CASE OF AHMET ÖZKAN AND OTHERS v. TURKEY

No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No 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);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 8 - Right to respect for private and family life;Pecuniary and non-pecuniary damage - award

The case mainly concerns events which took place in DATE in the village of Ormaniçi in the LOC district of the Şırnak province in south - east GPE . The applicants alleged that , on DATE , security forces had attacked Ormaniçi , as a result of which CARDINAL children had died . The applicants further alleged that on DATE the security forces had set fire to houses in Ormaniçi and had taken most of the male villagers into detention . The applicants claimed that these men had been subjected to ill - treatment in detention , resulting in various serious injuries and the death of CARDINAL villager . They further alleged that the security forces had returned to Ormaniçi later in DATE , when they had burned houses and destroyed harvested crops , and that they had returned once again in DATE when they had killed CARDINAL villagers and forced the villagers to leave Ormaniçi .

The facts being disputed by the parties , the ORG appointed Delegates who took evidence in GPE from DATE and from CARDINAL to DATE from CARDINAL applicants , CARDINAL other villager witnesses and CARDINAL officials .

The certified transcripts of the oral evidence , together with the documentary evidence provided by the parties to the ORG , have been transmitted to the ORG .

The parties ' submissions on the facts ( Sections A and B ) and the proceedings conducted before the domestic authorities ( Section C ) are summarised below . The documentary material before the ORG is summarised in PERSON and the oral evidence to the Delegates in Appendix III , which appendices are available on the ORG 's website and which are held in the ORG 's archives .

NORP In TIME of DATE , military forces attacked the village of ORG . Many soldiers were dressed in white camouflage gear . There was snow on the ground and it was very cold . The military forces started attacking the village with rifles and heavy weaponry and later moved into the village , systematically removing each family from their house and taking them to the village square . Many families were unable to dress and were forced into the open with their children without proper clothing and/or shoes .

Most of the male villagers were beaten as they were taken to the village square , where they were made to lie face down in the mud and snow , and were subsequently blindfolded . The villagers arrived in the square between TIME and remained there until just before sunset . The women and children were also assembled near the village square but were not blindfolded .

While the villagers were being gathered in the square , a detailed search of all the properties was conducted and the soldiers began systematically setting fire to the homes , using an incendiary agent that they appeared to have brought with them specifically for this purpose . Many of the animals which were kept in stables or were wandering around the village were shot , or burned in their stables .

During the raid CARDINAL soldier threw a bomb into the house of a villager called Mevlüde Ekin . The bomb exploded , causing severe intestinal injuries to her DATE - daughter Abide . PERSON and her other children , together with Abide , were then evacuated to the village square . The village muhtar , PERSON , was taken to the house of PERSON to accompany the soldiers in a search . It was claimed that somebody had been shooting from her house at the soldiers when the bomb was thrown . During this search a soldier inside the house was shot and killed instantaneously . The army commander instructed PERSON to indicate that he had been shot by terrorists , whereas he had in fact been shot by another soldier .

Just before sunset CARDINAL people who had been blindfolded , including PERSON daughter PERSON , were taken from Ormaniçi to Şırnak by helicopter . They were placed in custody in GPE . The remainder of the men were roped together and forced to walk blindfolded and , in many cases , without adequate clothing or footwear , from Ormaniçi to ORG . They had to walk QUANTITY in the snow , which took TIME .

When the men arrived in ORG , they were put into a partly constructed military building . The floors were wet and constantly under water to a depth of QUANTITY . There was no heating or furniture . Many of the men were not fed for DATE . They were systematically tortured and forced , whilst blindfolded , to fingerprint statements which had been prepared for them . They suffered various forms of torture including electric shock treatment , burning with hot metal bars , beatings , and anal rape with a truncheon and with bottles .

As a result of the walk to ORG and the conditions of detention there , many of the men suffered severe injuries to their feet , some of which required subsequent amputation of toes or feet . The men at ORG were moved to Şırnak by helicopter on or DATE .

The persons who had been taken directly to Şırnak were also tortured and forced to sign statements . Allegations were put to them that they were members or supporters of the ORG . CARDINAL man , PERSON , having been tortured , fell ill and was removed to hospital , where he died of pneumonia on DATE .

On DATE , military forces returned to Ormaniçi to burn more houses and kill more animals . The women of the village , together with the children , slept in the mosque , in caves , and in some unburned outbuildings . Abide PERSON died in the mosque , without having received medical attention for her injuries . DATE , another child , ORG , was killed as a result of the explosion of a mortar bomb or grenade that had been left in the village by the military forces after the attack on DATE .

Most of the detained villagers were released either on CARDINAL or DATE . They appeared before public prosecutors at ORG ( NORP district ) and many complained of the torture that they had suffered . On DATE a number of the men were charged with terrorist offences , which were to be tried before ORG . A number of villagers remained in custody until DATE . CARDINAL villagers , PERSON and PERSON , were still in custody at the time of the oral hearing held in DATE . PERSON has been released since , but PERSON is currently still in custody .

Both before and at the time of the transfer of the men from PERSON to PERSON a number were taken to the GPE and ORG , where they were placed in the prison wing . After medical treatment , some had parts of their feet amputated . This was the case of ORG , who was DATE at the material time .

At the time of their release on DATE respectively , the majority of the detained men were taken by bus to PERSON and subsequently to a nearby village . For the most part they returned to Ormaniçi by mule since they were unable to walk . During the period DATE and DATE , as they gradually recovered from their injuries , many of the men attempted to rebuild the burnt houses .

NORP In DATE or DATE there was a further incident in DATE . On this occasion all the villagers were assembled near the school . CARDINAL women were taken into the school and tortured and the soldiers went to a number of houses and removed all of the harvested crops and destroyed them . Some more buildings were also burnt , and further animals died after eating contaminated food . Many of the villagers had left the village to live in caves nearby but had continued to cultivate their land .

A number of other villagers returned to ORG in DATE . In or DATE the soldiers came to the village once more and gunfire was heard in the orchards and fields nearby . After that the soldiers arrived in the village indicating that they had killed CARDINAL terrorists . In fact CARDINAL villagers had been killed as well as CARDINAL alleged members of the ORG . After this incident the villagers were given DATE to leave the village , otherwise they would be killed . They all left and moved to various towns in south - east GPE , including ORG , PERSON and PERSON . A number also moved to GPE . They have been unable to return to the village since that date . Some have remained in a neighbouring village .

In DATE the Government carried out an investigation in Ormaniçi into the events which had taken place there in DATE . No investigation was carried out into the detention of the villagers in GPE or PERSON , notwithstanding the injuries they had suffered whilst in custody . None of the applicants has been offered any compensation for their losses .

While the security forces were approaching the village of ORG on DATE in order to carry out a search in the valley of the NORP stream , they came under fire from the village .

In the course of the ensuing clash , the roofs of some houses in the village caught fire as a result of being hit by tracer bullets fired in the course of the exchange of fire . No house was deliberately set on fire by members of the security forces involved in the incident . Although some livestock in the village may have died of suffocation caused by smoke , none of the members of the security forces involved deliberately killed any livestock there .

Apart from CARDINAL soldier who was killed when conducting a search in CARDINAL of the houses of the village , nobody was injured or killed in Ormaniçi on DATE .

Those villagers who were subsequently taken into detention were not ill - treated during their detention . The injuries sustained by a number of these villagers , which in the case of CARDINAL villagers resulted in the amputation of toes , had been caused by frostbite , for which they received medical treatment while in detention .

One of the villagers taken into detention , who suffered from epilepsy , was transferred to hospital while in detention . He subsequently died in hospital of natural causes .

On DATE the ORG public prosecutor issued a decision of lack of jurisdiction in respect of CARDINAL persons who had been taken into detention on DATE in the village of Ormaniçi and referred the case to the office of the public prosecutor at ORG .

On DATE the public prosecutor at ORG issued a decision of non - prosecution in respect of CARDINAL Ormaniçi villagers for lack of sufficient evidence of the charges of membership of the ORG or aiding and abetting the ORG . These villagers were consequently released .

As regards the other CARDINAL Ormaniçi villagers , on DATE the public prosecutor at ORG issued an indictment committing them to appear before ORG on charges of armed activities on behalf of the ORG , membership of the ORG and/or aiding and abetting the ORG . Although most of these villagers were released at some point in time , the villagers PERSON and PERSON were still in detention in DATE . In DATE the proceedings before ORG in the case were still pending .

On DATE the public prosecutor at ORG took a decision of non - prosecution in relation to the death on DATE of PERSON , CARDINAL of the LOC villagers taken into detention on DATE . In this decision it was noted that the cause of death found had been pneumonia and it was held that no offence had been committed in that the incident was due to no one 's fault or influence . It was decided that , unless there were any objections , there were no grounds for instituting proceedings .

