6.  The applicant was born in 1979 and is currently detained in Remscheid Prison. 7.  On 3 February 2003 the Cologne District Court, having held a hearing at which the applicant and his lawyer had been present and witnesses had been heard, convicted the applicant of bodily injury and sentenced him to a fine amounting to 100 daily payments of fifteen euros (EUR). The applicant had pleaded for his acquittal. 8.  The applicant, represented by counsel, lodged an appeal against that judgment. 9.  On 11 June 2003 the Cologne Regional Court held a hearing at which the applicant’s counsel was present whereas the applicant failed to attend in person. Several witnesses had equally been summoned. The applicant’s counsel explained that an arrest warrant had been issued against the applicant in respect of different charges. The applicant had therefore chosen not to attend the hearing in person but wished to be represented by his counsel. He claimed that, having regard to Article 6 § 3 (c) of the Convention, a defendant was entitled to be represented by a lawyer in appeal proceedings. 10.  By a judgment of the same day, the Regional Court, granting the request made by the Public Prosecutor’s Office, dismissed the applicant’s appeal. It found that the applicant had lodged his appeal within the prescribed time-limit. However, he had failed to attend the hearing before the Regional Court, to which he had been summoned, without sufficient excuse. He also had not been entitled to be represented by counsel. Therefore, his appeal had to be dismissed pursuant to Article 329 § 1, first sentence, of the Code of Criminal Procedure (see paragraph 25 below). 11.  On 26 September 2003 the Cologne Court of Appeal dismissed the applicant’s appeal on points of law, in which he had referred to his defence rights under Article 6 of the Convention, as ill-founded, as the judgment of the Regional Court did not disclose an error of law. 12.  On 22 October 2003 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that the decision of the Regional Court, as confirmed by the Court of Appeal, not to deal with his appeal on the merits due to his failure to appear at the hearing had violated his right of access to court, his right to be heard in court and his right to defend himself through a lawyer as guaranteed by the Basic Law. 13.  On 27 December 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint as it was ill-founded (file no. 2 BvR 1872/03). The decision was served on the applicant’s counsel on 23 January 2007. 14.  The Federal Constitutional Court found that the applicant’s right to an effective defence, which was inherent in his right to a fair trial under the Basic Law, had not been breached. In coming to this conclusion, it also had regard to the case-law of the European Court of Human Rights on Article 6 §§ 1 and 3 (c) of the Convention. It stressed that the Court, in its case-law, had never found that an application of Article 329 § 1 of the German Criminal Code failed to comply with Article 6 of the Convention. 15.  The Federal Constitutional Court stressed that the applicant’s right to an effective defence had to be interpreted in the context of the system of appeals of the Code of Criminal Procedure and of further fundamental rights, such as the right to be heard and the principle of immediacy (Unmittelbarkeitsgrundsatz). Following an appeal (Berufung), the appellate court conducted fresh proceedings in respect of questions of both fact and law and took its own decision after having taken evidence. The principles of oral and public proceedings and of immediacy applied also to proceedings before the appellate courts. Under the provisions of the Code of Criminal Procedure, criminal proceedings as a rule could not be conducted in the defendant’s absence, even before an appellate court. Therefore, in cases covered by Article 329 § 1, first sentence, of the Code of Criminal Procedure, there was no hearing on the merits, but the judgment delivered by the court of first instance in the defendant’s presence was upheld. 16.  The Federal Constitutional Court further reasoned that the right to an effective defence could not be asserted irrespective of further rights and principles laid down in the Basic Law and the Code of Criminal Procedure. Article 329 § 1, first sentence, of the Code of Criminal Procedure did not only aim at preventing a defendant from delaying proceedings against him by his absence, but also at securing his presence at the hearing, which was both a right and a duty. It was based on the understanding that a court only complied with its duty to establish the truth and to fix a fair penalty if it had seen the defendant in person and had heard his defence. Both under Article 14 § 3 of the International Covenant on Civil and Political Rights and under the European Convention on Human Rights the right to defend oneself entailed the right to be present. That right secured an unrestrained defence, but was at the same time a duty aimed at establishing the truth, for which the defendant’s conduct and his submissions or even his silence could be helpful. There were only very limited exceptions to the rule that no trial should be conducted in the defendant’s absence (Articles 231 § 2, 231a, 231b, 231c, 232, 233, 247, 329 § 2, 350 § 2, 387 § 1, 411 of the Code of Criminal Procedure; see paragraphs 25-30 below). 17.  The right and duty to be present related to the principles of immediacy and of oral proceedings which aimed at establishing a sound basis for the court’s decision and reflected the defendant’s right to be heard. As the defendant’s presence did not exclusively serve to secure his rights, he was not free to waive his right to be present or to delegate it to his defence counsel. 18.  The legislator had decided not to authorise a criminal trial in the defendant’s absence. Therefore, Article 329 § 1, first sentence, of the Code of Criminal Procedure proportionately restricted the defendant’s right to decide on the way in which he wanted to exercise his right to be heard and his right to defend himself through counsel. Having regard to the principles lying at the heart of the German criminal trial, the right to a fair trial did not oblige the legislator or the courts to authorise a defendant who failed to attend his trial to be represented by his defence counsel. 19.  The Federal Constitutional Court further observed that the German courts, in interpreting the law, were obliged to have regard to the provisions of the Convention and to the decisions taken by the European Court of Human Rights within the limits of a methodically arguable interpretation of the applicable German law. There was no judgment of the European Court of Human Rights finding a violation of the Convention in respect of Article 329 § 1 of the Code of Criminal Procedure, under which the defendant was not authorised to be absent and to have himself represented by his defence counsel at his trial. However, the European Court of Human Rights had given judgments in respect of other Contracting States to the Convention which concerned the defendant’s absence and his counsel’s presence in order to defend him at trial (see Poitrimol v. France, 23 November 1993, Series A no. 277‑A; Lala v. the Netherlands, 22 September 1994, Series A no. 297‑A; Pelladoah v. the Netherlands, 22 September 1994, Series A no. 297‑B; Van Geyseghem v. Belgium [GC], no. 26103/95, ECHR 1999‑I; and Krombach v. France, no. 29731/96, ECHR 2001‑II). That court had found that the fact that the defendant, in spite of having been properly summoned, did not appear, could not justify depriving him of his right under Article 6 § 3 (c) of the Convention to be defended by counsel. 20.  According to the Federal Constitutional Court, it could be left open whether the principles established in these cases, having regard to the differences of fact and in the national law which they had concerned, applied without restrictions to the case at issue. In particular, in some of the cases decided by the European Court of Human Rights the defendant had not been heard with legal arguments which, in a German criminal trial, as a rule, had to be examined by the courts ex officio. In any event, Article 329 § 1, first sentence, of the Code of Criminal Procedure complied with Article 6 of the Convention. It only concerned the defendant’s absence at his trial before the appellate court. The fact that his case was not dealt with anew on the merits was a result of his own decision not to attend the hearing without sufficient excuse and did not breach his rights under Article 6 § 3 (c) if, as was the rule, a trial at first instance had been held in his presence. If an arrest warrant had been issued against him for different charges, it was up to the defendant to resolve the conflict this entailed for him as he deemed best. It was not imperative to resolve this conflict for him by authorising him to be represented by his defence counsel at the trial on his appeal. Furthermore, the fact that defence counsel could not claim a hearing in such a case did not breach the principle of “equality of arms”. This principle applied to a hearing on the merits, which was not held in cases covered by Article 329 § 1 of the Code of Criminal Procedure. The said provision also did not deprive the defendant of legal assistance within the meaning of Article 6 § 3 (c). Counsel could claim in court that the requirements of Article 329 of the Code of Criminal Procedure were not met. Otherwise, trials in absentia would in fact be authorised. 21.  The Federal Constitutional Court further set out that under Article 329 § 4 of the Code of Criminal Procedure (see paragraph 25 below), the court could also order the defendant’s arrest in order to secure his presence at his trial instead of dismissing his appeal without a hearing on the merits. However, such an order was not appropriate to enforce the defendant’s own interest, in particular if there were no indications that he was ready to attend the hearing. 22.  The Federal Constitutional Court further found that for the said reasons the defendant’s right of access to court had not been violated, even assuming that the defendant had substantiated sufficiently this complaint.


