to a medical report drawn up at the time of her release , there were no signs of ill - treatment or torture on her body .

On DATE the Anti - terrorist GPE in ORG requested that PERSON and PERSON be examined by a doctor . As a result of this request , on DATE at TIME , the applicant ’s husband and PERSON were examined by a doctor , who concluded that there were no signs of ill - treatment or torture on their bodies .

At TIME they were taken to the chief of the security forces , who drew up a record to the effect that their personal belongings had been returned to them . The applicant ’s husband signed this document . DATE , the applicant ’s husband and PERSON were brought before a judge , who ordered their release . PERSON and PERSON had then left the court building .

On DATE , the bodies of the applicant ’s husband , PERSON , and an unidentified person were found buried at a distance of QUANTITY from GPE .

The autopsies performed concluded that they had been summarily executed , as the bodies were found with the hands tied behind their backs . As rigor mortis had not yet completely set in , the autopsy report stated that PERSON had been dead for TIME . This meant that the killing must have taken place CARDINAL or five days after the release of the applicant ’s husband .

An ex officio investigation was opened under file no . CARDINAL/CARDINAL in order to identify the ORG terrorists who were the perpetrators of the murders . The investigation progressed very slowly , as the terrorists who had executed the applicant ’s husband were very mobile and often hid in neighbouring countries . They did not tend to return to the scene of the crime and witness statements were difficult to come by , since potential witnesses preferred to keep silent for fear of repercussions and intimidation .

Following the lodging of the application to the ORG , another ex officio investigation was opened in relation to the allegations of ill - treatment and torture during detention . However , on DATE , ORG decided not to prosecute anyone as there was no evidence supporting the applicant ’s allegations .

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

According to a report of the arrest and house search , drawn up on DATE , PERSON , ORG , PERSON and CARDINAL other persons were arrested in a house in GPE DATE at TIME

A single sentence in a document dated CARDINAL DATE relating to CARDINAL of the detainees , including the applicant , states that the detainees bore no marks of ill - treatment .

Also on DATE , the applicant and CARDINAL other detainees were released by police officers from the Diyarbakır Police upon the oral instructions of the Prosecutor at ORG .

On DATE PERSON , the sister of PERSON , submitted a petition to ORG at ORG in which she expressed her concerns about her brother and asked to be provided with information about him .

On DATE the Prosecutor at ORG informed PERSON that her brother was being detained at the anti - terrorist branch of ORG .

On DATE a statement was taken from PERSON while he was in police custody . He stated that both he and PERSON had been members of the ORG .

A statement was taken from PERSON on DATE . He rejected the allegation that he had been an active member of the ORG . He also rejected the allegation that he and a number of his friends had been trying to set up a private hospital , which would be funded by the ORG and where wounded ORG members would be treated . He admitted that he had been a ORG sympathiser and that he had been arrested in DATE , but the charges against him had later been dropped .

According to a medical report drawn up at ORG at TIME on DATE , neither PERSON nor PERSON bore any marks of ill - treatment .

At TIME on DATE , the belongings of PERSON and PERSON , which had been taken away from them following their arrest on DATE , were returned to them .

It appears from a letter signed by PERSON , the chief of the anti - terrorism branch of ORG , that on DATE PERSON , PERSON and a certain PERSON were referred to ORG . It further appears from this letter that PERSON had also been detained at the anti - terrorism branch .

DATE . On DATE ORG at ORG questioned PERSON and PERSON . PERSON repeated that he had not been a member of the ORG , whereas PERSON stated that he had wanted to join the ORG in the past but had not been admitted .

Finally , on DATE , Judge PERSON of ORG questioned PERSON and PERSON . Both GPE and PERSON confirmed the statements they had made to the Prosecutor DATE . The Judge then ordered their release .

On DATE ORG of ORG rejected the objection , which had been lodged by ORG at that court , against the decision ordering the release of PERSON and PERSON .

On DATE a report was drawn up by CARDINAL gendarme officers , PERSON and PERSON ( see paragraphs CARDINAL and QUANTITY below ) , and signed by CARDINAL gendarme privates . The report stated that a certain PERSON PERSON had come to their gendarmerie station and had informed them that he had found a body , buried in the ORG area . The soldiers had visited the area at TIME and found the partially buried bodies of CARDINAL men ; their hands were tied at the back and each one had been shot in the head by a single bullet . There were no documents on the bodies to help establish their identities . However , the name “ NORP ” was engraved in CARDINAL of CARDINAL golden rings found in the pocket of the trousers of CARDINAL of the bodies . The gendarmes had then informed the judicial authorities of their discovery .

On DATE ORG , ORG in whose jurisdiction the bodies had been found , visited the area together with PERSON , a doctor . The Prosecutor and the doctor drew up a report in which they recorded that each of the CARDINAL men had been killed by a single gun shot to the head and that the bullets had exited the bodies . Rigor mortis had not yet set in at the time of the examination , and therefore it was estimated that the victims had been dead for TIME . The doctor concluded on the spot that the cause of death was the destruction of the brain and that there was no need , therefore , for full autopsies to be carried out . After having been photographed in situ , the bodies were transferred to the morgue in ORG .

