CASE OF VEREIN DER FREUNDE DER CHRISTENGEMEINSCHAFT AND OTHERS v. AUSTRIA

No violation of Article 6 - Right to a fair trial;No violation of Article 13 - Right to an effective remedy

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

The first applicant is a religious community established in GPE on DATE , and the CARDINAL other applicants are members of it . The second applicant is the chair of the GPE branch of the first applicant , and the fifth applicant is its deputy chair and is a minister in GPE . The third and fourth applicants are also members of the first applicant ’s GPE branch . The second to fourth applicants are NORP nationals , and the fifth applicant is a NORP national . The second to fifth applicants live in GPE .

On DATE the applicants requested the Federal Minister for Education , Arts and Sports ( MONEY GPE , ORG ) to recognise the first applicant as a religious society ( Religionsgesellschaft ) under LAW ) .

On DATE ORG found that under LAW , a religious body had a subjective right to recognition as a religious society provided that the conditions laid down in that LAW were met and that a decision on this matter should be subject to review by the NORP courts ( see ORG der PERSON and Others v. GPE , no . CARDINAL , § CARDINAL , DATE ) .

On DATE the applicants filed an application with ORG ( Verwaltungsgerichtshof ) against the Minister ’s failure to give a decision ( PERSON ) .

On DATE ORG rejected the application . It noted that , upon the entry into force of LAW ( Bundesgesetz über die PERSON religiösen GPE , hereafter referred to as “ the DATE LAW ” ) on DATE , the ORG request for recognition under LAW had to be dealt with as a request under section CARDINAL ) of the DATE LAW . Thus , the DATE time - limit for the Minister to give a decision had started again on DATE and consequently there had been no failure to give a decision on the part of the Minister . ORG decision was served on the applicants’ lawyer on DATE .

On DATE the Minister decided that the first applicant had acquired legal personality as a registered religious community within the meaning of the DATE LAW as from DATE . The first applicant , however , was not thereby granted legal personality as a religious society within the meaning of the DATE LAW .

NORP On DATE the applicants lodged a complaint against that decision with ORG ) , arguing that the refusal to confer legal personality to the first applicant under LAW was in breach of LAW .

On DATE the Federal Minister submitted observations in reply , which arrived at ORG on DATE .

Meanwhile , on DATE , the applicants had filed another request with the Federal Minister for the first applicant to be recognised as a religious society under LAW .

On DATE the Federal Minister dismissed the applicants’ request of DATE . It found that , pursuant to section CARDINAL ) of the DATE LAW , a religious community could only be recognised as a religious society under LAW if it had already existed as a registered religious community for a minimum of DATE .

On DATE the applicants lodged a complaint against that decision with ORG . They submitted that the transitory provisions in the CARDINAL Religious Communities Act , which introduced new conditions for recognition as a religious society under LAW were unconstitutional as being in breach of LAW .

On DATE the Federal Minister submitted observations in reply to ORG .

On DATE ORG dismissed the applicants’ complaints of CARDINAL DATE and DATE . It found that the DATE waiting period for registered religious communities as a precondition for a successful application for recognition as a religious society under LAW was in conformity with LAW . In particular , it served the legitimate aim of ensuring that the competent authority could verify during this period of time whether the religious community was ready to integrate into the existing legal order , for example , whether it performed unlawful activities as a consequence of which legal personality had to be withdrawn ( section GPE ) and section QUANTITY ) of the DATE LAW ) . Examples of such unlawful activities were incitement to commit criminal offences , endangering the psychological development of minors , violating the psychological integrity of persons or using psychotherapeutic methods to disseminate its religious beliefs . That decision was served on the applicants’ lawyer on DATE .

Under LAW , everybody is granted freedom of conscience and belief . The enjoyment of civil and political rights is independent from religious belief ; however , the manifestation of religious belief may not derogate from civic obligations .

Article CARDINAL provides that recognised churches and religious communities have the right to manifest their faith collectively in public , to organise and administer their internal affairs independently , and to remain in possession of acquired institutions , foundations and funds dedicated to cultural , educational and charitable purposes ; however , they are , like all other societies , subordinate to the law .

Article CARDINAL entitles the supporters of non - recognised religious communities to domestic manifestation of their faith unless it is unlawful or contra ORG mores .

Article CARDINAL § CARDINAL states that GPE undertakes to ensure full and complete protection of life and liberty to all inhabitants of GPE without distinction on the basis of birth , nationality , race or religion .

Article CARDINAL § CARDINAL guarantees to all inhabitants of GPE the right to manifest publicly and privately their thought , religion and beliefs , unless these are incompatible with the protection of public order or morals .

Section CARDINAL of the LAW provides that all religious faiths which have not yet been recognised in the legal order may be recognised as a religious society if they fulfil the conditions set out in the LAW , namely that their teaching , services and internal organisation , as well as the name they choose , do not contain anything unlawful or morally offensive and that the setting up and existence of CARDINAL community of worship ( GPE ) satisfying the statutory criteria is ensured .

Section CARDINAL provides that if the above conditions are met , recognition is granted by the Minister for Religious Affairs ( LOC ) . ORG has the effect that a religious society obtains legal personality under public law ( juristische Person öffentlichen PERSON ) and enjoys all rights which are granted under the legal order to such societies . Sections CARDINAL et seq . regulate the setting up of communities of worship , membership of them , delimitation of their territory , and their bodies and statutes . Sections CARDINAL deal with the nomination of religious ministers ( PERSON ) of religious societies , the qualifications such persons must have and how their nomination must be communicated to the authorities . Section CARDINAL provides that the public authorities responsible for religious matters have a duty to monitor whether religious societies comply with the provisions of the LAW .

NORP The legal personality of ORG is , on the one hand , regarded as historically recognised , and , on the other hand , explicitly recognised in an international treaty , the ORG between the Holy See and GPE ( Federal Law Gazette II , No . CARDINAL/CARDINAL – Konkordat zwischen dem Heiligen DATE LOC , BGBl . PERSON . CARDINAL/CARDINAL ) .

The following are examples of special laws recognising religions societies :

( a ) Act on ORG , ORG of GPE , No . CARDINAL/CARDINAL ( PERSON über die äußeren PERSON , RGBl . CARDINAL ) ;

( b ) Act of DATE on the recognition of followers of ORG [ according to the NORP rite ] as a religious society , ORG of the NORP Empire No . CARDINAL ( Gesetz vom CARDINAL . DATE , betreffend die Anerkennung der Anhänger des NORP [ nach hanefitischen ORG ] als Religionsgesellschaft , RGBl . Nr . CARDINAL/CARDINAL ) ;

( c ) Federal Act on LAW , ORG . ORG PERSON CARDINAL . DATE über die äußeren PERSON , BGBl . Nr . ORG ) ;

( d ) Federal Act on LAW in GPE , ORG . DATE ( Bundesgesetz über die äußeren PERSON in PERSON , BGBl . PERSON . CARDINAL/CARDINAL ) ;

( e ) Federal Act on LAW in GPE , ORG . CARDINAL ( Bundesgesetz über äußere PERSON der PERSON in PERSON , BGBl . Nr . CARDINAL ) .

DATE the competent ministers recognised a further CARDINAL religious societies .

The Religious Communities Act entered into force on DATE . Pursuant to section CARDINAL(CARDINAL ) of the LAW , the Federal Minister for Education and ORG has to rule in a formal written decision ( Bescheid ) on the acquisition of legal personality by the religious community . In the same decision the Minister has to dissolve any association whose purpose was to disseminate the religious teachings of the religious community concerned ( section CARDINAL(CARDINAL ) ) . The religious community has the right to call itself a “ publicly registered religious community ” .

Section CARDINAL specifies the necessary contents of the statutes of the religious community . Among other things , they must specify the community ’s name , which must be clearly distinguishable from the name of any existing religious community or society . They must further set out the main principles of the religious community ’s faith , the aims and duties deriving from it , the rights and duties of the community ’s adherents , including the conditions for terminating membership ( it is further specified that no fee for leaving the religious community may be charged ) , how its bodies are appointed , who represents the religious community externally and how the community ’s financial resources are raised . Lastly , the statutes must contain provisions on the liquidation of the religious community , ensuring that the assets acquired are not used for ends contrary to religious purposes .

Under LAW , the Federal Minister must refuse to grant legal personality to a religious community if , in view of its teachings or practice , this is necessary in a NORP society in the interests of public safety , for the protection of public order , health or morals , or for the protection of the rights and freedom of others ; this is in particular the case if its activities involve incitement to commit criminal offences , obstruction of the psychological development of adolescents or undermining of people ’s mental integrity , or if the statutes do not comply with section CARDINAL .

Under LAW , the religious community must inform the Federal Minister for Education and ORG of the name and address of the persons belonging to its official bodies and of any change of its statutes without delay . The Minister must refuse to accept the notification if the appointment of the official bodies contravened the statutes or if the change of the statutes would constitute a reason for refusal of registration under section CARDINAL .

