5.  The first applicant, Franz-Olivier Giesbert, is the publication director of the magazine Le Point. The second applicant, Hervé Gattegno, is a journalist with Le Point. The third applicant is the company operating Le Point. 6.  The proceedings against the applicants which form the subject matter of the three applications are related to the events commonly referred to as the “Bettencourt affair”. 7.  Mrs Liliane Bettencourt, principal shareholder of the group L’Oréal, is one of the richest individuals in France. From the late 1990s she made numerous gifts to her friend B., a writer and photographer, totalling several hundred million euros in value. 8.  In December 2007 Mrs Bettencourt’s daughter, Ms Bettencourt‑Meyers, filed a criminal complaint against B., for the offence of undue influence (abus de faiblesse), with the public prosecutor at the Nanterre tribunal de grande instance. A preliminary investigation was opened. In that context numerous interviews were conducted, in particular with individuals close to Mrs Bettencourt, and searches were carried out. In September 2008 B. was taken into police custody. 9.  Without waiting for the outcome of the investigation, Ms Bettencourt-Meyers brought a private prosecution against B. in the Nanterre Criminal Court, on the same charge of undue influence. She sought and obtained the inclusion in the case file of material and reports from the preliminary investigation. 10.  In September 2009 the public prosecutor’s office decided to discontinue the proceedings based on Ms Bettencourt-Meyers’ original complaint. 11.  The case initiated by the private prosecution was first set down for hearing on 3 September 2009, then on 11 December 2009. On that date it was decided to seek a medical assessment of Mrs Bettencourt and the hearing was deferred again to 15 April 2010 (for the subsequent criminal proceedings, see paragraphs 52 and 53 below). 12.  Mrs Bettencourt publicly announced that she was refusing to undergo the assessment ordered by the court. She also filed submissions by way of voluntary intervention, including in the alternative an application to join the proceedings as a civil party in the event that the prosecution was regarded as valid by the court. She argued that the aim of her civil-party application was to persuade the court that her mental faculties were not diminished and that she had made her gifts to B. with all due lucidity. 13.  The developments in the case were widely reported in the press. The offending articles in Le Point were thus published in that context. 14.  On 10 December 2009 the third applicant published, with the second applicant’s byline, a four-page spread under the heading “Investigation into a very dear friend” and with the sub-heading: “Treasure. Did he take advantage of Liliane Bettencourt? [B.] denies it but the finger of suspicion points to him”. 15.  The article referred to various aspects of the case and in particular the very significant gifts made by “the heir of L’Oréal”, for a total of one billion euros, to B. The journalist wrote, quoting the testimony of Liliane Bettencourt’s former accountant: “She too describes the psychological domination imposed on an elderly lady who is more fragile than she may like”. He also inserted a passage from the “prosecution document” which summed up the situation as follows:
“Taking advantage of his influence and Liliane Bettencourt’s weakness, [B.] persuaded her, at a time when her health was declining, to give him sums of money and assets going beyond tokens of friendship.” 16.  The article was full of comments between inverted commas, presented as extracts from statements made to the investigators working under the public prosecutor. It pointed out that the latter had discontinued the investigation in question. Among the quotations were explanations given by B. when he was in police custody in September 2008, and it was claimed by the journalist that those explanations were often contradicted by the facts:
“He swears that Liliane Bettencourt has acted towards him ‘like a patron’. Their first meeting goes back to the 70s but their friendship dates from a portrait he made of her in 1987 ... ‘I was then sufficiently well off that I did not need financial assistance from Mrs Bettencourt’, he retorted to the investigators. ‘I already owned five apartments on rue Servandoni [Paris 6th], a large collection of paintings and had co-ownership of the Brouzet estate [a large estate in the Gard], together with copyright dues and a commission on the sale by Dior of the perfume Poison’. After verification, this inventory seems to be somewhat overstated: in actual fact it was through a series of cheques from the billionaire and the cancellation of astronomical debts to real estate companies owned by him that B. has managed to build up his assets to the point of acquiring seven apartments in the well-to-do neighbourhood of Saint Sulpice. Today the whole complex forms a quaint townhouse with swimming pool, CCTV cameras and secret passages between the bookshelves.
Contradicted by the numbers and dates, the photographer was forced to explain, more humbly, that Mrs Bettencourt wanted him ‘to expand’ in order to ‘install all his works and perhaps set up a museum’. But curiously his benefactor did not even mention such a project during her own hearing on 13 May 2008. B’s explanation: ‘She is a modest woman; she will not say the things that are in the depth of her heart’.
The police investigation also demonstrates the lavishness of his property in the Gard ... ‘Mrs Bettencourt did not contribute to its financing’ he claimed. However, the billionaire’s accountant testified that ‘numerous cheques’ had been signed by her, made out to contractors doing work on the estate, ‘for at least 150,000 euros, and as much as a cheque of 10 million euros in December 2006’.
Several employees testified that around the same time the old lady’s health had deteriorated ... Herein lies the gravamen of the whole case: was the L’Oréal heiress really aware of the extent of her generosity? ... 17.  Those two statements are extracts from the testimony of the “former director of L’Oréal once responsible for the management of Liliane Bettencourt’s assets” and her former accountant. The first spoke of a “hold” over Mrs Bettencourt. He had asked to be relieved of his duties because, he testified, “I ran the risk of being complicit in the misdeeds of Mr [B] by my tacit consent”. The second witness referred to “pressure” on the part of the photographer and testified that he was always “asking for money”. In late 2006 her attention was drawn to the proposed assignment of a life insurance policy (for an amount in excess of 260 million euros). “I tried to reason with Mrs Bettencourt but she was no longer her old self”, recalled the accountant. “I then bumped into B. in the house and said to him ‘you’ve seen the state she is in, you know she is very ill’. He replied ‘never mind, as long as she is not under deputyship she can still sign’”. 18.  The article also contained comments made by Mrs Bettencourt on 13 May 2008, in a box headed: “Exclusive: what Liliane Bettencourt told the police”. The journalist, after quoting extracts from the statement showing that Mrs Bettencourt did not recall the agreements she had signed with B., wrote that “these memory lapses are clearly at odds with the picture that B. would be painting of her to the same investigators”. 19.  In another box the journalist reported on the application for “judicial protection” filed by Mrs Bettencourt’s daughter and quoted an extract from the “report of neurologist P.A.”, who had been “asked by the public prosecutor to examine the billionaire’s medical records”, revealing “a state of vulnerability related to a probable degenerative neurological condition which impaired her individual faculties”. 20.  The article stated that from this episode and many others, the financial brigade investigators, in a report of 1 December 2008, had concluded that there was “a series of sufficiently strong presumptions that the offence of undue influence [had] been committed by B.”; and that the photographer, for his part, had denounced an “odious attack” on a “world-famous artist”. It ended thus: “the court will rule whether the fortune passed to him by Liliane Bettencourt was a windfall or a swindle – either way, it’s a masterstroke”. 21.  On 4 February 2010 the third applicant published, with the second applicant’s byline, an article indicated on the full front cover of the magazine under the headline “Bettencourt affair: how to gain one billion (without any effort)”. The subheadings announcing the article read: “the unbelievable story of a society photographer who made a fortune by ‘seducing’ Liliane Bettencourt, the richest woman in France” and “the accusations of Madam’s employees”. A photo-montage showing Mrs Bettencourt “with her friend B.” also appeared on the cover. 22.  The subject of the article, which extended to eight pages, was indicated as follows: “Bettencourt affair. Has the richest woman in France been conned by the photographer [B.]? Some of her former employees have said as much to the police. Le Point reveals their testimony and the secrets of this incredible high-society melodrama”. The article began as follows:
“Is it about money or sentiment? A quarrel over an inheritance or a question of principle? A settling of family scores or the most perfect scam? All of these things put together, perhaps and much more, because the millions slip away by their hundreds in an atmosphere redolent of an Agatha Christie novel and a setting worthy of Scott Fitzgerald ... Even the trial – the inevitable epilogue – will resemble a high-society event: on 15 and 16 April, the court of Nanterre will look into the incredible generosity, for almost a decade, of the richest woman in France towards the person she has made her favourite, the photographer [B.].” 23.  The article continued as follows:
“Since the billionaire’s daughter has taken her case to the courts, accusing her mother’s protégé of the offence of ‘undue influence’, ripples of disgust have been felt along the majestic avenues of Neuilly and beyond – the high society of Paris in finance, industry and politics – concerned that it may one day be regretted that no one had seen anything, or at least said anything.