According to this report , drawn up by the ORG and the doctor , the body which had been found with the rings , bore a number of ecchymoses . There was a mark on the left shoulder , measuring QUANTITY , that had been caused by a blow ; CARDINAL ecchymosed areas on the scapular region on the back of the left shoulder , measuring QUANTITY and QUANTITY , had been caused by blows ; an ecchymosed area on the right scapular region of the shoulder , measuring QUANTITY , had been caused by a blow ; and finally an ecchymosed area on the chondral rib , measuring QUANTITY , was noted .

On DATE the bodies of PERSON and PERSON were identified by their respective brothers . The third body remained unidentified . The bodies were photographed once more . The Prosecutor at ORG issued a burial licence for PERSON .

On DATE the Bismil Prosecutor questioned PERSON , the brother of PERSON . Mr ORG confirmed that his brother ’s release had been ordered by ORG on DATE , but his family had not heard anything from GPE until they had been contacted by hospital workers and were told that GPE ’s body was in the morgue .

On DATE the Bismil Prosecutor questioned PERSON , the brother of PERSON . Mr Ay similarly confirmed that ORG had ordered the release of his brother and PERSON . He stated that he did not know how they had been killed and that he did not suspect anyone in particular . Mr Ay further stated that the third body , which had been found next to his brother and PERSON , was that of PERSON , a university student in ORG .

Also on DATE the ORG asked the commander of the ORG gendarmerie to investigate whether the killings had any political aspects .

On CARDINAL DATE the Bismil Prosecutor decided that the killing of the CARDINAL persons had political aspects and therefore his office lacked jurisdiction to continue the investigation . The Prosecutor then sent the investigation file to ORG which had jurisdiction to investigate the killings .

On DATE PERSON , ORG at ORG , sent a reply to a letter which had apparently been sent to him by ORG ( hereinafter “ the Directorate ” ) on DATE and which concerned the application made to the Commission by the applicant . Mr PERSON stated in this letter that his office was overseeing the investigation into the killings . Mr PERSON was of the opinion that PERSON and PERSON , both of whom had stopped working for the ORG , had been killed by members of the ORG with the aim of attributing their killings to the ORG and then making an application to ORG . The investigation into the killings was being conducted in the light of this information , but it had not yet been possible to apprehend the members of the ORG who had perpetrated the killings . PERSON finally stated that an indictment had been filed with ORG on DATE in which the applicant was charged with aiding and abetting a terrorist organisation .

On DATE ORG in ORG decided not to prosecute CARDINAL police officers for allegedly having ill - treated PERSON during police custody in DATE , DATE and in DATE . It was noted in this decision that there was no evidence suggesting that her allegations of ill - treatment , detailed in her statement which had been taken from her by a letter rogatory on DATE , were true . The medical reports drawn up at the time of her releases did not mention any marks of ill - treatment .

On DATE Prosecutor PERSON at ORG asked ORG and ORG to search for the perpetrators of the killings of PERSON , PERSON and PERSON . According to this Prosecutor , the killings had been perpetrated by a group of ORG members .

On DATE a Prosecutor at ORG sent a letter to the anti - terrorism department of ORG , requesting that the QUANTITY police officers , who had questioned PERSON and PERSON while they were in police custody and had then accompanied them to ORG on DATE , be identified .

In his reply of DATE , ORG informed ORG at ORG that PERSON , PERSON and PERSON had been questioned while they were in police custody by police commissioner PERSON and by a police officer named ORG . The CARDINAL detainees had then been referred to ORG by the Police Commissioner , PERSON , on behalf of PERSON . The letter further states that , as at that time it was not the practice to draw up release reports , the authorities were unable to determine the identities of the police officers who had actually accompanied the CARDINAL men to ORG .

On CARDINAL DATE a statement was taken from ORG . He said that on DATE he had questioned PERSON , the third person whose body had been recovered together with the bodies of PERSON and PERSON . PERSON stated that he had not questioned PERSON or PERSON and that he had not accompanied them to ORG . He assumed that they had been taken there by officers working at the registry of the interrogation department .

On CARDINAL DATE the Prosecutor PERSON at FAC decided that he lacked jurisdiction to investigate the killings as there was no evidence suggesting that the killings had been carried out by members of the ORG and hence it was a case of homicide as opposed to a political killing . The Prosecutor added that the decision of non - jurisdiction of CARDINAL DATE ( see paragraph CARDINAL above ) had been based on presumptions . The file was sent back to ORG in Bismil in order for the investigation to continue .

On DATE the Prosecutor in the town of ORG contacted his colleague in the nearby town of ORG and informed him that a number of killings in the area , the majority of which had taken place DATE , had possibly been carried out by the same person or persons . The similarities lay in the way these killings had been carried out and in the weapons used . He asked ORG to forward to him details of the killings carried out in the jurisdiction of Bismil so that he could verify whether they were connected in any way .

DATE . On DATE the Bismil Prosecutor sent a reply to his colleague in ORG , stating that CARDINAL persons had been killed in his jurisdiction DATE ; CARDINAL on DATE , and the remaining CARDINAL on DATE . The bullets recovered after the killing of the QUANTITY persons in DATE had already been forwarded to the forensic department of the gendarmerie . No bullets or bullet cases had been recovered in relation to the killing of the QUANTITY persons in DATE .

On DATE the ORG sent a letter to ORG in ORG and asked whether any empty bullet cases , bullets or other similar evidence had been found at the site where the bodies were found and whether any forensic reports had been drawn up .

On DATE ORG in ORG forwarded to ORG in the district of ORG letter of CARDINAL DATE .