5.  The applicant was born in 1969 and is serving a life sentence in Varna Prison. 6.  The facts of the case may be summarised as follows. 7.  On 10 November 1989 the applicant was convicted and sentenced to death. The Supreme Court confirmed this sentence on 15 January 1990. The applicant was placed in Pleven Prison and was not executed because a presidential moratorium on the execution of death sentences was introduced in the meantime. 8.  After the death penalty was abolished in Bulgaria, the Vice-President commuted the applicant’s sentence to life imprisonment on 21 January 1999. On 7 June 1999 the authorities placed the applicant under a “special regime” to serve his sentence, and on 11 June 1999 they transferred him to Varna Prison, where he remained until June 2004. Between June 2004 and June 2007 the applicant was detained in Pleven Prison, and on 27 June 2007 he was transferred again to Varna Prison, where he was at the time the most recent information was submitted to the Court, in late 2013. 9.  At times he shared his cell with other life prisoners who were serving their sentences under the “special regime”. 10.  According to the applicant, throughout the entire period of his detention he has been held in cells not equipped with sanitary facilities, and has only been allowed to go to the toilet three times a day. During the rest of the time he has had to relieve himself in his cell in a bucket which he could wash out once a day. The prison authorities have not provided him with chemicals for disinfecting the bucket. 11.  He has been permanently locked in his cell. 12.  According to the Government, between 2004 and 2007 in Pleven Prison the applicant was placed in a cell which was only locked at night. This allowed him unlimited access to the toilet, situated in the wing’s corridor, between 5.30 a.m. and 8 p.m. Furthermore, toilets and sinks with running water were installed in all cells in Pleven Prison in 2008. 13.  In Varna Prison the applicant was allowed to go to the lavatory more than three times a day. In particular, he had access to sanitary facilities and hot water also when he was taken out of his cell for his hour’s exercise in the open air. Without specifying further, the Government also stated that this was also the case when he took part in the weekly prison activities. A toilet and a sink with running water were installed in his cell in August 2012. 14.  Between 7 June 1999 and 6 December 2005 the applicant was held under the most restrictive “special regime”. Under this regime prisoners were locked permanently in their cells, and could only communicate with other life inmates and not with the general prison population. In December 2005 a Commission for the Execution of Sentences changed the applicant’s regime to the lighter “enhanced regime” which became called the “severe regime” with the adoption of the Execution of Punishments and Pre-Trial Detention Act in June 2009. He was able to take part in religious discussions for up to an hour a week and to play table tennis for half an hour up to twice a week. 15.  The Government submitted annual psychological assessments of Mr Radev in respect of 2009, 2010, 2012 and 2013. According to those assessments, the applicant demonstrated anti-social behaviour and periodically engaged in conflict with other inmates, whom he also incited to go on hunger strike as a means of pressuring the prison authorities into taking decisions favourable to them. According to the Government, the applicant had been disciplined twenty-six times for breaching the internal rules, and had only received four good-conduct awards. On six occasions he was punished for keeping an unauthorised mobile telephone and/or charger and SIM cards for it in his cell; once for keeping an item which could be used to make a hand-knife; and another time for keeping a small foldable hand-knife. On two occasions the punishments were for violent altercations with other life prisoners. One of those occasions was described by the prison authorities as “not having escalated to the level of lasting tension, but rather being a momentary emotional outburst not uncommon for both the inmates involved”. In the other incident, the physical engagement had been preceded by verbal arguments on the part of both prisoners, and the prison guards rapidly managed to separate the inmates and defuse the tension. When the applicant considered a situation was detrimental to him, he usually threatened legal action, and sometimes attempted self-harm or suicide as a means of “persuading” the prison authorities. He was emotionally unstable and had a tendency to contest the decisions of the prison authorities. Because of all this the prison authorities were not considering a change in the applicant’s prison regime. 16.  After the Government had submitted their observations to the Court, the applicant complained that he was serving his sentence in inadequate material conditions. In particular, there was insufficient fresh air and lighting in his cell, which itself was dilapidated and infested with cockroaches, and it was impossible for him to maintain personal hygiene as he had no access to hygienic or cleaning products. He was permanently handcuffed when outside his cell, the food was rather poor, and so was the medical care provided to him in prison. Lastly, no work had been offered him, nor did he have any meaningful occupational activities. 17.  Between 2007 and 2011 the applicant brought several claims for damages under the State and Municipalities’ Responsibility for Damage Act 1988 (“the SMRDA”) in connection with various aspects of his conditions of detention. The Supreme Administrative Court rejected all of them as inadmissible, finding in particular either that the prison authorities had not acted unlawfully or that the applicant had not established that he had suffered as a result of those conditions.


4.  The applicant was born in 1966 and lives in Călărași, Moldova. 5.  On 24 December 2007 the Călăraşi District Court approved a friendly settlement agreement concluded between the applicant and the Călăraşi local council and discontinued proceedings. This judgment was final. A writ of enforcement obliging the Călăraşi local council to pay the applicant the amount of 521,811 Moldovan lei (MDL) was issued and on 11 January 2008 the applicant instituted enforcement proceedings. 6.  On 12 May 2008 the Călăraşi local council submitted a revision request challenging the final judgment of 24 December 2007. They argued that the representative of the local council had not been authorized to conclude a friendly settlement agreement with the applicant. They invoked as new circumstances a report prepared by the local committee on issues regarding victims of political repressions. The report was drawn up after the settlement agreement had been approved by the court and it invalidated a previous decision of the committee, which acknowledged the applicant’s right to compensation for property confiscated during the 1949 political repressions. 7.  On 30 May 2008 the Călăraşi District Court dismissed the revision request as submitted outside the three-month time-limit and as ill-founded. The local council appealed this judgment. 8.  On 28 October 2008[1] the Chișinău Court of Appeal upheld the appeal, quashed the judgments of 30 May 2008 and 24 December 2007, and remitted the matter for fresh consideration. On 14 November 2012 the Supreme Court of Justice finally obliged the Călărași local council to pay the applicant MDL 426,265.[2] 9.  On 2 December 2011 the applicant lodged a civil action claiming damages for the violation of his right to a fair hearing within a reasonable time pursuant to Law no. 87 of 21 April 2011 (see paragraph 12 below), which at the time amounted to four years and four months. 10.  On 12 May 2012 the Supreme Court of Justice finally found the length of the proceedings to be excessive and attributable to the acts of the authorities; it awarded the applicant MDL 5,000 (approximately 316 euros (EUR)) as non-pecuniary damage, dismissing the remainder of his claims.


8.  The applicants were born in 1952 and 1961 respectively and live in Prato. 9.  The applicants are the owners of an apartment in Florence, which they had let to M.P. 10.  In a writ served on the tenant on 4 June 1985, the applicants communicated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate. 11.  By a decision of 24 June 1985, which was made enforceable on 1 July 1985, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 August 1987. 12.  On 29 September 1987, the applicants served notice on the tenant requiring him to vacate the premises. 13.  On 21 October 1987, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 27 November 1987. 14.  Between 27 November 1987 and 13 April 1989, the bailiff made four attempts to recover possession. 15.  On 29 May 1989, the applicants made a statutory declaration that they urgently required the premises as accommodation for themselves. 16.  Between 11 October 1989 and 13 February 1997, the bailiff made nineteen attempts to recover possession. Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession. 17.  On 29 April 1997, the applicants repossessed the premises with the assistance of the police.


5.  The first and second applicants, Mr Andrzej Stankiewicz and Ms Małgorzata Solecka, were born in 1974 and 1970 respectively and live in Piaseczno-Józefosław and Kraków. The third applicant, Presspublica sp. z o. o. is a limited liability company having its registered office in Warsaw. The company is the publisher of the daily newspaper “Rzeczpospolita” where the first and second applicants worked as journalists. 6.  It appears that A.F., the chief executive of the Polish branch of M.S.D. Inc. (“M.S.D.”), a large pharmaceutical company, approached journalists of the daily newspaper “Rzeczpospolita”. He informed them on condition of anonymity that the company had received a proposal to “arrange” the placement of its drug on the list of refunded drugs in exchange for a bribe. 7.  On 12 May 2003 “Rzeczpospolita” published on the front and fourth pages an article entitled “Drugs for millions of dollars” (“Leki za miliony dolarów”), written by the first and second applicants. The subtitle read: “A pharmaceutical company asserts that the Head of the Private Office of the Minister of Health demanded a large bribe” (“koncern farmaceutyczny twierdzi, że szef gabinetu politycznego ministra zdrowia żądał dużej łapówki”). 8.  The journalists alleged that in the summer of 2002 W.D., the Head of the Private Office of the Minister of Health (Szef Gabinetu Politycznego Ministra Zdrowia) had demanded a bribe from representatives of a pharmaceutical company, offering in return his assistance in having a drug manufactured by the company placed on the list of drugs refunded within the framework of the national health care scheme. 9.  In the article, the applicants recounted the circumstances of two meetings which had taken place in Warsaw restaurants. They were attended by W.D., B.O. – director of a private osteoporosis clinic and W.D.’s friend, as well as two representatives of the pharmaceutical company – Ł.Z. and H.M.N. The meetings had been devoted to the plan to set up jointly, by the two companies, a network of osteoporosis clinics in Poland. 10.  The relevant parts of the article read:
“W.D., the Head of the Private Office of M.Ł. [Minister of Health], demanded a multi-million dollar bribe, offering his assistance in placing drugs on the list of refunded drugs – asserts foreign pharmaceutical company. W.D. rejects these allegations, and M.Ł. [the Minister] does not believe the version of events presented by the company. ...
“It is the first such obvious case of a corruption proposal which has happened to me” – asserts the representative of the company. W.D. admits that he twice met the representatives of the company, but denies that he demanded money from them. ...
Companies are keen to have their drugs placed on the list [of refunded drugs]. Why? Because the State pays part of their price so they are cheaper and more accessible to patients. It has been known for years that decisions concerning registration and placement of drugs on the list of refunded drugs were accompanied by “informal payments”. However, up to now the representatives of the pharmaceutical companies have never directly admitted that they were asked for a bribe. ...