For the investigation has revealed the existence of lavish gifts, apparently totalling around 1 billion euros. Could such riches pass unnoticed? There’s a disturbing detail: the largest sums were assigned to B. in the spring of 2003 and in the summer of 2006, at a time when Liliane Bettencourt’s health was declining sharply ...
Guru. Much testimony has come to light since then – Le Point is exclusively publishing several extracts (see the following pages). Housemaids, nurses, secretaries, the chauffeur, accountants, all describe ‘the hold’ that [B.] had over the L’Oreal heiress (aged 87), his own individual way of soliciting her generosity, the equivocal aspects of his behaviour. Before the court, the succession of these indignant employees will be reminiscent of the spectacle in the von Bülow affair – the trial of the libertine and cynical American aristocrat who was accused, in the early 80s on Rhode Island, of poisoning his wife so that he could take over her fortune. But even that scenario would not be the worst for [B.]: convicted at first instance, von Bülow was nevertheless acquitted on appeal ...
For the time being, the photographer confronts the suspicions with sardonic contempt. ‘To make a work of one’s life, that’s what matters’, he proclaimed in Le Monde, describing the charges against him as ‘pathetic rumours’. His benefactor? ‘An intelligent woman who knows how to choose men, to take risks’, he told the police, sweeping a little too quickly under the carpet the doubts about her state of health. To be sure, the heiress affirmed a year ago, in Le Journal du dimanche, that she was attached to [B.] and that she had no time for gossip. ...
She has since shut herself away, leaving her lawyers to speak in her place, refusing any medical assessment and cutting short her appearances at receptions or ceremonies. This silence has only served to reinforce the impression of a woman under influence.” 24.  In the middle of the article, under the heading “Exclusive: the women who accuse”, there were long extracts (over three pages) from statements of employees who worked at Mrs Bettencourt’s house (accountant, secretary, chambermaid, nurse) that had been given during the preliminary investigation. The following statements were highlighted in particular:
“It was as if [B.] had woven his web around Mrs Bettencourt.”
“He answered me: ‘As long as she is not under deputyship she can sign.’”
“[B.] takes advantage of Madame’s weakness to benefit from her generosity.” 25.  After referring to remarks by B. and by Mrs Bettencourt in the press, the article added: “a number of statements paint a less idyllic picture: under oath, employees and servants mentioned pressing requests for money going as far as harassment, harsh language, and various schemes bordering on the sordid. ...” 26.  Under an intermediate heading “Strategy” the article then mentioned and partially quoted documents that had been discovered by the financial investigators at B.’s home in Paris. 27.  The article ended with a small insert indicating that B. had refused to respond to Le Point, preferring to “reserve his answers for the judges”. 28.  On 11 February 2010, following the publication of 4 February 2010, Mrs Bettencourt brought urgent proceedings against the applicants in the Paris tribunal de grande instance claiming a manifestly unlawful nuisance under Articles 808 and 809 of the Code of Civil Procedure ... She asked the urgent-applications judge to find that the reproduction of procedural documents from the file of the preliminary investigation initiated by the Nanterre public prosecutor breached section 38(1) of the Law of 29 July 1881 on freedom of the press (“section 38”, ...), which prohibited the publication of documents from a criminal case file before they had been read out in open court, and Article 9 of the Civil Code, guaranteeing the right to respect for private life ... She requested that a court-ordered notice be published in Le Point, on pain of a coercive fine, and that the applicants be ordered to pay her, by way of an advance, compensation for her non-pecuniary damage, on account of her portrayal as an individual with diminished intellectual faculties who had been duped. 29.  The applicants disputed Mrs Bettencourt’s standing to bring the proceedings, as prosecution in respect of the section 38 offence could only be initiated by the public prosecutor under section 47 of the same law ... On the merits, they claimed that it was contradictory, on the one hand, to require journalists to establish the veracity of the information that they published and, on the other, to penalise them for substantiating their investigation. 30.  In a decision of 2 March 2010, the Vice-President of the Paris tribunal de grande instance found that Mrs Bettencourt had standing in so far as she was arguing that the publication of the impugned documents had, on the basis of that provision, caused her personal damage. The judge indicated that while section 47 of the 1881 law reserved the prosecution of the section 38 offence for the public prosecutor, an individual who claimed to have sustained pecuniary or non-pecuniary damage as a result of a publication was entitled to act as a civil party in the proceedings or to bring a case before the urgent-applications judge under Article 809 of the Code of Civil Procedure, in order to seek the requisite protective or remedial measures to put an end to the unlawful nuisance resulting from such publication, or to request a sum by way of an advance. The judge explained: “It suffices for the publication of the documents prior to their reading in open court to have caused the person actual and direct damage, regardless whether or not the person is a party to the proceedings in which the documents are to be presented”. He ordered the applicants jointly to pay an advance of 3,000 euros (EUR) and the same sum in procedural expenses under Article 700 of the Code of Civil Procedure. 31.  As to the application of section 38 of the 1881 Act, the judge took the view that the statements by employees of Mrs Bettencourt (paragraph 24 above) constituted “procedural documents” which were part of the preliminary investigation and that, even though it had been discontinued, those documents had been joined to the criminal proceedings now pending, after their transmission had been sought and obtained by Ms Bettencourt‑Meyers in support of her own private prosecution. He added that those statements all helped the case for the prosecution, as indicated on the magazine’s cover, “the accusations of Madame’s employees”, and observed as follows:
“... the publication of long passages emanating from insiders helps to give the reported facts an appearance of authenticity and objectivity (that the article does not seek to nuance but, on the contrary, to reinforce); the reader is thus led to regard those facts as proven, because they are presented through the prism of a journalist’s analysis, which is bound to contain a degree of subjectivity or opinion. For those reasons, the alleged breach of section 38 cannot be combined with the breaches under Article 9-1 of the Civil Code (presumption of innocence) or Article 9 of the Civil Code (private life) or section 29 of the Law of 29 July 1881 [defamation proceedings, ...], nor can it result in redress on the basis of those separate legal provisions.”
The judge concluded that the publication was capable of infringing the rights of Mrs Bettencourt as it portrayed her, at a time when the Nanterre Criminal Court had not yet begun to examine the criminal cases, as a woman who was manipulated and weak, a description that she categorically denied. 32.  The judge further found that the applicants were not justified in relying on the provisions of Article 10 of the Convention and the necessities of information. In this connection he indicated that section 38 sought mainly to preserve the independence and orderly conduct of the judicial process, in addition to protecting the rights of the persons concerned, particularly by guaranteeing the presumption of innocence. He emphasised the limited and temporary nature of the restriction on freedom of expression, as the legislation did not prevent analysis of, or comments on, procedural material, or the publication of information gleaned from the proceedings themselves, but only prohibited the reproduction of documents which were intended for public disclosure in the context of a judicial process surrounded by safeguards. These safeguards include respect for defence rights and the principle of adversarial proceedings, “which could not be ensured by a prior, isolated and partial media report”. The judge went on to explain as follows:
“... the impugned restriction cannot be compared to the case of disclosure of professional secrets or of secrets from the preliminary or judicial investigation, on account of the possession by a journalist of documents covered by secrecy and used in publications imparting information to the general public, in so far as the journalist, who is not bound [by those secrets], is required to possess such documents in order to justify the veracity of the facts reported or the seriousness of his investigation, but also to use them in compliance with the applicable legislation.” 33.  All of the claims submitted by Mrs Bettencourt alleging a breach of her privacy were dismissed on the ground that such a breach had not been sufficiently established, having regard to the general public’s right to be informed, and interest in being informed, of current affairs or events in the general interest:
“... the claimant has not relied on any specific breaches of her private life which would go beyond the information that it is permitted to mention in connection with the criminal case before the court of Nanterre, as Le Point did not, in particular, provide details about any health problems she may have.” 34.  The applicants appealed. They argued in particular that the procedural documents in question, which had been included in the case file solely on the initiative of the claimant, and not on that of the public prosecutor, could not be regarded as carrying the degree of authority which justified, by derogation to the principle of freedom of expression, the prohibition imposed by section 38. They further emphasised that neither Mrs Bettencourt’s right to a fair hearing, nor any undermining of the authority or impartiality of the courts, was at stake. 35.  In a judgment of 19 March 2010, the Paris Court of Appeal upheld the decision of the court below, in the main, and raised the amount of the advance to EUR 10,000, in addition to charging EUR 5,000 for the costs of the appeal proceedings. It confirmed that the witness statements “clearly” constituted “procedural documents”, even though the preliminary investigation had been discontinued, since they had been transmitted by the public prosecutor at the request of the civil party and thus formed an integral part of the criminal proceedings. In the court’s view, “the fact that they were transmitted at the request of the civil party and not on the initiative of the public prosecutor bore little relevance in this connection”. It concluded that the publication of long passages from those statements constituted a violation of section 38 and thus an unlawful nuisance within the meaning of Article 809 of the Code of Civil Procedure. It added as follows:
“... the requirement for the journalist to verify his sources and to compare the various material available to him on a given subject in the context of a serious investigation, before imparting information to the public, does not mean reproducing verbatim the documents used for his investigation, where, as in the present case, such publication is prohibited under press legislation of which he cannot be unaware.”