Section CARDINAL specifies the reasons for termination of a community ’s legal personality . Legal personality ceases to exist if the religious community dissolves itself or if the acknowledgment of its legal personality is revoked . Reasons for revoking legal personality are set out in subsection ( CARDINAL ) : for example , if the reasons for granting legal personality no longer subsist or if for DATE no bodies representing the religious community externally have been appointed .

The Act only regulates the granting of legal personality . Once legal personality has been granted to a religious community , it may pursue the activities referred to in its statutes . There are no specific laws in GPE regulating the acquisition of assets by religious societies or communities , the establishment of places of worship or assembly , or the publication of religious material . However , provisions which contain explicit references to religious societies are spread over various statutory instruments ( see below ) .

Since the entry into force of the DATE LAW on DATE , non - recognised religious associations may be granted legal personality upon application . A previous application for recognition under LAW is to be dealt with as an application under LAW pursuant to section CARDINAL(CARDINAL ) .

Section CARDINAL(CARDINAL ) of the DATE LAW establishes additional criteria for a successful application under LAW , such as the existence of the religious association for DATE in GPE and for DATE as a registered religious community ; a minimum number of CARDINAL adherents per CARDINAL members of the NORP population ( at the moment , this means CARDINAL persons ) ; the use of income and other assets for religious purposes , including charity activities ; a positive attitude towards society and the ORG ; and no illegal interference as regards the community ’s relationship with recognised or other religious societies .

In various NORP laws specific reference is made to recognised religious societies . The following list , which is not exhaustive , sets out the main instances .

Under section CARDINAL of ORG ( ORG ) , representatives of recognised religious societies may sit ( without the right to vote ) on regional education boards .

Under LAW ( Privatschulgesetz ) , recognised religious societies , like public territorial entities , are presumed to possess the necessary qualifications to operate private schools , whereas other persons have to prove that they are qualified .

Under section CARDINAL(CARDINAL ) of LAW , ordained priests , persons involved in spiritual welfare or in religious teaching after graduation from theological studies , members of a religious order who have made a solemn vow and students of theology who are preparing to assume a pastoral function and who belong to a recognised religious society are exempt from military service and , under LAW of LAW , are also exempt from alternative civilian service .

Under sections CARDINAL and CARDINAL of LAW ( ORG ) , ministers of recognised religious societies are exempt from the obligation to submit an application to be appointed as guardians , and under section CARDINAL(CARDINAL ) of the DATE Act on Juries of ORG and ORG ( Geschworenen- und GPE ) they are exempt from acting as members of a jury of an assize court or as lay judges of a criminal court .

Section CARDINAL(CARDINAL)(CARDINAL ) of LAW provides that contributions to recognised religious societies are deductible from income tax up to an amount of MONEY per year .

Section CARDINAL of LAW ( ORG ) provides that real property owned by recognised religious societies and used for religious purposes is exempt from real - estate tax .

Under section CARDINAL(CARDINAL)(a ) of the DATE LAW ( Erbschafts- und ORG ) , which was still in force at the relevant time , donations to domestic institutions of recognised churches or religious societies were subject to a reduced tax rate of PERCENT .


Violation of Article 6 - Right to a fair trial

András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Riza Türmen;Vladimiro Zagrebelsky

The applicants were born in DATE , DATE , DATE and DATE , and live in Etes , Bátonyterenye , NORP and Etes , respectively .

In a real estate dispute , on DATE PERSON and others brought an action for a servitude ( szolgalom ) against the applicants .

After CARDINAL hearings , the preparation of an expert opinion and the identification of a plaintiff 's successor , on DATE the NORP ORG found for the plaintiffs . On appeal , on CARDINAL DATE the ORG quashed this decision .

In the resumed proceedings , on DATE the plaintiffs changed their action and claimed ownership . Subsequently , the proceedings were suspended pending the outcome of an underlying land register procedure . The latter ended on DATE . On DATE the plaintiffs ' representative requested the resumption of the principal case .

The proceedings resumed on DATE . After several hearings and the opinion of an expert , on DATE ORG dismissed the action .

On appeal , on CARDINAL DATE ORG changed this decision and granted the plaintiffs the servitude they sought .

On DATE the applicants requested the re - opening of the case . On DATE ORG admitted their request .

In the reopened proceedings , on DATE the ORG established that the plaintiffs ' adverse possession of the servitude in question had not taken place . It ordered the servitude to be deleted from the land register .

NORP On appeal , on DATE ORG changed this decision and upheld its decision of CARDINAL DATE .


Violation of Art. 6-2;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Lack of jurisdiction (injunction to State)

ORG Mr PERSON is a company secretary . He currently lives in ORG ( Lot - et - Garonne ) .

ORG On DATE Mr PERSON , a Member of ORG ( département of ORG ) and former minister , was murdered in front of the applicant ’s home . He had just been visiting his financial adviser , Mr PERSON , who lived in the same building and with whom Mr ORG was planning to become the joint owner of a GPE restaurant , " PERSON Reine Pédauque " . The scheme was financed by means of a loan taken out by the victim . He had passed on the borrowed sum to the applicant , who was responsible for repaying the loan .

ORG A judicial investigation was begun into the commission by a person or persons unknown of the offence of intentional homicide . On DATE and DATE the crime squad at GPE police headquarters arrested a number of people , including the victim ’s financial adviser . On DATE it arrested PERSON .

ORG On DATE , at a press conference on the subject of the NORP police budget for DATE , the Minister of the ORG , Mr PERSON , the Director of ORG , Mr PERSON , and the Head of ORG , PERSON , referred to the inquiry that was under way .

ORG CARDINAL NORP television channels reported this press conference in their news programmes . The transcript of the relevant extracts reads as follows :

" TFCARDINAL NEWS

Mr PERSON , newsreader : ... Be that as it may , here is how all the aspects of the de Broglie case were explained to the public at a press conference given by Mr PERSON DATE TIME .

PERSON : The haul is complete . All thepeople involved are now under arrest after thearrest of Mr PERSON . It is a very simplestory . A bank loan guaranteed by ORG wasto be repaid by PERSON and PERSON .

A journalist : Superintendent , who was the key figurein this case ? PERSON ?

Mr PERSON : I think it must have been Mr PERSON .

Mr PERSON : The instigator , Mr PERSON , and hisacolyte , PERSON , were the instigators of themurder . The organiser was Detective PERSON the murderer was PERSON .

Mr PERSON : As you can see , those statements include a number of assertions . That is why the police are now being criticised by ORG officials . Although PERSON and Mr PERSON were careful to ( end of recording ) .

ORG

Mr PERSON , newsreader : ... TIME , therefore , the case has been cleared up . The motives and the murderer ’s name are known .

Mr PERSON : The organiser was DetectiveSergeant PERSON and the murderer was PERSON .

Mr PERSON : That is correct . I can ... [ unintelligible ] the facts for you by saying thatthe case arose from a financial agreement betweenthe victim , PERSON , andMr ORG and PERSON .

Mr PERSON : It is a very simple story . A bankloan guaranteed by PERSON was to be repaid PERSON and PERSON .

Mr PERSON , journalist : The loan was guaranteed by a life insurance policy for MONEY taken out by PERSON . In the event of his death , the sum insured was to be paid to PERSON and ORG . The turning - point came TIME when PERSON , a police officer , was the first to crack . He admitted that he had organised the murder and had lent a gun to have the MP killed . He also hired the contract killer , PERSON , who was promised MONEY and who in turn found CARDINAL people to accompany him . The reasons for their downfall were , first , that PERSON ’s name appeared in PERSON diary and , second , that they killed him in front of no . CARDINAL ORG . That was not planned . The intention had apparently been to take him somewhere else , but PERSON perhaps refused to follow his killer . At all events , that was their first mistake . PERSON and GPE apparently then refused to pay them . That led to the secret meetings in bars , the shadowing by the police and informers - we know the rest of the story - and their arrest . The second mistake was made by PERSON . Before contacting PERSON he approached another contract killer , who turned down the job but apparently talked to other people about it . To catch the killers , the police realistically based their investigation on CARDINAL simple ideas . Firstly , the murder was committed in FAC as PERSON was leaving ORG home . There was necessarily a link between the killer and ORG . Secondly , ORG past did not count in his favour and the police regarded him as a rather dubious legal adviser . Those CARDINAL simple ideas and over CARDINAL investigators led to the discovery of the murderer .

Mr Bilalian : The epilogue to the case coincided with a ORG meeting at which the question of public safety was discussed ... "

ORG On DATE Mr ORG was charged with aiding and abetting intentional homicide and taken into custody . He was released on DATE and a discharge order was issued on CARDINAL DATE .

ORG On DATE Mr ORG submitted a claim to the Prime Minister based on LAW CARDINAL ( article CARDINAL ) of the LAW , inter alia . He sought compensation of MONEY ( ORG ) for the non - pecuniary and pecuniary damage he maintained he had sustained on account of the above - mentioned statements by the Minister of the ORG and senior police officials .

ORG On DATE the applicant applied to ORG for review of the Prime Minister ’s implicit refusal of his claim and renewed his claim for compensation . He filed pleadings on DATE .