The applicants did not make an official complaint about the destruction of their property and homes or about their treatment in detention . On DATE PERSON filed a criminal complaint with the office of the public prosecutor in Cizre in relation to her husband PERSON , who had died in hospital while in detention .

On DATE , on the basis of this criminal complaint , the ORG public prosecutor took a decision of non - prosecution . In his decision it was pointed out that the cause of death found was pneumonia .

After the Commission had communicated the applicants ' complaints to the ORG , ORG ordered an investigation into the events of DATE in Ormaniçi , including the death of CARDINAL children in the village .

On DATE the NORP public prosecutor carried out an on - site inspection in Ormaniçi in order to establish whether houses had been demolished and burned and to take statements from applicants . He was accompanied by a civil engineer , who drew up a separate report on the conditions of the houses found in Ormaniçi . Also on DATE , the ORG public prosecutor went to ORG in order to carry out an investigation of the death of CARDINAL children , Abide Ekin and PERSON , in the course of which the CARDINAL children 's remains were disinterred .

On DATE the ORG public prosecutor issued a decision of lack of jurisdiction in the investigation concerning the death of Abide Ekin and PERSON . In his decision it was found to have been established that the children had died as a result of the explosion of explosive devices with which they had played and which had been left unexploded after the incident in Ormaniçi on DATE . The offence was described as causing the death of CARDINAL persons by leaving explosive material in the village . According to this decision , the perpetrators – referred to as defendants – were an unspecified number of illegal NORP terrorists . The decision further stated that the case file was to be transmitted to the office of the public prosecutor at ORG for further proceedings .

On DATE the public prosecutor at ORG decided that the ORG public prosecutor – in co - operation with ORG , ORG and ORG – was to conduct a further investigation into the deaths of Abide Ekin and PERSON and to communicate the results of this investigation to the office of the public prosecutor at ORG at regular intervals . It appears that such reports were sent on a regular basis . According to the wording of the last report made available , a letter of DATE from ORG to the office of the public prosecutor at ORG :

“ the incident occurred as a result of the activities of the outlawed ORG terrorist organisation and upon the establishment of open [ as yet unknown ] identities and apprehension of the perpetrators information will be submitted separately ” .

No information has been submitted as to the outcome of the investigation conducted by the PERSON public prosecutor into the destruction of houses in Ormaniçi .

Since DATE serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG ( ORG of Kurdistan ) . This confrontation has , according to the ORG , claimed the lives of CARDINAL of civilians and members of the security forces . By DATE the violence had claimed the lives of CARDINAL civilians and CARDINAL members of the security forces . In DATE CARDINAL of the CARDINAL provinces of south - eastern GPE became the subject of emergency rule .

CARDINAL principal decrees relating to the south - eastern region were made under the PERSON on ORG ( Law no . CARDINAL , DATE ) . Decree no . CARDINAL ( of CARDINAL DATE ) established a regional governorship of the state of emergency region in CARDINAL of the CARDINAL provinces of south - eastern GPE . Under LAW b ) and ( d ) of the Decree , all public security forces and ORG were at the disposal of the regional governor . Decree no . CARDINAL ( of DATE ) reinforced the powers of the regional governor .

The number of provinces affected by the emergency rule decreased over the period DATE . The state of emergency in south - east GPE was fully lifted on DATE when the emergency rule ceased to apply to the last CARDINAL provinces affected by it .

LAW ( ORG ) makes it a criminal offence , inter alia :

– to deprive someone unlawfully of his or her liberty ( LAW generally , LAW servants ) ;

– to coerce through force or threats ( Article CARDINAL )

– to issue threats ( LAW )

– to subject someone to torture and ill - treatment ( Articles CARDINAL and CARDINAL ) ;

– to commit unintentional homicide ( Articles CARDINAL and CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) ;

– to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , and CARDINAL ) , or aggravated arson if human life is endangered ( Article CARDINAL ) ;

– to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) ; and

– to damage another 's property intentionally ( Articles CARDINAL et seq . ) .

The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW . Pursuant to LAW , evidence obtained by way of torture or ill - treatment is not admissible in criminal proceedings .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment . A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG prosecutors and courts established throughout GPE . An appeal against a conviction of a terrorist offence by ORG lies with ORG ( PERSON ) .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by the Law of DATE on the prosecution of civil servants , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non - jurisdiction and transfer the file to the relevant local administrative council ( for the district or province , depending on the suspect 's status ) . That council will appoint an investigator ( muhakik ) to conduct the preliminary investigation , on the basis of which the council will decide whether to prosecute . These councils are made up of civil servants , chaired by the governor . If a decision to prosecute has been taken , it is for the public prosecutor to investigate the case . A decision not to prosecute is subject to an automatic appeal to ORG .

By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL , the DATE PERSON on the prosecution of civil servants also applies to members of the security forces who come under the governor 's authority .

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

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

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

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

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

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

NORP However , LAW no . CARDINAL of DATE ( see paragraph CARDINAL above ) provided :

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

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

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

Article CARDINAL of LAW provides :

“ Everyone has the right to liberty and security of person .

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law : ...

The arrested or detained person must be brought before a judge within TIME at the latest or , in the case of offences committed by CARDINAL person , within DATE ... These time - limits may be extended during a state of emergency ...

A person deprived of his liberty , for whatever reason , shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful .

Compensation must be paid by the ORG , as the law shall provide , for damage sustained by persons who have been victims of treatment contrary to the above provisions . ”

Article CARDINAL of LAW Criminal Code reads as follows :

“ Any person who , with the intention of committing the offences defined in Articles ... , forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not DATE imprisonment .

The other members of the gang or organisation shall be sentenced to not CARDINAL and not DATE imprisonment . ”

Article CARDINAL of LAW provides :

“ Any person who , knowing that such an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not CARDINAL and not DATE imprisonment ... ”

Under LAW ( Law no . CARDINAL of DATE ) , the offence defined in LAW is classified as a “ terrorist act ” . Under section CARDINAL , the offence defined in LAW of the same LAW is classified in the category of “ acts committed to further the purposes of terrorism ” . Pursuant to LAW no . ORG , penalties laid down in LAW as punishment for the offences defined in sections DATE CARDINAL of the Act are increased by CARDINAL .

Under section CARDINAL(a ) of PERSON no . CARDINAL on procedure in ORG , only these courts can try cases involving the offences defined in CARDINAL and CARDINAL of LAW .

At the material time , section CARDINAL of Law no . CARDINAL of DATE provided that , with regard to offences within the jurisdiction of ORG – including those mentioned in paragraph CARDINAL above – any arrested person had to be brought before a judge within TIME at the latest , or , in the case of offences committed by CARDINAL person , within DATE . In provinces where a state of emergency had been declared , these time - limits could be extended to DATE and DATE respectively .

Section CARDINAL of Law no . CARDINAL on the payment of compensation to persons arrested or detained provides :

“ Compensation shall be paid by the ORG in respect of all damage sustained by persons

( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute law ;

( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;

( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time - limit laid down by statute for that purpose ;

( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time - limit for being brought before a judicial officer has expired ;

( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;

( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial ... , or are acquitted or discharged after standing trial ; or

( CARDINAL ) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ... ”

On DATE the Permanent Representative of GPE to ORG sent the Secretary General of ORG the following notice of derogation :

“ CARDINAL . GPE is exposed to threats to its national security in LOC which have steadily grown in scope and intensity over DATE so as to [ amount ] to a threat to the life of the nation in the meaning of Article CARDINAL of the Convention .

During DATE , CARDINAL civilians and CARDINAL members of the security forces have been killed by acts of terrorists , acting partly out of foreign bases . Since DATE only , the numbers are CARDINAL civilians and CARDINAL members of the security forces .

The threat to national security is predominantly [ occurring ] in provinces of LOC and partly also in adjacent provinces .

Because of the intensity and variety of terrorist actions and in order to cope with such actions , the ORG has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public , partly emerging from other parts of GPE or even from abroad and with abuses of trade - union rights .

To this end , the Government of GPE , acting in conformity with LAW , has promulgated on DATE the decrees with force of law [ nos . ] CARDINAL and CARDINAL . These decrees may in part result in derogating from rights enshrined in the following provisions of LAW [ on ] Human Rights and Fundamental Freedoms : Articles CARDINAL , CARDINAL , DATE , DATE , DATE and DATE . A descriptive summary of the new measures is attached hereto ... ”

A descriptive summary of the contents of the Legislative Decrees nos . CARDINAL and CARDINAL was annexed to this notice .

According to a note in the notice of derogation , “ the threat to national security [ was ] predominantly occurring ” in the provinces of ORG , ORG , GPE , GPE , GPE , PERSON , PERSON , PERSON and PERSON .