The court concluded that the applicants’ submission that section 38 should be declared incompatible with Article 10 of the Convention was unfounded. It took the view that Mrs Bettencourt was entitled to claim non-pecuniary damage as she had been portrayed as:
“a woman in a weak mental state, being easy to manipulate and under the influence of [B.], which the reader is all the more likely to regard as the truth as [the observations] are presented as emanating from individuals who have played a particular role, making them privileged observers of her private life.”
Lastly, the Court of Appeal confirmed that there had been no breach of Mrs Bettencourt’s privacy in the following terms:
“... the mere mention of Mrs Bettencourt’s mental health in the body of the article, without any details falling within her private sphere, and in the testimony reproduced, which was mainly about the conduct and manoeuvres attributed to [B.], does not suffice to establish any particular breach of the respondent’s privacy that would go beyond the limits of legitimate information that the public is entitled to expect about a case which, already being widely covered by the media, is before the courts ....” 36.  The applicants appealed on points of law. In their grounds of appeal they argued, under Article 10 of the Convention, that they had a duty to inform the public about a case pending before the courts which had been revived after a private prosecution, following its discontinuance by the public prosecutor, and which had given rise to wide media coverage especially on account of the personality and wealth of Mrs Bettencourt; that the judgment of the Court of Appeal had found against them solely for publishing the statement extracts and not on account of their content; that there had been no impairment of the interests protected by section 38(1) because Mrs Bettencourt was not the defendant in the proceedings; that there was a manifest contradiction in the Court of Appeal’s position, as it had declared Mrs Bettencourt’s action admissible on the basis of the damage sustained, while taking the view that she had not been portrayed as a weak and manipulated woman in terms of her right to respect for her private life. 37.  In a judgment of 28 April 2011 the Court of Cassation dismissed the applicants’ appeal and ordered them to pay Mrs Bettencourt the sum of EUR 4,000 in costs. It gave the following reasons for its decision:
“... the judgment observes that long extracts were published from the statements taken during the preliminary investigation ..., in which [Mrs Bettencourt] was portrayed as a manipulated and weak woman; proceeding with a correct application of Article 10 of the Convention ..., the Court of Appeal was able, without contradicting itself, to conclude from that publication, since the documents drawn up by the police during an investigation are procedural documents within the meaning of section 38 of the Law of 29 July 1881, that [Mrs Bettencourt] was justified in claiming, solely on the basis of that publication, that she had sustained personal damage ...” 38.  On 11 February 2010 B. brought urgent proceedings against the applicants in the Paris tribunal de grande instance following the publication of 4 February 2010, arguing that it had caused him a manifestly unlawful nuisance, infringing both his copyright to the photographs illustrating the article and his defence rights, including his right to be presumed innocent. 39.  In a decision of 2 March 2010, the Vice-President of the Paris tribunal de grande instance, in addition to endorsing the reasoning already set out in paragraphs 31 and 32 above, took the view that the impugned publication could have the alleged effects, infringing B.’s right to a fair hearing and his right to the presumption of innocence. B.’s claim concerning the infringement allegedly caused by the reproduction of photographs was rejected as falling outside the remit of the urgent proceedings judge. The judge ordered the publication of a notice inside the magazine together with an indication of it on the cover (to take up one half of the page in bold type, under the heading “Judgment against Le Point in proceedings brought by [B.]”) and on the weekly magazine’s website. The applicants were also ordered jointly to pay B. an advance of EUR 3,000 on compensation for his non-pecuniary damage, together with an equivalent sum by way of procedural expenses. 40.  The applicants appealed. 41.  In a judgment of 19 March 2010 the Paris Court of Appeal upheld the decision appealed against, mainly in the same terms as those set out in paragraph 35 above. It reiterated that the witness statements, “without engaging in any extensive interpretation of [section 38]”, could be characterised as procedural documents, even though the investigation had been discontinued: “the fact that they were transmitted at the request of the private prosecutor and not on the initiative of the public prosecutor is of little relevance in this connection because they support the prosecution case”. It went on to find that “consequently, the mere publication of substantial extracts from those statements, before they had been referred to or read out in open court, [had] indeed constituted a violation of section 38 of the Law of 29 July 1881 and therefore an unlawful nuisance”. The Court of Appeal further found as follows:
“... the four statements thus presented to the public portray [B.] as a devious and unscrupulous individual, using seduction, manoeuvres and psychological pressure to persuade Liliane Bettencourt to grant him substantial and frequent gifts, at a time when she was weak and when her husband’s state of health had declined;
... the reader is all the more likely to consider these statements to be true, supporting as they do the accusation against [B.] before the Nanterre Criminal Court, as they are presented as emanating from individuals who, as a result of the services they rendered to her (nurse, chambermaid, secretary), played a particular role through which they became privileged observers of her private life;
... the reader is thus led to believe in the accusation, even before the court hearing the case has been able to reach its decision, in conditions that breach the respondent’s right to be presumed innocent and his defence rights ...” 42.  The applicants lodged an appeal on points of law. 43.  In a judgment of 7 July 2011 the Court of Cassation dismissed their appeal in the same terms as those of its judgment of 28 April 2011 (see paragraph 37 above). 44.  On 9 March 2010, B. brought proceedings against the applicants on the merits before the Paris tribunal de grande instance seeking redress for the damage sustained on account of the publication of the articles of 10 December 2009 and 4 February 2010, in breach of section 38(1) of the 1881 Act. 45.  In a judgment of 21 June 2010, that court dismissed all of B.’s claims. On the admissibility of his suit, it observed that the applicants were correct to assert that an individual who claimed to be the victim of the offence provided for under section 38 of the 1881 Act was not authorised to bring a private prosecution on that basis. It pointed out that, by contrast, the provisions of that Act did not preclude the injured party from bringing proceedings in the civil courts, as only one section of that Act (section 46) prohibited the bringing of civil proceedings separately from a public prosecution, namely in cases of defamation against public authorities, State institutions and civil servants. After observing that section 38 usefully contributed to preserving the orderly functioning and impartiality of the justice system and to guarantee due process, since the full and verbatim publication of documents from a criminal file before the trial could hinder the conduct of pending investigations or influence individuals who might subsequently be called upon to testify, or even lay magistrates who might have to adjudicate upon the case, the court gave the following reasons for its decision:
“... The prohibition that it establishes must not, however, restrict the ability of journalists to report on criminal cases, even those which have not yet been publicly examined by a court, and specifically those which, raising issues of general interest, involving significant interests, or concerning people with high-level responsibilities, especially in political, economic or artistic fields, particularly deserve to be brought to public attention.
The application of this legislation cannot, in particular, have the effect of precluding journalists from imparting to their readers, in such a case, all or part of the documentary resources from which they derived their information, in order to establish its credibility, or which substantiate their commentary and analysis, in order to submit them for open discussion. This is the case here: extracts ... from reports which have been drawn up by the police acting on the instructions of the public prosecutor and which have been appended, after the discontinuance of the proceedings for which they were produced, to the file of further proceedings brought directly by a civil party in a criminal court – those extracts, therefore, were included by [the second applicant] in two successive articles which were each the result of a journalistic investigation and sought to present readers with information, analysis and comments on a criminal case that would soon be adjudicated upon by a court, that involved considerable financial interests and concerned one of the richest individuals in France and a photographer and writer who has, as he himself boasts, ‘undeniable success and notoriety’.
In the first of the impugned texts, short quotations from procedural documents, which are reproduced in quotation marks in the body of the article and are therefore fully integrated into the journalist’s writing, mention certain facts and offer an analysis thereof. In the second text, the three pages of extracts from procedural documents are included in a broader editorial presentation, consisting essentially of a four-page spread and a large photograph of the person concerned, from which they are indissociable; the journalist expressly refers to those extracts in his article, analysing them and basing his conclusions on them.
If one were to accept, in those circumstances, that these two bodies of text should be examined by this court only on the basis of the strict-liability offence under section 38 of the Freedom of the Press Act, that would lead, as the respondents rightly argue, to preventing them from initiating the debate that is warranted by the journalist’s work, within which the impugned extracts are merely one element; and they would be deprived, in the present case, of the defences made available by law to persons who are prosecuted for defamation or for a breach of the right to be presumed innocent, in other words precluding them from proving the veracity of the allegations or, at least, the journalist’s good faith, and from submitting argument to the effect that the impugned texts do not contain any final conclusions expressing a biased view that the person in question is definitely guilty.
It should be noted in this connection that the claimant directs his main criticism, in his writ of summons, against the comments and analyses that the journalist has been led to write, under his own name, by the procedural documents cited .... and that he mainly reproduces in that writ only those comments and not the quotations that he is supposed to be challenging. It should be observed in particular that the claimant complains that the statements from which extracts were quoted – or in reality the journalist’s analysis thereof – breached his right to be presumed innocent and were presented as ‘damning’ and ‘particularly incriminating’.
It can be concluded that B. himself admits that, absent his chosen basis of action, he had other options at his disposal: a private prosecution or civil proceedings for defamation, or a civil action for a breach of his right to be presumed innocent; both of those courses of action would have entailed fair proceedings, ensuring respect for the equality of arms, and he was not therefore deprived of his right to have access to a court in order to secure respect for his rights.
In those circumstances, the upholding in the present case of the claims that he has submitted under 38 would constitute a restriction of freedom of expression devoid of any necessity in a democratic society.” 46.  In a judgment of 22 February 2012, the Paris Court of Appeal overturned that judgment. It found that the impugned publications infringed B.’s right to a fair trial with respect for his defence rights, including the right to be presumed innocent, and breached section 38 of the 1881 Act. It ordered the applicants jointly to pay B. the sum of EUR 1 for each publication by way of compensation and EUR 6,000 in expenses under Article 700 of the Code of Civil Procedure. It also ordered the publication, on pain of a coercive fine, of a notice containing the operative provisions of the judgment in Le Point and on the magazine’s website. 47.  The Court of Appeal explained that the assessment of the offending publication “clearly” went beyond “the framework of that of so-called ‘procedural’ offences” and that it would have to be carried out with regard to Article 10 of the Convention and to the question whether the interference with the applicants’ freedom of expression was necessary to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary. 48.  As regards the article of 10 December 2009, the court noted that it had been published the day before B.’s appearance in the criminal court and that it clearly suggested that he was guilty, as he was portrayed as an individual against whom there was “a series of sufficiently strong presumptions [that he had committed] the offence of undue influence”. It took the view that the court below had wrongly regarded the aim of informing the public as prevailing over the means used, namely illegal methods whereby extracts had been selected from statements collected in an investigation in order to show that B. had committed the offence of undue influence, whereas there had been no judicial decision to that effect. It could be understood by the reader that B. was not telling the truth about Mrs Bettencourt’s mental health and that his guilt was “doubly suggested” in the introduction (citing an extract from the prosecution document, which fell under section 38) and in the conclusion. It added as follows:
“... The reasoning given by the court below is tantamount to legitimising the practice, which is legally prohibited, of publishing extracts from an investigation file before they are read out in open court, first, on account of the interest of the subject, and secondly, while noting B.’s claim that his right to be presumed innocent was breached.
The court cannot agree with the reasoning of the court below ...
The article of 10 December 2009, in so far as it portrays [B.] as having committed the offence of undue influence vis-à-vis Mrs Bettencourt in the above-mentioned context, clearly breaches his right to a fair trial including to the presumption of innocence.
That breach, according to the article, is exclusively based on the publication of extracts from statements which legally speaking are not addressed to journalists when they are not parties to the proceedings.
The court would reiterate that, for a reader who has an average knowledge of the courts, documents from judicial investigations take on particular credibility and an undeniable evidential value.
The court reaches the conclusion that the date of publication, the choices of quotation, and the portrayal of [B.] as guilty according to the documents from the judicial investigation, even though it had been discontinued, had the consequence of influencing his exercise, which was legally and conventionally guaranteed, of his defence rights, which meant that before being heard by a court he should not have been portrayed as guilty of the offence of undue influence against Mrs Bettencourt. [B.] thus finds himself required to give explanations on evidence against him which has not yet been debated in a court of law and which has been taken from an investigation, then still secret, conducted under the supervision of a judge ...
It is not befitting to consider, as did the court below, that [B.] had other courses of action available to him. Being entitled to bring his case to the civil court under section 38, it cannot be suggested to the claimant that he should have opted for other types of proceedings on the erroneous ground that his action contravenes Article 10 of the Convention ...” 49.  As regards the article of 4 February 2010, the Court of Appeal took the view that the editorial choices – front cover of the magazine, presentation of whole swathes of statements, highlighting of the exclusive publication of the witness statements – constituted a communication of some importance directly aimed at B. who had not been able to explain before a court his position “on the accusations of the staff”. It added that the publication portrayed B. “as being accused by third parties in conclusive terms” and that the article was “a repeated incrimination of [B.] two months before a hearing at which the ‘epilogue’ of the case was supposed to take place”. 50.  The applicants appealed on points of law. In their grounds of appeal, they argued in particular that the ban on publishing procedural documents was a matter of defence of the general interest falling within the sole jurisdiction of the public prosecutor, and that a private person could not seek redress for damage on that basis. They added that their argument was supported by the fact that B. could have, under Article 9-1 of the Civil Code, used another legal remedy to ensure the protection of his interests and that the interference with freedom of expression and of information had therefore not been justified or proportionate. 51.  In a judgment of 29 May 2013 giving the following reasons, the Court of Cassation dismissed the applicants’ appeal:
“Having found, first, that the article of 10 December 2009 was based on an analysis of extracts from various statements taken by the criminal investigation police, in order to portray [B] as having taken advantage of Mrs Bettencourt’s weakness, the day before his appearance before a criminal court, which was to rule on the relevance and merits of the accusations made against him by her daughter, and, secondly, that the article of 4 February 2010, based on a partial reproduction of statements taken by the criminal investigation police, seeking to portray [B.] as being accused by third parties in conclusive terms in order to lead the reader to believe that the case against him was made out, two months before a hearing which would constitute, according to the article, ‘the epilogue of the case’, the Court of Appeal ... reached the conclusion that the publication had infringed [B.]’s right to a fair trial with due respect for his right to be presumed innocent and his defence rights; ...” 52.  After June 2010 there were many developments in the case, with its various political and financial repercussions, and they were widely reported in the media. On 17 November 2010 the Court of Cassation ordered the transfer of all the aspects of the Bettencourt case to the Bordeaux tribunal de grande instance. Mrs Bettencourt’s daughter withdrew her claims but the criminal proceedings were later resumed, and on 14 December 2011 B. was placed under judicial investigation for the offence of undue influence. 53.  In a judgment of 28 May 2015, B. was found guilty of that offence and sentenced to three years’ imprisonment, of which six months were suspended, a fine of EUR 350,000 and the payment of EUR 158 million in damages awarded to Mrs Bettencourt. In a judgment of 24 August 2016, the Bordeaux Court of Appeal upheld the judgment in respect of the prosecution case and varied the sentence, giving B. a four-year suspended prison sentence, fining him EUR 375,000 and ordering the confiscation of part of his property. The Court of Appeal also took the view that it did not need to make an award of damages on account of settlements that had been agreed between the parties.
... 59.  The Court refers to Recommendation Rec(2003)13 of the Council of Europe’s Committee of Ministers to the member States on the provision of information through the media in relation to criminal proceedings, adopted by the Committee of Ministers on 10 July 2003 (see Bédat v. Switzerland [GC], no. 56925/08, § 21, ECHR 2016).