On DATE the Minister of Justice did likewise . After notice had been served on them by ORG on DATE , the Minister of the ORG and the Prime Minister filed pleadings on CARDINAL and DATE respectively . Mr ORG filed more pleadings on DATE and CARDINAL DATE .

Further pleadings still were filed on DATE by the Minister of Culture , to whom the case file had been sent on DATE ; on DATE and CARDINAL DATE by the Minister of the ORG ; and on DATE by the applicant .

ORG After a hearing on DATE , ORG delivered a judgment on DATE in which the following reasons were given :

" PERSON , known as ORG , has applied for an order that the ORG should pay compensation for the damage that the Minister of the ORG of the time allegedly caused him by naming him in statements made on DATE during a press conference on the murder of Mr PERSON .

Although the ORG may be liable in damages for the administrative acts of a member of the Government , statements that he makes in the course of his governmental duties are not susceptible to review by the administrative courts . It follows that the application is inadmissible .

ORG On DATE the ORG d’Etat registered a summary notice of appeal by PERSON . After a warning on DATE , he filed his full pleadings on DATE . On DATE these pleadings were sent to the Minister of the ORG , who submitted his observations on DATE . The applicant replied on DATE .

ORG After a hearing on CARDINAL DATE the ORG d’Etat dismissed the appeal on CARDINAL DATE , on the following grounds :

" PERSON , known as PERSON , claimed compensation for the damage he allegedly sustained on account of statements made to the press on DATE by the Minister of the ORG , the Director of ORG and the Head of ORG on the outcome of the police inquiries carried out as part of the judicial investigation into the murder of Mr PERSON . Statements made by the Minister of the ORG at the time of a police operation can not be dissociated from that operation . Accordingly , it is not for the administrative courts to rule on any prejudicial consequences of such statements .

It follows from the foregoing that , although ORG was wrong to rule in the impugned judgment that the applicant ’s claim related to an act performed ‘ in the course of governmental duties’ and thus not susceptible to review by the administrative courts , PERSON appeal against the dismissal of his claim in that judgment is unfounded . "

Mr Allenet de Ribemont brought proceedings in the GPE tribunal de grande instance against the Prime Minister on DATE and the Government Law Officer ( agent judiciaire du Trésor ) on DATE .

On DATE the Prime Minister submitted that the tribunal de grande instance had no jurisdiction as such an action could only , in his view , be brought in the administrative courts .

After requesting the applicant to produce the full text of the statements attributed to the Minister and raising an objection that an action for defamation was time - barred , the Government Law Officer replied on DATE and on CARDINAL DATE .

ORG The applicant filed his submissions on DATE and DATE . He requested the court to order CARDINAL NORP television companies to hand over video recordings of the press conference of DATE and produced press cuttings relating to it .

ORG The court gave judgment on DATE as follows :

" Admissibility of the action brought against the Prime Minister

Section CARDINAL of the Act of DATE provides that any action brought in the ordinary courts for a declaration that the ORG is owed or owes payment for reasons unconnected with taxation or with ORG property must , subject to exceptions provided for by law , be instituted by or against the Government Law Officer , failing which the proceedings shall be void .

It follows that PERSON claim for reparation from the ORG for damage sustained on account of the statements attributed to the Minister of the ORG should have been lodged only against the Government Law Officer , who is the ORG ’s sole representative before the courts , and not against the Prime Minister , who accordingly must not remain a party to the proceedings .

Jurisdiction

The GPE tribunal de grande instance must be held to have jurisdiction in so far as the statements attributed to the Minister of the ORG can be linked with a police operation and are not dissociable from that operation .

The press conference of DATE , held by the Minister of the ORG , the Director of ORG and the Head of ORG to inform the press of the results of the police inquiries following the murder of PERSON , may be considered indissociable from the police operation that was then under way .

The statements complained of

Anyone who complains of any statements , whether defamatory or merely negligent within the meaning of LAW , must prove that the impugned statements were actually made . It is not for the court to make good any omissions by the parties or to supplement evidence they have adduced , so long as they have been afforded the opportunity of presenting all their documents and arguments freely and in accordance with the adversarial principle .

In this respect , since the plaintiff has been unable to obtain the video recording of the press conference in question and the Government Law Officer considers that he is not under any obligation to request the judge in charge of preparing the case for trial or the court to order the compulsory production of such evidence , judgment must be given on the basis of the evidence in the case file .

PERSON has produced press cuttings describing the press conference of DATE , some of which are dated DATE after the conference or DATE following ... The newspapers did not , however , report the statements allegedly made by the Minister of the ORG , as set out in the writ .

However , in publications DATE after the event , journalists attributed to the Minister of the ORG remarks about PERSON alleged role , and in FAC of DATE , for instance , it is possible to read PERSON statements , reported as follows :

‘ Mr PERSON and Mr de Ribemont were the instigatorsof the murder . The organiser was DetectiveSergeant PERSON and the murderer was Mr Frèche’ .

But , however carefully the journalists reported the statements in issue , the press articles relied on by PERSON can not be accepted as the sole evidence in view of the objection raised by the defendant on this point .

It may further be observed , as a subsidiary point , that the publications at the time of the press conference in issue merely reported the remarks about PERSON involvement in PERSON murder allegedly made by PERSON after the Minister of the ORG had spoken .

Accordingly , since the plaintiff has brought proceedings against the ORG solely on account of the remarks attributed to the Minister of the ORG , the action must be dismissed without there being any need to examine the submission that an action either for defamation - although the plaintiff has disputed that his action was for defamation - or for a breach of the secrecy of judicial investigations provided for in LAW , is time - barred .

Mr Allenet de Ribemont appealed to ORG on DATE , and the Government Law Officer cross - appealed on DATE .

ORG The applicant again requested that the videotapes should be handed over for showing .

ORG On DATE the judge in charge of preparing the case for hearing served notice on Mr Allenet de Ribemont to file his submissions , but without success . On DATE he requested him to produce his documents by DATE and to file any submissions by DATE . On DATE he sent a final notice before terminating the preparation of the case for trial . The Government Law Officer filed submissions on DATE and the applicant on DATE . On DATE the parties were informed that the order certifying that the case was ready for hearing would be issued on DATE .

ORG At the hearing of CARDINAL DATE Mr ORG requested an adjournment and , having duly been given leave by the court , filed further submissions on DATE .

ORG held another hearing on DATE and gave judgment on DATE . It found against the applicant for the following reasons :

" The preliminary objection of inadmissibility

It is apparent from the arguments set out below addressing the analysis of the damage that this is an action to establish the ORG ’s liability on the ground that the judicial system has malfunctioned , rather than a civil action for defamation and/or breach of the secrecy of judicial investigations .

The merits

According to the appellant , PERSON had made the following statement : ‘ Mr PERSON and Mr de Ribemont were the instigators of the murder . The organiser was Detective PERSON and the murderer was Mr DATE . It was allegedly apparent from the series of statements made by PERSON , or by PERSON and PERSON under his authority , that all those guilty had been arrested , the haul was complete and the case was solved . These three had allegedly maintained that the motive for the crime was a bank loan obtained by PERSON to enable PERSON to acquire a controlling interest in PERSON company .

However , as the court below rightly held , the press cuttings produced by PERSON do not suffice to prove his allegations .

Even supposing , however , that they had been proved , it would be necessary to establish whether the damage alleged by the appellant could be linked to the impugned statements .

It has not been shown that the statements complained of , which were made during the judicial investigation , in themselves caused the alleged damage . In so far as this damage appears to be connected with the existence of criminal proceedings , it still can not be held that the statements in issue affected the course of the case .

In the absence of any causal link between the impugned statements - should their exact terms be established - and the damage claimed , it is unnecessary to consider the subsidiary application to have the recording produced .

Mr Allenet de Ribemont lodged an appeal on points of law , which ORG ( Second Civil Division ) heard on DATE and dismissed on DATE on the following grounds :

" The judgment [ of ORG ] has been challenged because it dismissed PERSON appeal on the ground that the press cuttings he had produced did not suffice to prove his allegations . It is argued , however , firstly , that ORG distorted the meaning of those press cuttings , which proved conclusively that statements had been made by the Minister of the ORG and indicated their exact terms ; secondly , that it infringed LAW by refusing to take into consideration the non - pecuniary damage sustained by PERSON ; and , lastly , that it breached LAW ) of ORG by denying fair reparation to a man whose reputation had been injured in statements heard by CARDINAL of television viewers .

However , ORG held in that judgment , adopting the reasoning of the court below , that the cuttings from the newspapers published on DATE after the conference and on DATE did not report the statements allegedly made by the Minister of the ORG , as set out in the writ , but merely gave an account of remarks said to have been made by a police superintendent after the Minister had spoken , and that the remarks attributed to PERSON , relating to Mr PERSON alleged role as instigator , had been reported in a publication that appeared DATE after the event .

It was in the exercise of its unfettered discretion to assess the evidence before it that ORG ruled , without distorting the meaning of the press cuttings , that they did not suffice to prove Mr PERSON allegations .

In giving this reason alone - leaving aside the reasons criticised in the ground of appeal on points of law , which were subsidiary considerations - the Court of Appeal justified its decision in law .


Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested , brought before an investigator and detained on rape charges . A prosecutor confirmed the detention on DATE . Later in the course of the investigation he was also charged with abduction .

DATE and DATE the investigator conducted searches in the applicant 's apartment , ordered an expert analysis of various traces and objects and questioned the applicant .

On DATE the applicant appealed to ORG against the detention order .

In accordance with the established practice , the appeal was submitted through the investigation authorities , which transmitted it to ORG on DATE . The matter was listed for a hearing on DATE .

On DATE the applicant 's lawyer requested access to the case file , which was refused by the judge on DATE .

At the hearing on DATE the applicant 's lawyer requested the withdrawal of the president of the bench as she had recently sought his prosecution for alleged defamatory statements . The lawyer was concerned that the judge 's hostility towards him might prejudice his client 's interests . The request for the judge 's withdrawal was granted and the case adjourned .

On DATE the case was assigned to another bench and listed for hearing on DATE .

On DATE the applicant 's lawyer reiterated his request for access to the case file . The request was refused on DATE .

The applicant 's appeal against his detention was eventually heard on DATE .

At the opening of the hearing the judge refused to allow the participation of the applicant 's lawyer , considering that his written authority form was invalid . The judge stated that the authority had only been signed by the applicant 's wife and not by the applicant , that it bore no indication of the lawyer 's fees and that it had not been made on a sheet from the usual lawyers ' receipt - books .

Thereupon , the applicant , who was also present , handed to the judge another written authorisation , signed by him . The court refused to accept it as the case file number had not been marked on it . As a result , the applicant had to present his case without legal representation .

Having heard the applicant , the court dismissed his appeal against detention , stating that he was charged with a serious criminal offence . The court went on to conclude that the fact that the applicant had refused to sign TIME of his first interrogations and to comment on the charges right away had demonstrated that he lacked critical judgment of his behaviour , which in turn revealed a danger that he would abscond and re - offend .

On DATE the applicant filed a new appeal against detention , referring to passages in a psychiatrists ' report concerning his mental state ( see paragraph CARDINAL below ) . On DATE the applicant also filed a request for the replacement of the president of the bench , arguing that his partiality had been demonstrated by his behaviour at the hearing on DATE . The lawyer did not enclose a power of attorney and did not indicate his address and telephone number .

On DATE the appeal was forwarded by the prosecution authorities to ORG , where it was registered on DATE . A hearing was listed for CARDINAL DATE . The applicant , but not his lawyer , was summoned .

At the hearing on CARDINAL DATE the applicant requested an adjournment as his lawyer was not present . ORG , sitting in a new composition , noted that the applicant 's lawyer had not been summoned as he had not indicated his address . It nevertheless decided to adjourn the case in view of the applicant 's request . A second hearing was listed for CARDINAL DATE .

On CARDINAL DATE the applicant 's lawyer requested to be given access to the case file .

On DATE the ORG heard the prosecutor , the applicant and CARDINAL lawyers acting for him . ORG dismissed the lawyers ' request for an adjournment to allow consultation of the case file , referring to “ the practice ” and endorsing the prosecutor 's view that it was for the investigator to decide what material should be provided to lawyers .

As to the merits , the applicant argued that his health was unstable , that the conditions of detention were unacceptable and that he had to help his parents , CARDINAL of whom was ill , in their seasonal agricultural work .

ORG dismissed the applicant 's appeal against detention noting the psychiatrists ' conclusion that the applicant was mentally healthy and that other relatives had been taking care of the applicant 's sick mother . The court also had regard to the fact that the charges concerned a serious offence , allegedly committed during the operational period of the applicant 's suspended sentence for a previous conviction , and concluded that there was a danger that he might obstruct the course of justice and reoffend . As to the conditions of the applicant 's detention , the court stated that a transfer to another detention facility could be recommended .

On DATE , before completing the investigation , the investigator gave the applicant and his lawyer access to all the material in the case . On DATE the investigator drew up a report proposing that the applicant be indicted .

The indictment on charges of rape and abduction was prepared by a prosecutor and submitted to ORG on DATE .

At the first hearing , held on DATE , ORG examined the applicant 's renewed appeal against his detention and dismissed it , noting that he was charged with a serious wilful offence which required his remand in custody and that , in any event , the charges concerned an offence allegedly committed during the operational period of the applicant 's previous suspended sentence for another offence . This latter fact left no doubt that there was a danger that the applicant would commit further offences . Finally , the court also endorsed the prosecutor 's position that there was a reasonable suspicion against the applicant and that the fact that the charges concerned a violent offence should be taken into account .

At the hearing held on DATE the applicant submitted another application for release on the grounds that his detention was unreasonably long , that the court failed to conduct a prompt trial and that there was no convincing evidence against him . PERSON , the victim , stated that she feared that if released the applicant may hurt her . She had learned that the applicant 's parents had been asking others about her new address . The court ruled against the applicant 's release . It noted that under the relevant law remand in custody was required in all cases where the charges concerned serious offences . It further stated that there was a danger that the applicant would obstruct the course of justice in view of the fact that he had been charged with CARDINAL offence and that he had a criminal record . Therefore , the applicant 's statements about his good character and family circumstances did not warrant release .

On DATE the ORG found the applicant guilty of rape , sentenced him to DATE imprisonment and acquitted him of the charges of abduction . On DATE ORG upheld the conviction and sentence .

The applicant produced copies of correspondence in DATE and DATE from the presidents of ORG and of ORG to the local ORG , apparently in reaction to complaints made by lawyers about an existing practice of barring access to case files in cases concerning appeals against pre - trial detention .

NORP The president of ORG acknowledged that the complaints were well - founded and stated , inter alia , that , “ [ GPE , ORG judges rely on the hitherto prevailing practice and do not share my opinion ... ”

The president of ORG informed ORG that the matter had been discussed at length and that the judges had agreed that , contrary to the opinion of ORG and ORG in GPE , there were no legal grounds for refusing access to case files in appeals against detention proceedings .

DATE and DATE the applicant was kept in a lock - up at ORG in GPE .

The cell , where the applicant was detained together with CARDINAL other people , measured QUANTITY ( a surface of CARDINAL m² ) . Since there were no beds , the detainees slept on mattresses on the floor . According to the applicant , the blankets were not washed regularly . The Government disputed that allegation . The cell did not have access to daylight and was equipped with a CARDINAL electric lamp . There was a ventilation system . According to the applicant the ventilation system was only installed “ in DATE ” . He also submitted that in DATE the temperature in his cell did not rise above ORG According to the Government , the cell was centrally heated and the temperature therein was normal .

The applicant and the other detainees were allowed to leave the cell twice a day , at TIME and TIME , for toilet purposes and washing . To relieve themselves outside the time earmarked for toilet visits , the detainees had to use a bucket . They had to empty the bucket and clean it themselves when leaving the cell to use the sanitary facilities . They were provided with detergents . Once per week the buckets were disinfected chemically . No possibility for spending time in the open or physical exercise was provided . The detainees could also leave the cell when they received visits or were brought for questioning or taken to court . They showered once per week in DATE and twice per week in DATE . Apparently hot water was available .

Food was provided CARDINAL times per day in the cell . It was served in pots or mugs which the detainees had to wash after every meal and which were collected and disinfected periodically . For security reasons , no forks or knives were provided . According to the applicant , the food was of bad quality . The Government stated that meat was available at least once per day .

In DATE psychiatry experts who had examined the applicant with a view to verifying his legal capacity to stand trial submitted their report . They noted that DATE or CARDINAL earlier the applicant had undergone periods of depression and violent or inadequate behaviour . He had been admitted for DATE to a psychiatric hospital on suspicion of suffering from paranoid schizophrenia . However , the experts concluded that the applicant 's mental condition was sound .

On DATE the applicant was transferred to the GPE prison where the conditions were better .

The ORG visited GPE in DATE and again in DATE and DATE . ORG detention facility was visited in DATE and DATE . All reports included general observations about problems in all ORG facilities .

In this report the ORG found that most , albeit not all , of the ORG detention facilities were overcrowded . With the exception of CARDINAL detention facility where conditions were better , the conditions were as follows : detainees slept on mattresses on sleeping platforms on the floor ; hygiene was poor and blankets and pillows were dirty ; cells did not have access to natural light , the artificial lighting was too weak to read by and was left on permanently ; ventilation systems were in poor condition ; detainees could use a toilet and washbasin twice a day ( morning and evening ) for TIME and could take a DATE shower ; outside of the CARDINAL daily visits to the toilets , detainees had to satisfy the needs of nature in the cell bucket ; although according to the establishments ' internal regulations detainees were entitled to a “ DATE walk ” of TIME , it was often reduced to TIME or not allowed at all ; no other form of out - of - cell activity was provided to persons detained .

The ORG further noted that food was of poor quality and in insufficient quantity . In particular , the DATE 's “ hot meal ” generally consisted of a watery soup ( often lukewarm ) and inadequate quantities of bread . At the other meals , detainees only received bread and a little cheese or khalva . Meat and fruit were rarely included on the menu . Detainees had to eat from bowls without cutlery - not even a spoon was provided .