DATE . In a letter of CARDINAL DATE ORG of GPE informed the Secretary General that Legislative Decree no . CARDINAL had been replaced by Legislative Decree no . CARDINAL , promulgated on DATE . A descriptive summary of the decree was appended to this letter .

On DATE the Permanent Representative of GPE wrote to the Secretary General in the following terms :

“ As most of the measures described in the decrees which have the force of law ORG . CARDINAL and CARDINAL that might result in derogating from rights guaranteed by ORG CARDINAL , CARDINAL , DATE , DATE , DATE and DATE of the LAW , are no longer being implemented , I hereby inform you that GPE limits henceforward the scope of its LAW with respect to LAW only . The derogation with respect to Articles DATE , DATE , DATE , DATE and DATE of the LAW is no longer in effect ; consequently , the corresponding reference to these Articles is hereby deleted from the said LAW . ”

On DATE ORG informed the Secretary General that its LAW in respect of LAW had been withdrawn .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment ( ORG ) of ORG has carried out CARDINAL visits to GPE DATE . The first CARDINAL visits , in DATE and DATE , were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources containing allegations of torture or other forms of illtreatment of persons deprived of their liberty , in particular , relating to those held in police custody . A third periodic visit took place at DATE . Further visits took place in DATE , DATE and DATE and DATE . The ORG 's report on its visit in DATE was made public on DATE with the authorisation of ORG .

In a public statement of CARDINAL DATE , the ORG reported that on its first visit to GPE in DATE it had reached the conclusion that torture and other forms of severe ill - treatment were important characteristics of police custody . It noted that the following types of illtreatment had been alleged time and time again - inter alia , NORP hanging , electric shocks , beating of the soles of the feet ( falaka ) , hosing with pressurised cold water and incarceration in very small , dark , unventilated cells . It emphasised that its medical examinations had disclosed clear medical signs consistent with very recent torture and other severe ill - treatment of both a physical and a psychological nature . The on - site observations in police establishments had revealed extremely poor material conditions of detention . It stated that on its second visit in DATE it had found that no progress had been made in eliminating torture and ill - treatment by the police . Many persons had made complaints of similar types of ill - treatment . An increasing number of allegations had been heard of forcible penetration of bodily orifices with a stick or truncheon . Once again , a number of the persons making such claims had been found on examination to display marks or conditions consistent with their allegations . The ORG stated that on its third visit ( a periodic visit ) from DATE to DATE its delegation had been inundated with allegations of torture and ill - treatment . Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations . It listed a number of these cases . In GPE police headquarters and GPE police headquarters , it found equipment which was consistent with use for torture and the presence of which had no other credible explanation . The ORG concluded in its statement that “ the practice of torture and other forms of severe ill - treatment of persons in police custody remains widespread in GPE ” .

In its second public statement issued on DATE , the ORG noted that some progress had been made over DATE . However , its findings after its visit in DATE demonstrated that torture and other forms of ill - treatment were still important characteristics of police custody . In the course of visits in DATE , ORG delegations once again found clear evidence of the practice of torture and other forms of severe illtreatment by the police . A considerable number of persons examined by the delegations ' forensic doctors displayed marks or conditions consistent with their allegations of recent ill - treatment by the police , and in particular of beating of the soles of the feet , blows to the palms of the hands and suspension by the arms . It noted the cases of CARDINAL persons who had been very recently detained at the Anti - Terror Department at ORG , cases which ranked among the most flagrant examples of torture encountered by ORG delegations in GPE . The persons examined showed signs of prolonged suspension by the arms , with impairments in motor function and sensation which , in QUANTITY persons , who had lost the use of both arms , threatened to be irreversible . It concluded that recourse to torture and other forms of severe ill - treatment remained a common occurrence in police establishments in GPE .

In the ORG report on its visit in DATE , it noted that the existence and extent of the problem of torture and other forms of ill - treatment of criminal suspects by law - enforcement officials DATE and , more particularly , by police officers – had been established beyond all doubt in the course of previous ORG visits to GPE DATE . Further , in recent times , senior political figures had openly recognised the realities of the situation . During the ORG 's visit in DATE , a considerable number of allegations were once again heard of torture and ill - treatment by law - enforcement officials . Those allegations emanated from both ordinary criminal offenders and persons detained in respect of offences falling under the jurisdiction of ORG . Further , medical evidence of recent ill - treatment by the police was obtained by the ORG delegation .

The ORG further observed that several of the police establishments visited still possessed interrogation rooms of a highly intimidating nature and stressed that facilities of this kind had no place in a modern police service .

DATE . In the ORG report on its visit in DATE , published on DATE with the authorisation of ORG , the ORG expressed concerns about the continued use in the eastern part of GPE of interrogation rooms with a highly intimidating character , such as those seen in the Anti - Terror Departments at Ağrı , ORG , ORG and ORG and in ORG . According to the ORG , such oppressive facilities had no place in a modern police service .

The ORG further stated in this report that the findings made in the DATE visit indicated that the blindfolding of persons in police / gendarmerie custody remained common practice throughout GPE and that persons suspected of narcotics or terrorist offences were apparently particularly prone to this practice . It noted that blindfolds were usually applied at the “ preliminary questioning ” stage prior to the taking of a formal statement , i.e. at the time when ill - treatment was most likely to occur . It could further not be ruled out that blindfolds were also applied at later stages . The ORG had been told by certain persons that they had been obliged to sign statements attributed to them whilst blindfolded . After the ORG delegation had discovered a blindfold in an interrogation room inspected , the delegation was informed by a senior officer that it would be applied to certain suspects undergoing questioning in order to prevent them from seeing the interrogating officers . In its report the ORG stated that it was clear from the information gathered by it over DATE that in many , if not most , cases , persons were blindfolded in order to prevent them from being able to identify law - enforcement officials who inflicted ill - treatment upon them . As a result of this practice , legal proceedings against those who tortured and illtreated could be severely hampered .

As regards the medical examination of persons held in custody , as already addressed in considerable detail in previous ORG visit reports , the ORG noted that dialogue with the NORP authorities on this point had focused on QUANTITY issues : the principle that law - enforcement officials should not be present during the medical examination , and possible exceptions to that principle ; and the need to ensure that doctors carrying out the medical examination used the standard forensic medical form approved by the NORP authorities . The ORG delegation that carried out the visit in DATE found that there remained much room for progress as regards both these issues , in particular in the eastern part of GPE , where interviews with detained persons suggested that it was very rare for lawenforcement officials not to be present during medical examinations . Numerous persons stated that they had been warned prior to the examination not to say anything to the doctor about the treatment they had received , and that the presence of law - enforcement officials during the examination had ensured that they heeded that warning . Some persons interviewed stated that when the doctor had inquired as to the origin of injuries they bore the law - enforcement official present had protested . Doctors at ORG in ORG acknowledged that the examination always took place in the presence of police officers or members of the gendarmerie . In discussion with doctors at ORG , it was indicated that it was common for CARDINAL or more persons to be examined simultaneously and that lesions observed might not be recorded “ in order to avoid problems with the police ” . The ORG further concluded that it was clear that , instead of using the “ ORG ” approved by the NORP authorities , the old practice of very brief findings set out on a piece of paper without any headings , and often covering several detained persons , remained common .

Reiterating that no legal safeguard against ill - treatment was more fundamental than the requirement that the fact of a person 's deprivation of liberty be recorded without delay , the ORG indicated in its report that the current practice concerning the recording of detention required improvements in certain respects . It appeared that the trigger for making an entry in the book of admissions was the fact of placing someone in a cell . As a person could be deprived of his liberty for TIME in a lawenforcement establishment before being placed in a cell , this initial period of detention often appeared to go unrecorded .

In the preliminary observations made by the ORG delegation on its visit carried out in DATE , it was noted that prison staff were still present during medical examinations . The ORG delegation further indicated that it had gathered compelling evidence of severe ill - treatment of several persons held by the gendarmerie in ORG in DATE . This illtreatment had apparently begun during the initial period of custody and had continued during the period spent in the custody of the gendarmerie . The delegates ' visit to ORG , where the illtreatment was said to have occurred , reinforced the credibility of the allegations made . It was of an oppressive and intimidating nature , not unlike the facilities criticised in the ORG report on its DATE visit .

NORP The ORG delegates further discovered that , in GPE , lawenforcement officials were systematically present when suspects were medically examined at the outset and at the end of their custody . Many prisoners interviewed told the ORG delegates that they had been warned not to make any complaints to the doctor about how they had been treated , and that the presence of law - enforcement officials had deterred them from making complaints . Some doctors spoken to indicated that , despite their objections , law - enforcement officials had been present during medical examinations . Moreover , some doctors mentioned cases in which reports which they had drawn up recording injuries had been torn up by law - enforcement officials .


Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She is a journalist .