4.  At the time of the events giving rise to the present application, the applicants lived in Istanbul and their children attended different public elementary schools. 5.  On unspecified dates in December 2001 the applicants (save for Mr Yılmaz Yavuz) each sent petitions to the Bağcılar, Esenler and Kadıköy Education Directorates with a request for their children to be provided with education in Kurdish in their respective elementary schools. It appears that similar petitions were submitted by many other parents of Kurdish ethnic origin around the same time. 6.  According to the examples submitted by the applicants, the petitions were worded, with slight variations, as follows:
“I want my child who is studying at ... school to receive education in Kurdish, which is his [her] mother tongue, in addition to education in Turkish, at school...” 7.  On receipt of the petitions the relevant education directorates informed the Istanbul Security Directorate, which brought the matter to the attention of the principal public prosecutor’s office at the Istanbul State Security Court. 8.  On 28 December 2001 the public prosecutor asked the Anti-terrorism branch of the Istanbul Security Directorate to identify the names and addresses of the persons who had petitioned the Bağcılar and Esenler Education Directorates with a request for education in Kurdish. It appears that on an unspecified date the same instruction was given in relation to the petitions lodged with the Kadıköy Education Directorate. 9.  On 8 January 2002 the public prosecutor requested a warrant authorising a search of the homes of forty people, including the applicants, who had submitted petitions. The public prosecutor considered that the petitions in question had been made on the instructions of the PKK (Workers’ Party of Kurdistan), an illegal armed organisation, and wished to collect relevant evidence from the petitioners’ homes. The Istanbul State Security Court granted the public prosecutor’s request that day. 10.  On 9 January 2002 the public prosecutor instructed the Anti‑terrorism branch of the Istanbul Security Directorate to conduct the searches with a view to finding evidence that could link the relevant persons to the PKK as aiders and abettors. It also instructed the Anti-terrorism branch to take the petitioners into police custody and question them in relation to the content and purpose of their petitions. The public prosecutor provided a list of questions to ask the petitioners, which mainly aimed to establish whether they had acted on the orders of the PKK. 11.  Early on the morning of 13 January 2002 police officers from the Anti-terrorism branch of the Istanbul Security Directorate carried out a simultaneous search of all the properties, including the applicants’ houses. The search and seizure reports drafted by the police and signed by the applicants and other members of the household indicated that a search warrant had been issued by the Istanbul State Security Court on account of their petitions requesting education in Kurdish for their children. The reports also stated that the public prosecutor had ordered the petitioners’ arrest for questioning. According to these search and seizure reports, no illegal material was found in the applicants’ homes. 12. The applicants were arrested and taken into police custody following the searches on 13 January 2002. The search and seizure reports and custody records submitted by the Government indicate that the applicants were arrested and taken into police custody at the following times:

Name
Time of arrest
Time of placement in detention centre
Esma Döner 13.  On the same day the applicants were questioned by officers from the Anti-terrorism branch of the Istanbul Security Directorate. They were asked, in particular, whether they had submitted the petitions in accordance with the PKK’s new “civil disobedience” strategy adopted at its Sixth National Conference held between 5 and 22 August 2001. The applicants Meryem Peker and Yılmaz Yavuz claimed that they had not submitted any petitions requesting education in Kurdish to any State authorities. The remaining applicants mainly denied any affiliation with the PKK and stated that they had submitted the petitions in question so that their children could learn their parents’ mother tongue. Some of the applicants also stated that the issue of submission of such petitions had also been discussed at the Bağcılar branch of HADEP (Halkın Demokrasi Partisi – the People’s Democracy Party), a Turkish political party, which they attended from time to time. The applicants’ signed statements suggest that interpretation services were provided to three of them (Ayşe Döner, Fatma Yılmaz and Güli Akyol) on request. A note drafted by the police also suggests that the applicants other than Meryem Peker, Halime Günana, Asiya Karadeniz and Yılmaz Yavuz were illiterate. 14.  It appears that in the meantime, some of the applicants’ families contacted the Istanbul Bar Association seeking legal aid for their relatives during their detention in police custody. A lawyer was accordingly appointed. On 13 January 2002 the lawyer applied to the public prosecutor’s office at the Istanbul State Security Court for information in relation to twelve of the applicants (Esma Döner, Gülperi Döner, Ayşe Döner, Hanım Gülün, Şahide Gümüş, Hasibe Yılmaz, Fatma Yılmaz, Tenzile Akyol, Güli Akyol, Fatma Duruşkan, Meryem Peker and Mehmet Şirin Döner). In particular, he enquired about their legal status and the charges they were facing, and asked to meet them and to provide them with the necessary legal assistance. On the same day he applied to the Istanbul State Security Court to have the same twelve applicants released, arguing that they were being held in custody unlawfully. 15.  On the same day a judge at the Istanbul State Security Court decided that there was no need to decide on the lawyer’s request as there was no record of the individuals in question being detained in relation to an investigation conducted by the public prosecutor’s office. On 16 January 2002 the Istanbul State Security Court rejected a request by the lawyer to have the decision rendered by the judge set aside. 16.  In the meantime, on 14 January 2002 the public prosecutor informed the lawyer that the applicants in question were in custody on suspicion of being affiliated with an illegal organisation, and that there was no need to decide on the lawyer’s request to have access to them as no authorisation for their detention in police custody had yet been issued by the public prosecutor’s office. 17.  It appears that shortly after that decision, still on 14 January 2002, the public prosecutor authorised the applicants’ detention in police custody for four days between 13 and 17 January 2002. The authorisation was granted in response to a request made by the Anti-terrorism branch of the Istanbul Security Directorate, who had claimed that the applicants’ detention was needed for the completion of their files, in particular to verify whether the petitions had been submitted by the applicants themselves, whether they had any affiliation with the PKK and whether they were being searched for in connection with other offences (see paragraph 32 below for the legal basis for that authorisation). 18.  At 8.30 a.m. on 17 January 2002 the applicants were taken out of the detention centre and, following a routine medical check-up, were brought before the public prosecutor at the Istanbul State Security Court. They admitted before the public prosecutor that they had written the petitions, either themselves or with the help of their children, but stated that they had no other motive than wanting their children to learn their mother tongue. They denied any involvement with the PKK. Some of the applicants claimed that they had submitted petitions after hearing about it from other parents at school or on television. According to the information provided by the Government, seven of the applicants (Ayşe Döner, Hasibe Yılmaz, Fatma Yılmaz, Tenzile Akyol, Güli Akyol, Meliha Can and Kudret Dağ) were assisted by an interpreter during questioning by the public prosecutor. 19.  At an unspecified time on 17 January 2002 the applicants (except for Meryem Peker, Mehmet Şirin Döner and Yılmaz Yavuz) were brought before a judge at the Istanbul State Security Court, who ordered their release after taking statements from them. The applicants concerned were actually released following the Istanbul State Security Court’s order. Seven of the applicants (Ayşe Döner, Şahide Gümüş, Hasibe Yılmaz, Fatma Yılmaz, Güli Akyol, Meliha Can and Kudret Dağ) were assisted by an interpreter before that court. It appears that Meryem Peker, Mehmet Şirin Döner and Yılmaz Yavuz were also released that day, but the decision ordering their release was not submitted to the Court. 20.  On the same day the public prosecutor filed an objection concerning the decision to release the applicants, claiming that it was evident from the statements made by them following their arrest that they had submitted the petitions in an organised manner with the aim of assisting the PKK’s “politicisation” process. The public prosecutor added that although the applicants appeared to have lawfully used their right to petition, in reality they were acting on the instructions of the PKK and were thus aiding and abetting that organisation. 21.  On 18 January 2002 the Istanbul State Security Court upheld the public prosecutor’s objection in respect of the applicants Esma Döner, Hanım Gülün, Hasibe Yılmaz, Meliha Can, Şükrüye Temüroğlu, Halime Günana and Zübeyde Yavuz, and issued a warrant for their arrest. The court did not provide any reasons for its decision. 22.  On 22 January 2002 the lawyer asked the Istanbul State Security Court to set aside its decision of 18 January 2002 ordering the arrest of the relevant applicants. On 28 January 2002 the State Security Court dismissed that request, basing its decision on the nature of the offence, date of arrest, state of the evidence and contents of the case file. 23.  In the meantime, on 19 January 2002 Esma Döner, Hasibe Yılmaz and Zübeyde Yavuz were arrested on the basis of that warrant. The next day they were remanded in custody. It appears that the remaining four applicants named in the warrant could not be located. 24.  On 21 January 2002 the applicants Esma Döner and Zübeyde Yavuz filed objections concerning their detention on remand. 25.  On 22 January 2002 the Istanbul State Security Court dismissed Esma Döner and Zübeyde Yavuz’s objections, basing its decision on the nature of the offence and the state of the evidence. 26.  On 6 February 2002 the public prosecutor at the Istanbul State Security Court decided not to prosecute the applicant Yılmaz Yavuz because of a lack of evidence against him. 27.  On the same day the public prosecutor issued an indictment against thirty-eight suspects, including the remaining applicants, accusing them of aiding and abetting an armed organisation under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713) in force at the material time. In the indictment the public prosecutor stated that following the arrest and conviction of their leader Abdullah Öcalan, the PKK had set out to pursue new policies. Accordingly, at the Sixth National Conference held between 5 and 22 August 2001, it had adopted the “Democratisation and Peace Project”, a new strategy which had involved undertaking non-violent activities of “civil disobedience” and aimed at leaving the State and its authorities in a difficult position in the international arena. The public prosecutor submitted that such organised acts of civil disobedience agreed on by the PKK had included petitioning the State authorities for education in Kurdish, dressing up in traditional Kurdish female costume, and applying to courts or population registration offices with requests for their Kurdish identities to appear on their national identity cards. When viewed against this background, the petitions in question – which had been submitted to certain authorities on predetermined dates and times – could not be considered to be individual acts. They had actually been part of an organised movement which had aimed to implement the decisions adopted by the PKK and thereby undermine the authority of the State. 28.  On 12 February 2002 the first-instance court ordered the release of the applicants Esma Döner, Hasibe Yılmaz and Zübeyde Yavuz pending the criminal proceedings. 29.  On 28 May 2003 the Istanbul State Security Court acquitted all the accused, including the applicants, because on the facts none of the elements of the crime of aiding and abetting an armed organisation had been present in their actions and there was no other evidence to support the allegations brought against them. The judgment became final on 5 June 2003.


4.  The applicant was born in 1960 and lived, prior to arrest and conviction, in Cheboksary. 5.  On 27 January 2004 the applicant was arrested. He remained in custody pending investigation and trial. 6.  On 7 October 2005 the Leninskiy District Court of Cheboksary convicted the applicant of fraud and sentenced him to six years and nine months’ imprisonment. 7.  On 13 December 2005 the Supreme Court of the Chuvash Republic upheld his conviction on appeal. The court reduced the applicant’s sentence to five years and ten months. 8.  On 22 June 2007 the Presidium of the Supreme Court of the Chuvash Republic quashed the judgments of 7 October and 13 December 2005 and remitted the case for a fresh examination. The applicant was remanded in custody. 9.  On 11 July 2007 the Leninskiy District Court ordered the applicant to stay in prison pending trial. 10.  On 22 November 2007 the Leninskiy District Court extended the applicant’s pre-trial detention, having noted that:
“... Taking into account the seriousness of the charges against [the applicant], his health condition, personal profile, a possibility that he might abscond, the court considers that the previous measure of restraint should remain unchanged ...” 11.  On 5 February 2008 the Supreme Court of the Chuvash Republic upheld this decision on appeal. 12.  By decision of 24 December 2007, as upheld on appeal, the Leninskiy District Court extended the applicant’s pre-trial detention for three months. Having heard the parties, the court ruled that:
“... As it can be seen from the case file, [the applicant] has been accused of a serious crime, which is punishable with an imprisonment exceeding two years. The grounds, which were used to put him in custody ..., have not ceased to apply. Being at large, [the applicant] may abscond and continue his criminal activity...” 13.  On 27 March 2008 the Leninskiy District Court convicted the applicant of fraud and sentenced him to five years and ten months’ imprisonment. 14.  On 1 July 2008 the Supreme Court of the Chuvash Republic upheld his conviction appeal.


5.  The applicant was born in 1978 and lives in Sumgayit. 6.  On 6 March 2010 the applicant was arrested by the police on suspicion of possession of narcotic substances. According to a record dated 6 March 2010 relating to the carrying out of operational measures and the seizure of physical evidence (əməliyyat tədbirlərinin keçirilməsi və maddi sübutun götürülməsi haqqında protokol), the applicant was arrested by the police at 11.30 p.m. on 6 March 2010 in Sumgayit, on the basis of operational information that he was in possession of narcotic substances. He did not resist arrest and was taken to the Sumgayit City Police Office (“the Police Office”), where he was searched in the presence of two police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, narcotic substances were found on his person. 7.  On 9 March 2010 the applicant was charged with illegal possession of a large quantity of narcotic substances with intent to sell, under Article 234.4.3 of the Criminal Code. 8.  On 10 March 2010 the Sumgayit City Court, relying on the official charges brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody (həbs qətimkan tədbiri), ordered the applicant’s detention for a period of two months, calculating the period of detention from 9 March 2010. 9.  The applicant did not appeal against that decision. 10.  On the same day the Sumgayit City Court also delivered a separate special decision (xüsusi qərar), acknowledging a violation of the applicant’s right to liberty. In this connection, the court held that the investigator had unlawfully deprived the applicant of his liberty, because the applicant had not been brought before a judge within forty-eight hours of his arrest, as required by the relevant law. The court also informed the Police Office about the investigator’s unlawful action, and asked the Police Office to inform it about the measures taken in this respect within one month. 11.  According to the applicant, following his arrest by the police on 6 March 2010, he was taken to the Police Office, where he was detained in various rooms. He was repeatedly subjected to ill-treatment in police custody, with the aim of extracting a confession from him. He was also forced by the police to make an incriminating statement against two other people arrested in connection with possession of narcotic substances. As he refused to make the statements requested by the police, on 6 and 7 March 2010 he was regularly beaten with wooden and rubber truncheons, and was given electric shocks and cigarette burns by police officers X., S. and M. 12.  On 10 March 2010 the applicant met his lawyer for the first time when he was brought before the Sumgayit City Court. According to the applicant’s lawyer, he made an oral complaint at the hearing before the Sumgayit City Court in the presence of the Sumgayit city deputy prosecutor, complaining that the applicant had been ill-treated in police custody. He also pointed out the signs of ill-treatment present on the applicant’s body, and requested his examination by a forensic expert. However, no action was taken by the court or the prosecuting authorities in respect of the applicant’s ill-treatment. 13.  On 3 and 10 April 2010 the applicant’s lawyer lodged a written complaint with the investigator in charge of the case, complaining that the applicant had been ill-treated in police custody. In this connection, he pointed out that, although he had made such a complaint at the hearing of 10 March 2010 before the Sumgayit City Court, no action had been taken by the investigating authorities. The lawyer asked the investigator for a forensic examination of the applicant. He also asked the investigator to question the applicant and organise a formal face-to-face confrontation between the applicant and the other co-accused in his presence. No action was taken by the investigator. 14.  On an unspecified date in April 2010 the lawyer informed the Ombudsman of the applicant’s ill-treatment in police custody and the investigator’s failure to order a forensic examination of the applicant. 15.  Following a conversation between the applicant and agents from the Ombudsman’s Office in a temporary detention centre, on 22 April 2010 the Ombudsman requested that the Prosecutor General’s Office carry out a forensic examination of the applicant and conduct an effective investigation into his allegation of ill-treatment. 16.  By a letter of 7 May 2010, the Prosecutor General’s Office informed the lawyer that the complaint submitted by the Ombudsman concerning the applicant’s alleged ill-treatment by the police would be examined, and he would be informed of its outcome. 17.  In the meantime, on 5 May 2010 the investigator had ordered a forensic examination of the applicant. It appears from forensic report no. 600 dated 11 May 2010 that the forensic expert noticed an abrasion (sıyrıq) measuring 5 cm by 1.2 cm on the applicant’s left wrist joint. He concluded that the injury had been caused by a hard blunt object, and could have been inflicted on 6 March 2010. The expert stated that the severity of the injury had not been determined, because it was not an injury causing harm to health. 18.  On an unspecified date in May 2010 the applicant’s case was assigned to another investigator. 19.  On 25 May 2010 the applicant’s lawyer was provided with a copy of the forensic report of 11 May 2010. He immediately asked for a new forensic examination, claiming that the applicant’s forensic examination had been conducted in his absence and in breach of relevant procedural rules. He also claimed that, although numerous injuries were still visible on the applicant’s body, the expert had noted only one injury in his report. 20.  On 26 May 2010 the investigator granted the request and ordered a new forensic examination of the applicant. 21.  On 1 June 2010 the applicant’s lawyer lodged a new request with the investigator, asking to participate in the forensic examination. He also asked the investigator to allow him to photograph and make a video recording of the forensic examination. 22.  On 3 June 2010 the investigator granted the request in part, allowing the lawyer to participate in the forensic examination. 23.  On 8 June 2010 the Sumgayit city deputy prosecutor refused to institute criminal proceedings in connection with the applicant’s allegation of ill-treatment. He held that it had not been established that the applicant had been beaten by the police officers, or that the injury found on his left wrist joint had been caused by them while he was in police custody. However, the prosecutor also found that the applicant had been unlawfully detained in police custody from 6 to 7 March 2010 in the absence of any official record of his arrest. In this connection, he decided to inform the Police Office of the unlawful actions of the police officers. 24.  In the meantime, on an unspecified date the applicant’s lawyer had lodged a complaint with the Sumgayit City Court under the procedure concerning the review of the lawfulness of procedural actions or decisions by the criminal prosecuting authority under Article 449 of the Code of Criminal Procedure. He complained, in particular, that the applicant had been ill-treated in police custody, that the investigator had failed to reply to his complaints concerning the ill-treatment, and that the applicant’s procedural rights had been violated within the framework of the criminal proceedings. 