The ORG also noted that family visits were only possible with permission and that as a result detainees ' contact with the outside world was very limited . There was no radio or television .

The ORG concluded that the NORP authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “ almost without exception , the conditions in the ORG detention facilities visited could fairly be described as inhuman and degrading . ” In reaction , the NORP authorities had agreed that the [ ORG ] delegation 's assessment had been “ objective and correctly presented ” but had indicated that the options for improvement were limited by the country 's difficult financial circumstances .

NORP In DATE the ORG recommended to the NORP authorities , inter alia , that sufficient food and drink and safe eating utensils be provided , that mattresses and blankets be cleaned regularly , that detainees be provided with personal hygiene products ( soap , toothpaste , etc ) , that custodial staff be instructed that detainees should be allowed to leave their cells during DATE for the purpose of using a toilet facility unless overriding security considerations required otherwise , that the regulation providing for TIME exercise per day be fully respected in practice , that cell lighting and ventilation be improved , that the regime of family visits be revised and that pre - trial detainees should be more often transferred to prison even before the preliminary investigation was completed . The possibility of offering detainees outdoor exercise was to be examined as a matter of urgency .

The ORG noted that new rules , providing for better conditions , had been enacted but had not yet resulted in significant improvements .

In most places visited in DATE ( with the exception of a newly opened detention facility in GPE ) , the conditions of detention in ORG premises had remained generally the same as those observed during the ORG 's DATE visit , including as regards hygiene , overcrowding and outof - cell activities . In some places the situation had even deteriorated .

In ORG detention facility , as well as in CARDINAL other places , detainees “ still had to eat with their fingers , not having been provided with appropriate cutlery ” .

In the same detention facility medical supervision was provided by a medical doctor on the LOC .

The ORG noted that most investigation detention facilities were undergoing renovation but that a lot remained to be done . The cells remained generally overcrowded .

In GPE , CARDINAL of the cells had benefited from a refurbishment which involved making windows in the cell doors , improving the artificial lighting and installing wash basins in the cells . However , the majority of the cells remained in the same inadequate condition as in DATE . The sanitary facilities were not in a satisfactory state of repair .

Despite the ORG 's recommendations in the report on their DATE visit , no proper regime of activities had been developed for detainees spending long periods in the investigation detention facilities . Those facilities did not have areas for outdoor exercise . At some of the establishments ( e.g. Botevgrad ) , attempts were being made to compensate for the lack of outdoor exercise facilities by allowing detainees to stroll in the corridor several times a day . The ORG stated that “ in this respect , the situation remain[ed ] of serious concern ” .

Article CARDINAL § CARDINAL of LAW provides that a power of attorney shall be prepared in writing and signed by the defendant and his legal counsel .

The relevant provisions of LAW concerning the powers and functions of investigators and prosecutors are summarised in the ORG 's judgment in the case of ORG v. GPE ( [ ORG ] , no . ORG , LAW DATE , ORG CARDINAL-II ) .


ORG Dr PERSON , a urologist of NORP nationality , lives and practises in GPE .

ORG On DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL DATE , at a time when the applicant was still practising in GPE , patients of his complained to ORG ( medical association ) that the fees he charged were excessive . After considering these complaints , ORG summoned the applicant to appear before it on DATE . The council ’s registered letter of CARDINAL DATE also informed him that he would be heard on the following counts :

" CARDINAL that on numerous occasions in DATE , despite the council ’s warnings , recommendations and cautions , he charged his patients excessive fees , and persisted in doing so , in breach of the principles of moderation and discretion incumbent on medical practitioners ...

CARDINAL that , after various complaints from patients regarding excessive fees , he refused to follow the recommendation of the council ’s fees disputes committee that the cases be submitted to it ;

CARDINAL that , through his attitude , he showed total contempt for the council ’s warnings , demonstrating by his statements that he was guided in his practice of medicine by concerns of a wholly pecuniary nature ;

CARDINAL that without valid reason he failed to take part in the [ council ’s ] elections of DATE . "

ORG At the request of the applicant ’s lawyer , the hearing was postponed to DATE .

ORG In pleadings filed on DATE of the hearing , PERSON , referring inter alia to certain provisions of LAW and of LAW of DATE , challenged , by way of main submission , " the council as a whole " and , in the alternative , CARDINAL doctors sitting on the council , on the ground that , even before the hearing , they had " individually expressed their opinion concerning PERSON conduct and had described it in negative terms " . He also reserved the right to contest both the admissibility of the case brought against him and its merits . In additional submissions made at the hearing he requested that " the proceedings be stayed ... until the appeal [ he ] intend[ed ] to lodge against the council ’s decision had been heard " . Finally , he refused to present argument on the merits , despite having been invited to do so by the council , and withdrew from the hearing .

ORG The council gave its decision on DATE . It first held that the legislative provisions relied on by the applicant had no bearing on the facts of the case and therefore could not constitute the basis for his application challenging its members . It then noted that none of the members of the ORG whom he had accused of having a " negative attitude towards him " sat on the council to which it fell to determine the disciplinary proceedings . Lastly , it pointed out that CARDINAL of the council members whom the applicant had challenged had not heard the case in question and that the fifth had only been present in an advisory capacity and had not taken part in the deliberations . It accordingly dismissed the application challenging the council en bloc and ruled that the application concerning the CARDINAL medical practitioners was inadmissible and ill - founded .

The council gave its decision on the request for a stay of the proceedings in the following terms :

" ... quite apart from the inappropriate references to legislation which has no bearing on the case ... , [ the additional ] submissions state in a curiously implausible and contradictory manner that ‘ by refusing to give a decision on the challenges , the council dismissed them’ ;

... at no time did the council refuse to give a decision on the challenges ; ... it merely informed PERSON and his lawyers that it would rule on the challenges and the merits in a single decision ; ... during the hearing it did not take any decision whatsoever on the challenges and ... PERSON was consequently acting precipitately and in a way which prejudged a decision that had not been taken when he stated that he intended to appeal against that decision and requested that the proceedings be stayed pending the outcome of that hypothetical appeal .

... there is no reason to grant that request . "

With regard to the merits of the case , the council , giving its decision in absentia , considered that most of the charges against PERSON had been substantiated and imposed " on [ him ] the penalty of DATE suspension of his right to practise medicine " .

ORG On DATE Dr PERSON lodged an appeal against the decision of DATE with the LANGUAGE - language ORG of the ORG .

ORG On DATE he was summoned to a hearing to be held on DATE . On DATE he requested a DATE adjournment to enable his new lawyers to prepare his defence . After deliberating , ORG apparently allowed him an adjournment until DATE .

On DATE he laid a complaint for falsification and use of falsified documents against the members of the bureau of the council of the Ordre des médecins ( Dr Remion , PERSON , PERSON , PERSON and PERSON ) . He disputed certain entries in the TIME of meetings held on DATE and CARDINAL DATE to consider the complaints against him . He subsequently also lodged the following complaints :

- on DATE against PERSON and PERSON , the judges ( magistrats ) who had sat on the bureau and council of the ORG during those meetings ;

- on DATE against PERSON , the vice - president of ORG , concerning statements made to the press on CARDINAL DATE ;

- on DATE against the same person for making misleading statements and for breach of confidentiality .

No information has been provided as to what action was taken in response to those complaints .

ORG In the meantime , on CARDINAL DATE Dr PERSON applied to ORG for a transfer of jurisdiction , claiming that there were reasonable grounds for suspecting ORG of bias ( suspicion légitime ) . He called into question the impartiality of CARDINAL of the CARDINAL full members , PERSON and PERSON , and CARDINAL of the CARDINAL substitute members , PERSON , PERSON and PERSON , who were or had been officials of the medical unions .

He first alleged " in general terms " that the medical unions had gradually taken control of the various institutions of the Ordre des médecins with the result that the policy pursued by the association in fact simply reflected the ORG policies , which were designed purely to safeguard the interests of union members . Consequently , those who opposed this policy through the way in which they practised and the opinions they expressed had good reason to fear that , when hearing a case that concerned them , the union members would not show the impartiality to which everyone was entitled . He maintained , in addition , that the members of ORG bore a grudge against him personally because of the views he had expressed . In DATE he had denounced the collusion between the ORG and the unions and he had joined the " call of the CARDINAL " medical practitioners angered by the ORG ’s backing of a health care strike organised by the unions . Lastly , he pointed out that the capacity of the disciplinary bodies of the Ordre des médecins to conduct proceedings in an objective and impartial manner had been questioned on many occasions by the press , among others , especially in so far as it was possible to be a member of those bodies and a member of the ORG organs at the same time .

ORG In a judgment of CARDINAL DATE ORG ruled inadmissible the application for a transfer of jurisdiction . It held that Article CARDINAL para . CARDINAL of LAW of DATE on the Ordre des médecins ( see paragraph CARDINAL below ) had set up CARDINAL LANGUAGE - language ORG and that therefore , as a matter of law , it would be impossible to transfer jurisdiction to another NORP - speaking ORG . Removing the case from the board without remitting it to another tribunal would , moreover , be tantamount to a denial of justice .