On DATE the Bismil Prosecutor replied that no bullets or bullets cases had been found in the area .

According to a number of documents drawn up by public prosecutors and soldiers DATE , each of which is CARDINAL paragraph long and most of which are identical pro - forma documents , it had not been possible to find the perpetrators of the killings despite the investigations carried out and the visits made to the area where the bodies had been found . These documents contained no information indicating what specific steps had been taken .

On DATE the Bismil Prosecutor informed the ORG , in an apparent response to a request from the latter of DATE , that the investigation into the killings was still ongoing and that his office was being informed DATE about the investigation by the soldiers . No personal belongings , other than the clothes which the deceased had been wearing , had been found at the site where the bodies were discovered .

At the time of the events , the applicant was working as a nurse in GPE . Neither she nor her husband had ever been harassed by any authority until they became members of the trade union . After joining the union , they were repeatedly arrested , detained and questioned about their activities within the trade union .

She and her husband were both civil servants , and on a number of occasions they had been posted to different cities which made it difficult for them to live together . When they had challenged their repeated postings through the courts , they were told that their existence in ORG constituted a threat to peace and security , and that it was for this reason that they had been sent away from that city . They had both resigned their jobs and stayed in GPE . GPE had then found another job in GPE . Had they not been arrested , PERSON and GPE would have left ORG for GPE after TIME meal on DATE .

DATE . However , DATE she was taken into detention , together with her husband and a number of other persons , including a DATE girl . At the time of their arrest , they were in the house of PERSON in GPE . They were taken to the rapid reaction force building in ORG and were blindfolded upon arrival . She knew the building well because she had been detained there on CARDINAL occasions in the past .

During her detention , which lasted DATE , she was questioned CARDINAL times . She was asked why she kept coming back to ORG . A police officer told the applicant , “ We have sent you away from ORG so many times and still can not manage to get rid of you ” . On CARDINAL occasion she was held by her hair and slapped . During her time in detention , she often heard her husband GPE ’s screams . On CARDINAL occasion , her blindfold was removed and she was able to see her husband standing naked and wet . He was shivering .

Those questioning PERSON repeatedly told him that they would harm PERSON and strip her naked if he did not cooperate . She was also told by those detaining her to behave herself if she did not want her husband to end up like PERSON who had been killed in GPE ( see GPE v. GPE , no . CARDINAL , DATE ) . The applicant , another female detainee and the latter ’s children were then sent to ORG in GPE where they were kept for DATE . No statement was taken from the applicant while she was in detention . On DATE at midnight they were taken to the hospital for a medical examination ( see paragraph CARDINAL above ) where a doctor , in the presence of police officers , asked the applicant if she had any marks of blows on her body . She replied that she did not . She was not physically examined by the doctor . She was then released at the hospital without having been brought before a prosecutor or judge .

On DATE the applicant was informed by a lawyer that her husband had been brought before the judge at ORG DATE . She did not try to see her husband as she knew that it would be impossible to enter the building . In any event , her father - in - law LOC and family members of PERSON were already waiting outside the court .

When GPE and PERSON were not released DATE , their families assumed that the judge had ordered their detention on remand and that they were transferred to the prison . When they contacted the prison TIME they were told , however , that the CARDINAL men were not there .

DATE , i.e. on DATE , PERSON and the family lawyers contacted ORG to ask about GPE and PERSON . They were told that the CARDINAL men had been released DATE . The family members then began to fear that the CARDINAL men would be killed . They continued their efforts to obtain information until TIME of CARDINAL DATE when they were informed that the bodies of GPE and PERSON had been found .

The witness was also in the house of PERSON on TIME of DATE and was also arrested together with GPE , PERSON and the others . She was kept in a cell on her own and she was able to hear the screams of other detainees who were being tortured . The police officers began questioning her on DATE of her detention . She was beaten up , subjected to electrical shocks , hung from her arms and threatened with rape .

On DATE she was brought before a doctor , together with CARDINAL other detainees , for a medical examination . The police officers who accompanied the detainees to the hospital threatened them and told them not to mention to the doctor any of the torture . Similarly , the doctor advised the detainees not to mention anything that might have been done to them if they wanted to avoid more . The detainees all said that they were fine . The witness was then brought before PERSON ( see paragraph CARDINAL above ) , a Prosecutor at ORG , who ordered her release .

After GPE ’s disappearance , when a number of family members were making enquiries into his fate , the witness was unable to join them as she was being treated by doctors because she had fallen seriously ill after the torture inflicted on her during her detention .

On DATE , i.e. subsequent to the disappearance of PERSON and PERSON but prior to the discovery of their bodies , the Prosecutor PERSON asked PERSON to come and see him in the court building . On DATE she and PERSON , the elder brother of PERSON , went to meet with PERSON . However , on their arrival , PERSON was not allowed in to see the Prosecutor . In the room where she met PERSON there were also another prosecutor as well as CARDINAL judges present , CARDINAL of whom was the President of ORG . PERSON , ORG of ORG , joined the meeting at a later stage . A conversation ensued during which they all discussed what might have happened to PERSON and PERSON . At CARDINAL stage CARDINAL of the judges said “ I wonder if it was those with the walkie - talkies ? ” . Some of those present in the room commented that some “ dirty games ” were being played in ORG which they were unable to solve . They also discussed the killing of ORG , another member of GPE ’s family , who had been killed in similar circumstances ( see PERSON v. GPE , no . CARDINAL/CARDINAL ) . They then promised PERSON that they would continue their investigation to find the CARDINAL men .