25.  In the proceedings before the Sumgayit City Court the judge heard the applicant, the two other co-accused, the applicant’s lawyer, the police officers involved in the applicant’s arrest, and the two investigators who had been in charge of the applicant’s case. Although the police officers denied the ill-treatment allegation, the investigator who had replaced the first investigator in charge of the case stated that he had also noticed the signs of a beating on the applicant’s body during his questioning. 26.  On 25 June 2010 the Sumgayit City Court delivered a decision, finding that the applicant had been subjected to torture and violent treatment (işgəncə və zorakı rəftar) in police custody. In this connection, the court relied on the conclusions of the forensic report of 11 May 2010 and the statement made by one of the investigators. The court also held that, at the court hearing, the applicant’s body had shown signs of ill-treatment as established by the court. The court further found that the applicant had been unlawfully detained in the Police Office, and that he had been questioned by the investigator in the absence of his lawyer. The court ordered the Sumgayit city prosecutor’s office to investigate the fact that he had been ill‑treated. 27.  On 5 July 2010 the Sumgayit city prosecutor lodged an objection against the Sumgayit City Court’s decision of 25 June 2010. 28.  On 21 July 2010 a panel composed of two forensic experts issued a report concerning the second forensic examination of the applicant. It appears from forensic report no. T76/2010 that the applicant was examined by the forensic experts in the presence of his lawyer on 23 June 2010. During the examination the applicant stated that he had been tortured in police custody, and gave a detailed description of his ill-treatment. In particular, he stated that on 6 and 7 March 2010 police officers X., S. and M. had tortured him with truncheons, a device which gave electric shocks and cigarette burns. As a result of the examination, the experts noticed numerous scars (çapıq) and areas of pigmentation (piqmentasiya sahələri) on various parts of the applicant’s body. They pointed out that, while the scars had been caused by a hard blunt object, the areas of pigmentation had resulted from intense heat. The experts concluded that these injuries had been inflicted three to six months prior to the examination, and the characteristics of the injuries did not contradict the applicant’s description of ill-treatment. 29.  On 27 July 2010 the Sumgayit Court of Appeal dismissed the prosecutor’s objection, finding the first-instance court’s decision justified. As to the fact of the applicant’s ill-treatment, the appellate court held that this was supported by the expert reports of 11 May and 21 July 2010, which confirmed the existence of various injuries on his body. The court further held that the investigator who had replaced the first investigator in charge of the case had also stated before the court that he had noticed injuries on the applicant’s body when he had questioned him. The court lastly noted that it had taken into account the fact that, although the applicant had been examined by the forensic experts a few months after his beating by the police officers, there were still signs of ill-treatment on his body. 30.  On 24 August 2010 the applicant’s lawyer lodged a complaint with the Prosecutor General’s Office and the Ministry of Internal Affairs, complaining that the investigating authorities had failed to investigate the applicant’s ill-treatment, despite the explicit acknowledgment of the fact of the ill-treatment by the court decisions of 25 June and 27 July 2010. 31.  On 20 September 2010 the Sumgayit city deputy prosecutor again refused to institute criminal proceedings in connection with the applicant’s ill-treatment. The prosecutor concluded that the injuries found on the applicant’s body had not been caused in police custody. In this connection, he noted that the applicant was a drug addict and that there was a likelihood that the injuries had been caused by “external influences” (kənar təsirlərdən) before he had been taken to the temporary detention centre. 32.  On 8 October 2010 the applicant’s lawyer lodged a complaint with the Prosecutor General’s Office against that decision. He complained, in particular, that the prosecuting authorities had unlawfully refused to investigate the applicant’s ill-treatment, despite the explicit acknowledgment of the fact of the ill-treatment by the relevant court decisions. 33.  No action was taken by the prosecuting authorities. 34.  On 7 May 2010 the Sumgayit City Court extended the applicant’s detention pending trial for a period of one month, namely until 7 June 2010. The court indicated as the reason for its decision that it needed more time to perform some investigative actions, such as the carrying out of forensic narcotic and psychiatric examinations. It further relied on the gravity of the charges against the applicant, and the existence of a risk of his absconding from and obstructing the investigation. 35.  The applicant appealed against that decision, claiming that the first‑instance court had failed to justify the extension of his detention. 36.  On 14 May 2010 the Sumgayit Court of Appeal upheld the first‑instance court’s decision. The appellate court’s reasoning was essentially the same as that in the first-instance court’s decision. 37.  On 3 June 2010 the Sumgayit City Court again extended the applicant’s detention for a period of one month. The court justified this by relying on the necessity to carry out further investigative actions within the framework of the criminal proceedings. 38.  On 4 June 2010 the applicant appealed against the decision, reiterating that there was no reason to hold him in detention, and that the first-instance court had failed to justify his continued detention. 39.  On 11 June 2010 the Sumgayit Court of Appeal dismissed the appeal, finding that the extension order was justified. The appellate court justified its decision by relying on the gravity of the charges and the risk of the applicant’s absconding from the investigation. 40.  On 6 July 2010 the Sumgayit City Court extended the applicant’s detention until 22 July 2010. The court again justified the extension by relying on the necessity to carry out further investigative actions. 41.  The applicant did not appeal against that decision. 42.  On 11 July 2010 the investigator reclassified the criminal charges against the applicant, replacing the previous charges under Article 234.4.3 of the Criminal Code with new charges under Article 234.1 (illegal possession of narcotic substances in a quantity exceeding that necessary for personal consumption, without intent to sell). 43.  On 21 July 2010 the investigator issued a bill of indictment under Article 234.1 of the Criminal Code and filed it with the Sumgayit City Court. 44.  On 6 August 2010 the Sumgayit City Court held a preliminary hearing. At that hearing, the prosecutor stated that there had been numerous breaches of procedural rules during the investigation, and that the bill of indictment had not been compiled in accordance with the requirements of the relevant law. He asked the court to discontinue its examination of the criminal case and remit it to the prosecutor supervising the investigation. The court granted the prosecutor’s application. The court’s decision made no mention of the applicant’s detention, even though the latest extension order had expired on 22 July 2010. Under domestic law, a decision taken at a preliminary hearing was not open to appeal. 45.  On 13 August 2010 the prosecutor lodged an application with the Sumgayit City Court, asking for an extension of the applicant’s detention until 7 September 2010. 46.  On 16 August 2010 the Sumgayit City Court dismissed the application, finding that there was no basis for such an extension. However, taking into account the prosecutor’s intention to lodge an objection against that decision, the court ordered the applicant’s detention for a period of seven days. 47.  On 23 August 2010 the Sumgayit Court of Appeal dismissed the prosecutor’s objection and upheld the first-instance court’s decision. The applicant was released from detention. 48.  On the same day the applicant lodged a request with the investigator, asking for unlawfully obtained evidence to be removed from the case file and the criminal proceedings against him to be discontinued. 49.  By a decision of 26 August 2010, the investigator dismissed the applicant’s request. 50.  In the meantime, following the applicant’s release from detention, on 25 August 2010 the investigator in charge had issued a decision placing the applicant under police supervision (polisin nəzarəti altına vermə). The decision did not detail the duration of that preventive measure. According to the applicant, his placement under police supervision lasted approximately five or six months, during which time he was obliged to report to the police twice a week and not leave the city where he resided. At the end of this period, although he was no longer required to report to the police, he was not provided with any official decision confirming the end of his placement under police supervision.