According to the director of the pharmaceutical company, W.D. was trying to convince [them] that the osteoporosis clinic [of B.O.] was a serious project. ... “He [W.D.] offered us cooperation and demanded a one-off rapid payment of 1.5 million dollars and then annual payments of 1-1.5 million. Money was to be spent on “infrastructure””. 11.  The journalists sought comments from W.D. before the publication of the article. They put to him questions about his presence as a high-ranking State official at a business meeting between two companies. W.D. initially denied that he had participated in it. However, two days later he recalled that he had in fact participated in the second meeting. Contrary to his earlier assertions, he also stated that the issue of the list of refunded drugs had been discussed at the meeting but at the initiative of the pharmaceutical company. Eventually, W.D. admitted that his participation at the meetings had been inappropriate and stated that he had felt uncomfortable in his role of an official. 12.  The Minister M.Ł. refused to speak to the journalists. In his written statement he asserted that W.D.’s participation at the meetings had not been inappropriate and that he did not believe the version of events as presented by the pharmaceutical company. 13.  The journalists included in the article critical comments made by A.N., the Deputy Minister of Health responsible for drugs policy at the relevant time. A.N. stated that “W.D. was not authorised to participate at such meetings. It is not the role of the Head of the Private Office.” He also stated that “The Head of the Private Office should not be dealing with his business future in the course of carrying out his official duties”. 14.  The article also included a report on the career of W.D. entitled “Doctor, businessman, official”. It described, inter alia, his activities in the Mazowiecki branch of the Alliance of the Democratic Left (Sojusz Lewicy Demokratycznej) and his association with M.Ł., the future Minister of Health. On the recommendation of his party W.D. was appointed a member of the Board of the Mazowiecki Health Insurance Fund (Mazowiecka Kasa Chorych). After the parliamentary elections in the autumn 2001, won by the Alliance of the Democratic Left, W.D. together with the Minister of Health M.Ł. and the Deputy Minister A.N. became one of the most influential figures in the health ministry to the exclusion of three other deputy ministers. In September 2002 W.D. suddenly resigned from his position as the Head of the Private Office of the Minister. 15.  On 22 May 2003 W.D. lodged a civil action with the Warsaw Regional Court against the applicants for infringement of his personal rights. He demanded that the defendants publish an apology and further sought 500,000 Polish zlotys (PLN) in compensation for non-pecuniary damage. Subsequently, he modified the latter claim and sought instead 50,000 PLN to be paid to a charity. W.D. submitted that the information about the alleged request for a bribe in exchange for the placement of a drug on the list of refunded drugs had been misleading and untrue. The newspaper’s allegations against W.D. had been based on unverified information originating from the representatives of the pharmaceutical company. 16.  The applicants argued that the version of events presented in the article was credible and that they had observed due diligence in gathering information for their article. They further argued that the disclosure of the facts presented in the article had been justified in the public interest. 17.  During the proceedings, the Warsaw Regional Court heard several witnesses, including the participants at the business meetings, i.e. B.O., H.M.N., Ł.Z., the claimant W.D. as well as A.F. and the journalists. 18.  Ł.Z., an employee of the pharmaceutical company, testified that the meetings had been devoted to M.S.D. Inc.’s possible involvement in the project of setting up a network of osteoporosis clinics in Poland. This involvement, according to the expectations of B.O.’s company, was to be limited to making a payment of approximately PLN 400,000, i.e. approximately between USD 100,000 and USD 150,000, to a given bank account. According to Ł.Z.’s testimony, this proposal was not accepted by M.S.D. Inc., whose participation in the project was thereby terminated. Ł.Z. further testified that while indeed the participants had also talked about the possibility of placing a certain drug on the list of refunded drugs, there had been in fact no causal link between the two matters. 19.  H.M.N., the finance director of the pharmaceutical company, testified that he had met W.D. and B.O. to discuss the same project. W.D. had introduced himself as a person representing a group which had been interested in the project. According to H.M.N., he expressed his surprise that the representative of the Government would be interested in the project involving a drug which had not been placed on the list of refunded drugs. At that point W.D. had stated that he would look into this issue. H.M.N. further stated that from the company point of view “there had been no connection between the project and the placement of the drug on the list”. The pharmaceutical company refused to participate financially in the project on the terms proposed by W.D. and B.O. 20.  A.F., the chief executive of the company, testified that the participants at the meetings had discussed the project of setting up a network of clinics treating osteoporosis. He was informed by two of his employees present at the meeting that W.D. had proposed to the company to invest a certain amount in that project. According to A.F., W.D. had also discussed the issue of placement of the company’s drug used for treating osteoporosis on the list of refunded drugs. He considered that the two issues, namely the financial investment in the project and the placement of the company’s drug on the list were interconnected. He understood, basing himself on the information from his employees, that if the company had decided to invest in the project then the placement of its drug on the list of refunded drugs would have been possible. 21.  B.O., director of a private osteoporosis clinic and friend of W.D., stated that the participants had discussed osteoporosis and the setting up of a network of clinics treating that illness. According to B.O., Ł.Z. had requested a meeting with W.D. and he had arranged it accordingly. B.O. denied that the participants at the meeting had discussed the issue of the placement of the company drug on the list of refunded drugs or that W.D. had demanded a bribe. 22.  By a judgment of 17 June 2005 the Warsaw Regional Court dismissed W.D.’s claim. 23.  The court established that in their article the applicants, besides their critical assessment of the Ministry of Health’s decision-making process concerning the registration and placement of drugs on the list of refunded drugs, described the events related by the anonymous representatives of the Polish branch of one of the large pharmaceutical companies. Their article was also based on the information received from A.N. (the Deputy Minister of Health), B.O., W.D. and the statement received from the Minister of Health. The assertions of the representatives of the pharmaceutical company were confronted with the statements of W.D. The journalists further presented W.D.’s professional and political career. In the article they pointed to specific contradictions and ambiguities in W.D.’s account of his meetings with the representatives of the pharmaceutical company. The article presented the claimant who was a high-ranking official in a negative light, but the readers were offered two versions of the relevant events and could make their own assessment of it. It was undisputed that W.D. had met twice in restaurants with H.M.N. and Ł.Z., the representatives of the American pharmaceutical company M.S.D. Inc. and introduced himself as the Head of the Private Office of the Minister of Health. 24.  The Regional Court further established that W.D. assisted at the meetings with B.O., his friend and the owner of the Mokotów Osteoporosis Centre. The participants discussed the possibility of a joint undertaking of the two companies in developing a network of osteoporosis clinics in Poland. The pharmaceutical company was interested in the placement of its drug for the treatment of osteoporosis on the Ministry’s list of refunded drugs. The parties discussed the organisational and financial details of the joint project as well as the issue of the pharmaceutical company’s difficulties in securing the placement of its drug on the list. Eventually, the joint project failed because the pharmaceutical company had not accepted the financial terms of the Polish company. A.F. and H.M.N., respectively the chief executive and finance director of the Polish branch of M.S.D. Inc. approached the press and informed the journalists that W.D. had demanded from their company a bribe in exchange for the placement of the company’s drug on the list. 25.  Two journalists, M. Solecka, who specialised in the public health issues, together with A. Stankiewicz became interested in the story. Before publishing the article, the journalists had spoken to A.F., H.M.N., B.O. and W.D. as well as high-ranking officials in the Ministry of Health in order to verify their information. A.F., the chief executive of the pharmaceutical company was considered by the journalists as a reliable source, especially as he had undertaken to confirm his story before the court if necessary. The court further noted that the version of events presented to the applicants by A.F. and H.M.N. had been consistent, while the version presented by W.D. had been varying and proved inaccurate upon verification. Faced with divergent accounts, the journalists decided to present two versions of the meetings between the parties. M. Solecka had observed for years irregularities in the process of placement of drugs on the list of refunded drugs and received anonymous information about them. 26.  The Regional Court considered that the testimonies of A.F., H.M.N. and Ł.Z. in respect of the course of the meetings were in principle similar. Witness Ł.Z. stated that the claimant (W.D.) had undertaken to check the list of refunded drugs and the chances of placing on it the drug manufactured by M.S.D. The parties had also discussed the need for the pharmaceutical company to make a quick decision about the transfer of money to an indicated bank account to which the finance director had firmly objected and thus M.S.D. pulled out of the joint project. 27.  The Regional Court found that part of the article contested by W.D. had corresponded to the version of events presented to the journalists by the directors of M.S.D. In view of the consistency of the directors’ account and the lack of coherent explanation as to the course of the meetings by W.D. and B.O. the journalists could consider the former as a reliable source. Moreover, the court expressed a view that the mere fact of W.D.’s participation in the business meeting between two companies, during which he had introduced himself as a Ministry official, had placed him in an ambiguous and awkward situation and lent credibility to the account of the directors of M.S.D. In these circumstances the Regional Court held that the impugned article had been based on reliable and verified information. The accounts of the representatives of the M.S.D. and of W.D. had been accurately reported. It was further no doubt that the article had dealt with issues of public interest, namely corruption. 28.  The court held that the article had infringed the personal rights of W.D. However, it found that the applicants’ conduct had not been unlawful within the meaning of Article 24 of the Civil Code read in conjunction with the relevant provisions of the 1984 Press Act because the journalists had shown sufficient diligence in gathering and publishing the information and acted in accordance with the professional ethics. It noted that the information that the applicants had had at their disposal before the publication of the article had been sufficiently reliable to justify the allegation made in the article. Lastly, the court noted that the journalist had not been required to prove the truthfulness of their allegations in order to demonstrate the lack of unlawfulness in their actions. 