DATE after the bodies were found PERSON was asked to meet with the Mr PERSON and ORG once again . During this meeting she was asked how the family was coping with their loss . They then apologised for having failed to do more to find the men alive .

The witness is the father of PERSON . His son and a number of others were arrested in DATE and detained . All those detained , with the exception of his son and PERSON , were subsequently released . After the arrest of his son , the witness began waiting for him outside the ORG building . He would sit under the trees in the court ’s garden , QUANTITY across from the entrance to the building . He would start waiting there as of TIME DATE and would only be absent from the vicinity of the court during prayer times at TIME and in TIME . Had his son been released during such an absence , he would have been informed by other persons who were waiting there for their relatives and whom the witness had befriended . On a number of occasions , the witness also went to the local hospital where , he was told , detainees would be brought for a check - up prior to their release . He unsuccessfully tried to obtain information about his son at the hospital .

On DATE the applicant learned that his son ’s release had been ordered by the court . However , his son did not emerge from the court building . The witness then went back to his village and did not return to ORG until he was informed that his son ’s body had been taken to the morgue at the hospital .

During the time he spent waiting outside the court building , he had not seen any detainees being released ; detainees whose release had been ordered by the court would be taken back to the detention places and be released after TIME . He never expected that his son would be released from the court but he continued to wait in the hope that he would get some news about him .

According to the witness , his son was killed because of his leftist views and also because of his involvement in trade union activities . A number of his son ’s friends and in particular a relative , ORG , had also been murdered in similar circumstances .

The witness is an advocate practising in ORG . He has appeared before ORG on many occasions to represent clients and knows the court ’s procedure and the court building well .

At the time of the events giving rise to the present application , the court building was located in a courtyard which was surrounded by a wall . There were CARDINAL gates opening into the courtyard . CARDINAL of these gates was used by personnel working at the court and also by officials when transporting defendants who were detained on remand and suspects who were detained in police custody . The other gate was used by lawyers and the general public . The court building had CARDINAL doors , CARDINAL of which were for official use and the third door was used by lawyers and the general public . Lawyers were not allowed to speak with their clients who were brought to the court from police custody and the detainees did not have access to a lawyer .

A person taken to the court from police custody could be released by a prosecutor or judge . In that event , the suspect would be escorted by police officers to the door of the building , the one used by the general public , and released there . In DATE it was not the practice of the court to draw up a release document ; such a practice was not introduced until DATE . Personal belongings such as belts , money , watches , rings , etc . , were returned to the detainees before they were brought before the judge at the court building .

On DATE the witness went to the ORG building for unrelated business . After completing that business , and as he was about to leave CARDINAL or TIME , he saw PERSON and PERSON being brought into the court by CARDINAL or CARDINAL policemen . He and PERSON saw each other and exchanged looks in greeting . When the witness left the building he saw PERSON , the elder brother of PERSON , who was waiting outside the gate , and he told him that he had just seen his brother and GPE being taken into the court building .

Family members waiting for detainees were a familiar sight outside the ORG building . Family members would start waiting there for the release of their relatives as soon as they had been detained , because once a person was detained it was not possible to know when he or she would be released ; the maximum period of detention before a suspect had to be brought before a judge was DATE at that time .

In TIME of DATE , PERSON telephoned the witness and told him that neither his brother nor PERSON had emerged from the court building . Mr Ay asked the witness if he had any information as to whether the CARDINAL detainees had been released or been taken back to the police station . The following morning the witness spoke to the Chief Public Prosecutor PERSON . Mr PERSON confirmed that the judge had ordered the release of the CARDINAL detainees . When informed that the CARDINAL detainees had never made it to the court ’s door , the Prosecutor told the witness that they had perhaps joined the ORG .

The Registry office of ORG was located in the basement of the court building , next to the exit door used by police officers to bring detainees in and out . At DATE , officials working at the registry told the witness that PERSON and PERSON had been led away through that door . The witness did not convey this information to anyone else because he feared for the lives of the sources of this information .

This witness is also an advocate practising in ORG . He was acting for PERSON at the time of the events giving rise to the present application . When his client was taken into detention in DATE , the witness was not allowed to see him . This was because the legislation in force at the time prevented detainees , who were arrested for an offence falling within the jurisdiction of ORG , to have access to their lawyers . The witness would also not be informed as to when GPE would be brought before a judge , although he knew that this would happen within DATE , the maximum period of detention at the time .

On DATE the witness was in the ORG building to represent a number of other clients at their trials . He did not come across PERSON in the building but was told at a later stage by a court official that GPE had been there on DATE .

The witness was informed on DATE that GPE had been brought before a judge who had ordered his release but he had not been seen leaving the building . The witness then went to speak to Chief Public Prosecutor PERSON . Mr PERSON told him that GPE had been released and that he had probably joined the ORG .

The witness was ORG of ORG at the time of the events . He remembered that PERSON was being investigated for membership of the ORG .

It was not the practice at the time of the events to draw up release documents . Sometimes a detainee , whose release was ordered by a prosecutor or judge , was escorted by police officers to a safe place and released from there . Otherwise a detainee was simply released outside the court building . In any event , detainees were not allowed to wander around freely inside the court building .