4.  The applicants’ dates of birth and places of residence are given in the Appendix. 5.  At the material time the second applicant was a member of an opposition group Nida. The third applicant was a member of an opposition group İctimai Palata; he was also one of the organisers of several demonstrations held in Baku. 6.  The first and the second applicants participated in a demonstration organised by the opposition on 20 October 2012. Prior to that assembly, on 15 October 2012, the organisers gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). The BCEA refused to authorise the holding of the demonstration at the place indicated by the organisers and proposed a different location on the outskirts of Baku – the grounds of a driving school situated in the 20th residential area of the Sabail District. Nevertheless, the organisers decided to hold the demonstration as planned. 7.  The second applicant also participated in demonstrations held on 12 January and 26 January 2013. The third applicant participated in a demonstration held on 30 April 2013. The organisers of those demonstrations gave no proper prior notice to the BCEA. Information about the demonstrations was disseminated on the internet or in the press. 8.  According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants of the demonstration of 20 October 2012 were demanding democratic reforms in the country and free and fair elections, and protesting against impediments on freedom of assembly. The demonstration of 12 January was aimed at protesting about the deaths of soldiers in the army, while the demonstration of 26 January 2013 condemned the use of force by the police against the participants of previous demonstrations. The participants of the demonstration of 30 April 2013 were commemorating the victims of a terrorist attack which had been committed in 2009 at the Azerbaijan State Oil Academy. 9.  The police began to disperse the demonstrations of 20 October 2012, 12 January, 26 January and 30 April 2013 as soon as the protesters began to gather. 10.  The circumstances related to the dispersal of the demonstration of 20 October 2012, the first and second applicants’ arrests and custody, and subsequent administrative proceedings against them are similar to those in Gafgaz Mammadov v. Azerbaijan (no. 60259/11, 15 October 2015) (see also Appendix). 11.  The circumstances related to the dispersal of the demonstrations of 12 January, 26 January and 30 April 2013, the second and third applicants’ arrests and custody, and the subsequent administrative proceedings against them are similar to those in Bayramov v. Azerbaijan ([Committee] nos. 19150/13 and 52022/13, 6 April 2017) (see also Appendix).


4.  The applicant was born in 1970 and lives in Bacău. 5.  On 20 September 2012 the applicant was placed in Bacău Prison in order to serve a five-year sentence for robbery. He remained there until 26 April 2013 when he was transferred to Vaslui Prison. In May 2015 the applicant was transferred to Focşani Prison from where he was conditionally released in 2016. 6.  The applicant described the detention conditions in Bacău and Vaslui prisons as inhuman because of overcrowding and extremely poor hygiene. He further mentioned the prison authorities’ failure to provide the necessary cleaning products. He also complained of the presence of pests and of dampness in the cells and the poor quality of food, which sometimes even contained sand. 7.  In Bacău Prison the applicant was held for 7 months and 5 days in three different cells in section 1: one measuring 27.12 sq. m, which he shared with eleven prisoners; a second measuring 39.36 sq. m, which he shared with fifteen other prisoners; and a third measuring 39.27 sq. m, shared with seventeen other prisoners. All the cells had sanitary facilities with an area that was not provided. Taking into account the overall area of the cells without deducting the surface of the in-cell sanitary facility, the applicant had personal space ranging from 2.18 to 2.46 sq. m available. The cells were provided with natural light and ventilation through windows with measurements ranging from 118 x 147 cm to 237 x 75 cm. 8.  The hygiene conditions were adequate. Toiletries were provided within the limits of the prison budget. General disinfection of the cells was conducted once per trimester and also whenever necessary. 9.  The applicant received a menu in line with the regulations. The food prepared was always tested by the prison doctor and a representative of the prisoners and the results were marked in a register.
(b)  Vaslui Prison 10.  In Vaslui Prison the applicant was assigned to a semi-open detention regime. He was held in cells measuring 14.75 sq. m, including a storage closet of 0.75 sq. m and sanitary facilities of 1.8 sq. m. For various periods of time the applicant shared the cells with three or five other prisoners. 11.  After deducting the surface of the in-cell sanitary facility and the storage closet from the overall surface of the cells, the applicant had personal space of 2.03 sq. m available for several non-consecutive periods totalling ten months. 12.  For the rest of the time spent in Vaslui Prison until 11 September 2014, the date of the correspondence from the National Administration of Prisons submitted by the Government, the applicant had personal space of 3.05 sq. m available for three non-consecutive periods of time totalling two months and twenty-four days. 13.  For several remaining short periods of time the applicant was transferred for various reasons to other locations. 14.  According to the government, the cells in which the applicant was accommodated were put in use on 1 May 2012 when new mattresses and bed clothes were distributed. The cells were provided with natural light and ventilation through windows measuring 116 x 115 cm. Artificial lighting was also provided as well as the necessary furniture. All the cells had separate sanitary facilities equipped with one toilet, one shower, one sink and a window of 35 x 55 cm. Hot water was provided for two hours twice per week while cold water was provided without interruption. 15.  The applicant was given a special diet for sick prisoners in line with the regulations. Here too the food prepared was always tested by the prison doctor and a representative of the prisoners and the results were marked in a register. 16.  According to the regulations in force at the relevant time a prisoner had the right to receive for free during a year a maximum of six tubes of toothpaste, twelve rolls of toilet paper, 10 kg of washing powder, three kilograms of poor quality soap and 3 litres of bleach. These items were provided within the limits of the prison budget. Between April 2013 and August 2014, washing powder, chlorine, soap and toilet paper were distributed to prisoners on a monthly basis. The Government submitted a copy of a printed form for the distribution of toothbrushes, toothpaste, shaving cream, razors, toilet paper and soap in Vaslui Prison, dated 1 August 2014. According to this form, on the said date the applicant received one razor, one roll of toilet paper and one bar of soap. 17.  On 28 August 2012, upon his placement in Bacău Prison, the applicant’s medical chart mentioned that he was suffering from tuberculosis, and gastro duodenitis. 18.  Between 6 and 22 December 2012 the applicant was admitted to Târgu Ocna Prison Hospital where he underwent follow-up examinations on a skin-graft operation carried out before his imprisonment. On this occasion he was diagnosed with chronic hepatitis B (HVB). He was released with the prescription of hepatoprotective and anti-inflammatory drugs and a special diet. 19.  Between 1 and 15 March 2013 the applicant was again admitted for a check-up to the same hospital. Arteriopathy obliterans of the lower limbs was added to his previous diagnosis. He was released with the same prescription. 20.  On 17 May 2013 the applicant was admitted to Târgu Ocna Prison Hospital with acute appendicitis. On 30 May 2013 he was transferred to Moineşti Emergency Hospital where he was operated on. The applicant was subsequently hospitalised four times for follow-up examinations. 21.  The applicant was examined by a dentist on three occasions throughout his detention. He was diagnosed with lateral, latero-frontal maxillary edentation and latero-terminal mandibulary edentation. On 28 August 2013 he was treated for an abscess and was prescribed antibiotics. 22.  The applicant requested in writing adequate dental treatment and prostheses. On 18 December 2013 in reply to the applicant’s request the National Prisons Administration confirmed that he needed dental prostheses for which the price should be calculated by the prison dentist. The applicant’s personal contribution was to amount to 40% of the calculated price in accordance with the rules for the application of Law no. 275/2006. In case he did not have the necessary financial means to cover his contribution, the applicant was instructed to lodge a request with the Vaslui Prison administration after obtaining an estimate of the extent of the dental work needed and its total costs. 23.  On 18 April 2013 the applicant lodged a complaint on the basis of Law no. 275/2006 on the serving of prison sentences with the post-sentencing judge in Bacău Prison claiming that his right to medication, medical treatment and a special diet had been breached by the prison administration. 24.  On 20 May 2013 the post-sentencing judge decided to reject the applicant’s complaint as ill-founded. The judge reviewed the applicant’s medical file and his doctors’ prescriptions and, taking into account that the applicant had failed to mention any specific failures on the part of the prison administration, concluded that no breach of rights could be found in the case. 25.  The applicant contested the above decision before the Bacău County Court but during the hearing of 22 August 2013 he withdrew his complaint. 26.  On 18 December 2013 he complained to the Vaslui Prison administration that there had been no hot water for ten days and that the heating had also been cut recently. The prison administration replied on 20 December 2013 that there had been technical problems which had since been remedied.