29.  W.D. appealed against the judgment and dropped his pecuniary claims. He argued that the journalists had largely based their conclusions on the version of events presented to them by A.F., and that the latter had deliberately sought to disparage him with a view to having the drug manufactured by M.S.D. Inc. placed on the list of refunded drugs. He further argued that A.F. had not in fact participated in the meeting at which the alleged offer of a bribe had been made, and thus his version of events could not be regarded as reliable. He further contended that while preparing the article the journalists had failed to question Ł.Z., who had served during the meeting as an interpreter of his conversations with H.M.N. He stressed that he spoke no English and H.M.N. did not speak or understand Polish, making any direct conversation between them impossible. 30.  By a judgment of 11 October 2006 the Warsaw Court of Appeal allowed the appeal. 31.  The Court of Appeal concurred with the lower court that W.D.’s personal rights had been infringed. It noted that the allegation levelled against the claimant that a high-ranking public official had demanded a bribe for securing a placement of the drug on the list of refunded drugs amounted to a criminal offence. The allegation that a person had committed or attempted to commit an offence amounted to a flagrant violation of one’s reputation. 32.  The Court of Appeal, leaving aside the question of the truthfulness of the allegation raised, concentrated its analysis on whether the journalists had respected the special diligence required of them under the Press Act in order to rebut the presumption of unlawfulness of the infringement of W.D.’s personal rights. It referred to the case-law of the Supreme Court (the Supreme Court’s judgments of 14 May 2003, case no. I CKN 463/01, and of 18 February 2005, case no. I CKN 463/01) which held that in order to rebut the said presumption of unlawfulness it was sufficient to establish that a journalist had acted with requisite diligence, and that it was not necessary to prove the truthfulness of the allegations raised. Contrary to the lower court, the Court of Appeal found that the journalists had failed to observe special diligence in the preparation of their article. 33.  It noted, first and foremost, that while preparing their article the applicants had failed to question Ł.Z., while the latter’s version of events had been crucial, given that W.D. and H.M.N. had relied on his interpretation to understand each other. The Court held that the journalists’ failure to acquaint themselves with Ł.Z.’s version of events – given that there had been only four participants at the meeting – amounted to a cardinal error and clearly demonstrated that they had failed to observe due diligence. The court further noted that the version of events presented by A.F., the company’s chief executive, to the journalists had been essentially based on summary information concerning the meetings, given to him by H.M.N. and Ł.Z., and thus might have been inaccurate due to possible translation mistakes. The journalists had not attempted to confirm whether the latter’s version of events had corresponded to the version of Ł.Z., but on the other hand they had spoken to persons (certain members of parliament) who had not had much in common with the issues raised in the article. 34.  The Court of Appeal observed that the reliability of A.F. was open to doubt. In this regard, it noted that the chief executive had clearly not wished that the journalists speak to Ł.Z. and that he had contacted the press only a few months after the impugned events had occurred. Furthermore, the list of refunded drugs for 2003 was only published in January of that year, while Ł.Z. had met the claimant in December 2002, on the instructions of A.F., to discuss the placement of the company’s drug on the list. The court noted that it could be concluded from that that if the company’s drug had been included on the Ministry’s list, then A.F. would not have disseminated the information which was the subject of the article. 35.  The Court of Appeal also held that the first-instance court had erroneously assessed the testimonies of certain witnesses and concluded that the information that the applicants had had at their disposal before publication was insufficient for making the allegations of corruption against W.D. It was confirmed that B.O. had met with the representatives of M.S.D. to discuss the project of the network of osteoporosis clinics. This project was at the early stage but it was agreed that the financial contribution of M.S.D. would be in the region of 1-1.5 million USD. The parties did not agree on the form of this contribution. M.S.D. envisaged it in the form of supplying equipment and premises but did not accept the proposal of the Polish company to make a transfer of the above amount to an account of some unspecified company. According to the Court of Appeal it was only A.F. who had linked the demand to make the above payment with the issue of the list of refunded drugs. Witness H.M.N. stated that “there had been no connection between the project concerning osteoporosis clinics and the placement of the drug on the list”, while Ł.Z. denied that there had been any correlation between the two issues. Ł.Z. asserted that neither the claimant nor anyone else had proposed to have the drug placed on the list in exchange for a bribe. Accordingly, the court found that the witnesses’ testimonies did not confirm the truthfulness of the allegations made by the journalists. 36.  In conclusion, the Court of Appeal held that the applicants’ conduct had been unlawful within the meaning of Article 24 of the Civil Code read in conjunction with the relevant provisions of the 1984 Press Act and infringed the claimant’s reputation and trust that was necessary in the exercise of his public duties. 37.  The applicants were ordered to publish an apology in their newspaper, which the Court of Appeal worded as follows:
“M.S. and A.S. [the first and second applicants], the authors of the article “Drugs for millions of dollars”, published in the newspaper “Rzeczpospolita” of 12 May 2003, as well as the publisher of this newspaper, Presspublica sp. z o.o., hereby declare that by including in the article the statement to the effect that W.D. had offered to place a drug on the Minister of Health’s list of refunded drugs in return for a multi-million bribe, they infringed W.D.’s personal rights by exposing him to a loss of good reputation and trust necessary to pursue his public and professional activity and for that they present their apology.” 38.  The applicants were also ordered to pay PLN 4,400 (1,100 euros (EUR)) in court fees and to reimburse the costs of PLN 6,230 (EUR 1,550) to W.D. 39.  The applicants lodged a cassation appeal against the judgment. They argued, inter alia, that their conduct had not been unlawful, as they had observed due diligence in gathering the material for their article and the information obtained from the persons that they had questioned before publication had been sufficiently reliable. Further, they submitted that it was their right and duty as journalists to publish an article about the issue of corruption and that they had acted in the public interest. 40.  By a judgment of 13 April 2007, the Supreme Court dismissed the cassation appeal, holding that the applicants’ conduct had in fact been unlawful. In doing so, the Supreme Court based its findings largely on the conclusions reached by the Warsaw Court of Appeal. It concurred with that court that the evidence in the case, in particular the testimonies of the witnesses, had not made it possible to establish that in the course of the negotiations concerning investment in osteoporosis clinics the claimant or anyone else had demanded a bribe with a view to securing the placement of the drug manufactured by the company on the list of refunded drugs. The Supreme Court’s judgment was served on the applicants on 20 June 2007. 41.  Following the publication of the article, on 22 May 2003 the Warsaw Appellate Prosecutor Office (Department for the Organised Crime) opened an investigation in the case concerning a bribe-taking by a government official. 42.  On 17 March 2004 the Warsaw Appellate Prosecutor charged W.D. with bribery in that W.D., as a public official, had demanded not less than 1.200.000 PLN from the pharmaceutical company in order to finance a network of osteoporosis clinics. The prosecutor alleged that W.D. jointly with the representative of the Mokotów Osteoporosis Centre had negotiated the project with the M.S.D. He had also participated in the registration in July 2002 of the limited liability company “Woman +50” which was subsequently intended to manage the network of clinics.
Secondly, W.D. was charged with procurement fraud. The prosecutor alleged that W.D., as a deputy Chairman of the Board of the Mazowiecki Health Insurance Fund and the chief executive of the company “Woman +50”, had submitted false documents to the Mazowiecki Health Insurance Fund in order to secure contracts for the company. The prosecutor imposed preventive measures on W.D., namely a ban on leaving the country and ordered him to put up bail of PLN 200,000. 43.  On 17 January 2007 the Warsaw Appellate Prosecutor discontinued the proceedings against W.D. in respect of the charge of bribery for lack of sufficient evidence that he had committed the impugned offence.


4.  The applicant was born in 1943 and lives in Tiszatenyő. 5.  It appears that in October or December 1991 the applicant brought an official liability action against the Jász-Nagykun-Szolnok County Regional Court. She sought damages which she allegedly incurred as a consequence of the 1991 actions of a court bailiff belonging to the subordinate Szolnok District Court, when the bailiff was executing some claims enforceable on the applicant’s property. 6.  On 24 November 1994 the Supreme Court appointed the Hajdú-Bihar County Regional Court to hear the case. On 2 December 1996 the applicant requested the court to give her case priority. 7.  In January 1997 the defendant submitted its observations in reply to the applicant’s claims. Hearings took place on 27 January and 10 March1997. On the latter date, the proceedings were suspended pending the adjudication of another case. That case was terminated on 13 October 1998. However, it appears that the applicant only notified the Regional Court of this fact, requesting the continuation of the proceedings, in October 1999. She repeatedly requested the resumption of the proceedings in January 2003. Simultaneously, she challenged the Regional Court for bias. On 4 June 2003 the Supreme Court ordered that the case be transferred to the Szabolcs-Szatmár-Bereg County Regional Court. 8.  This court held a hearing on 17 October 2003. On 22 October 2003 it dismissed the action. 9.  On appeal, on 19 February 2004 the Budapest Court of Appeal quashed this decision and remitted the case to the first-instance court. 10.  In the resumed proceedings, the Regional Court held a hearing on 28 June 2004. On 2 July 2004 it delivered a decision, which was partly upheld and partly quashed by the Court of Appeal on 25 November 2004. 11.  Concerning the claims still pending, the Regional Court held hearings on 28 February and 29 April 2005. Two experts were appointed who submitted their opinions on 21 June and 6 October 2005, respectively. 12.  On 26 October 2005 the Regional Court awarded the applicant some damages and dismissed the remainder of her claims. 13.  The applicant appealed to the Debrecen Court of Appeal in January 2006. The proceedings are still pending.