On DATE the NORP language newspaper “ The New Order ” published an article entitled “ Traffic Police – My Star ” signed by the applicant . The article stated inter alia that :

“ ... This is quite a banal story for us regular citizens , and a normal phenomenon for the traffic inspectors . In any event , it serves as a good example of the ‘ star ORG suffered by the traffic inspectors .

A person was driving his PERSON on PERSON Street . Let us call him ‘ Victor’ . When he approached the PERSON cel Mare and GPE crossroads , the traffic lights turned red and , like any normal person , PERSON pressed the brakes . But people who abide by the rules are not always lucky . A luxurious speeding Opel ran into the old PERSON . Both cars were damaged , but the PERSON was damaged more . PERSON stayed at the place of the accident , as any man believing in the strictness of the law would do , awaiting the arrival of the police and their wise and fair verdict . The owner of the ‘ Opel’ though , aware of his guilt , hit the gas and disappeared .

Before long a Sergeant of the traffic police arrived and began to take measurements and investigate , making notes in a note book . At the height of the investigation the owner of the ORG arrived , but without his car . He waited until the policeman finished his work , and then said that he would go to ORG to solve the problem .

At ORG the CARDINAL car owners and the policeman were received by a person of a venerable age with the epaulets of a LOC ( later we found out that he worked in the emergency department ) . The owner of the Opel addressed him in a very friendly way , calling him ‘ Jora’ . The Sergeant - major PERSON approached the young Sergeant , who investigated the accident , and asked him in a way more like an order than a question : ‘ How many years have you been working for the Traffic Police?’ DATE ... ‘ But I worked for DATE ; therefore you should listen to me . Do n’t write anything , let the people come to an agreement themselves and the guilty one ( i.e. the owner of the Opel ) pay to the second one approximately CARDINAL PERSON ( MDL ) . In any event his car is a flea - pit , and there is no need to make a lot of fuss.’

The owner of the ‘ flea - pit’ , who can not be considered a wealthy man , almost lost the power of speech when he heard that . How was it possible to offer him such a petty sum for his severely damaged car ? Since the victim would not agree , Sergeant - Major PERSON and the owner of the Opel increased somewhat the amount , bargaining for each leu . Afraid that he would not get anything , PERSON agreed to the sum of MDL DATE . He later had his car fixed by some acquaintances , who laughed at him for being fooled like a boy . PERSON spent a little bit more than MDL CARDINAL for the repair – a sum that might seem ridiculous to some traffic inspectors . For PERSON though , this is really big money . But it is not the money , that he ’s worried about , but the way he was treated at ORG , in particular this Sergeant - Major PERSON , who treated him as a man from the lowest strata , almost as a nonentity . After DATE PERSON went to PERSON and asked for his driver ’s licence back . ORG promised to return the driver ’s licence , but only on condition that PERSON paid a fine of MDL CARDINAL . PERSON was dumbfounded . – ‘ Why should I pay a fine ? What did I do?’ PERSON , answered very furiously : ‘ Once I say that you should pay , then you should pay , without asking any questions.’

PERSON , who was very upset about the absurdity of the situation , warned the policeman that he would complain to his superiors . ORG , understanding that there was no way for him to prevail , literally went ballistic . He threw the driver ’s licence in PERSON ’s face , shouting like a madman .

- ‘ He would complain ! Who are you ? Take your documents and get out of here , and pray God not to come back to the Traffic Police , because otherwise you ’ll get into big trouble.’

The man took his driver ’s licence and left FAC , meditating on what PERSON could possibly do to him if ever he came back ... ”

On an unspecified date in DATE a policeman named GPE lodged a civil action for defamation against the applicant and the publishing office of the newspaper with ORG . Relying on Articles CARDINAL and CARDINAL of LAW , the complainant alleged that the article contained statements which were defamatory of him .

DATE several oral hearings were held and several witnesses were heard . The applicant and the newspaper stated that the facts presented in the article were a simple reproduction of the story told by PERSON , the victim of the road accident . PERSON gave evidence to that effect . They further stated that the information contained in the article was not of a defamatory nature and could not harm in any way the reputation of the complainant , particularly since it did not contain his full name , but only a diminutive of his first name .

By its judgment of DATE , ORG found that the information contained in the article was defamatory of GPE and did not correspond to reality . It argued that in the emergency department of ORG there was only CARDINAL Sergeant - Major PERSON , and that he was therefore easily identifiable . In particular , the court quoted the following extracts from the article as being defamatory :

“ ... this sergeant - major PERSON , who treated him as a man from the lowest strata , almost as a nonentity . ”

The court found that this statement conveyed the idea “ that ‘ Jora’ was a policeman who could not behave with other people , and who was not a very positive person ” .

“ The sergeant - major , promised to return the driver ’s licence , but only on condition that PERSON paid a fine of MDL CARDINAL . ”

The court found that this statement did not correspond to reality since PERSON forgot to take his driving licence . Moreover , PERSON could not prove that he was requested to pay a fine .

“ He threw the driver ’s licence in PERSON ’s face , shouting like a madman . ”

“ Take your documents and get out of here , and pray God not to come back to ORG , because otherwise you ’ll get into big trouble . ”

The court found that these statements were defamatory of GPE since they characterised him as a brutal , menacing and vindictive person . Moreover , the applicant did not bring any evidence in support of these statements . The court did not make any note of PERSON ’s testimony in its judgment .

The court ordered the applicant and the newspaper to pay the complainant non - pecuniary damages of MDL CARDINAL ( the equivalent of MONEY ( ORG ) at the time ) and LAW ( the equivalent of ORG CARDINAL at the time ) respectively . It also ordered them to publish a denial of the above statements .

Only the newspaper appealed against this judgment . The applicant lodged a request submitting that she fully agreed with the appeal and that she subscribed to it .

On CARDINAL DATE ORG dismissed the appeal on the ground that the applicant had not proved the truth of her statements .

The newspaper lodged an appeal in cassation against the judgment of ORG . The applicant neither lodged an appeal in cassation nor subscribed to the one lodged by the newspaper .

On DATE ORG upheld the appeal in cassation and quashed the judgments of ORG and of ORG in respect of both the newspaper and the applicant . It issued a new judgment , in which it found in favour of ORG .. In its judgment the court found that only the following statements were defamatory and did not correspond to reality :

“ He threw the driver ’s licence in ORG ’s face , shouting like a madman . ” ( PERSON водительские права в лицо , крича как помешанный )

It ordered the newspaper to publish a denial of the above statements within DATE . It ordered the applicant and the newspaper to pay the complainant non - pecuniary damages of MDL QUANTITY and MDL CARDINAL respectively . It also ordered both the applicant and the newspaper to pay the court fees of MDL CARDINAL .

The relevant provisions of LAW in force at the material time read :

Article CARDINAL . Protection of honour and dignity

“ ( CARDINAL ) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality , as well as statements which are not damaging to honour and dignity , but do not correspond to reality .

( CARDINAL ) When the media body which circulated such statements is not capable of proving that these statements correspond to reality , the court shall compel the publishing office of the media body to publish , not later then DATE after the entry into force of the judicial decision , a withdrawal of the statements in the same rubric , on the same page or in the same programme or series of broadcasts . ”

Article CARDINAL . Compensation for moral damage

“ ( CARDINAL ) The moral damage caused to a person as a result of circulation through the mass media or by organisations or persons of statements which do not correspond to reality , as well as statements concerning his or her private or family life without his or her consent , shall be compensated by way of a pecuniary award . The amount of the award shall be determined by the court .

( CARDINAL ) The amount of the award shall be determined by the court in each case as an amount equal to CARDINAL minimum wages if the information has been circulated by a legal person and CARDINAL if the information has been circulated by a natural person . ”


The applicant is a NORP national , born in PERSON and living in GPE , GPE .

A. Circumstances of the case

The applicant was formerly a public prosecutor . In DATE he wrote a letter to the Minister of ORG criticising him as well as a political party forming part of the coalition government for , inter alia , the continuation of the terrorist campaign . He stated that the party in question had been elected on the backs of the terrorists . Furthermore he criticised a number of new amendments made to the law on criminal procedure which were intended to increase the rights of the accused . The applicant repeated the same views and opinions in a book which he published .

On DATE ORG ( PERSON ve PERSON “ the ORG ” ) held that his statements were highly political and incompatible with the objectivity required by his functions . ORG transferred him to a lesser jurisdiction for disciplinary reasons .

The applicant requested ORG to rectify ( “ yeniden inceleme ” ) its decision . On DATE his request was rejected . The applicant then raised an objection ( “ itiraz ” ) to the decision before ORG ( ORG : “ the Objections Board ” ) . On DATE ORG upheld ORG decision .

On several occasions in DATE the applicant made oral comments to his colleagues or published poems expressing his disapproval of the activities of the above - mentioned political party . He gave a television interview in which he criticised ORG decision to transfer him as well as the ORG ’s structure .

On DATE ORG again ruled that the applicant ’s statements and conduct were highly political and incompatible with the objectivity requirements of his office . ORG found , inter alia , that the applicant had been behaving “ like a professional politician ” . ORG also found that the applicant had spent his sick leave in a distant locality without prior permission . On the basis of these CARDINAL grounds ORG again transferred the applicant to a lesser jurisdiction for disciplinary reasons . The applicant requested ORG to rectify this decision . On DATE his request was rejected . The applicant then raised an objection to the initial decision with ORG . On DATE ORG upheld the decision .

Subsequently ORG noted that the applicant had been given CARDINAL disciplinary punishments . It held on DATE that , in accordance with section CARDINAL § CARDINAL of Law no . CARDINAL , the applicant should be removed from office . The applicant requested ORG to rectify this decision . In the meantime , on DATE , the applicant resigned from his functions .

On DATE ORG re - examined the applicant ’s disciplinary file and upheld the decision of DATE . The applicant raised objection to the decision of ORG . In his petition of CARDINAL DATE to ORG the applicant wrote inter alia that he had voluntarily ( “ kendi isteğimle ” ) resigned and requested that the administrative punishment ( removal from office ) be , at least , converted to a lighter form of punishment . The applicant was heard in person by ORG on DATE . On DATE ORG ruled that ORG decision of CARDINAL DATE was taken in accordance with the law .

B. Relevant domestic law

According to Article PERSON ) of the Code on ORG and Public Prosecutors , conduct of a judge or public prosecutor which is considered incompatible with the impartiality requirements of his functions renders him liable to be transferred to a lesser jurisdiction .

According to LAW , any judge or public prosecutor who has been sanctioned for disciplinary reasons on CARDINAL occasions by being transferred to a lesser jurisdiction shall be liable to be removed form office .


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE . He is the owner and managing director of M , a building company .

On DATE a worker employed by the M company mounted a scaffold ( which was owned , however , by another building firm ) at CARDINAL of the company ’s building sites at FAC in GPE . He fell and died DATE .

Subsequently the GPE ORG ( GPE ) started preliminary inquiries ( FAC ) against the applicant on suspicion of having caused death by negligence ( fahrlässige PERSON ) , an offence under LAW . On DATE he discontinued the inquiries .

On DATE GPE issued a penal order ( PERSON ) against the applicant as manager of the M company , imposing a fine for an administrative offence under section CARDINAL(CARDINAL ) , no . CARDINAL , of LAW ( Arbeitnehmerschutzgesetz ) read in conjunction with several provisions of ORG ( Bauarbeiterschutzverordnung ) . It found that the applicant had disregarded the duties of an employer concerning the properties , conditions , use , inspection or maintenance of equipment ( PERSON betreffend die PERSON , die PERSON , die PERSON , die Prüfung oder die PERSON ) as , on DATE , a scaffold used at the building site at FAC , GPE , had lacked protective barriers on CARDINAL sides at head , chest and foot level and the protective barriers on the fourth side had not been properly secured .

On DATE the applicant , assisted by counsel , appealed to ORG ( “ the ORG ” – PERSON ) . He submitted that at the building site at FAC in GPE CARDINAL scaffolds owned by different construction companies had been in use . While the CARDINAL belonging to the M company had all the necessary protective elements , the defective scaffold used by the employees of the M company , which had led to the industrial accident , was owned by another company . On CARDINAL DATE the applicant submitted further that the ORG should quash the penal order as the administrative criminal proceedings had been conducted in breach of the principle of ne bis in idem .

On DATE the ORG quashed the penal order of DATE . Referring to ORG case - law on LAW No . CARDINAL , the ORG found that criminal proceedings for causing death by negligence under LAW and proceedings under section CARDINAL(CARDINAL ) , no . DATE , of LAW , read in conjunction with ORG , concerned essentially the same conduct as in both cases the authorities and courts had to examine whether the provisions for the protection of construction workers had been complied with . In such circumstances , the person responsible for compliance with these rules was also criminally liable under LAW in the event of an accident at work leading to the death of the victim . Therefore the ORG was prevented from conducting administrative criminal proceedings against the applicant even though finally ORG had discontinued his inquiries into the charge of causing death by negligence against the applicant .

On DATE the Federal Minister for Economy and Labour ( PERSON LOC und PERSON ) filed a complaint with ORG against the ORG ’s decision . The Federal Minister pointed to ORG case - law , according to which a conviction under LAW concerned essentially the same punishable conduct as the offence under section CARDINAL(CARDINAL ) , no . DATE , of LAW . Thus , to conduct CARDINAL sets of criminal proceedings concerning these offences would be in breach of LAW No . CARDINAL . The ORG had , however , overlooked the fact that in the present case no proceedings had been conducted against the applicant before a criminal court . The inquiries by ORG , an employee of ORG , had the purpose of verifying whether or not a charge should be brought against a person and whether proper criminal proceedings should be opened . As a result ORG had discontinued the preliminary inquiries since he had not found sufficient reasons to prosecute the applicant . That being so , it could not be said that an act had been committed which fell within the scope of LAW . The ne bis in idem principle did not therefore apply .

On DATE ORG quashed the ORG ’s decision of DATE . ORG found that the ne bis in idem principle was not at stake if a public prosecutor discontinued preliminary inquiries on a criminal information pursuant to LAW , as in such a case the public prosecutor – either immediately or after conducting inquiries – arrived at the conclusion that the criminal information was unfounded , and that the act to which it referred was not punishable or did not justify prosecution . Such a case must be distinguished from the material facts in ORG decision to which the ORG had referred , as that case had not concerned the termination of investigations LAW CARDINAL of the Code of Criminal Procedure .

On DATE the ORG gave a fresh decision on the applicant ’s appeal and this time upheld the GPE ’s penal order after having held oral hearings on DATE and DATE . The ORG noted that the workers present at the building site had used a scaffold belonging to another building company . The applicant , as the person responsible , had not installed a properly functioning control system , verifying that the scaffolds and other materials used by the workers complied with safety regulations and that the workers had been trained in complying with these regulations . The applicant had therefore been responsible for the non - compliance with the safety regulations .

On DATE the applicant lodged a complaint with ORG , alleging , inter alia , that the impugned decision disregarded the principle of ne bis in idem .

On DATE ORG declined to deal with the applicant ’s complaint for lack of prospect of success , and on DATE ORG also declined to deal with the applicant ’s complaint for lack of prospect of success in accordance with section MONEY of LAW .

Sections CARDINAL to CARDINAL of LAW Strafprozeβordnung ) concern the conduct of preliminary inquiries ( Vorerhebungen ) and preliminary investigations ( PERSON ) .

In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file ( LOC ) on a criminal information , the public prosecutor may first have preliminary inquiries carried out by the investigating judge , ORG or the police authorities ( Section CARDINAL § CARDINAL ) .

Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution , he or she must either request the institution of preliminary investigations or file a formal indictment ( PERSON , PERSON ; LAW ) . LAW provides that preliminary investigations pursue the aim of provisionally examining the criminal charges laid against a person and of establishing the facts to the extent necessary to decide whether to discontinue the criminal proceedings or to commit the person for trial and prepare the taking of evidence at the trial .

Section CARDINAL § CARDINAL provides that preliminary investigations are in principle conducted by the investigating judge personally and directly .

Section CARDINAL § CARDINAL of the Code of Administrative Offences provides :

“ Unless a provision of administrative law states otherwise , negligent behaviour is sufficient to establish guilt . Negligence is to be assumed in the case of failure to observe a prohibition or a prescription where damage or danger is not an element of the administrative offence , and the defendant does not convincingly show that no fault lies with him for the contravention of the provision of administrative law . ”


CASE OF ALEKSANDR LEONIDOVICH IVANOV v. RUSSIA

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and is serving a prison term in LOC .

The applicant was a student of ORG , which trained law enforcement officers . On DATE the applicant was arrested on suspicion of murder . By a judgment of DATE , ORG convicted the applicant of theft and murder , and sentenced him to DATE imprisonment . On DATE ORG of GPE upheld the judgment .

DATE the applicant was detained in a temporary detention centre in the town of GPE . From DATE to DATE the applicant was detained in GPE remand centre no . CARDINAL .

According to the applicant , he was kept in the remand centre in cell no . CARDINAL ( designed for CARDINAL persons ) together with CARDINAL other inmates . Owing to an insufficient number of beds , they had to sleep in shifts . The cell windows were covered with metal shutters that barred access to natural light and air . In DATE the applicant was kept in the cell together with CARDINAL to QUANTITY other persons .

The applicant subsequently indicated that in DATE - CARDINAL he had been afforded QUANTITY of living space in the cell . The toilet was not separated from the living area . In the absence of any ventilation , the smell spread into the cell . He also alleged that on DATE of court hearings in DATE he had to get up at TIME and was taken back at TIME without any food or drink .

The applicant was kept in the remand centre from DATE to DATE . The applicant was placed in cell no . CARDINAL , which measured QUANTITY and had CARDINAL beds . This cell was assigned to former law enforcement officers , who had to be kept separately from the other ( potentially hostile ) detainees . With reference to certificates issued in DATE by the acting director of the remand centre , the ORG stated that this cell had accommodated CARDINAL detainees during the relevant periods . In support of the above , the Government enclosed statements made in DATE by CARDINAL officers serving in the remand centre , who confirmed that the above information was correct and that the conditions of the applicant 's detention during the relevant periods had been appropriate . The Government also enclosed a statement made in DATE by a convict who had been detained in cell no . CARDINAL from DATE . This person stated that during that period there had been CARDINAL beds and CARDINAL detainees and that the material conditions had been acceptable . A similar statement was made in DATE by another detainee who had been kept in that cell from DATE to DATE .

From DATE the applicant was also kept in cell no . CARDINAL , which measured QUANTITY and had CARDINAL bed .

According to the Government , the applicant was provided with an individual bed and bedding in both cells . He had access to a shower once DATE . He had DATE outdoor walks . The metal shutters on the cell window(s ) were aimed at preventing inter - cell communication and did not impede access to natural light . The works for removing the shutters were carried out DATE .

On DATE when investigative measures were carried out or hearings were held ( DATE – September CARDINAL ) , the applicant had had to get up TIME and was taken back to the cell before TIME On DATE , he had been fed and had also been able to take food bought by him or received from next of kin .

As can be seen from the certificate submitted by the Government , the cell record cards for DATE were destroyed on DATE after the expiry of the DATE retention period . The registers concerning the population of the remand centre DATE and DATE were destroyed on DATE after the expiry of the DATE retention period .

The following data is given on CARDINAL of the certificates submitted by the director of the remand centre . The “ maximum design capacity ” of the remand centre was CARDINAL detainees . DATE the design capacity went up to CARDINAL detainees owing to the construction of new buildings . As can be seen from another certificate , in DATE the remand centre accommodated an average of CARDINAL persons ( to CARDINAL beds ) ; in DATE the figure was CARDINAL persons ( to CARDINAL beds ) and in DATE there were CARDINAL persons ( to CARDINAL beds ) .

The applicant complained to the prosecutor 's office of LOC alleging that he had been ill - treated at the temporary detention centre and that his state of health had deteriorated while in detention . On DATE the prosecutor 's office rejected his complaints as unfounded . By a letter of DATE , the prosecutor 's office rejected the applicant 's further complaint concerning conditions of detention and stated , in particular , that his state of health had been satisfactory , except for a slight deterioration of his eyesight .

In DATE the applicant complained to ORG for the Execution of Sentences about the allegedly degrading conditions of his detention , referring in particular to the overpopulation in the remand centre and lack of access to natural light and airflow in the cells . By a letter of DATE , ORG acknowledged the overpopulation problem in “ certain cells ” in the remand centre in DATE and DATE and stated that in DATE the metal shutters had been partly removed from the cell windows and had been completed removed in DATE .


The applicants , PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively . They live in GPE , GPE .

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

The applicants shared an apartment with a certain married couple , PERSON and GPE On DATE the applicants requested ORG ( Sad Rejonowy ) to order eviction of PERSON and GPE ( “ the defendants ” ) from the apartment . They claimed that the defendants had no legal title to occupy the LOC .

On DATE the ORG gave judgment , in which it ordered eviction of the defendants from the applicants’ apartment . The judgment became final . On DATE ORG issued a writ of enforcement .

The case was transferred to ORG ( Urzad PERSON ) which was charged with enforcement of the judgment by providing the defendants with an alternative dwelling ( lokal zastepczy ) .

On DATE the applicants lodged with the Gdańsk Governor ( Wojewoda ) a complaint about the inactivity of ORG . The complaint was transferred to ORG , which ordered ORG to submit the ORG casefile . Subsequently , ORG informed ORG that no decision had yet been made in the case .

Following several complaints made by the applicants to ORG , the MPs and the ORG , on DATE the Rumia Mayor informed them that it was not possible to give an exact date when the proceedings would end because the municipality did not have available a sufficient number of alternative dwellings .

On DATE the applicants turned to the Pomorskie Governor complaining about the inactivity of the administrative authorities .

On DATE the Pomorskie Governor requested the Rumia Mayor to deal with the case as soon as possible .

On DATE the Rumia Mayor provided the defendants with an alternative dwelling .

According to the LAW on ORG ( LOC o najmie lokali mieszkalnych i dodatkach mieszkaniowych ) , enforcement of a final court ’s judgment concerning the provision of an alternative dwelling should be dealt by the municipalities in accordance with the provisions of LAW .

LAW lays down timelimits ranging DATE for dealing with a case pending before an administrative authority . If those time - limits have not been complied with , the authority must , under LAW , inform the parties of that fact , explain the reasons for the delay and fix a new timelimit .

Pursuant to LAW , if the case has not been handled within the time - limits referred to in ORG and DATE , a party to administrative proceedings can lodge an appeal to the higher authority , alleging inactivity . In cases where the allegations of inactivity are well - founded , the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay . If need be , the authority may order that measures be applied to prevent future such delays .

Until DATE , under LAW , a party to administrative proceedings could , at any time , lodge with ORG a complaint about the fact that an administrative authority had failed to issue a decision .

On DATE , when a new LAW DATE on ORG ( “ the DATE LAW ) took effect , LAW was repealed . Under section CARDINAL of LAW , a party to administrative proceedings may , at any time , lodge with ORG a complaint against inactivity on the part of an authority obliged to issue an administrative decision .

Section CARDINAL of the PERSON provides :

“ When a complaint alleging inactivity on the part of an administrative authority is well - founded , ORG shall oblige that authority to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law . ”

Moreover , the ORG notes that pursuant to LAW , the decision of ORG ordering an authority to put an end to its inactivity is legally binding on the authority concerned . If the authority has not complied with the decision , the court may , under section CARDINAL of the DATE Act , impose a fine on it and may itself give a ruling on the right or obligation in question .

Pursuant to LAW , a party to the proceedings who sustains damage as a result of a failure of the administrative body to act in compliance with the judgment of ORG given under LAW , is entitled to claim compensation from the administrative authority concerned , according to principles of civil liability as set out in LAW . Such a claim should be first lodged with that authority . A decision on the compensation claim should be taken by that administrative authority within DATE .

If the authority concerned fails to give a ruling in this respect within this timelimit , or if the party is not satisfied with the compensation granted , a compensation claim against the administrative body can be lodged with a civil court .

Section CARDINAL of the CARDINAL Act sets out the requirement of the exhaustion of available remedies before lodging a complaint with ORG . Accordingly , a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level , pursuant to the abovementioned LAW .


No violation of Art. 6-1 as regards the plea of nullity;Violation of Art. 6-1 as regards the appeal against sentence

On DATE ORG at ORG ( PERSON ) filed an indictment charging the applicant with murder . It was alleged that the applicant , in DATE , had killed his wife and had then buried her decapitated corpse in a field where it had been discovered in DATE . It was further alleged that he had had a mistress , and had run into financial difficulties as he had rented and furnished an apartment for her and had maintained her , whereas his wife , who had opposed a divorce , had owned the spouses ' house and a collection of jewellery of considerable value . In these and the trial proceedings the applicant was represented by official counsel , Mr. PERSON

On DATE ORG , sitting as a ORG ( GPE ) , gave judgment . The jury found the applicant guilty of murder . The court , sitting with the jury , sentenced him to life imprisonment . It considered as aggravating circumstances that the applicant had acted for particularly base motives and had acted cruelly . It found that there were no mitigating circumstances .

On DATE the applicant , still represented by Mr. PERSON , filed a plea of nullity ( GPE ) and an appeal ( GPE ) . In his plea of nullity he complained about the composition of the court , the court 's failure to put alternative questions to the jury and about the lack of reasons for the jury 's verdict . He also submitted that there was no factual basis for finding him guilty . In his appeal he complained in particular that ORG judgment did not give sufficient reasons for the sentence . As to the aggravating circumstances , it was not clear which motives had been established and deemed particularly base . Nor did the judgment mention any facts which would allow the conclusion that he had acted in a cruel manner . As to possible mitigating circumstances , the applicant complained that ORG had failed to take his advanced age and lack of prior convictions into account . The applicant did not request to attend the hearing before ORG .

On DATE ORG ( Oberster Gerichtshof ) fixed the hearing date for the applicant 's plea of nullity and his appeal for DATE . The applicant received a notification , which stated that his counsel would be summoned to the hearing . As to the hearing of the plea of nullity , the notification informed him that he , being detained , could only appear through his counsel . As to the hearing of the appeal , he would not be brought to the court as the conditions of S. CARDINAL § CARDINAL of the Code of Criminal Procedure ( Strafprozeßordung ) were not fulfilled . At an unspecified date in DATE , the applicant was informed by ORG that for the purpose of his representation at the hearing before ORG a new official defence counsel , PERSON , had been appointed as PERSON would be unable to attend .

On DATE ORG , after having held a hearing in the absence of the applicant but in the presence of his new official defence counsel , Mr. PERSON , rejected his plea of nullity as well as his appeal . As regards the appeal , the ORG found that the applicant had rightly claimed as a mitigating circumstance that he had no prior convictions . Furthermore , cruelty had not been factually established as an aggravating circumstance . However , there was evidential support for the conclusion that the applicant had acted for particularly base motives . Attaching particular weight to this aggravating circumstance , ORG found that - notwithstanding the aforementioned deficiencies - the sentence of life imprisonment was commensurate with the applicant 's guilt .

The first - instance judgment of an assize court may be challenged by a plea of nullity to ORG on the specific grounds enumerated in section CARDINAL § CARDINAL of LAW . ORG task is mainly to control the acts of the bench and the presiding judge of the assize court . Its examination includes whether the trial has been conducted in a manner which complies with fundamental procedural principles , whether the right questions have been put and the correct directions given to the jury . ORG may only verify whether the jury has provided unclear , incomplete or contradictory answers to the questions put to it . ORG supervises the correct application of the criminal law , but in so doing is bound by the jury 's findings of fact .

In certain cases ORG may reject a plea of nullity without a public hearing ( section CARDINAL ( c ) of LAW ) . In all other cases - such as the present - there will be a public hearing which may also be combined with a public hearing on an appeal against sentence .

As regards the hearing on a plea of nullity , section CARDINAL of LAW provides :

“ CARDINAL . When the date of the public hearing is being fixed , the accused ... shall be summoned ...

If the accused is under arrest , the notice of the hearing given to him shall mention that he may only appear through counsel . ... ”

Section CARDINAL of the Code of Criminal Procedure extends these rules to nullity pleas arising out of jury trials .

However , if the hearing is a combined one on a plea of nullity and an appeal against sentence , an accused who is present for the latter purpose may also exercise his rights concerning the nullity plea .

The sentence as such may be challenged by way of an appeal against sentence . It may concern both points of law ( in particular whether mitigating or aggravating circumstances have been correctly taken into account ) and factors relating to the assessment of the sentence . Where the substance of an appeal is examined , a public hearing must normally be held .

As regards the personal appearance of the accused at a public appeal hearing , section CARDINAL § CARDINAL , second sentence , of LAW provides :

“ An accused who is detained shall always be summoned and an accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter - statement or otherwise if his personal presence appears necessary in the interests of justice . ”


Mr Karlheinz Beer is a NORP national , born in DATE and resident in ORG . MrPhilipRegan is a NORP national , born in DATE and resident in GPE in GPE .

NORP In DATE the first applicant , a civil engineer by profession and employed by the NORP company S. , was placed at the disposal of ORG to perform services at ORG in GPE . The first applicant ’s contract was later taken over by the NORP company T.

The second applicant , a systems programmer and employed by the NORP company ORG , was placed at the disposal of ORG to perform services at ORG in FAC in DATE .

ORG ( “ ORG ” ) with headquarters in GPE , formed out of ORG ( “ ESRO ” ) and ORG for ORG ( “ ELDO ” ) , was established under LAW ( “ LAW ” ) of CARDINAL DATE ( LAW DATE , vol . CARDINAL , I – no . DATE ) . ORG runs ORG ( “ ORG ” ) as an independent operation in FAC ( Agreement concerning ORG of DATE – Official PERSON ( PERSON ) II no . CARDINAL , CARDINAL.CARDINAL.CARDINAL ) .

In DATE and DATE the applicants instituted proceedings before ORG ( Arbeitsgericht ) against ORG , arguing that , pursuant to ORG ) , they had acquired the status of employees of ORG . In his submissions , the second applicant indicated that , by letter of CARDINAL DATE , his employer ORG had dismissed him .

In the respective labour court proceedings , ORG relied on its immunity from jurisdiction under LAW and its Annex I.

On DATE ORG , following hearings , declared the applicants’ respective actions inadmissible .

In both decisions , ORG considered that ORG had validly relied on its immunity from jurisdiction . ORG , referring to section CARDINAL ) of LAW ( Gerichtsverfassungsgesetz ) , according to which immunity from jurisdiction could be provided for , inter alia , in international agreements , considered that ORG enjoyed such immunity under LAW of LAW and its GPE

In its reasoning , ORG considered in particular that ORG had been established in DATE as a new and independent international organisation . It therefore rejected the ORG argument that ORG was bound by LAW concerning ORG , which had subjected the former ESRO to NORP jurisdiction in cases of disputes with its employees which were outside the competence of its ORG .

ORG further recalled that ORG ( Bundesarbeitsgericht ) , in a decision of DATE in a similar case ( file no . CARDINAL AZR CARDINAL/CARDINAL ; see the PERSON and PERSON v. GPE judgment of DATE , to be published in the ORG ’s official reports , § § DATE ) , had found that the rules in question did not conflict with fundamental principles of NORP constitutional law .

In view of the decisions taken in the case of PERSON and PERSON PERSON , the applicants did not pursue the matter .

In the proceedings instituted by the second applicant against his dismissal by the company FAC ( see paragraph CARDINAL above ) , a settlement had been reached in ORG on DATE . According to this settlement , the second applicant ’s employment with the company ORG had terminated on DATE , and the company ORG undertook to pay to the second applicant the sum of MONEY ( ORG ) for loss of job .

Under the terms of an agreement concluded on DATE with the first applicant , terminating his contract of employment on DATE , the company ORG undertook to pay to the first applicant the sum of DEM CARDINAL for lawyer ’s fees incurred in labour court proceedings concerning his dismissal and DEM CARDINAL for the loss of his job .

Section CARDINAL(CARDINAL)(CARDINAL ) of ORG Act ( Arbeitnehmerüberlassungsgesetz ) provides that an employer who , on a commercial basis ( gewerbsmäßig ) , intends to hire out his employees to third persons - hiring employers ( Entleiher ) - must obtain official permission . Section CARDINAL(CARDINAL)(CARDINAL ) provides that contracts between the hirer - out ( Verleiher ) and the hiring employer and between the hirer - out and the employee hired out ( Leiharbeitnehmer ) are void if no official permission has been obtained as required by sectionCARDINAL(CARDINAL)(CARDINAL ) . If the contract between a hirer - out and an employee hired out is void under section CARDINAL(CARDINAL)(CARDINAL ) , a contract between the hiring employer and the employee hired out is deemed to have been concluded ( gilt als zustande gekommen ) as from the envisaged start of employment ( sectionCARDINAL(CARDINAL)(CARDINAL)(CARDINAL ) ) . Section PERSON ) further provides for a claim in damages against the hirer - out in respect of any loss suffered as a consequence of having relied on the validity of the contract , except where the employee hired out was aware of the factor rendering the contract void .

Sections DATE of LAW ( Gerichtsverfassungs - gesetz ) regulate immunity from jurisdiction ( GPE ) in NORP court proceedings . PERSON andCARDINAL concern the members of diplomatic and consular missions , and section CARDINAL(CARDINAL ) other representatives of GPE staying in GPE upon the invitation of ORG . ORG ) provides that other persons shall have immunity from jurisdiction according to the rules of general international law , or pursuant to international agreements or other legal rules .

LAW came into force on DATE , when GPE , members of ORG or ORG , had signed it and had deposited their instruments of ratification or acceptance .

The purpose of ORG is to provide for and to promote , for exclusively peaceful purposes , cooperation among GPE in space research and technology and their space applications , with a view to their being used for scientific purposes and for operational space applications systems ( Article II of LAW ) . For the execution of the programmes entrusted to it , the Agency shall maintain the internal capability required for the preparation and supervision of its tasks and , to this end , shall establish and operate such establishments and facilities as are required for its activities ( LAW ( a ) ) .

Article ORG regulates the legal status , privileges and immunities of the Agency . According to paragraph CARDINAL , the ORG shall have legal personality . Paragraph CARDINAL provides that the ORG , its staff members and experts , and the representatives of its member GPE , shall enjoy the legal capacity , privileges and immunities provided for in AnnexI. Agreements concerning the headquarters of the ORG and the establishments set up in accordance with LAW shall be concluded between the ORG and the member GPE on whose territory the headquarters and the establishments are situated ( LAW ) .

Article ORG concerns the arbitration procedure in case of disputes between CARDINAL or more member GPE , or between any of them and ORG , concerning the interpretation or application of LAW or its annexes , and disputes arising out of damage caused by ORG , or involving any other responsibility of ORG ( LAW I ) , which are not settled by or through the ORG .

Article ORG provides that on the date of entry into force of ORG shall take over all the rights and obligations of ESRO .

Annex I relates to the privileges and immunities of the ORG .

According to LAW , the Agency shall have legal personality , in particular the capacity to contract , to acquire and to dispose of movable and immovable property , and to be a party to legal proceedings .

Pursuant to LAW ( a ) of ORG I , the ORG shall have immunity from jurisdiction and execution , except to the extent that it shall , by decision of the ORG , have expressly waived such immunity in a particular case ; the ORG has the duty to waive this immunity in all cases where reliance upon it would impede the course of justice and it can be waived without prejudicing the interests of the ORG .

Article ORG of Annex I provides for arbitration with regard to written contracts other than those concluded in accordance with LAW . Moreover , any member ORG may submit to ORG referred to in LAW any dispute , inter alia , arising out of damage caused by the ORG , or involving any other non - contractual responsibility of the ORG . According to ArticleXXVII of AnnexI , the ORG shall make suitable provision for the satisfactory settlement of disputes arising between the ORG and the Director General , staff members or experts in respect of their conditions of service .

Chapter VIII of ORG CARDINAL to CARDINAL ) concerns disputes within ORG . As regards the competence of its ORG , Regulation CARDINAL provides as follows :

“ CARDINAL.CARDINAL There shall be set up ORG , independent of the ORG , to hear disputes relating to any explicit or implicit decision taken by the ORG and arising between it and a staff member , a former staff member or persons entitled under him .

CARDINAL ORG shall rescind any decision against which there has been an appeal if the decision is contrary to ORG or to the claimant ’s terms of appointment or vested rights ; and if the claimant ’s personal interests are affected .

CARDINAL ORG may also order the ORG to repair any damage suffered by the claimant as a result of the decision referred to in paragraph CARDINAL above .

CARDINAL NORP Should the Agency DATE or the claimant – maintain that execution of a rescinding decision would raise major difficulties ORG may , if it considers the argument valid , award compensation to the claimant for the damage he has suffered .

CARDINAL The Appeals Board shall also be competent in the case where a staff member wishes to sue another staff member and such action has been prevented by the Director General ’s refusal to waive the immunity of the latter .

CARDINAL The Appeals Board shall also be competent to settle disputes concerning its jurisdiction , as defined in these ORG , or any question of procedure . ”

The Agreement was concluded between the Government of GPE and ESRO for the purpose of establishing ORG , including ORG . CARDINAL of the Agreement concern the site for construction of the ORG buildings and related matters .

Part III of the Agreement contains general provisions . Article CARDINAL provides as follows :

“ CARDINAL . Subject to the provisions of LAW and of any complementary Agreement between GPE and the ORG according to LAW , the activities of ORG shall be governed by NORP law . If the terms of employment of a staff member of the Organisation are not governed by the ORG ’s staff regulations , then they shall be subject to NORP laws and regulations .

Disputes between the ORG and such staff members of ORG who are not within the competence of ORG , shall be subject to NORP jurisdiction . ”


The applicant , ORG ( hereinafter referred to as PCARDINAL ) , is a radio broadcasting company established in GPE . The applicant company is represented before the ORG by Mr. PERSON , a lawyer practising in GPE .

On DATE PCARDINAL applied for authorisation to radiobroadcast , in whole or in part , the main hearing ( hovedforhandling ) in a major criminal trial concerning charges against CARDINAL persons of triple murder , the so - called ORG case , scheduled to take place before ORG ( herredsrett ) as from DATE . According to the applicant , this was probably the most spectacular and media - focused criminal case in NORP history . The case involved a son and his wife , the wife ’s CARDINAL - sister and a friend of the latter , who were charged with the murder of the son ’s parents and sister , committed in a particularly brutal manner .

The district court judge ( sorenskriveren ) , who received the application on DATE , replied by fax :

“ APPLICATION FOR BROADCASTING

The PERSON case

Hereby rejected

Nobody is granted such permission ”

The above decision was taken under section CARDINALA ( in its version as applicable at the relevant time ) of ORG Act DATE ( domstolloven ) .

PCARDINAL appealed against this decision to ORG ( lagmannsrett ) and requested it to quash ORG refusal to broadcast and to give a new decision . The applicant maintained that there was no justification for refusing radio broadcasting from the ORG opening statements and closing arguments and from the delivery of verdict .

On DATE ORG dismissed ( avviste ) the appeal . In so far the procedure was concerned , it found no error which warranted setting aside the refusal . Regarding the substance of the decision , it held that this was a matter which by its very nature could not form the subject of an appeal ( uangripelig ) . ORG added incidentally that , notwithstanding this limitation on its own jurisdiction , it did not find that the disputed refusal conflicted with either the LAW provisions concerning the public character of judicial proceedings or those on freedom of expression .

On DATE ORG of the ORG unanimously rejected an appeal by PCARDINAL against the High Court ’s decision . The ORG ’s reasoning could be summarised as follows .

The ORG noted the absence , in section CARDINAL ( incorporating the provision of section CARDINAL according to an amendment in DATE , which had not yet entered into force ) of ORG Act DATE , of an express provision on the right to appeal against a refusal to broadcast , unlike sections CARDINAL and CARDINAL concerning respectively prohibition on reporting from judicial proceedings ( referatforbud ) and publication of judicial decisions . This suggested that section CARDINAL decisions were not intended to be open to appeal . However , the ORG did not find it necessary to consider the applicant ’s argument that a right of appeal would follow from LAW ( straffeprosessloven ) , since such a right could in any event follow from the fact that it had been claimed that a LAW right had been violated . In this connection the ORG mentioned the provisions of LAW on the precedence of international human rights conventions over domestic law and LAW right to an effective remedy for “ arguable claims ” of violation . The ORG noted a decision by the former Commission ( PERSON and Others v. GPE , application no . DATE ) , which concerned complaints by CARDINAL journalist under Articles CARDINAL and CARDINAL of the Convention about judicial orders to prohibit reporting and to hear a case in camera , rejected as manifestly ill - founded . It was found that the interference was justified for the purposes of LAW and that , absent an arguable claim of violation , LAW did not apply . The ORG further observed that the “ arguable claim ” criterion had been criticised in legal theory and pointed out that the condition for lodging an appeal under NORP procedural law was that the appellant ’s claim of violation did not appear entirely unfounded .

As regards the decision under challenge , the ORG , noting that ORG had dismissed the appeal on jurisdictional ground , quoted its findings on the merits and upheld those findings . As regards the latter aspect , the ORG observed :

“ The ORG agrees with what has been stated by ORG and points to the fact that the principle of publicity in LAW is to ensure democratic control of the courts , not the right of the public to receive information , and that the principle is preserved by the provisions on public hearing and the freedom to report in ... ORG . The ORG can not see that the prohibition in section CARDINALA , first paragraph , of the LAW on , inter alia , recording for radio transmission from the proceedings in a criminal case infringes the right to receive and impart information under LAW . It is recalled that the media are not excluded from , or imposed a duty of silence about , the proceedings . The ORG finds no support in the ORG ’s or the [ former ] Commission ’s case - law for interpreting the right to freedom of expression to mean that there is a right to record from criminal proceedings with a view to radio - or television broadcasting . At last , it should be noted that , under section CARDINAL , second paragraph , a derogation from the prohibition in the first paragraph may be made during the main hearing where there are special reasons and after having heard the views of the parties . ”

In the meantime , on DATE the trial started before ORG . It was held in open court . Because of the great media interest in the case and since the hearing room was too small to host both members of the ordinary public and media representatives , special arrangements were made enabling the press to follow the trial at a press centre , set up in a sports hall , to which sound and picture were transmitted live and shown on a television screen .

Section CARDINAL , as in force at the material time , of ORG Act DATE ( domstolloven ) provided :

“ During oral proceedings in a criminal case , photographing , filming and radio - or television recordings are prohibited . It is also prohibited to take photographs or make recordings of the accused or the convicted on his or her way to , or from , the hearing or when he or she is staying inside the building in which the hearing takes place , without his or her consent .

If there are special reasons for doing so , the court may in the course of the proceedings make an exception from the [ above ] prohibition if it can be assumed that it would not unduly affect the examination of the case and no other reasons militate decisively against doing so . Before authorisation is given the parties should have an opportunity to express their views . ”

LAW ( straffeprosessloven ) reads :

“ An interlocutory appeal may be brought against a court order or decision by any person who is affected thereby unless it may form the subject of an appeal proper or may serve as a ground for such an appeal by the said person , or by reason of its nature or a specific statutory provision is unchallengable . ”