ORG On DATE ORG gave its decision in absentia since PERSON had not made any further appearances before it after the hearing of DATE ( see paragraph CARDINAL above ) . It annulled the decision of DATE , on the ground that CARDINAL doctors who had conducted the preliminary investigation had taken part in the deliberations , and suspended PERSON right to practise medicine for DATE . At the same time it dismissed the applications challenging the council members and requesting a deferral of the proceedings , finding that " in his appeal PERSON [ had ] failed to establish that [ his ] applications were well - founded as to either the law or the facts " .

ORG On DATE Dr PERSON asked ORG to set aside its decision of DATE pursuant to LAW of DATE ( see paragraph CARDINAL below ) . He alleged , inter alia , that LAW no . CARDINAL on the Ordre des médecins ( see paragraph CARDINAL below ) and LAW no . CARDINAL on the medical profession , the practice of related professions and the medical committees were manifestly unlawful because certain essential procedural requirements had not been complied with prior to their adoption . In his submissions he requested ORG to rule as follows :

" Primarily

Declare that ORG does not legally exist or , at least , that it is unlawfully constituted , and that the same applies to ORG of the Ordre des médecins , and accordingly hold that the measure ordered by ORG against the applicant was unlawful ; discontinue the proceedings brought against the applicant or , at least , stay the proceedings until another joint , NORP - language ORG has been formed in accordance with the Act of DATE and more particularly section QUANTITY of that Act .

In the alternative

Stay its proceedings on account of the various complaints laid by the applicant , together with applications to join the proceedings as a civil party filed by him , until the relevant criminal proceedings are concluded , in accordance with the principle that criminal proceedings take precedence over civil proceedings .

In the further alternative

Find that ORG , which annulled the decision appealed against , could under no circumstances rely on any of the documents produced before ORG because those documents were inadmissible .

In the even further alternative

... dismiss all the charges and complaints brought against the applicant . "

ORG On CARDINAL DATE PERSON was summoned to appear before ORG on DATE . At the hearing he immediately challenged PERSON , PERSON and PERSON . He alleged that they were influential members of the medical unions , which he had consistently opposed - in particular by denouncing the collusion between the ORG and the unions and by taking part in the " call of the CARDINAL " . He likewise challenged Judge PERSON on the ground that his son was CARDINAL of the medical ORG lawyers . After hearing PERSON , ORG withdrew to deliberate . It then decided to adjourn the proceedings until DATE in order to enable it to " reconstitute a full board " in the meantime .

ORG At the hearing on DATE PERSON filed a further application challenging Mr GPE . In addition , he challenged Dr PERSON and PERSON , in the latter ’s case on the ground that his son was a member of the medical union of the provinces of GPE and GPE . He declared , furthermore , that he intended to persist with the applications he had filed at the hearing on DATE . After hearing PERSON , ORG decided to join the interlocutory proceedings to the merits , whereupon the applicant asked that the record should state that he reserved his position concerning both the failure to take an immediate decision on the challenges and their joinder to the merits .

ORG On DATE , at a public hearing , ORG dismissed the objection based on the alleged unlawfulness of Royal Decrees nos . CARDINAL and CARDINAL and ruled that the application of CARDINAL DATE requesting it to set aside its earlier decision was ill - founded ( see paragraph CARDINAL above ) . It noted that ORG decision of DATE ( see paragraph CARDINAL above ) had been annulled and confirmed the decision of CARDINAL DATE ( see paragraph CARDINAL above ) suspending PERSON right to practise medicine for DATE . On the subject of the challenges , it ruled as follows :

" ... the president informed each of the challenged members of the existence of a challenge and submitted their individual cases to the board , which in each case took a majority vote on the challenge without the member concerned being present , but after hearing that member ;

... with regard to the challenges against PERSON and PERSON , the board notes that the applications are neither dated nor signed ; they are thus flawed and hence inadmissible ;

... with regard to the challenges against PERSON , PERSON and PERSON and the challenges concerning Judge PERSON , the board notes that they are all based on LAW , DATE , of the Judicial Code and that the documents produced by PERSON do not reveal the slightest trace of any hostility , even less of fundamental hostility ; those challenges are accordingly completely unfounded . "

ORG On DATE Dr PERSON appealed on points of law against the decision of DATE . CARDINAL of his CARDINAL grounds were based on Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW and the general principle of law that a judge must be impartial .

In his first submission he also alleged a breach of LAW of DATE governing the organisation and functioning of the councils of the ORG and of ORG and CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL below ) . Firstly , there was no legal justification for the decision to join the challenges to the merits and , secondly , those members whose impartiality had been called into question could not take part in a decision to postpone a ruling on the applications concerning them without engendering reasonable doubts as to the impartiality of the tribunal required to determine the merits of the challenges and of the charges .

In his second submission PERSON complained of the fact that the challenges against PERSON , PERSON , PERSON and Judge PERSON had been considered ill - founded " admittedly without the challenged member being present , but each time in the presence of the other challenged members , whereas the grounds for the challenges [ were ] identical " .

ORG In a judgment of CARDINAL DATE ORG dismissed the appeal . It observed , in particular , that :

" ... since the members of ORG who had been challenged did not take part in the decision on the individual challenges concerning them , the mere fact that they participated in the decisions on the other challenges , made on the basis of the grounds reproduced in the appeal submission , does not constitute a breach of either the legislation or the general principle of law referred to by the appellant . "

ORG The Ordre des médecins is currently governed by LAW no . CARDINAL of DATE , issued pursuant to an Act of DATE " investing the King with certain powers with a view to ensuring economic revival , acceleration of regional reconversion and a stable , balanced budget " .

That decree provides in particular :

" CARDINAL . The LANGUAGE - language ORG and the Dutch - language ORG shall each be composed of :

CARDINAL full members and CARDINAL substitute members , who are medical practitioners , elected for DATE and entitled to stand for re - election . Each ORG shall elect CARDINAL of the CARDINAL members of ORG corresponding to the language it uses . The member shall be elected from among the practitioners of NORP nationality who have been on the council ’s register for DATE when the election is held ...

CARDINAL full members and CARDINAL substitute members , who are conseillers ( judges ) at ORG , appointed by PERSON DATE ;

The King shall designate the president and rapporteurs of each board from among the judicial members .

The Appeals Boards shall take cognisance of all aspects of a case , even where only the medical practitioner has appealed .

ORG must have a CARDINAL majority to impose a penalty where ORG did not so decide or to impose a more severe penalty than that decided by the council . "

ORG In accordance with LAW no . CARDINAL , LAW of DATE , as amended on CARDINAL DATE and DATE , governs the organisation and functioning of the councils of the ORG .

ORG The councils , which are responsible for " ensuring observance of the rules of medical ethics and upholding the reputation , standards of discretion , probity and dignity of the members of ORG , are required to " discipline misconduct by registered members in or in connection with the practice of their profession and serious misconduct committed outside the realm of their professional activity , whenever such misconduct is liable to damage the reputation or dignity of the profession " ( LAW , of LAW no . CARDINAL ) .

In addition to a warning , censure or reprimand , the councils are empowered to suspend the right to practise medicine for a period not exceeding DATE or to strike the practitioner in question off the register of ORG ( Article CARDINAL ) .

ORG The following provisions are relevant to the instant case :

" The Appeals Boards’ deliberations and decisions shall be valid only if , in addition to the registrar , CARDINAL elected members and CARDINAL designated members are present .

Without prejudice to the application of the provisions of LAW , the Appeals Boards’ decisions shall be taken by a majority vote . "

" An application to ORG to set aside its own decision given in absentia shall be filed by registered letter addressed to the president of ORG concerned . "

" A medical practitioner may avail himself of his right to challenge the members of ORG required to give a decision concerning him . "

" Any member of ORG may be challenged for the reasons laid down in LAW . "

" If he is not to forfeit his right to challenge the members of the council or board , the medical practitioner must , at the latest before the case is pleaded at the hearing , submit to the president of the competent council or board an application , which must be dated and signed and which shall set out the names of the challenged members and the grounds for the challenge . "

" The president of the council or board shall immediately inform the member at whom the challenge is directed ; he shall submit the challenge to the council or board , which shall take a majority vote on it , after hearing the challenged member but without that member being present .

The reasoned decision shall be served on the medical practitioner without delay .

An appeal shall lie against a decision by ORG dismissing a challenge ; such an appeal must be lodged within DATE of the notification of the decision . "

ORG The relevant provisions of LAW read as follows :

" The rules set out in this Code shall apply to all proceedings except those governed by legislation that has not been expressly repealed or by principles of law whose application is incompatible with that of the provisions of the Code . "

" Any judge may be challenged for the following reasons :

CARDINAL if the judge is the guardian ( tuteur ) , auxiliary guardian ( subrogé tuteur ) or limited guardian ( curateur ) , temporary trustee ( administrateur provisoire ) or guardian ad litem ( conseil judiciaire ) ... of CARDINAL of the parties ; if he is an administrator or agent ( commissaire ) of any establishment , company or association which is a party to the case ; ...