5.  The applicant was born in 1956 and lives in Sośnica. 6.  The applicant has been undergoing psychiatric treatment since the age of sixteen. He was hospitalised on several occasions in psychiatric hospitals in Lubliniec and Żurawica. 7.  The applicant lived in Nowy Lubliniec with his mother and handicapped sister. At the end of 2000 the applicant’s brother, who did not live with them, applied to the court submitting that the applicant had been aggressive, had been refusing to take his medication and had been abusing alcohol. 8.  On 22 December 2000 the applicant was partly deprived of his legal capacity by a court because of his mental disorder, as he had been diagnosed with schizophrenia. 9.  On 28 August 2001 the Lubaczów District Court appointed his brother, Mr Zbigniew Kędzior, as his guardian (kurator). Subsequently, the guardian applied to the court to have the order varied and to have the applicant declared totally incapacitated. 10.  In the course of the proceedings, on 22 December 2001, an expert psychiatric opinion was prepared which confirmed that the applicant was suffering from schizophrenia and that he had a tendency to abuse alcohol. 11.  On 27 December 2001 the Krosno Regional Court changed its previous decision and decided to declare the applicant totally incapacitated as his mental condition had deteriorated. The applicant’s brother remained his guardian (opiekun prawny). 12.  On an unspecified date the applicant’s guardian requested the Ruda Różaniecka Social Care Home (Dom Pomocy Społecznej) to admit the applicant. 13.  On 8 February 2002 the Lubaczów District Family Centre (Powiatowe Centrum Pomocy Rodzinie) decided to place the applicant in the social care home, as requested by his guardian. In terms of domestic law the admission was voluntary and did not require approval by a court. 14.  Between 31 October 2001 and 11 February 2002 the applicant was in a psychiatric hospital in Jaroslaw. 15.  On 11 February 2002 the applicant was admitted to the Ruda Różaniecka Social Care Home, where he remained for ten years. 16.  The applicant complained to the Lubaczów District Court that he had been placed in the care home against his will and without any medical necessity. On 12 April 2002 the president of the court informed him that the placement had been in accordance with the law. 17.  On 27 December 2004 the District Family Centre informed the applicant that his guardian was authorised to place him in the care home. 18.  On 9 February 2006 the Przemysl Regional Court rejected the applicant’s request for proceedings to be initiated to have his legal capacity fully restored. The court considered that the applicant, being legally incapacitated, did not have the authority to lodge such a request, and that his guardian did not support the request. 19.  On 23 February 2006 the president of the Lubaczów District Court explained to the applicant again that due to his total incapacitaty he had not been a party to the proceedings relating to his placement in the care home. 20.  On 17 March 2006 the president of the Przemysl Regional Court informed the applicant in a letter that there were no grounds to institute proceedings to restore the applicant’s legal capacity of the court’s own motion. 21.  On 5 June 2006 and 15 February 2007 the District Family Centre again replied to the applicant’s letters informing him that only his guardian could approve his release from the care home. 22.  On 21 September 2006 the Przemysl Regional Court again rejected a request by the applicant to have his legal capacity restored, given his lack of legal standing to initiate such proceedings. 23.  On 17 January 2007 the president of the Lubaczów District Court informed the applicant that any variation of his incapacitation order was governed by Article 559 of the Code of Civil Procedure (CCP). The president further clarified that proceedings to vary the incapacitation order could be instituted by a court of its own motion. In addition, the applicant himself, although lacking legal capacity, could apply to the court for such proceedings to be instituted. According to the president, the latter possibility was based on the interpretation of the law as provided in a commentary to the CCP. 24.  The applicant again asked the Przemyśl Regional Court to quash the legal incapacitation order. On 8 February 2007 the court rejected the request as inadmissible in law. 25.  On 1 March 2007 the president of the Przemysl Regional Court explained to the applicant, in a letter of response to the applicant’s query, that only his legal guardian could institute proceedings to have his legal incapacity revoked. Alternatively, the applicant could request the court to institute such proceedings of its own motion, but for that to succeed new medical evidence needed to be provided. 26.  On 11 May and 7 August 2007 the Przemysl Regional Court rejected further requests by the applicant for his legal capacity to be restored, on the ground that the applicant had no legal standing to institute such proceedings. 27.  On 17 September 2007 the same court rejected a further appeal by the applicant against the decision of 7 August 2007. The court noted that following the Constitutional Court’s judgment of 7 March 2007 the domestic law had been amended, and it was now possible for a person lacking legal capacity to institute proceedings to have the incapacitation order set aside. However, the amendments to the CCP had been introduced by the law of 9 May 2007, which would enter into force only on 7 October 2007. Thus, the applicant’s request had not been examined. 28.  On 13 July 2007 the Jarosław District Prosecutor informed the applicant that his complaints, in particular against Dr F., who had prepared an expert opinion in 2001 in the proceedings concerning his incapacitation, were manifestly ill-founded. 29.  On several occasions in 2008 the applicant attempted to institute proceedings to have his incapacitation quashed; however, all his requests were refused for failure to comply with various procedural requirements, including failure to pay court fees in the amount of 40 Polish zlotys (PLN, approx. 10 euros (EUR)). The applicant appealed against all the decisions and submitted new requests for the incapacitation order to be lifted. 30.  It appears that a later request was successful, as on 9 March 2009 the Przemysl Regional Court instituted proceedings to have the applicant’s legal capacity restored (file no. Ns 23/09). The court decided to have an expert opinion prepared and for the applicant to be heard by a judge in the presence of a psychologist and a psychiatrist. 31.  On 20 March 2009 a judge, with a panel of experts, heard the applicant during a twenty‑five‑minute‑long interview. 32.  On 7 April 2009 the experts submitted their opinion to the court on the basis of that interview with the applicant. The applicant submitted to the experts that he had been placed in the social care home against his will by his brother seven years previously. In the home he had been independent, had not been drinking alcohol and had been taking his medication. In the past four years he had been given long leaves of absence to visit his home, and had travelled alone. He would like to make his own decisions and to vote in elections and not to be obliged to ask his brother for everything. He also mentioned that if his capacity were restored he would prefer to stay in the social care home and to continue visiting his family home on leaves of absence. 33.  The experts concluded that the applicant was suffering from schizophrenia, although for several years he had not experienced psychotic symptoms or displayed aggressive behaviour. However, without a rigorous therapeutic regime the applicant’s state of health could worsen. According to the experts the applicant did not consider himself to be a person with a mental disorder, and showed a lack of critical judgment regarding his state of health and his actions. On the basis of the file and the interview with the applicant the experts concluded that his primary intention in applying for restoration of his legal capacity was to leave the social care home. In this context they noted that during the interview the applicant had spontaneously declared that he would prefer to stay in the social care home even if his capacity were restored. Nevertheless, judging from his consistent and extensive correspondence with the courts so far, the experts considered that his sole intention remained “to live freely in the family home and not in the social care institution”. The experts concluded that the applicant’s mental state had improved but not to the extent that would allow him to function independently. 34.  On 8 April 2009 the experts informed the court that they considered it unnecessary to notify the applicant of any court decisions or applications to court, given his state of health. 35.  On 9 April 2009 the Przemysl Regional Court decided to stop sending the applicant any notifications of court decisions and appointed a court officer as a guardian to represent his interests in legal proceedings. The applicant submitted that he had never met this guardian. 36.  On 9 April 2009 the Przemysl Regional Court dismissed a request by the applicant to have his legal capacity restored. The decision contains no reasons, as it appears that the applicant’s guardian had not asked for them. Nor did she lodge an appeal against the decision. 37.  On 16 January 2012, at the request of the applicant’s guardian, he was transferred to the Sośnica Social Care Home.


4.  The applicant was born in 1954 and lives in the Rivne Region. 5.  On 13 March 1996 the applicant instituted proceedings in the Sarny Court against a private company, Vysotskyy, for non-fulfilment of its contractual obligations, under which it should have provided the applicant with agricultural products. 6.  On 1 July 1997 the Sarny Court left the applicant’s complaint without consideration, holding that it fell within the jurisdiction of the commercial courts. 7.  On 28 July 1997 the Rivne Regional Court quashed that ruling and remitted the case for a fresh consideration. 8.  On 22 December 1997 the Sarny Court rejected the applicant’s claims as unsubstantiated. 9.  On 26 January 1998 the Rivne Court quashed that decision and remitted the case for a fresh consideration. 10.  On 19 May 1998 the Sarny Court found in part for the applicant. 11.  On 13 July 1998 the Rivne Court upheld that decision. 12.  On 23 December 1998 the Presidium of the Rivne Court, following an objection (протест) lodged by its President, quashed the decisions of the lower courts and remitted the case to the Sarny Court for a fresh consideration. 13.  On an unspecified date the Vysotskyy company lodged a counterclaim with that court seeking the annulment of the contract.
After December 1998 the case was reconsidered by the courts at three levels of jurisdiction on four occasions because the courts of first instance and appeal had committed factual and legal errors in their decisions. 14.  On 3 March 2003 the Dubrovytsya Town Court allowed the applicant’s claim in part and ordered the successor of the Vysotskyy company, Zlagoda, to transfer thirty-three tons of potatoes, worth 15,196 Ukrainian hryvnas (UAH)[1], and eight tons of wheat, worth UAH 2,598[2], to the applicant. It also ordered the applicant to return 3,855 kg of meat, worth UAH 11,133[3], to Zlagoda. 15.  On 27 June 2003 the Rivne Regional Court of Appeal upheld that judgment. On 4 February 2005 the Supreme Court rejected the applicant’s appeal in cassation. 16.  In the course of the proceedings twenty-seven hearings were adjourned, two of which were adjourned due to the applicant’s failure to attend and the remaining twenty-five due to the need to call witnesses or due to their or their respondent’s failure to attend. 17.  On an unspecified date the Bailiffs started enforcement proceedings in respect of the judgment of 3 March 2003. 18.  On 11 January 2007 the Rivne Court modified the procedure of enforcement, ordering the Zlagoda company to pay the applicant UAH 17,794[4] for the products due to him under the judgment of 3 March 2003. 19.  On 7 February 2007 the Dubrovytsya Court, following a request by the Zlagoda company to modify the procedure of enforcement of the judgment of 3 March 2003, ordered cross-cancellation of the debts under that judgment in the amount of UAH 11,133[5] and ruled that Zlagoda was to pay the applicant UAH 6,661[6]. The ruling of 7 February 2007 was not appealed against and became final. 20.  On 21 February 2007 the judgment of 3 March 2003 was enforced in full. 21.  In March 2007 the applicant instituted proceedings against the Zlagoda company, seeking compensation for the difference between the award paid and the in market prices of the products due to him under the judgment of 3 March 2003. 22.  On 5 June 2007 the Dubrovytsya Court rejected the applicant’s claims as unsubstantiated. 23.  On 18 July 2007 the Rivne Court quashed that decision and discontinued the proceedings in the case, holding that the issue had been settled by the final judgment of 3 March 2003. 24.  On 27 August 2008 the Supreme Court quashed the decision of 18 July 2007 and remitted the case for a fresh consideration to the Rivne Court, before which it is still pending.


6.  The first applicant was born in 1985 and lives in London. 7.  In the early hours of 2 April 2006 the first applicant was discovered sleeping in a flat in a sheltered accommodation complex. He was naked from the waist down and intoxicated. Blood tests subsequently showed that he had consumed alcohol and ecstasy the night before and that he was a regular cannabis user. The tests also showed a positive response for cocaine. 8.  Police and paramedic personnel were called to the scene. After investigation it was thought that the first applicant had gained entry to the flat through another flat in the complex. Upon entering the second flat, the police discovered its occupant, Mrs B, who was ninety-seven years of age, lying on the floor. She too was naked from the waist down. She was covered in faeces, she was upset and confused, and said she was in pain. She had a number of injuries and told the police she had been sexually assaulted in the night. 9.  The first applicant’s jacket, shoes, trousers and underpants were found in B’s flat. Faecal material, which was found to contain components of B’s DNA, was found on the applicant’s t-shirt. Pubic hair, visually similar to that of B, was found on the first applicant and elsewhere in the flat where he had been found. Swabs were taken from the first applicant’s penis but no DNA or blood was found. There was no semen found anywhere. 10.  When interviewed by police the following evening, the first applicant admitted to having been drinking and to having taken an ecstasy tablet. He denied having committed any offences and stated that he had no recollection of events. He was interviewed on a further four occasions and states that he co-operated with the police each time. 11.  The first applicant was charged with burglary, rape (by penile penetration), rape (by digital penetration), and sexual assault. The applicant’s trial began on 5 February 2007. The prosecution offered no evidence in respect of the burglary charge and a not guilty verdict was recorded. In respect of the remaining charges, it was not suggested by the defence that someone other than the first applicant had assaulted B, or that there had been no contact between them. Instead, the principal area of dispute was whether the first applicant’s actions had amounted to rape or, alternatively, sexual assault. The prosecution’s case was that they did. The applicant maintained that they did not. In giving evidence in his defence, the applicant repeated that he had no recollection of events on the night in question. 12.  The trial judge’s summing up to the jury contained the following direction:
“We all know this is a horrific, a disgusting episode. We all know that, and we all know – there has not been any argument about this, has there? – where moral responsibility lies but we are a court of law, we are not here to dish out admonitions for immoral conduct, disgusting behaviour. ... We are here to judge whether a crime has been committed, whether the criminal law of the land has been broken.
In order to do that you have to be objective. You have to stand back from the feelings of disgust and revulsion that come from the facts of this case and be objective. That last thing anyone would want is to compound an already awful event with another awful event, which would be a verdict based upon emotion and feelings of distaste and disgust rather than a verdict based upon a proper, logical, objective analysis of what has happened and that is what you are trusted to do.” 13.  On 14 February 2007 the jury acquitted the applicant of the three remaining charges. When the first applicant applied for his costs (which exceeded GBP 100,000 and had been met by his family) his counsel stated:
“This is a case in which [the first applicant] was inevitably going to be charged with a criminal offence, I do not doubt that for a moment, and the point I made to the jury was that had a different criminal offence been charged he may have had no alternative but to plead guilty, but costs have been expended on defending him on charges for which he has been found not guilty.
Bearing in mind everything Your Honour has said about his conduct that, in my submission, would not be a relevant consideration to the application that I make now because once he was interviewed by the police he did his best...to tell the truth as he understood it and remembered it to be so he did not do anything more at that stage to bring this prosecution upon himself, simply the conduct which ended him up where he was.” 14.  In refusing the application, the trial judge said:
“With regard to a defendant’s costs you [Counsel] are right, the costs should and almost invariably would follow the event. I cannot think of another case in my 35 years’ experience in the criminal courts in which it is more apparent that a defendant’s conduct, albeit that it had led to him being acquitted, but a defendant’s conduct has led to him being brought before the court and, given the nature of the circumstances and the consequences to the very vulnerable victim, the injuries that were seen upon her, where they were seen, the combination of facts, it is one of those cases where I feel it is right for the court to exceptionally say a defendant’s costs order will be refused. He [the applicant] will have an opportunity, I have not the least doubt, in the months and years ahead to make some recompense to his family who have stood so loyally by him. It is not an order that I lightly refuse but this is one of those exceptional cases where it seems to me to be justified.” 15.  The second applicant was born in 1949 and lives in Stourton, West Midlands. 16.  In 2005, the police began investigating the business affairs of a company where, it was alleged, there had been money laundering, theft and fraud. The second applicant is an accountant and the company had been one of her clients. In the course of their investigation the police came into possession of an audio tape, which recorded a conversation between the applicant and another person under investigation, A.R., in which the applicant was alleged to have provided advice on how to steal from the company. 17.  The second applicant was interviewed under caution on 1 June 2006. The tape was played to her and, on the advice of her solicitor at that time, she declined to reply to the questions put to her. It appears that, at this time, the police did not know the provenance of the tape or the date the conversation was recorded; the applicant maintains that, when interviewed, she was unable to remember the conversation or the date of it. 18.  On 11 July 2006, the second applicant was charged with an offence of perverting the course of justice and, in September 2006, with two co‑accused including A.R., she was charged with conspiring to steal from the company between 1 June 2000 and 31 October 2004. 19.  A defence statement was served by the applicant on 18 January 2007 in which she addressed the tape recording. She denied any discussion of impropriety, challenged the admissibility of the tape as evidence and stated that, if the prosecution established her voice was on the tape, any comments she had made in the conversation had been taken out of context. 20.  The second applicant maintained that, at the start of the trial, the prosecution offered to drop the charges against her and three co-defendants if A.R and another defendant, C.R., pleaded guilty to a significant proportion of the charges against them. She alleges that if this offer had been accepted her application for her costs would inevitably have been granted. The Government, in their observations to this Court, do not accept that such an offer was made or that, if it had been accepted, the second applicant’s application for her costs would inevitably have been granted. 21.  At trial the second applicant sought to have the tape excluded from evidence but the trial judge ruled that it was admissible. The second applicant then gave evidence in her own defence in which she explained that she had been able to calculate the date of the recording (1996) by reference to matters referred to in it. She also stated that, even if the tape was genuine and had not been edited as she alleged, the conversation was not in any way criminal or dishonest in purpose. 22.  In his closing speech, counsel for the prosecution argued that the jury could and should draw an adverse inference from the fact that the applicant had relied on many facts in her defence, none of which she had mentioned when she was interviewed. In his summing up, the trial judge told the jury that the second applicant had failed to mention something in her police interview that she now relied upon in court. He also indicated that if the jury concluded that the second applicant had genuinely and reasonably relied on legal advice they should not draw an adverse inference. 23.  On 11 July 2007 the second applicant was acquitted unanimously of the two counts facing her. Three defendants, including A.R. and C.R., were convicted of the majority of the charges against them. One defendant, M.R., was acquitted of all charges against him and another, S.R., was acquitted of all but one charge against her. M.R. and S.R. were legally aided but were granted defendant’s costs orders in respect of their own expenses. 24.  The second applicant applied immediately for a defendant’s costs order, pursuant to section 16(2) of the Prosecution of Offences Act 1985 (see relevant domestic law and practice below). The trial judge refused the application. He stated:
“The relevant features, in my judgment, in this case are these: that [the second applicant], acting very much on the advice of her then solicitor [name omitted], exercised her right to silence when answering ‘no comment’ in her police interview. I emphasise she cannot be criticised for that, and the advice was given in good faith and it was accepted in good faith by [her]. However, in my judgment it is a relevant consideration in deciding whether a defendant’s costs order should be made in this case. Her failure to answer questions, in my judgment, to some extent had the effect of bringing this prosecution on herself, allowing the police to believe that the case against her was stronger than it in fact has turned out to be. In particular, a cardinal plank of the prosecution case against her on the conspiracy count was a taped phone call between her and [A.R.] in which on the face of it she appeared to give advice to [A.R.] as to how to steal from the company. Her failure, in my judgment, of putting that phone call into its true context and true timescale clearly influenced the prosecution decision to bring charges against her, and it is for that reason, and that reason alone, that I have come to the conclusion that to that extent she brought this prosecution upon herself and in my judgment that is a proper reason for refusing a defendant’s costs order. In no way is that decision meant to indicate that she is in any way guilty of this offence, she is not, she has rightly been acquitted by this jury.” 25.  On 30 July 2007, the second applicant renewed her application in writing, relying inter alia on the fact the she had been unable to recall the conversation on the tape recording until the trial had started and that one of the reasons her solicitor had sought disclosure of the tape was to consider whether to propose to the police that they should re-interview her. The trial judge declined to hold an oral hearing on the renewed application and stated that he was unable to make the order for the reasons he had already given.


6.  The applicant was born in 1950 and lives in Sevastopol. 7.  The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 8.  At the time of the events the applicant’s only son, Mr Denys Mosendz (“D.M.”), was performing mandatory military service with the Ukrainian Internal Troops, military unit no. 3007. He had been in the army for several months. 9.  On the night of 24 April 1999 D.M. was on guard duty. At 4.30 a.m. on 25 April he reported by radio that everything was calm. At 5 a.m. the soldier who was supposed to take over guard duty discovered that D.M. was missing from his post. 10.  On 25 April 1999 the Military Prosecutor for Ternopil Garrison (“the MPTG”) opened criminal proceedings against D.M. on suspicion of desertion from the army, violation of the statutory rules of guard duty and illegal handling of weapons. 11.  On the same date, at around 6.30 p.m., D.M. was found dead, with gunshot wounds to his head, about six hundred metres from his post, near the concrete fence surrounding an abandoned factory (as documented in the on-site inspection report). The weapons entrusted to him for guard duty – an AK-74 assault rifle, its two magazines (with ten and seven cartridges respectively) and a bayonet – were found near the body. Three empty cartridges were found nearby on the ground. A criminal investigation was opened into the death. 12.  The officer leading the search group, R., stated throughout the investigation and the trial (see also paragraph 42 below) that he had personally discovered D.M.’s body leaning against the factory fence. However, one of the soldiers in that group, B., submitted at a later stage that the body had been found about forty metres from the fence and that the soldiers had been trying to provide first aid to D.M. According to B., they had carried the body and had placed it down near the fence, having realised that D.M. was dead. This discrepancy in the statements remained unaddressed by the investigation. 13.  On 27 April 1999 D.M. was buried in the village of Balamutivka in Khmelnytskyy Region, where the applicant’s brother lived. The body was delivered there in a closed coffin. The funeral took place in the applicant’s absence and without her knowledge. According to the applicant, the military unit had informed her that D.M. had deserted from the army and had taken down the addresses of her various relatives. While she was on her way to the garrison to find out what had happened, D.M. was buried. 14.  On 7 May 1999 a post-mortem examination of D.M.’s body was completed. It discovered one gunshot entry wound in the middle of his forehead and two exit wounds in the right and the left parts of the skull, between the parietal and occipital areas. The entry wound was surrounded by a collar of bruising, indicating that the gun had been pressed against D.M.’s forehead. Noting that there was only one entry wound and two exit wounds, the expert concluded that at least two shots had been fired in a single round. Haematomas around the eyes and near the nose, explained by internal bleeding following the gunshots, were also noted. The wounds had been inflicted when the victim was still alive. No alcohol or drugs were detected in the body. Given that no other injuries or traces of a struggle were discovered, the conclusion was reached that D.M. had committed suicide. 15.  On 12 May 1999 a post-mortem psychiatric evaluation concluded that D.M. had not suffered from any mental disorder. 16.  On 25 June 1999 the MPTG closed the investigation on the grounds that the death had been a suicide and there was no case to be answered. The criminal proceedings against D.M. were discontinued for the same reason. 17.  On 5 October 1999 the General Prosecutor’s Office (“the GPO”) quashed both decisions of 25 June 1999 on the grounds, firstly, that the charges against the deceased had been unlawful and unfounded and, secondly, that the investigation into his death had not been sufficiently thorough. 18.  On 23 November 1999 an additional on-site inspection revealed three holes in the concrete fence near which the body of D.M. had reportedly been found. 19.  On 1 December 1999 the MPTG again closed the investigation on the grounds that there was no indication of a crime having been committed. 20.  On 21 February 2000 the GPO quashed that decision on the grounds that the investigation had been superficial and incomplete. It remained unclear from the records of the witnesses’ questioning whether there had been any blood at the scene, how D.M.’s clothes had looked and whether there had been any signs of the body having been dragged to the place where it had been found. Neither was it clear who had found the empty cartridges, and where. 21.  On 21 March 2000 a forensic chemical examination of the holes in the concrete fence near which the body of D.M. had reportedly been found was completed. Its conclusion was that the holes had originated from gunshots. 22.  On 13 April 2000 the MPTG again closed the investigation, having found that there was no case to be answered. 23.  On 5 September 2000 the Military Court for Lviv Garrison quashed that decision as premature. It criticised the investigating authorities for having confined themselves to the finding that D.M. had committed suicide, without investigating the possible reasons for that act. 24.  At some point the case was transferred to the Military Prosecutor for Lviv Garrison (“the MPLG”). 25.  On 29 December 2000 the MPLG closed the criminal investigation, having found that nobody was to blame for D.M.’s suicide. 26.  The case file contains copies of extracts from the records of interviews conducted on unspecified dates, according to which officers V.K. and V.S. (the senior lieutenant and squadron commander respectively) denied bullying or ill-treatment of D.M. by anybody. V.K. explained that, had that been the case, the commanding officers would definitely have known about it, and that D.M. had been the kind of person who could “stand up for himself”. V.S., in turn, expressed confidence that he had been well-informed about the state of morale in the squadron and said that he had not been aware of any bullying of D.M. 27.  On 1 August 2001 the GPO quashed the decision of 29 December 2000, finding that the investigation had been incomplete. The GPO pointed out that, although fifty-five people were supposed to have been questioned, in the end only five had been questioned, and none of D.M.’s army friends had been among them. Furthermore, it was unclear why it had taken so long to find the body. Lastly, the reasons for the suicide remained unclear. 28.  In February 2002 one of the soldiers mentioned during his questioning, and two other soldiers confirmed this, that D.M. had had a dispute with two sergeants, K. and V., before taking up guard duty on the night of 24 April 1999. They explained that D.M. had been late for drills, for which he had been criticised by the squadron commander. Sergeants K. and V. had then taken D.M., together with a private, So., to a separate room in the guardhouse, where they had stayed for around twenty minutes. When D.M. had returned from the room, he had looked agitated and had kept his head down. No visible injuries had been noticed on him. 29.  On 5 April 2002 another soldier, O., was questioned. He submitted that some senior sergeants had been supervising newly arrived soldiers. He noted that the sergeants had sometimes beaten junior soldiers, but that “it had been rare and not without reason; generally, it had been a punishment for some minor errors”. O. further noted that the sergeants would sometimes make junior soldiers clean the toilets with toothbrushes. He specified that “almost every soldier had gone through this”. However, O. considered that there had been no bullying as such. 30.  On 7 February 2003 So. explained that the sergeants had criticised him and D.M. for insufficient knowledge of the Military Forces Statute. In the separate room, K. and V. had put a copy of the statute on the floor and had forced So. and D.M. to read it and to do push-ups at the same time. At some point D.M. had collapsed. Sergeant V. had ordered him to continue and, when D.M. had failed to do so, V. had kicked him and struck him on the back. When leaving the room, D.M. had said to So.: “I’ll settle with them yet” («Я їм ще зроблю»). In response to a question as to why So. had been withholding this information for so long, he explained that the issue had concerned his superiors in the army, who had asked him to keep silent. He had been scared of them taking revenge and had only given statements once his army service was over. 31.  Relying on the aforementioned soldiers’ statements, on 29 November 2003 the Lviv Garrison Military Prosecutor’s Office (“the LGMPO”) opened a criminal case in respect of sergeants K. and V. on suspicion of aggravated abuse of authority (Article 424 § 3 of the Criminal Code – see paragraph 57 below). 32.  On 12 October 2004 the LGMPO ordered the exhumation of D.M.’s body, after the investigator discovered certain discrepancies between the findings of the post-mortem examination report of 7 May 1999 and the photographs of the body in the case file. In particular, one of the wounds referred to in the report could not be identified on the photographs. 33.  On 19 November 2004 a forensic psychiatric panel issued a report following a repeated post-mortem psychiatric evaluation of D.M.’s emotional condition prior to his death, which had been undertaken in the light of the information concerning his bullying by sergeants V. and K. It noted that D.M. had not suffered from any mental illness and that his behaviour had not disclosed any emotional or motivational problems. D.M. had been a calm, even-tempered, goal-oriented and independent person. The general conclusion was, however, as follows:
“The actions of the deceased [D.M.] are explained by adaptive reactions (minor non-psychotic disorders entailing changes in the emotional sphere – mood changes), which had a significant impact on his behaviour.
Given his particular psychological make-up, [D.M.] might have committed suicide ..., because the unlawful actions by the sergeants [V. and K.] had triggered [an] acute affective disorder of the anxio-depressive type (adjustment disorder).” 34.  On 25 December 2004 the forensic medical examination of the exhumed body was completed. The panel’s report stated that the initial examination of 7 May 1999 had failed to record a second gunshot entry wound above the right eyebrow of the deceased and had incorrectly located the two exit wounds. Referring to the body’s position, the length of D.M.’s arms and the technical characteristics of the AK-74 assault rifle, the panel confirmed the finding of suicide. 35.  On 5 January 2005 sergeant K. confessed that on the night of 24 April 1999 he had ill-treated D.M. (as described in paragraphs 28 and 30 above). 36.  On 20 January 2005 the investigator refused to institute criminal proceedings against senior officers V.K. and V.S. (see also paragraph 26 above), having discerned no corpus delicti in their actions. It was concluded that they had not personally bullied D.M. and had not instructed anybody to do so. This ruling was not challenged. 37.  On 31 January 2005 the applicant was granted the status of aggrieved party in the criminal proceedings against sergeants V. and K. 38.  On 23 February 2005 the criminal case in respect of sergeant V. was severed into separate proceedings because he had gone into hiding. 39.  On the same date a ballistics test of the three holes in the concrete fence, near which the body of D.M. had reportedly been found, established that the holes had not originated from gunshots. 40.  On 13 October 2005 the Lviv Garrison Military Court delivered a judgment in which it found sergeant K. guilty of bullying his subordinate, D.M., which had led to serious consequences, namely D.M.’s suicide. It mainly relied on the post-mortem psychiatric evaluation report, as well as the forensic medical examination of the exhumed body (see paragraphs 33 and 34 above). The court sentenced K. to a term of five years’ imprisonment, but suspended the sentence and put him on probation for three years. He was also stripped of his military rank (sergeant major). K. admitted that he had deprived D.M. of his rest period and had forced him to do push-ups because D.M. had displayed poor knowledge of the Military Forces Statute. 41.  Among the materials examined by the court was a letter written by D.M. to a friend on an unspecified date, in which he had described his army life as quite normal and had encouraged his friend not to seek to evade military service. While D.M. had mentioned that there was some “didivshchyna”[1] in the army, he had considered that generally he had nothing to complain about. 42.  The judgment also referred, inter alia, to the on-site inspection report, according to which D.M.’s body had been found leaning against the factory fence, as well as to B.’s statements, according to which the body had been discovered about forty metres from that fence. It did not comment on this discrepancy. The court also mentioned, without commenting on it, the ballistics test which had established that the three holes in the fence in question had not originated from gunshots (see paragraph 39 above). 43.  The judgment of 13 October 2005 was not challenged on appeal and became final. 44.  However, the investigation continued in respect of sergeant V., without any more specific information being available regarding its progress. 45.  On 16 September 2009 the Lviv Garrison Military Court delivered another judgment in respect of the case against sergeant V. It found V. guilty as charged (bullying of his subordinate, D.M., having led to serious consequences, namely D.M.’s suicide). V. was, however, relieved from criminal liability as the charge had become time-barred (more than ten years had elapsed). The case file before the Court contains no further details on this trial or on any evidence revealed in its framework. 46.  On 4 May 2006 the applicant lodged a civil claim with the Kyiv Pecherskyy District Court (“the Pecherskyy Court”) against the Ministry of the Interior, seeking compensation for non-pecuniary damage. She alleged that it had failed to ensure law and order in its military forces, which had enabled the ill-treatment of her son and had led to his death. 47.  On 12 May 2006 the Pecherskyy Court refused to open proceedings on the grounds that the case fell to be examined within administrative rather than civil proceedings. 48.  The applicant lodged another claim with the Sevastopol Gagarinskyy Court (“the Gagarinskyy Court”), the court with jurisdiction over her place of residence. 49.  On 7 August 2006 the Gagarinskyy Court also refused to open proceedings. It noted that the civil case had emanated from the corresponding criminal proceedings, and invited the applicant to lodge a civil claim with the court in the jurisdiction where the tort was committed. 50.  On 12 October 2006 the Sevastopol Court of Appeal quashed the aforementioned ruling of 7 August 2006, finding that the claim lodged by the applicant had been administrative rather than civil and that she had correctly lodged it with the court having jurisdiction over her place of residence. The Court of Appeal also noted that the Gagarinskyy Court had incorrectly applied the rules of civil procedure. 51.  On 30 October 2006 the Gagarinskyy Court opened administrative proceedings concerning the applicant’s claim, having found that it fully complied with the requirements of the Code of Administrative Justice. 52.  On 9 December 2008 the Gagarinskyy Court allowed the applicant’s claim in part and awarded her 200,000 Ukrainian hryvnias (approximately 17,000 euros), to be paid by the Ministry of the Interior. Referring to sections 3(9) and 4(21) of the Regulations on the Ministry of the Interior of Ukraine of 9 October 1992 (see paragraph 56 below), the court concluded that the perpetration of the crime had been made possible by the Ministry of the Interior’s inactivity and its careless fulfilment of its duties. In particular, the failure to ensure law and order in the army had created the conditions for the abuse of power by army officials, which had led to the death of the applicant’s son. The court noted:
“... the defendant deliberately avoided ensuring legality in the activities of [its] servicemen. The defendant could not have been unaware that this obligation was not being implemented, given that such cases were numerous. Neither could the defendant have remained in ignorance of ... the potential of its failure to ensure law and order to trigger anti-social and dangerous actions. It was because of the failure of the Ministry of the Interior to ensure law and order [in the army] that [the applicant] lost her only child.” 53.  On 18 June 2009 the Sevastopol Administrative Court of Appeal quashed the decision of 9 December 2008 and terminated the proceedings on the grounds that the case fell to be examined within civil rather than administrative proceedings. 54.  On 18 October 2011 (that is, after the Government had submitted their observations on the admissibility and merits of the case – see paragraph 5 above) the Higher Administrative Court upheld that ruling.


4.  The applicant was born in 1956 and lives in İzmir. On 1 June 1994 he bought a house (no. 97, plot no. 632/26) in the Asansör neighbourhood attached to the Konak District in İzmir. According to the title deed records, he paid 30,000,000 Turkish liras (approximately 986 US dollars at the time). 5.  Following a major rockslide, on 17 July 1962 the Council of Ministers declared the Asansör neighbourhood a natural disaster area. To identify those who had been affected by the natural disaster, a regulation was published in the Official Gazette on 28 August 1968. According to the terms of this regulation, the victims of the natural disaster were given an opportunity to apply to the authorities within a specified time-limit to claim re-housing. At that time, 46 of the 86 families that had been living in the disaster area applied to the administrative authorities and they were provided with new houses in the Esentepe neighbourhood. The houses of these families were subsequently demolished. The owner of house number 97, plot no. 632/26, which was subsequently bought by the applicant in 1994, did not apply to the authorities to claim re-housing. 6.  On 28 April 1971 the owner of plot no. 632/26 at the time received an eviction order from the İzmir Governor's office. 7.  On 26 March 1981, at the request of the Ministry of Public Works and Settlement, land registry records were amended to indicate that no construction was permitted in the Asansör neighbourhood. 8.  Between 1982 and 1995 several on-site inspections were conducted and many experts' reports were prepared. All of these reports indicated that the neighbourhood was under an imminent danger of rockslide and prevention measures had to be taken by the owners of the houses and the municipality. It appears from the documents that no preventive measures were taken. 9.  As stated above (paragraph 4), on 1 June 1994 the applicant bought the house (no. 97) situated on plot no. 632/26. The applicant never lived in this house, and it was vacant in January 1995. According to the documents submitted by the Government, the house was in ruins and it had no historical or architectural value. 10.  On 7 January 1995 following a heavy rain, rocks fell on house no. 113. On 11 January 1995 the authorities conducted an on-site inspection and prepared a report. The report concluded that eleven houses located in the Asansör neighbourhood, including the one owned by the applicant, required demolition to prevent loss of life. As a result, at the request of the Directorate of Public Works and Settlement, the İzmir Governor's office ordered that the applicant's house be demolished pursuant to Article 13 of Law No. 7269 regarding Natural Disasters. On 12 January 1995 the house was demolished without prior notification to the applicant. 11.  On 26 April 1995 the applicant filed an action before the İzmir Administrative Court against the İzmir Governor's office. He requested compensation for the unlawful demolition of his house. 12.  On 12 December 1996 the İzmir Administrative Court dismissed the applicant's case. The court explained its decision by pointing out that the applicant's house had been situated in a neighbourhood that had been declared a natural disaster area by the Council of Ministers on 17 July 1962 following a major rockslide. The court further took note of the fact that on 28 April 1971 the İzmir Governor's Office had sent an eviction order to the previous owner of the applicant's house. In the court's opinion, as the title-deed records of the building stated that no construction was permitted in the Asansör neighbourhood, the applicant should have been aware of this situation when he had bought the house. As a result, it concluded that by demolishing the vacant house, that had no historical or architectural value, and which posed an immediate threat to public safety, the administration had acted in accordance with the law. The court accordingly refused the applicant's request for compensation. 13.  The applicant appealed. On 26 May 1998 the Supreme Administrative Court upheld the judgment of the İzmir Administrative Court, finding that the applicant's grounds of appeal were unfounded. The Supreme Administrative Court held that the Izmir Governor's Office had delivered the demolition order because there was an urgent need to take action to prevent loss of life in the neighbourhood. 14.  On 16 June 1999 the Supreme Administrative Court dismissed the applicant's request for rectification. This decision was served on the applicant on 27 July 1999.