It would have been possible for him , as a Public Prosecutor , to find out the identities of the police officers who had accompanied PERSON to the court building on DATE . However , he could not remember whether or not he had done this and whether he had subsequently questioned these police officers . He thought that he might have done so . In any event , he would not have recorded the identities of these police officers or what they had said to him in a document , in order not to jeopardise the police ORG safety . Furthermore , the account of the police officers who had escorted PERSON to the court building would not have been important to the investigation .

ORG . The opinions expressed in the document which he had drawn up on CARDINAL DATE ( see paragraph CARDINAL above ) had been based on the investigations . They were not based on subjective opinion . The witness believed that PERSON and PERSON had been ORG members . PERSON was probably killed by ORG members because he had left the organisation . Perhaps he was killed because he had the same surname as ORG , who had also been killed in similar circumstances .

Neither the fact that the release of PERSON and his wife had been ordered by the judge for lack of evidence , nor the fact that neither GPE nor PERSON had ever been convicted of an offence involving the ORG , had a bearing on the NORP opinion that GPE and his wife were ORG members . The acquittal of PERSON on charges of aiding and abetting ORG members was the personal opinion of the trial court judge . That acquittal did not mean that she was not involved in ORG activities .

The witness denied having been approached by family members of the deceased men ( see paragraphs CARDINAL above ) and he did not remember whether he had met with advocates Sezgin GPE and PERSON and discussed the disappearance of PERSON ( see paragraphs CARDINAL and CARDINAL above ) .

His office would sometimes receive intelligence indicating that certain civil servants had been in contact with members of the ORG . In such circumstances , and when he was unable to obtain any evidence to indict such civil servants , he would ensure their transfer to other cities .

The witness still held the opinion that PERSON had been killed by members of the ORG so that a complaint could be lodged against GPE to ORG ( see paragraph CARDINAL above ) .

The witness was ORG of the town of Bismil at the time of the events . The bodies were found in an area under his jurisdiction and he participated in the examination of the bodies on DATE ( see paragraph CARDINAL above ) .

He did not deem it necessary to carry out a full autopsy in order to establish the circumstances leading up to the killings ; the cause of death was established and that was sufficient . The way the killings had been carried out – in particular , the single gun shot to the head and the bodies being dumped at a roadside – led the witness to form the opinion that the perpetrators of the killings were members of the ORG .

Prosecutors would investigate a killing regardless of whether or not there had been an official request by a relative of the deceased person . During his time in ORG there had been a significant number of killings in the area and each of these killings had been investigated by the authorities .

The witness is a Public Prosecutor and was appointed to ORG in DATE . From DATE he carried out the investigation into the killing of the applicant ’s husband and the other QUANTITY persons . He inherited CARDINAL similar cases from his predecessor .

NORP In a document which he signed on DATE ( see paragraph CARDINAL above ) , the witness recorded that PERSON had been killed by members of the ORG . He explained that , in an investigation into a killing which had taken place in that area at that time , the starting point would be that the perpetrators were members of the ORG . Other possibilities would also be investigated if any evidence came to light which suggested otherwise . On DATE the witness decided that there was no evidence suggesting that the killings had been carried out by members of the ORG , and he sent the investigation file to the local prosecutor ( see paragraph CARDINAL above ) .

The witness was the chief of the anti - terrorist branch of ORG where the applicant , PERSON , PERSON , PERSON and the others had been detained at the time of the events ( see paragraph CARDINAL above ) .

When a person was detained , his or her personal belongings would be taken away from that person and he or she would be asked to sign a document to that effect . When the detainee is about to be brought before a judge , the belongings would be returned and the person would be asked to sign the same document . This was what had happened in the case of PERSON ( see paragraph CARDINAL above ) .

CARDINAL police officers would have accompanied PERSON and PERSON to ORG on DATE . These police officers would not be the same as those who had questioned the detainees while in custody .

The witness had never been questioned by the authorities investigating the disappearance and the subsequent killing of PERSON .

The witness is a police officer and was responsible for the detainees at ORG at the time of the events . He signed the document showing that personal belongings of PERSON were taken away and had then been returned to him ( see paragraph CARDINAL above ) .

He did not remember who had accompanied PERSON and PERSON to ORG on DATE but it would be possible , by examining the documents at the place of detention , to determine the identities of these police officers .

The witness is a gendarme officer and was the deputy commander of ORG at the time of the events .

On DATE in question a villager came to the station and explained that he had found CARDINAL bodies in the fields . He and his superior , together with a number of soldiers under their command , went to the scene , which was situated QUANTITY away from the station and QUANTITY from the main road . They checked the pulses of the CARDINAL men and established that they were dead .

When the witness reached the area where the bodies were found , he formed the opinion that it was the ORG who had killed the CARDINAL men , possibly because the ORG members had suspected that the CARDINAL men were working for the ORG authorities .

It would not have been possible to reach the spot where the bodies were buried by car ; only a tractor could have reached it . However , there were no tyre marks or foot prints near the scene . Similarly , there were no blood stains in the vicinity . The witness did not have any idea whether the CARDINAL men had been killed on the spot where their bodies were found . If the men had been shot there , the shooting would not have been heard from the station because it was too far away .

The only road to reach the site was the CARDINAL that ran between the town of PERSON and the city of GPE . This road was under constant surveillance by soldiers from his station . All vehicles and persons travelling on this road were searched .

His superior searched the bodies for any identification documents but , CARDINAL wedding rings , he did not find anything to identify the deceased men . They also asked for support teams , CARDINAL soldiers , to search the area for any evidence . None was found . They then informed the local prosecutor and handed the investigation over to him . His station continued to inform the investigating prosecutor DATE about any developments . He could not remember whether any inhabitants of villages in the vicinity had been questioned to establish whether they had seen or heard anything . If there had been any valuable information , it would have been mentioned .

The witness is a gendarme officer and was commander of ORG at the time of the events . The witness confirmed the sequence of events as described by his deputy PERSON above .

The witness was asked by ORG to establish whether the killings had political connotations ( see paragraph CARDINAL above ) . He was not informed that the deceased men had disappeared after a judge had ordered their release . In the course of his investigation in DATE after the discovery of the bodies , the witness visited the scene where the bodies had been found and also spoke to the local people who might have been able to provide crucial information . The names of those he questioned were recorded in his DATE reports . He continued this investigation until he left his post later in DATE , but the investigation was continued by his successor .

The ropes used to tie the hands of the deceased men were cut from the bodies by the witness and the soldiers under his command and left at the scene . As , in the opinion of the witness , the ropes had no evidential value , he did not deem it crucial to take them and examine them . Similarly , there was no need to record in his report that he had asked for an additional CARDINAL soldiers to help search the site .

A car leaving ORG and going in the direction of the place where the bodies were found would have gone through CARDINAL check points ; CARDINAL was the check point just outside ORG and manned by police officers from ORG and the second was outside the ORG gendarme station , manned by the soldiers under his command . As there were not very many cars passing along the road outside the station , each car and its passengers were searched thoroughly . Even police cars or ambulances were checked .

A description of the relevant domestic law may be found in PERSON v. GPE ( nos . CARDINAL/CARDINAL and GPE , § § CARDINAL , ORG CARDINALX ) .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant was injured at work in a lignite mine . Since then , he has been disabled and in receipt of disability benefits . His employer had taken out accident insurance for him with an insurance company , T. ( “ ZT ” ) . His disability was assessed at PERCENT . In DATE ZT paid partial disability benefits .

On DATE the applicant instituted civil proceedings in ORG ( PERSON sodišče v PERSON ) against ZT claiming a PERCENT increase in his disability benefits on the basis of an expert medical opinion . He also sought an exemption from court fees .

On DATE the applicant lodged pleadings and additional evidence and requested the court to assign an independent medical expert to determine the extent of his disability . He submitted additional documents and pleadings on DATE , DATE , DATE , CARDINAL and DATE and DATE .

On DATE a hearing was held to consider the applicant 's request for the appointment of a medical expert . Although the request was granted , the appointment was not made .

On DATE the applicant submitted documents and requested the court to issue the order appointing the medical expert .

On DATE the court appointed a medical expert to determine the extent of the applicant 's disability . He submitted his report on DATE .

On DATE the applicant filed pleadings and increased his claim by PERCENT .

On DATE the applicant filed pleadings and requested that an additional opinion be sought from the appointed expert .

On DATE a hearing was held and the court decided that additional clarifications were required from the expert .

On DATE the court reappointed the same expert with instructions to submit an additional opinion .

On DATE the expert submitted an additional opinion , which was served on the parties .

On DATE and CARDINAL DATE the applicant made requests for a hearing .

On DATE the court held a hearing and decided to deliver a written judgment .

On DATE the applicant 's lawyers received the judgment , which upheld the applicant 's claim in part .

On DATE the applicant appealed . ZT cross - appealed .

On DATE ORG ( PERSON v PERSON ) allowed the applicant 's appeal in part . It increased the level of his disability benefits and awarded the applicant costs and expenses . The decision became final DATE .

On DATE the judgment was served on the applicant 's lawyers .

The relevant provisions of LAW ( PERSON ) read as follows :

“ Everyone has the right to have any decision regarding his rights , duties and any charges brought against him made without undue delay by an independent , impartial court constituted by law . ... ”

“ Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a ORG or local authority or as a holder of public office . ... ”

“ A court with jurisdiction to review administrative decisions shall [ have jurisdiction to ] determine the legality of final individual decisions by ORG or local authorities or holders of public office concerning the rights or obligations or legal entitlement of individuals and organisations , if no other legal protection is specifically provided .

If no other legal protection is provided , the court with jurisdiction to review administrative decisions shall also [ have jurisdiction to ] determine the legality of individual acts and decisions which encroach upon the constitutional rights of the individual . ”

“ The Constitutional Court shall hear :

... constitutional appeals in which specific acts are alleged to have infringed a human right or fundamental freedom ;

Unless otherwise provided by law , the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted . The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures . ”

The relevant provisions of LAW ( Zakon o Ustavnem sodišču ) read as follows :

“ ORG is the highest body of judicial authority for the protection of constitutionality , legality , human rights and basic freedoms ...

Decisions of ORG are legally binding . ”

“ Anyone who believes that his or her human rights and basic freedoms have been infringed by a particular act of a ORG body , local body or statutory authority may lodge a constitutional appeal with ORG , subject to compliance with the conditions laid down by LAW . ... ”

“ A constitutional appeal may be lodged only after all legal remedies have been exhausted .

Before all special legal remedies have been exhausted , ORG may exceptionally hear a constitutional appeal if a violation is probable and the appellant will suffer irreparable consequences as a result of a particular act . ”

In a decision of DATE ( no . Up CARDINAL ) , ORG ( ORG sodišče ) ruled that constitutional appeals under LAW were admissible in length of proceedings cases where the proceedings were still pending . However , it further stated that , in order to ensure the right to due process of law in the NORP legal system , the only proper judicial protection available was through an action in the administrative courts . A constitutional appeal was , as a rule , admissible only after recourse to that legal remedy .

NORP In a decision of DATE ( no . Up CARDINAL ) , ORG ruled that , once the court proceedings had been concluded , an individual could no longer bring an action in the administrative courts complaining about the length of proceedings . Therefore , since there was no longer any violation to be remedied , it was no longer possible to lodge a constitutional appeal .

In a decision of CARDINAL DATE ( no . CARDINAL ) , ORG held that where , because the substantive proceedings had ended , an action to complain of the length of proceedings could no longer be brought in the administrative courts , it was still open to the alleged victim to seek compensation in civil proceedings .

The Administrative Disputes Act CARDINAL ( Zakon o upravnem sporu ) provides for the protection of the constitutional right to a trial within a reasonable time through administrative proceedings in the administrative court and , on appeal , in ORG sodišče ) . Under section CARDINAL(CARDINAL ) and ( CARDINAL ) the court has a broad discretion to adapt its decision to the nature of the violated constitutional right , to order adequate redress , and to decide the applicant 's claim for damages . Under section CARDINAL it is possible to seek a declaration that there has been a violation of a right guaranteed by LAW and compensation for any loss . In addition , under LAW , a temporary injunction may be sought to prevent serious harm or to guard against an imminent threat of violence .

In case no . U CARDINAL/CARDINAL , ORG ( ORG sodišče ) found on DATE that the right to a trial within a reasonable time had been violated in a case which had been pending before ORG for DATE . However , on DATE ORG quashed the judgment on appeal , as the proceedings had terminated by the time of the appeal . On DATE ORG dismissed the constitutional appeal ( no . CARDINAL ) because the proceedings in question had ended and the alleged victim could seek compensation in civil proceedings .

Similarly , in case no . U CARDINAL/CARDINAL - DATE , ORG rejected on DATE a complaint concerning the length of the proceedings because the proceedings in question had ended shortly after the complaint had been lodged . On CARDINAL DATE ORG upheld the judgment on appeal .

In case no . U CARDINAL/CARDINAL - CARDINAL , ORG dismissed on CARDINAL DATE a claim alleging a violation of the right to a trial within a reasonable time that had been lodged on DATE . This decision was upheld on appeal on CARDINAL DATE . The proceedings before CARDINAL levels of jurisdiction had lasted DATE and DATE .

In case no . U CARDINAL/CARDINAL - CARDINAL , ORG held on DATE , in proceedings that had started on DATE , that there had been a violation of the right to due process . The proceedings had lasted DATE before CARDINAL level of jurisdiction .

If a court is responsible for undue delay in the proceedings and an individual has sustained damage as a result , he or she may claim compensation from the ORG under LAW CARDINAL ( PERSON zakonik ) . The person seeking compensation will thus have to prove , firstly , that there has been a delay in the proceedings , secondly , that damage has occurred , and , thirdly , that there is a causal link between the conduct of the court and the damage sustained . However , the PERSON does not provide specifically for compensation for non - pecuniary damage in such cases .

In a judgment of DATE of ORG ( Okrožno sodišče v PERSON ) , the damages awarded amounted to QUANTITY ( ORG ) , but were reduced on appeal on DATE by ORG to less than LAW .

In a judgment of DATE of ORG , which was upheld on appeal on DATE by ORG , a sum of approximately ORG CARDINAL,CARDINAL was awarded .

Section CARDINAL(CARDINAL ) of LAW ( Zakon o sodiščih ) provides that judges shall determine rights and obligations and criminal charges independently and impartially and without undue delay .

Section CARDINAL of the LAW provides that , when determining the number of judges to be appointed to a specific court , ORG ( sodni svet ) shall have regard to the criteria laid down by the Minister of ORG , the average number of cases dealt with by the court in DATE , any anticipated changes that may affect that number , and the average number of new actions brought in the court in DATE . Under the Act , the Minister of ORG is empowered to vary the criteria in the light of the complexity of the cases and changes in the manner in which they are being processed .

Section DATE provides that in the event of a delay in the proceedings any party may lodge a request for supervision ( nadzorstvena pritožba ) with the president of the court . The president of the court may request the presiding judge to report on progress in the proceedings , and is required to indicate in writing to the presiding judge any irregularities he finds . He may put the case on the priority list or set deadlines for procedural measures . If the delay has been caused by a heavy caseload , he may order the case concerned or other cases to be transferred to another judge . He may also propose measures under the provisions of LAW .

If the request for supervision is lodged with ORG or the president of a higher court , they will refer it to the president of the relevant court and may request a report on the measures undertaken to expedite the proceedings .

NORP The Minister of Justice or ORG may request the president of the court to submit a report on all requests for supervision lodged within a certain period and the measures undertaken to resolve the issues .

In accordance with section DATE , the president of a higher court may , of his own motion or at the request of the Minister of ORG , a disciplinary prosecutor or a disciplinary court , request an examination of the functioning of the court and submit the findings to the Ministry .

As part of a package of measures to guarantee the effectiveness of the Convention machinery , ORG adopted a resolution on DATE ( Res(CARDINAL)CARDINAL ) on judgments revealing an underlying systemic problem . After emphasising the interest in helping the ORG concerned to identify the underlying problems and the necessary execution measures ( paragraph CARDINAL of the preamble ) , it invited the ORG “ to identify in its judgments finding a violation of the ORG what it considers to be an underlying systemic problem and the source of that problem , in particular when it is likely to give rise to numerous applications , so as to assist GPE in finding the appropriate solution and ORG in supervising the execution of judgments ” ( paragraph I of the resolution ) . This resolution has to be seen in the context of the growth in the ORG 's caseload , particularly as a result of series of cases deriving from the same structural or systemic cause .


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 10;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

At the material time he was a journalist at the newspaper ORG in GPE .

On DATE the applicant attended an official meeting between the prefect and representatives of the interns from the hospitals in the county who were on strike . PERSON , CARDINAL of the interns ' representatives , stated :

“ Because I refused to prostitute myself with Doctor [ P. ] , Professor [ NORP ] dismissed me from ORG . ”

On DATE the newspaper ORG published an article by the applicant . The relevant parts read as follows :

“ Scandal in the medical world in GPE

The president of ORG , PERSON [ GPE ] , says that ' Dr [ P. ] behaves in certain ways that we all know '

A medical intern from GPE , whose name we shall not yet make public , declared on DATE , in front of the prefect [ GPE ] , that the director of ORG , Dr [ P. ] , had attempted to sexually blackmail her . ' Because I refused to prostitute myself with Doctor [ P. ] , Professor [ NORP ] dismissed me from ORG declared the intern . The president of ORG in GPE , PERSON [ GPE ] , declared that he had not known about this case of sexual harassment , which he learned of only at the meeting with the prefect . ' Dr [ P. ] behaves in certain ways that we all know ' said PERSON [ GPE ] ...

Although we tried to get his comments on the accusations brought against him , Dr [ P. ] was unavailable . ”

A photo of P. featured in the article .

On DATE P. lodged a criminal complaint for defamation against the applicant with ORG . His complaint also concerned the company which published the newspaper .

ORG heard evidence from ORG , who admitted to having made the assertion reproduced by the applicant but denied having given her permission for its publication . The prefect also confirmed that an intern had accused P. of sexual aggression during the meeting .

The applicant was heard by the court on QUANTITY occasions . He pleaded not guilty and relied in his defence on his right to freedom of expression and the right to provide information about public figures .

On DATE the ORG gave judgment . It acquitted the applicant on the ground that he had not intended to denigrate P. It found that the expression “ sexual harassment ” had not harmed P. 's dignity as it was a stylistic choice by the applicant .

Both parties appealed to ORG .

On DATE the court was addressed by the parties ' counsels , who defended orally the grounds for their respective appeals . PERSON 's lawyer asked for the applicant 's conviction . The applicant 's lawyer and the company 's representative requested that P. be compelled to pay court fees . The applicant was invited to speak only before the end of the hearing ( ultimul cuvânt al inculpatului ) . In his address he asked that P. 's appeal be dismissed .

The final decision was adopted on DATE . ORG quashed the judgment of DATE , re - examined the evidence and found as follows :

“ [ the journalist ] did not confine himself to merely providing information about the criticisms [ expressed against P. ] but added his own appreciation , which went beyond [ C.M.O. ] 's statements .

Through its title and content , the article contains untrue statements and allegations and personal appreciations by [ the applicant ] which , if true , would render the victim liable to a criminal penalty or expose him to public opprobrium .

By publishing the victim 's photo , and by presenting the information that a scandal had been caused in the PERSON medical world by [ P. ] 's behaviour ... [ the applicant ] acted with intent to denigrate the victim , the article being manifestly defamatory .

The words “ sexual blackmail and sexual harassment ” can not be regarded as having stylistic and literary value when an individual 's image , dignity and honour are at stake . ”

ORG noted that a certain degree of aggressiveness was common in journalism . It therefore , although the facts met the legal criteria to constitute the criminal offence of defamation , the acts perpetrated and their consequences were not severe enough to come within the sphere of criminal law . Consequently , it acquitted the applicant and imposed an administrative fine of CARDINAL NORP lei ( ROL ) .

The court also found that the conditions had been met for the applicant 's civil liability , and that of the publishing company , in respect of the prejudice caused to the victim . In consequence , it ordered the applicant and the company to pay ROL CARDINAL,CARDINAL,CARDINAL to P. as compensation for non - pecuniary damage and ROL CARDINAL,CARDINAL,CARDINAL for costs . Lastly , it ordered them to pay ROL CARDINAL,CARDINAL to the ORG in court fees .

On DATE the applicant paid the administrative fine .

The relevant provisions of ORG concerning insult and defamation and liability for paying damages in force at the material time are described in PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE .

LAW has been amended repeatedly and in DATE the ORG on insult and defamation were repealed ( for details , see PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE ) .

NORP However , in decision no . CARDINAL of DATE ORG declared unconstitutional the removal from LAW of the ORG on insult and defamation .

Law no . CARDINAL amended LAW and made it mandatory for an appeal court to hear the accused where the first - instance court had acquitted him or her . Currently , where an appeal court quashes a judgment given by a first - instance court , it must decide on the evidence to be adduced and set a date on which it will take a statement from the accused if the latter was not heard or if he or she was acquitted by the first - instance court ( Articles DATE § DATE , as amended ) .