DATE if there is fundamental hostility ( inimitié capitale ) between him and one of the parties ; if he has made attacks , proffered insults or uttered threats , in speech or in writing , since the commencement of the proceedings or in DATE preceding the challenge . "

" From DATE on which the judge is notified , all judgments and proceedings shall be suspended .

Nevertheless , if one of the parties maintains that the proceedings are urgent and that the delay involves a risk , that party may request the president of the relevant court to organise a hearing of the interlocutory application ; ...

In allowing that request , the president shall order that another judge should deal with the application . "

ORG According to NORP legal theory , " fundamental hostility exists if facts of a sufficiently serious nature clearly reveal that the judge feels real hatred or at least animosity such that his judgment is destroyed or impaired " ( PERSON , PERSON civile , DATE , p. CARDINAL , note CARDINAL ) .


Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and is serving a sentence of imprisonment in GPE .

The applicant was arrested on DATE . He was charged with a number of criminal offences , including conspiracy to commit murder .

On DATE the applicant was taken to remand centre no . CARDINAL , also known as “ PERSON ” .

NORP In DATE the deputy Prosecutor General extended his detention until DATE . On DATE the ORG of GPE upheld this extension order .

In DATE the criminal case against the applicant was listed for trial . On DATE ORG held that the measure of restraint in respect of defendants , including the applicant , had been lawful and should remain unchanged .

ORG subsequently issued further extension orders on DATE , DATE , DATE , DATE , DATE and DATE , referring to the fact that the applicant and his co - defendants had been charged with particularly serious criminal offences . ORG of GPE rejected appeals against these remand orders , endorsing ORG reasoning .

On DATE ORG extended the GPE detention on remand until DATE , noting the gravity of the charges against them and the possibility that they might abscond or obstruct justice .

On DATE ORG extended the GPE detention on remand until DATE , indicating that :

“ ... [ the defendants ] have been charged with several counts of serious and particularly serious criminal offences committed by an organised gang in conspiracy with unidentified persons , against whom separate criminal proceedings are pending , and with another person , against whom criminal proceedings were disjoined because his whereabouts are not known ; if released , [ they ] may abscond or obstruct justice ” .

On DATE ORG extended the GPE detention , reproducing verbatim the reasoning of its earlier decision .

On DATE ORG upheld the decision of DATE and endorsed ORG reasoning .

On DATE the GPE city prosecutor approved the bill of indictment and the case was submitted for trial to ORG . The applicant was charged with multiple counts including conspiracy to commit murder . Similar charges were brought against CARDINAL other co - defendants .

On DATE ORG noted that the majority of the defendants had opted to exercise their constitutional right to a trial by jury . However , as there were no juries in ORG , it decided to send an inquiry to ORG of GPE as to where the case should be tried . ORG referred the case to ORG , where juries were available .

On an unspecified date a judge of ORG sent a request to ORG of GPE , inviting it to rule on the compatibility with LAW of ORG interpretation of the jurisdictional rules . On DATE she suspended the proceedings pending a decision by ORG . She also held that the defendants were to remain in custody because they had been charged with criminal offences of high public danger , classified as serious or particularly serious .

On DATE ORG held that the decision on the change of venue had been incompatible with LAW .

In compliance with that ruling , on DATE ORG returned the case file to ORG . ORG decided on DATE that ORG was competent to try the case .

On DATE ORG scheduled the first hearing for DATE before a panel consisting of a professional judge and CARDINAL lay judges , but on that date the hearing was adjourned because the presiding judge was sitting in another case .

In DATE and DATE the presiding judge was replaced by other judges of ORG . Lay judges were replaced several times .

Numerous hearings were scheduled DATE . All of them were adjourned on various grounds , mainly because the prosecutor , the interpreter and some of the defendants’ lawyers had defaulted , and also owing to the presiding judge ’s involvement in other proceedings in DATE and DATE , and then in DATE .

It appears that consideration of the merits began in DATE . The absence of several lawyers , including the applicant ’s counsel , was one of the reasons for adjourning the hearings listed for DATE and CARDINAL DATE .

NORP The illness of the applicant ’s counsel was one of the reasons for adjourning the hearings scheduled for DATE and DATE . On DATE the trial judge ordered the bailiffs to bring the defaulting witnesses and victims to a hearing on DATE , which was not done in respect of certain witnesses and victims . On a number of occasions DATE the judge reiterated his request .

On DATE the trial court closed the trial and started deliberations .

On DATE ORG found the applicant guilty of multiple counts including conspiracy to commit murder and sentenced him to CARDINAL years’ imprisonment . On DATE the judgment was pronounced in public .

The applicant and the other defendants lodged an appeal . On DATE ORG upheld the judgment .

According to the applicant , from DATE to CARDINAL DATE and from DATE to DATE he shared a cell with a Mr K. On an unspecified date , the latter tested HIV positive . He was informed so DATE and had another blood test , which was also positive . According to the applicant , on DATE PERSON told him that he had tested HIV positive .

It appears from a report of DATE , submitted by the ORG , that HIV - positive detainees were not segregated from the other detainees in remand centre no . MONEY ; the applicant “ was informed of the rules for detention of HIV - positive detainees ” , including a prohibition of such segregation .

The applicant submitted the following description of the relevant circumstances of his transport and confinement .

DATE the applicant had been transported to ORG and back to the remand centre no . MONEY on DATE ( normally , DATE ) . He had been taken out of his cell at TIME and placed alone in a cell measuring CARDINAL by QUANTITY , awaiting departure at TIME On DATE of a court hearing he had not been given any food before departure ; nor had he received any meal at the courthouse or in the remand centre upon his return . Since DATE the authorities had started to supply a dry ration for DATE which he , however , could not consume because no hot water had been provided at the convoy premises in ORG .

The applicant had been transported in overcrowded vans ; the journey from the remand centre to ORG had normally taken TIME .

At ORG premises the applicant had been held together with several other detainees in a cell measuring CARDINAL by QUANTITY . After the hearing he had been taken back to that cell where he had waited until TIME without any food or drink or access to a toilet .

On the way back the prison van had never gone directly to remand centre no . MONEY , it made a detour to bring detainees to another remand centre where it sometimes stayed for TIME . Thus , the return journey had normally taken TIME . Upon arrival at facility no . MONEY , the applicant had had to wait for TIME before being taken to his cell at TIME .

The Government contested the applicant ’s description of his conditions of confinement and transport . According to them , the applicant was taken out of his cell at TIME and provided with hot breakfast . He was then kept at the assembly section which had CARDINAL cells measuring CARDINAL . Each cell had a bench , sanitary facilities , artificial lighting and a window . The applicant remained there for TIME and a half awaiting departure for the courthouse . He was given a dry ration consisting of CARDINAL courses for the remainder of DATE .

DATE the applicant was transported in vans GAZ-CARDINAL(CARDINAL ) and ZIL-CARDINAL . The detainees’ section of the GAZ van measured QUANTITY ( length ) by QUANTITY ( width ) by QUANTITY ( height ) . Such a van had CARDINAL individual compartment and CARDINAL compartments for CARDINAL persons each . The detainees’ section of the ORG van measured QUANTITY by QUANTITY by QUANTITY and had CARDINAL individual compartments and CARDINAL compartments for QUANTITY persons each . Both types of vans also had CARDINAL seats for convoy officers .

Vans were equipped with fixed benches so that each detainee was provided with individual seating . PERSON walls had insulating lining . Van heaters and lights were powered by the van engine so that the heating and lighting systems were operational when the engine was running . Vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow . Given the security considerations , from DATE the applicant and his co - defendants were carried by direct transfer between the remand centre and the courthouse .

At ORG the applicant was kept at the convoy premises which had CARDINAL compartments with CARDINAL cells each and a toilet , which detainees could access upon request . Each cell measured QUANTITY by QUANTITY by QUANTITY Each cell had seating and was equipped with systems of ventilation , heating and artificial lighting . At the courthouse he was provided with hot water with which to consume the dry ration . He was also allowed to bring food purchased in the prison shop or received from his relatives .

In DATE the applicant complained about unsatisfactory conditions of transport and confinement at the courthouse .

It appears from the report of ORG of the ORG dated DATE , submitted by the Government , that the applicant was taken to court for criminal proceedings which “ were dragging on ” . DATE he was transported CARDINAL times in the prison van ZIL-CARDINAL together with , at times , CARDINAL other detainees ; the direct transfer from the courthouse did not normally exceed TIME and ended no later than QUANTITY p.m. , except on CARDINAL DATE . From DATE the applicant and his co - defendants were taken by direct transfer on account of security considerations . Convoy premises at courthouses were not equipped for catering purposes and “ the detainees ate their dry rations when they returned to the remand centre from the courthouse ” .

By a letter of CARDINAL DATE ORG of the ORG stated that the time taken for transportation had been “ objectively justified ” .

For a summary of the applicable national legislation relating to detention on remand , see the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL , § § CARDINAL , ECHR DATE ) .

On DATE ORG adopted the Rules on food supply for convicts and persons detained in remand centres . According to Annex no . CARDINAL to these Rules , a daily dry ration ( bread , tinned beef or fish , sugar , tea and salt ) is provided to the following categories of persons : convicts on their way to a prison , a remand centre or colony ; persons released from custody on the way to their place of residence ; persons during their stay in patient care institutions or convicted juveniles . Those Rules were amended in DATE and repealed in DATE .

On DATE ORG adopted the Rules on supply of dry ration , according to which persons suspected or accused of criminal offences should be supplied with a dry ration ( bread , precooked first and second courses , sugar , tea , tableware ) during their presence at a courthouse . Detainees should be supplied with hot water with which to consume the ration .

Limitation of a citizen ’s rights and freedoms because of his or her HIV status may be authorised only by federal law ( section CARDINAL of the Law on Prevention of Propagation of HIV infection , CARDINAL of CARDINAL DATE ) . Detainees are subject to a compulsory medical examination ( section QUANTITY of the Law ) . A person who has tested HIV - positive must be informed thereof , be informed of the need to take precautions for preventing propagation of the HIV infection and warned that contamination of others or exposing others to a risk of contamination is a criminal offence ( section CARDINAL of the PERSON ; LAW ) .

According to the Rules on Compulsory Testing of Prisoners for HIV infection ( adopted by ORG on DATE ) , the prison administration must take measures preventing propagation of the HIV infection ; medical and other staff must not disclose information relating to the detainee ’s HIV status ( LAW and CARDINAL ) .

Section CARDINAL § CARDINAL of the Penitentiary Code provided that medical penitentiary establishments should be organised for treatment and detention of drug addicts , alcoholics , HIV and tuberculosis infected prisoners . Federal Law No . CARDINAL-FZ of DATE repealed that provision in so far as it related to HIV - infected prisoners .

The relevant extracts from the CARDINALth ORG [ ORG ( DATE ) CARDINAL ] prepared by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) concerning transmissible diseases read as follows :

“ CARDINAL . The spread of transmissible diseases and , in particular , of tuberculosis , hepatitis and HIV / AIDS has become a major public health concern in a number of NORP countries ....

... [ T]he act of depriving a person of his liberty always entails a duty of care ...

The use of up - to date methods for screening , the regular supply of medication ... constitute essential elements of an effective strategy ... to provide appropriate care to the prisoners concerned .

... [ T]he prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds . In this connection , the ORG wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV - positive .

... [ I]t is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff . Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures . More particularly , the risks of HIV or hepatitis B / C infection through sexual contacts and intravenous drug use should be highlighted and the role of body fluids as the carriers of HIV and hepatitis viruses explained ... ”

The relevant parts of the Appendix to Recommendation no . R ( CARDINAL ) CARDINAL of ORG concerning the ethical and organisational aspects of health care in prison read as follows :

“ CARDINAL . Medical confidentiality should be guaranteed and respected ...

The isolation of a patient with an infectious condition is only justified if such a measure would also be taken outside the prison environment for the same medial reasons .

No form of segregation should be envisaged in respect of persons who are HIV antibody positive , subject to the provisions contained in paragraph CARDINAL .

Those who become seriously ill with Aids - related illnesses should be treated within the prison health care department , without necessarily resorting to total isolation . Patients , who need to be protected from the infectious illnesses transmitted by other patients , should be isolated only if such a measure is necessary for their own sake to prevent them acquiring intercurrent infections ... ”

The relevant part of the Appendix to Recommendation no . R ( CARDINAL ) CARDINAL of ORG concerning prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison reads as follows :

“ CARDINAL . As segregation , isolation and restrictions on occupation , sport and recreation are not considered necessary for seropositive people in the community , the same attitude must be adopted towards seropositive prisoners . ”

Detention of HIV - infected persons was also examined in the following ORG to Member GPE : no . R ( CARDINAL ) CARDINAL on the ethical issues of HIV infection in the health care and social settings ; and no . R ( CARDINAL ) CARDINAL concerning the ethical and organisational aspects of health care in prison .

Similar recommendations were made by the DATE World Health Organisation in the LAW on HIV infection and AIDS in prisons :

“ DATE . Since segregation , isolation and restrictions on occupational activities , sports and recreation are not considered useful or relevant in the case of HIV - infected people in the community , the same attitude should be adopted towards HIV - infected prisoners . Decisions on isolation for health conditions should be taken by medical staff only , and on the same grounds as for the general public , in accordance with public health standards and regulations . Prisoners’ rights should not be restricted further than is absolutely necessary on medical grounds , and as provided for by public health standards and regulations ...

Isolation for limited periods may be required on medical grounds for HIV - infected prisoners suffering from pulmonary tuberculosis in an infectious stage . Protective isolation may also be required for prisoners with immunodepression related to AIDS , but should be carried out only with a prisoner ’s informed consent . Decisions on the need to isolate or segregate prisoners ( including those infected with HIV ) should only be taken on medical grounds and only by health personnel , and should not be influenced by the prison administration ....

Information regarding HIV status may only be disclosed to prison managers if the health personnel consider ... that this is warranted to ensure the safety and well - being of prisoners and staff ... ”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE , GPE . ORG ( “ the Government ” ) were represented by PERSON .

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

The applicant worked at a joint stock company , “ K ” . In DATE he retired .

In DATE a medical expert commission recognised the applicant as having a number of work - related illnesses . As a result K paid him a lump sum in compensation and started to pay him a DATE pension .

On DATE the applicant instituted civil proceedings in ORG of ORG ( “ the ORG ” ) against K , seeking a recalculation of the above - mentioned payments .

On DATE the defendant requested the court to order an accountant ’s report on the calculation of the payments in question . The court allowed this request .

On DATE the expert opinion was read out at a court hearing .

On DATE ORG found for the applicant .

On DATE , upon an appeal by the defendant , ORG ( since DATE ORG ) quashed that judgment on the ground that the first - instance court had wrongly calculated the amounts awarded , and ordered a retrial .

ORG hearing scheduled for DATE was adjourned at the applicant ’s request because he was preparing an additional claim . This claim , apparently for additional payments , was lodged on DATE . Further additional claims were lodged by the applicant on DATE and DATE .

On DATE ORG ordered , at the defendant ’s request , a forensic examination by an accountant . The defendant subsequently refused to bear the costs of the forensic examination in view of lack of funds and the expert terminated the examination . The file was transferred back to ORG and the next hearing took place on DATE .

On DATE ORG joined , at the defendant ’s request , the local department of ORG ( ORG дирекція ORG соціального страхування від нещасних випадків на виробництві і професійних захворювань PERSON Кривому Розі ) to the proceedings as a co - defendant .

On DATE ORG found for the applicant .

On DATE , following an appeal by K , the Dnipropetrovsk Regional Court of Appeal quashed the judgment of DATE on the ground that the lower court had wrongly calculated the amounts awarded and ordered a retrial .

On DATE ORG found for the applicant .

From DATE to DATE the domestic courts examined the matter of admissibility of the appeal by K against the last - mentioned judgment . Eventually , K lodged an appeal in compliance with the procedural requirements prescribed by law and the proceedings on the merits resumed .

On DATE the ORG upheld the judgment of DATE .

On DATE ORG of GPE rejected an appeal in cassation by PERSON


The applicant , Mr PERSON , is a NORP citizen , who was born in DATE and lives in GPE . He is represented before the Court by PERSON , a lawyer practising in GPE .

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

On DATE the applicant filed CARDINAL civil actions for damages with ORG ( PERSON ) , CARDINAL against the newspaper “ LOC ” and the other against the newspaper “ FAC ” , claiming that these newspapers had published libellous articles about him .

On DATE and DATE the first instance court held hearings .

At the hearing on DATE the ORG heard the applicant .

At the hearing on DATE the court heard CARDINAL witness .

The hearing scheduled for DATE was adjourned for DATE when the court heard another witness and an expert .

At the next hearing on DATE the court heard yet another witness and concluded the trial .

The first instance judgment , rejecting the applicant ’s claim , was served on the applicant on DATE .

On DATE the applicant filed an appeal against the judgment .

On DATE the case - file was transferred to the GPE Cout ( Županijski sud u GPE ) as the appellate court .

The proceedings are presently pending before the appellate court .

The first instance court held a hearing on DATE .

At the hearing on DATE the defendants submitted their replies to the applicant ’s claim .

At the next hearing on DATE the court heard the applicant .

The hearings scheduled for DATE and CARDINAL DATE were adjourned because the witnesses summoned for these hearings did not appear .

On DATE the court heard CARDINAL witness and concluded the trial . DATE the first instance judgment , rejecting the applicant ’s claim , was served on the applicant .

On DATE the applicant appealed against the first instance judgment .

On DATE the case - file was transferred to ORG as the appellate court .

Section CARDINAL of LAW on the Changes of LAW on FAC ( entered into force on DATE , published in ORG no . CARDINAL of DATE - hereinafter “ LAW DATE ” - PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON ) introduced a new LAW ( a ) , which subsequently became LAW of LAW on ORG . The relevant parts of that Section read as follows :

( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...

( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...

( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment .