CASE OF COUDERC AND HACHETTE FILIPACCHI ASSOCIÉS v. FRANCE

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Damage - claim dismissed (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ann Power-Forde;Branko Lubarda;Dean Spielmann;Erik Møse;Helen Keller;Helena Jäderblom;Johannes Silvis;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano

The applicants are the publication director and the publishing company , respectively , of the DATE magazine ORG . PERSON ORG was born in DATE and lives in PERSON . The company LOC has its registered office in PERSON .

On DATE the NORP newspaper ORG published an article headlined “ Is this boy the heir to GPE ? ” , describing the disclosures by a woman , PERSON , who claimed that her son ’s father was PERSON , who had become reigning prince of GPE ( hereafter , “ the Prince ” ) following the death of his father on DATE . The article mentioned a forthcoming publication in ORG , and set out its core elements . It was accompanied by CARDINAL photographs , CARDINAL of which showed the Prince holding the child in his arms and was captioned “ His successor to the throne ? PERSON with PERSON .

On DATE , having been informed that an article was about to appear in ORG , PERSON served notice on the applicants to refrain from publishing it .

On DATE the NORP DATE magazine PERSON published the interview with PERSON . The front cover of the magazine was headlined “ PERSON ” ( “ PERSON is the father of my child ” ) . It was illustrated by CARDINAL photographs of the Prince : in CARDINAL of them he was pictured alongside Ms Coste , and in the other he held the child in his arms .

On DATE various Internet sites relayed the news . In GPE , information from the forthcoming ORG article was included in an article on the RTL radio station ’s Internet site entitled “ Le prince PERSON , silence au PERSON ” ( “ Prince PERSON alleged to have a son , no comment from GPE ” ) . For its part , the ORG channel published an article headlined “ PERSON : la rumeur d’un fils ” ( “ PERSON : rumours about a son ” ) on its Internet site . The news also appeared on the Internet site of the PERSON ( French ORG ) , as follows : “ L’enfant caché du prince PERSON : selon certains journaux britanniques et allemands , PERSON le papa d’un petit garçon de CARDINAL mois ” ( “ Prince PERSON of GPE ’s secret son : according to certain NORP and NORP newspapers , PERSON of GPE is the father of a DATE boy ” ) .

On DATE , in spite of the Prince ’s notice to refrain , the DATE magazine ORG published an article in its edition no . CARDINAL , presented on the magazine ’s cover under the headline “ PERSON of GPE : PERSON , the secret child ” ( “ PERSON : PERSON , l’enfant secret ” ) , illustrated by a small photograph showing the Prince with the child in his arms . The article , published on pages CARDINAL of the magazine , consisted of an interview with PERSON , who replied to questions put by a journalist and stated that the father of her son PERSON , born on DATE , was the Prince . In particular , the interview described the circumstances in which PERSON had met the Prince , their intimate relationship , their feelings , and the manner in which the Prince had reacted to the news of ORG pregnancy and had behaved towards the child at his birth and subsequently .

The relevant passages of this interview follow :

“ ORG : When did you meet PERSON of GPE ?

PERSON : DATE , on a GPE to GPE flight ... Before landing he asked for my telephone number . DATE I had a message on my mobile ...

... He wanted to invite me to GPE ... I went there the following weekend ... We spent a very tender night next to each other , it was very romantic ! After DATE he called me to say that he had had a very pleasant time and that he wanted to see me again .

As DATE went by , I fell very much in love . I spent DATE in GPE . He took me everywhere with him when he did n’t have official duties ...

I had the impression that something was happening . He did n’t speak about his feelings , but I heard his heart beating . There are signs that ca n’t be mistaken when you ’re in someone ’s arms ... He did n’t say anything to me and I did n’t ask him anything . But he had tender looks and gestures towards me , even in public , and even in front of other young women . I think that he appreciated my affection . He told his friends that I was very very loving , and that he liked my maternal side . For my part , I found him touching .

TIME Did you meet up often ?

GPE For DATE I went to GPE DATE ... Sometimes he took me along to official events , such as ORG or tennis tournaments ...

TIME Did you ever meet his father , Prince PERSON ?

GPE Yes . At a dinner with CARDINAL guests ; PERSON told me that we could n’t go along together , since his father [ would be ] there . In TIME , he indirectly made me his loveliest declaration of love , by saying to a friend in front of everyone ‘ Take good care of PERSON . I am very fond of her.’ And he kissed me ...

TIME What did he tell you about his talk with his father ?

GPE We spoke about it DATE . I found him strange . I became worried . ‘ I ’ve been thinking’ , he said . ‘ I believe it ’s better if we stay friends.’

TIME How did you react ?

GPE ... I was crying . I telephoned him to find out if it was really over . ‘ If you were in my situation , what would you do?’ He answered ‘ I would wait . Not for long , but I would wait ... ” ...

TIME One has the feeling that PERSON ’s discussion with his father was a turning point in your relationship .

GPE It ’s true , the relationship deteriorated after that . At the same time , however , he seemed to be afraid of taking a decision ; he hesitated , taking CARDINAL step forward and CARDINAL steps back ...

... PERSON is not someone who expresses his feelings or who argues . He has a good sense of humour . I had the impression that he still had feelings . We saw each other with more or less the same frequency , but for less time , one day instead of CARDINAL . I had the impression that he was afraid of becoming too attached . In DATE I wanted us to celebrate my ... birthday together . He suggested that I come to GPE ... we went [ out ] for a drink . There were lots of young women coming up to him , and I let him know that I was n’t happy about that . On returning to the flat , we became lovers again , something that I did n’t want that night . TIME had annoyed me .

TIME Was it then that you became pregnant ?

GPE Yes . Neither he nor I had planned it . I was taking precautions ... When I saw PERSON on DATE I had sore breasts . I said to him ‘ If I ’m pregnant , what are we going to do?’ He replied ‘ If you ’re pregnant , you must keep it’ . He said it from the heart . He immediately began thinking of PERSON names , and I was coming up with ORG names , since I already had CARDINAL boys . He said ‘ I ’m trying to think of PERSON names – that ’s all you know how to make ! ” ...

Shortly afterwards , I had a positive pregnancy test ... I wanted him to take a decision very quickly ... I was well aware of what a child represented for PERSON , given his position . In my opinion , it was for him to decide ... He said to me ‘ Keep it . I ’ll look after things . You wo n’t lack for anything . I do n’t promise to marry you , but keep him and do n’t worry : I ’ll bring him into the family little by little . I ’d like us to keep the news to ourselves for the moment . The only person I must tell is my adviser and childhood friend , whom you know well.’

TIME Did he contact you for news during your pregnancy ?

GPE From time to time . He spoke to me very kindly . Then DATE he came to see me in GPE with his adviser ... I was three months’ pregnant . He seemed to have changed his mind , but as far as I was concerned it was too late . The adviser said to me ‘ Do you realise that if it ’s a boy , they ’ll use that to prevent PERSON acceding to the throne , and the child will be able to claim the throne’ . I was surprised that he was going into things that were only details for me . I was n’t even thinking about these questions ... it is clear to me that a child born outside marriage can not accede to the throne .

TIME What happened next ?

GPE I learned that I was expecting a boy . I was very worried ... I asked him if it would make things difficult if it was a boy ... “ No , no more than if it were a girl . ” He put his hand on my stomach and we discussed names again ...

When I was CARDINAL - and - a - half months’ pregnant , I called him . He did n’t behave the way he usually did with me , I understood that something had happened and that he wanted to end the relationship . He said “ I ’ve thought it through . I ’ve asked for advice . The child is impossible ” .

I went to see a lawyer , who alerted PERSON ’s lawyer . PERSON called me immediately , and was very annoyed : ‘ You ’ve trapped me ... PERSON He spoke to me as though he had been brain - washed . I was eight months’ pregnant , and had become pregnant DATE after our first meeting . I would have had multiple opportunities to become pregnant .

TIME How was the birth ?

GPE DATE is not my happiest memory . I was very alone . On DATE I left hospital , I was visited by a NORP laboratory , approved by ORG , for a DNA swab from my son . That was organised by his adviser .

My CARDINAL older children still did n’t know who their little brother ’s father was ... PERSON was sleeping in my bedroom , in a crib ... He suffered from asthma and was hospitalised for DATE ... I had to deal with this alone , with no one to confide in .

TIME When did he see PERSON for the first time ?

GPE DATE after his birth ... the most important thing for me was that PERSON be recognised . It was out of the question that my child would not have a father . That is how I explained it to them . For me , non - recognition would have been the only basis for taking things to court . It was up to PERSON to organise things so that this little baby had a more or less normal life , even if , at the very beginning , it had been necessary to hide him . But I did n’t want him to grow up like PERSON , for example . I thought only about that , and not for a second about the fact that he represented a potential heir . Meanwhile , PERSON was paying me a sum DATE that I still receive .

TIME What happened subsequently ?

GPE As I did n’t really trust my lawyer any longer , I contacted another one , to whom I explained that the only thing that counted was that PERSON recognise his son . In my opinion , non - recognition of a child amounts to denying him his roots ...

TIME Did PERSON realise how important it was for you that he recognise this child ?

GPE Ultimately , yes , to my great joy : on DATE he arranged to meet me at a notary ’s office , with his adviser ...

TIME What happened during the meeting at the notary ’s office ?

PERSON signed the deed of recognition . He did it out of respect for me , while giving instructions that this deed was not to be transcribed in the official register until after his father ’s death .

TIME Do you have a copy of this deed of recognition ?

GPE I was n’t given any papers , I only have the registration number of the deed . I asked the notary several times for a certificate stating that he had a document concerning my son . I was told “ Later . ” After PERSON ’s funeral I contacted the notary again , asking that PERSON ’s undertaking be upheld , and that the official recognition of our son ’s paternity be entered in the register of births and deaths . Again , the notary told me that it could wait ... I again asked for a copy of the deed . He refused ...

TIME What about your flat ? Did you finally move ?

GPE ... I found a house in DATE , and work is currently being carried out on it .

TIME To whom does it belong ?

GPE To a property investment company ( an ORG . PERCENT of the shares are in PERSON ’s name ...

TIME What contacts have you had with PERSON since seeing him at the notary ’s office to sign the deed recognising your son ?

GPE I wanted him to see his son regularly , and also to call for news of him . He has done that ... During CARDINAL of his visits , I said ‘ Just because we ’ve had a child , that does n’t mean that everything has to end between us’ . He replied ‘ For the moment , I prefer that we end things , because if we continue we ’ll end up with a second child!’

TIME Why have you decided to speak out ?

GPE I ’ve already given you some reasons . I want PERSON to grow up normally , with a father . I want the lies to stop . For my part , I ’m fed up with lying , hiding and passing for the mistress of his friends . On account of this silence , I no longer have an identity and I live almost like an outlaw . I ’m afraid for my son ’s psychological health . I should like to have him baptised as soon as possible , with a correctly drawn - up birth certificate . In addition , I understand that there are rumours going around about this child , and I want the truth to be re - established , so that his CARDINAL older brothers have a dignified image of their mother .

This interview was illustrated by CARDINAL photographs of the Prince with the child and CARDINAL of the Prince with PERSON . In particular , a double - page spread ( pages CARDINAL and CARDINAL ) consisted in a photograph of the Prince holding the child in his arms , headlined “ PERSON ‘ is PERSON ’s son’ says his mother ” , followed by this text :

“ A little boy who knows how to say CARDINAL words : daddy and mummy . A little boy who does not seem troubled by the huge gulf between the CARDINAL cultures from which he comes . His name is PERSON , a conqueror ’s name , an emperor ’s name . He was born in GPE on DATE . His mother asks that he does not grow up clandestinely , ‘ like ORG . For that reason , she is now disclosing his existence , which poses no threat to any republic or DATE . Because in GPE , the country of his maternal family , all children , whether or not they are born to lawfully married couples , are entitled to an official father . For the moment , the little boy with black curls is n’t interested in knowing whether he is a prince or not . His mother just has to lean towards him and he is happy . There ’s already a king in the house ... him . ”

The photograph was also accompanied by the following captions :

“ The CARDINAL-year - old new sovereign of GPE had not been known to have any long - term relationship . DATE PERSON , an air hostess whom he met DATE , claims that they have had a son . ”

“ He ’s never been seen smiling like this before : PERSON succumbs to PERSON ’s charm . ”

CARDINAL photographs of the Prince holding the child in his arms were published on pages CARDINAL , DATE , DATE and DATE , and were also accompanied by captions and/or sub - headings . In particular , the caption on page CARDINAL reads “ Gentleness , tenderness and patience , key words for a prince who loves children ” , and on page CARDINAL , “ The Prince has always had a soft spot for children ” and “ PERSON , President of ORG , wearing an Olympics shirt , with PERSON in his arms ” . The following sub - heading appeared on pages CARDINAL and CARDINAL : “ PERSON at DATE . He is already trying to stand up . This is CARDINAL of his very first meetings with PERSON . He sleeps in his mother ’s bedroom . PERSON and her CARDINAL sons have already moved into a flat in DATE arrondissement of GPE . ”

Lastly , CARDINAL photographs of the Prince with PERSON were published on pages DATE and DATE . The photograph on page CARDINAL was captioned as follows :

“ They met on a GPE to GPE flight , PERSON was an air hostess . She had left PERSON , in GPE , DATE previously , aged DATE . ‘ In my country , a father would have obliged his son to recognise his child’ . ”

The photographs on page CARDINAL were sub - titled as follows :

“ PERSON also attended official events . In DATE she was on the Prince ’s right as he received the singer PERSON at FAC . In DATE ( left ) she can be seen in the Royal box at the Grand Prix . ”

On DATE PERSON issued a statement indicating that she had agreed to give an interview to ORG , for publication in the edition of CARDINAL DATE , had carefully reread its wording , and had herself handed over the photographs showing the Prince with PERSON . She specified that she had taken those photograph , and that she had taken them with the Prince ’s full consent . She issued a further statement indicating that she had handed these photographs over to the media for publication without charge . She added that her son had been recognised before a notary , that the notarial deed had been signed on DATE and that it had been agreed on that date that the deed would be sent to the district hall of DATE arrondissement of GPE immediately after Prince PERSON ’s death . She stated that she had attempted , by all amicable means , to find a compromise with the PERSON ’s lawyer , and that it was the fact that the Prince had failed to honour his undertaking which had induced her to bring the matter to the public ’s attention . With regard to the media , she stated : “ they have merely helped my son and myself to have PERSON officially recognised ” .

On DATE , considering that the publication of the article in ORG interfered with his rights to private life and to protection of his own image , the Prince brought fixed - date proceedings against the applicants , on the basis of LAW of LAW , seeking damages from the publishing company and an order that it publish the court ’s ruling on the front cover of the magazine , and requested that the court ’s decision be immediately enforceable .

On DATE the Nanterre Tribunal de Grande Instance ( the “ FAC ” ) ordered the company PERSON to pay the Prince CARDINAL,CARDINAL euros ( ORG ) in non - pecuniary damages . It also ordered that details of the judgment be printed on the magazine ’s entire front cover , at the publishing company ’s expense and on pain of a DATE fine , under the headline “ Court order against ORG at the request of PERSON of GPE ” . The judgment was immediately enforceable .

The TGI noted , in particular , that from the front page onwards , the magazine had disclosed the Prince ’s paternity outside marriage , under the headline “ PERSON of GPE : PERSON , the secret child ” , accompanied by a photograph showing him holding the child . It also noted that the article dealt with the issue of the Prince having fathered the child over CARDINAL pages inside the magazine , by means of an interview in which the questions led Ms Coste to discuss her relationship with the Prince , the couple ’s feelings , the Prince ’s private life and reactions and the child ’s recognition before a notary . It emphasised that the magazine had deliberately chosen numerous photographs , taken in the context of the intimacy of the protagonists’ private life , to illustrate and lend support to the disclosure , and that these photographs were accompanied by the magazine ’s own captions , which also referred to the Prince ’s love life and the circumstances in which he met the interviewee , analysing his conduct and his reactions to the young woman and the child , and speculating as to his feelings with regard to this secret child .

The TGI held that the entire article , including the accompanying photographs , fell within the most intimate sphere of love and family life and that it did not concern any debate of general interest . It added :

“ ... the claimant ’s accession to the throne of the Principality of GPE did not deprive him of the right to respect for his private life , nor of his right to protection of his own image in the face of mere rumours concerning the civil status of a child , which could not in any event serve as a legitimate pretext for providing information to a prying and curious public about the lives of public figures , their feelings and their private conduct , with a view to media coverage in the columns of a newspaper which can not in all seriousness claim to take the place of the courtroom , which is where the rights of children are legally defended , without prejudice to those of women ;

The disputed article , which treats rumours in a sensational manner , both in its wording and through the accompanying pictures - which are completely irrelevant in that they contribute to the impugned interference with private life - amounts to a serious and wilful breach of the claimant ’s fundamental personality rights , the latter having specifically served notice by extra - judicial process on the publishing company to respect those rights on DATE ... ”

The applicants appealed against that judgment .

In a press release of DATE the Prince publicly acknowledged that he was the father of PERSON .

On DATE ORG suspended the immediate enforcement of the DATE ’s judgment with regard to the order to publish the court ’s judgment .

On DATE ORG gave judgment . It noted that , through the interview with PERSON , the impugned article focused on disclosing the birth of the child , who was presented as having been born from the intimate relationship between the interviewee and the Prince from DATE onwards . It also noted that although the latter might already have made a statement recognising the child in a notary ’s office – that is , in deliberately chosen conditions of confidentiality – by the time that the article was published , this statement had not given rise to a note in the margin of the child ’s birth certificate , with the result that his birth and his father ’s identity remained unknown to the public .

ORG also stated that a person ’s affections , love life or family life and issues of paternity and maternity came within the sphere of private life and were protected by LAW and LAW , and that those provisions made no distinction between anonymous persons and public figures , whatever their civil , political or religious functions . It noted , however , that this principle allowed for an exception whenever the facts disclosed could give rise to a debate on account of their potential impact or consequences given the status or function of the persons concerned , in which case the duty to provide information took precedence over respect for private life .

It reasoned as follows :

“ Given that the fact of PERSON fatherhood had never been publicly recognised , that LAW makes it impossible for a child born out of wedlock to accede to the throne and that PERSON had not consented to the disclosure of his possible paternity of ORG child , since on DATE he had indicated to ORG PERSON his opposition to the publication of those facts , it follows that PERSON deliberately breached the provisions of LAW and of LAW , without being able to justify this offence on the inexistent requirements of current - affairs reporting , the legitimacy of the information or its readers’ right to information , which did not include PERSON secret paternity , even if he had become the reigning Prince of the Principality on his father ’s death in DATE ;

This interference in his private sphere , in that the article did not merely disclose the existence of a “ secret ” child but also contained numerous digressions derived from ORG confessions concerning the circumstances of their meeting , the respondent ’s feelings , his most intimate reactions in response to the news of ORG pregnancy and his attitude towards the child during private encounters in her flat , could not be justified by the concomitant publication of these facts in the magazine PERSON , or by the media impact caused by the content of the article , or by the fact that other publications had subsequently repeated these reports ( which had become common knowledge through the fault of the publishing company ) , or by the alleged legitimacy of such a disclosure , given that the child had no official status which would have rendered his birth and the disclosure of the father ’s identity a subject which the media and specifically the company ORG , were required as part of their duty to provide information , to bring to the public ’s attention , or by the fact that PERSON , faced DATE against his will – with the media impact of the disclosure of information about his private life that he had intended to keep secret if not confidential , has been obliged to provide a public explanation , or by the tone of the article , which , as LOC irrelevantly specifies , was intended to show the respondent in a particularly positive light ;

Although the photographs showing the child with the respondent which accompany the article were taken by PERSON with PERSON consent , and although PERSON , the only person having parental responsibility for the child , handed them over to ORG for publication , it remains the case that PERSON did not consent to their being published in support of an article which constitutes an invasion of his privacy , with the result that their publication is wrongful ... ”

ORG concluded that the publication in question had caused the Prince irreversible damage in that the fact of his paternity , which he had wished to keep secret and which had remained so from the child ’s birth until publication of the impugned article , had suddenly , and against his will , become public knowledge . It considered that the non - pecuniary damage thus caused justified an order for publication of the court ruling as supplementary compensation , and that , in view of the nature of the breach and the seriousness of its consequences , such a measure was not conditions of publication of the court ruling , which was no longer to appear under a headline and was to take up CARDINAL of the front cover . Thus , ORG ordered that the lower third of the front cover of the first issue of ORG to be published in DATE following service of the judgment was to display a white box containing the following text , printed in red letters , failing which the applicant company would be fined ORG CARDINAL per issue after expiry of that deadline :

“ By a judgment of ORG upholding the judgment delivered by ORG , the company PERSON has been held liable for infringing the privacy and the right to his own image of PERSON of GPE in issue no . CARDINAL of the ORG newspaper , dated CARDINAL DATE , in an article entitled ‘ PERSON of GPE : PERSON . The secret child’ . ”

This statement was published on the front cover of edition no . CARDINAL of the magazine , dated DATE , under a photograph of the Prince . The cover bore the headline “ PERSON of GPE . The truth has been punished ” , which was accompanied by the following commentary :

“ ORG disclosed the existence of his son , PERSON . The courts have punished freedom to impart information . We have received support from the international press in reaction to this . ”

In addition , the applicants lodged an appeal on points of law against ORG judgment . In their grounds of appeal , they developed the following arguments : the disclosure of a ruling sovereign prince ’s paternity was a news event relating to public life , given the functions held by the individual in question and the hereditary nature of the transmission of power in LOC ; divulgation of this information was necessary in order to inform the public ; the publication of observations and digressions alongside the announcement of a news event such as the fact of a sovereign prince ’s fatherhood was lawful , provided that these were innocuous and merely served to put the information into perspective ; and the publication of photographs taken within the family , illustrating the news event described in the article , was not such as to interfere with respect for privacy and private life .

Relying on LAW and citing the ORG ’s case - law , the applicants also argued that the public had the right to be informed , and that this right extended to information concerning the private life of certain public figures . They considered , in particular , that the ORG ’s decision in the case of PERSON v. GPE ( no . CARDINAL , § § CARDINAL and CARDINAL , ORG CARDINALVI ) would have been the reverse had the relevant member of the royal family been , as in the present case , the Prince himself , Head of the ORG of GPE . In support of this argument , they cited the case of ORG v. GPE ( no . CARDINAL , DATE ) , which , they submitted , showed that the fact of being a politician brought an individual exercising that role into the sphere of public life , with the attendant consequences . They further argued that ORG also recognised the public ’s right to information , including with regard to facts concerning private life , even where the individual concerned held no public office . Lastly , they submitted that the primacy of the right to inform and the right to be informed had been established in similar circumstances , even where a person ’s right to their own image was in issue .

The applicants argued , in particular , that in a hereditary monarchy the PERSON ’s lack of known issue was already a matter of discussion , and that the existence of a child was such as to contribute to that discussion . They also submitted that the child was a potential heir to the Monegasque throne , since his father could legitimise him at any time . They considered that , even if improbable , this scenario remained legally possible , and could therefore become the subject of a general debate regarding the future of the Monegasque monarchy , and that , in addition , the fact that the child was of NORP origin could contribute to a debate of general interest which had the potential to change the image of a particularly conservative principality .

The applicants also pleaded the very strong ties which , they alleged , bound the Principality of GPE to GPE . They further submitted that the worldwide impact of the contested material , including in the most serious and most prestigious newspapers , proved that the information disclosed by ORG was such as to contribute to a debate of general interest , and that this was not simply an article written to provide entertainment .

They further argued that the photographs accompanying the article , showing the Prince with the child or with PERSON , illustrated a news event , and that they entailed no breach of respect for human dignity , since the Prince was presented in a positive light . They asserted that these photographs had not been taken without the Prince ’s knowledge , but by Ms GPE herself , and specified that she had handed them over to ORG for publication , voluntarily and without charge .

Lastly , they emphasised that the magazine PERSON had published an almost identical article in GPE on DATE , prior to publication of the impugned article , and that the NORP courts had dismissed the PERSON ’s action against that newspaper .

By a judgment of CARDINAL DATE , ORG dismissed the appeal on points of law on , inter alia , the following grounds :

“ ... every person , whatever his rank , birth , fortune or present or future functions , is entitled to respect for his private life ; ... the judgment notes firstly that , on the date on which the article was published , the child ’s existence and his descent were unknown to the public , and secondly that the ORG ’s LAW rules out the possibility of his accession to the throne , since he was born out of wedlock , a situation that , moreover , the company ’s pleadings did not claim to be a subject of debate in LANGUAGE or Monegasque society or of examination in the impugned publication , and , lastly , [ that ] the article contained multiple digressions on the circumstances in which PERSON and PERSON met and about their relationship , the Prince ’s reactions to the news of the pregnancy and his subsequent attitude towards the child ; ... in the light of these findings and considerations , ORG correctly noted the lack of any topical news item or any debate on a matter of public interest which would have justified its being reported at the time of the impugned publication on the grounds of legitimate imparting of information to the public ; ... moreover , the publication of photographs of a person to illustrate subsequent content which amounts to an invasion of his privacy necessarily infringes his right to control of his own image ... ”

On DATE , after publication of the initial article on DATE ( see paragraph CARDINAL above ) , the DATE magazine ORG published another article about the disclosure of the Prince ’s paternity , this time accompanied by several photographs showing the Prince and the child .

The Prince brought urgent proceedings against the magazine in order to prevent any further publication , but his case was dismissed on DATE by a judgment of ORG ( ORG ) , upheld on DATE by ORG ( Oberlandesgericht ) .

ORG noted , in particular , that , as a figure of contemporary society par excellence , the Prince had to tolerate the impugned encroachment on his private life , given the information value of the report . It noted that the veracity of the information published by the magazine with regard to the statements by the child ’s mother and to the claimant ’s paternity had not been disputed on any specific point . It considered that the publication was not unacceptable in terms of the protection of a person ’s intimate sphere , since the disclosures did not relate to that sphere but to the sphere of private life , which was less protected . It held that the public ’s right to information resulted from the claimant ’s position in society , and that the pressure that he might have experienced as a result of those disclosures , aimed at obliging him to recognise his child , did not prohibit publication but was merely an inevitable consequence of it , which he was required to tolerate . It noted that the published photographs had been taken with the claimant ’s agreement , in his private sphere , and had been made available to the press by a person who had just as much right to do so as the claimant . It held that the protection of the claimant ’s private sphere and his right to his own image had to yield to the freedom of the press , on account of the importance of communicating to the public information concerning the claimant ’s son born out of wedlock and about the child ’s mother . Lastly , it considered that it was for the mother rather than for the Prince , who had not recognised the child , to decide whether the disclosure of the latter ’s existence fell within the protected private sphere .

Following the appeal by the Prince , ORG ordered the magazine not to republish or allow to be published a photograph which had appeared in DATE issue of PERSON , showing the claimant in a moment of intimacy with PERSON . However , it considered that the issue of a male heir to the prince of GPE – a constitutional hereditary monarchy DATE was of decisive importance , and that the interest taken in this question not only by the citizens of GPE but also by many persons who lived outside the ORG deserved protection and ought not to be superseded by the claimant ’s interest in securing protection of his private sphere , on the ground that the current legal situation allowed only legitimate children to accede to the throne .


CASE OF IULIAN MOCANU AND OTHERS v. ROMANIA

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the excessive length of criminal proceedings . In some of the applications , the applicants also raised complaints under other provisions of the Convention .


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Robert Spano

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

summarised as follows .

NORP In DATE criminal proceedings were instituted in GPE against a named individual , X , who was charged , inter alia , with issuing invoices for fictitious operations ( emissione di fatture per operazioni inesistenti ) and fraudulent bankruptcy to the detriment of an NORP company , C. ( under the control of GPE and later declared bankrupt on an unspecified date ) .

In the context of the above - mentioned NORP proceedings against NORP , ORG in GPE sent a letter of request ( no . CARDINAL ) to the GPE judicial authorities , seeking their assistance in accordance with LAW of LAW and Good Neighbourhood between GPE and GPE of DATE . The request was aimed at obtaining information and documents and carrying out searches in all the NORP banks , fiduciary institutions and companies involved with X.

NORP In particular , ORG stated that investigations into fraudulent bankruptcy had begun after company ORG had been declared bankrupt as it was suspected that the funds used to pay the abovementioned invoices for fictitious operations and other large amounts of money had been taken from the assets of company C. It further transpired that once company C. had gone bankrupt , CARDINAL,CARDINAL,CARDINAL.CARDINAL MONEY ( ORG ) had been transferred from a current account owned by the NORP company ORG to a current account ( no.CARDINAL ) owned by a ORG company , PERSON , via CARDINAL cheques . To justify such transfers , PERSON had issued a series of false sales invoices .

On DATE the sum of EUR CARDINAL,CARDINAL,CARDINAL had been transferred from company ORG ’s current account to another current account ( no . CARDINAL ) that was also in its name .

A series of cash withdrawals amounting to ORG CARDINAL,CARDINAL,CARDINAL had been made from account no . CARDINAL and over the same period of time a similar amount had been deposited in a current account connected to a fiduciary mandate under no . MSCARDINAL/A , which had been opened on DATE by a certain PERSON in his capacity as legal representative of a certain , named company .

On the basis of the information provided by ORG , on DATE the investigating judge ( PERSON della PERSON ) , considering that all the requirements set by the law for the execution of letters of request had been fulfilled , accepted the NORP request in relation to fraudulent bankruptcy and ordered the execution of the request by means of an exequatur order .

The investigating judge ordered the search of a specific NORP bank in order to obtain all the documents and relevant information related to current account no . CARDINAL , into which the CARDINAL cheques had been paid . The judge also ordered the bank to submit a copy of all the relevant documents in its possession within DATE . The judge further ordered the freezing of account no . CARDINAL and the seizure of all the money in it , which had been traced back to X , and company Z , as well as the freezing of any other current accounts and the seizure of their contents if any money from current account no . CARDINAL could possibly have been transferred there . In addition , any legal entities or individuals concerned , who had been notified of the exequatur order , were ordered to submit a copy of all the relevant documents in their possession within DATE .

On DATE the judicial police ( Polizia Giudiziaria ) carried out the exequatur order by freezing current accounts nos . CARDINAL and CARDINAL ( both belonging to company PERSON ) , which at the time had balances of ORG MONEY and ORG ORG respectively . Some documents related to the CARDINAL current accounts were also seized during the same search .

On an unspecified date , CARDINAL of the institutions that had been served with the exequatur order ( company ORG ) informed the authorities that it administered a fiduciary mandate put in place by “ one of the accused people ” ( the above - mentioned fiduciary mandate no . MSCARDINAL/A ) . As a consequence , on DATE the judicial police seized a further ORG CARDINAL from the current account connected to the mandate and ORG CARDINAL deposited in a bearer savings book ( libretto al portatore ) belonging to the new administrator of company F. ( a certain P. ) . The total sum was thus ORG DATE .

On an unspecified date ORG in GPE sent another letter of request to the investigating judge ( no . CARDINAL/CARDINAL ) as a complement to letter no . DATE . The request was aimed at charging the applicant and another person , PERSON , with the offence of money laundering .

By a decision of CARDINAL DATE the investigating judge accepted the request in relation to the crime of money laundering and instructed the judicial police to identify the applicant and to question him and PERSON within DATE . Moreover , considering that the alleged offence had been committed in GPE , the judge also ordered the institution of criminal proceedings against the applicant and PERSON for money laundering under LAW bis of LAW .

On DATE , ORG , in the context of the proceedings under letter of request no . CARDINAL , asked the investigating judge to release all the money that had been seized so it could be returned to the bankrupt company C. and for control ( affidamento ) to be given to the insolvency administrator of the company who had been joined as a civil party to the NORP proceedings for fraudulent bankruptcy . The request was made after a similar one had been submitted directly by X. to the NORP courts on DATE . That request was attached to the CARDINAL from ORG .

The investigating judge accepted the request made by ORG by a decision of DATE . In line with LAW , Search , Seizure and Confiscation of the Proceeds from Crime and on ORG of DATE , ratified by GPE in DATE , the judge ordered that sums that had been seized and traced back to X should be released and returned to company C. and that control of the money should be given to the insolvency administrator of the bankrupt company .

On DATE , the judicial police executed the above - mentioned decision by releasing ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL and transferring it to company C. ’s current account .

Neither the decision of DATE nor the subsequent police report concerning the execution of the order were ever notified or communicated to the applicant or to any other accused party in the criminal proceedings no . CARDINAL/RNR/CARDINAL .

By a judgment delivered in the above - mentioned criminal proceedings on DATE , filed in the registry on DATE and notified to the applicant on DATE , the first - instance criminal judge ( PERSON della PERSON ) found the applicant and CARDINAL other people guilty of money laundering under Articles CARDINAL , DATE and CARDINAL bis of LAW , over DATE . The applicant was sentenced to DATE and CARDINAL months’ imprisonment and prohibited for DATE and DATE from holding public office and exercising political rights or running a business .

The judge held that the applicant had had the operational role of organising the ORG structures , which were then used to disguise the various money transfers which had constituted money laundering . According to the judge it had been shown that the money transferred to the company ORG ’s current accounts had come from PERSON and had originally derived from the bankrupt company C.

The judge , applying LAW , also ordered the confiscation of the money that was still subject to the seizure order and which had not been transferred to company C. ( ORG ) . He also sentenced the applicant and his co - accused to pay , in solidum , ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ( the sum returned to company C. ) , known as “ confiscation by way of equivalent measures ” ( confisca per equivalente ) , in accordance with LAW of LAW ( see paragraph DATE below ) . The order was issued because it was impossible to confiscate the further amount of money considered to have been laundered as it had been returned to company C.

On DATE , the applicant appealed against his conviction , challenging , inter alia , the order to pay the equivalent amount of money .

The applicant complained that the order to pay ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL had to be considered as an unfair duplication of the penalty against him , noting that that sum of money had previously been seized and then transferred ( in accordance with the investigating judge ’s decision ) by way of compensation to the company that had been the victim of bankruptcy , without involving the applicant or his co - defendants .

The applicant complained that the inability to carry out a “ direct confiscation ” , which was a prerequisite under the law for applying “ confiscation by way of equivalent measures ” , had not been the result of any actions by him , and thus he should not have been held responsible for the payment of such an amount .

NORP The applicant also mentioned the unconstitutionality of , on the one hand , the “ overlapping ” of compensation for victims and , on the other , the confiscation of an equivalent amount of money . He argued that that had led to an unjustified payment by those who had been sentenced .

On DATE the applicant made further written submissions , reiterating , inter alia , the argument of unconstitutionality .

By a judgment of DATE , filed in the registry on DATE , the applicant ’s appeal was dismissed by the Judge of ORG ( GPE d’Appello GPE ) .

The judge noted that the complaint regarding the confiscation of an equivalent amount had to be considered as clearly irrelevant given the fact that LAW of LAW ( as modified by PERSON no . CARDINAL of CARDINAL DATE ) , did not provide that the prerequisite for such a confiscation order was that “ direct confiscation ” had been made impossible by the defendant . The judge further noted that at the time of the firstinstance judgment it had not been possible for the judge to order the direct confiscation of all the assets which had been laundered as most of them had already been transferred to company C. The judge had therefore been correct in ordering the accused , including the applicant , to pay an equivalent amount of money .

Article CARDINAL of LAW and Good Neighbourhood between GPE and GPE of DATE , in so far as relevant , reads as follows :

“ The judicial authority of each contracting ORG , following a request from the other contracting ORG , shall notify acts , execute acts in conjunction with preliminary investigations , including the seizure of objects constituting the corpus delicti , and carry out any other act related to criminal proceedings ongoing before the abovementioned authorities . ”

Article CARDINAL of ORG , Search , LAW from ORG and on ORG of DATE , ratified by GPE on DATE , in so far as relevant , reads as follows :

“ CARDINAL . Property confiscated by a ORG pursuant to ORG CARDINAL and CARDINAL of this Convention , shall be disposed of by that ORG in accordance with its domestic law and administrative procedures .

NORP When acting on the request made by another ORG in accordance with ORG CARDINAL and CARDINAL of this Convention , Parties shall , to the extent permitted by domestic law and if so requested , give priority consideration to returning the confiscated property to the requesting ORG so that it can give compensation to the victims of the crime or return such property to their legitimate owners .

When acting on the request made by another ORG in accordance with ORG CARDINAL and CARDINAL of this Convention , a ORG may give special consideration to concluding agreements or arrangements on sharing with other Parties , on a regular or casebycase basis , such property , in accordance with its domestic law or administrative procedures . ”

Article CARDINAL bis of LAW , as amended by LAW , LAW no . CARDINAL of DATE , and by LAW of DATE , as applicable at the time of the facts ( JanuaryApril DATE ) in so far as relevant , read as follows :

“ CARDINAL . A person is guilty of money laundering , where , except in cases of aiding and abetting , he or she conceals , substitutes , transfers or co - operates with others to so do , money which he knows or should know was obtained as a result of crimes not resulting from negligence or contraventions , with the aim of hiding its origins .

NORP or whosoever uses , or cooperates or intervenes with the intention of using , in the area of economic or financial activities , money which he knows or should know was obtained as a result of crimes not resulting from negligence or contraventions . ”

NORP If the crime at the origin of the laundered money has been committed in a foreign country , such a crime has also to constitute a prosecutable criminal offence in GPE ( deve essere penalmente perseguibile e procedibile anche per PERSON Sammarinese )

The judge applies the penalty provided for the predicate offence if it is less heavy . ”

Article CARDINAL of GPE , as modified by LAW no . CARDINAL of DATE , read at the time of the commission of the offence in the present case ( DATE ) as follows :

“ CARDINAL . In a judgment of conviction , the Judge shall order ( il giudice ordina ) the confiscation of the items belonging to the convicted person which were used or were intended to be used to commit the crime , as well as the confiscation of the price , the product , and the profit of the crime .

NORP In a judgment of conviction the Judge shall always order ( è sempre obbligatoria ) the confiscation of the items which were used or were intended to be used to commit the offence ex Art.CARDINAL bis ( money laundering ) , or offences connected to terrorism , or offences with the purpose of subverting the constitutional order , as well as ordering the confiscation of the price , the product and the profit of the crime . If confiscation is not possible the Judge shall order ( impone l’obbligo di ) the payment of an amount of money equivalent to the value of the above - mentioned items .

The confiscated items or the equivalent amount of money shall be allocated to ORG or , if necessary , destroyed . ”


Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in DATE .

NORP In DATE , after holding a firearms licence and a hunting permit for DATE , the applicant asked ORG ( hereinafter : “ the police ” ) to renew his firearms licence for hunting purposes . He did not live in GPE but went hunting when he spent holidays there .

When submitting his request the applicant relied on a certificate of ORG ( GPE zdravstva PERSON ) attesting that he was healthy and thus capable of carrying firearms .

Following the applicant ’s request the police carried out a background check . A report of CARDINAL DATE , available in the file , contains a finding of the police that the applicant had often been under the influence of alcohol when visiting GPE .

On DATE the applicant was summoned by the police to give a statement concerning the intention of a weapons commission not to renew his firearms licence . The applicant denied any alcohol abuse and stated that he had been a hunter for DATE and that , if necessary , he could undergo any test concerning his health and the alleged drinking problem .

In a further written statement dated CARDINAL DATE the applicant contended that hunting was his hobby and that his membership of a hunting association was related to his social status . He denied any allegations of alcohol abuse and argued that there were no justified reasons for a refusal to renew his firearms licence .

On DATE the applicant made the same objections through a lawyer . He stressed that his request for renewal of the firearms licence could not be refused merely because somebody had allegedly said that he was a drinker .

On DATE the police dismissed the applicant ’s request for renewal of his firearms licence and ordered him to hand over his weapons on the grounds that a police inquiry had shown that he had a problem of alcohol abuse .

The applicant challenged this decision before ORG ( ORG unutarnjih poslova PERSON , hereinafter “ the NORP ” ) , arguing that he had been falsely accused by some neighbours and that there was no evidence of any drinking problem . He also stressed that hunting allowed him to see his friends , and that those who had made the allegations against him did not really know him .

On DATE the Ministry ordered the police to produce a new assessment of the background check on the applicant , on the grounds that the report of CARDINAL DATE ( see paragraph CARDINAL above ) had not been substantiated with the relevant evidence .

On DATE the police produced a new report on the background check on the applicant . The report , which was available in the file , provided further details on the applicant ’s alleged alcohol abuse , which had been confirmed by his neighbours in GPE . The report explained that all the relevant details concerning the sources of this information were classified as confidential information .

On DATE the Ministry dismissed the applicant ’s complaints , on the grounds that the documents from the case file suggested that he had a problem of alcohol abuse .

On DATE the applicant lodged an administrative action in the ORG challenging the ORG ’s decision . He contended that the refusal to renew his firearms licence had been based on mere insinuations , and that there had been no relevant evidence to support the findings of the police . In particular , he contended that he had never been registered as a person with a problem of alcohol abuse and he had never been convicted of an offence related to the abuse of alcohol . In his view , the police based its conclusion only on the basis of gossips of his neighbours in GPE .

On DATE the applicant asked the police to disclose the relevant reports containing the allegations against him , in particular the identity of those who had seen him under the influence of alcohol and the date and place when that had happened . On DATE he received a reply that the information which he requested could not be disclosed since it was confidential ( see paragraph CARDINAL above ) , as provided under the relevant domestic law ( see paragraphs CARDINAL - CARDINAL below ) .

On DATE ORG held a hearing at which it heard the parties’ arguments . The applicant ’s representative stressed that the police had failed to produce any credible evidence justifying the refusal to renew the applicant ’s firearms licence . He also considered that it was not clear on which grounds the police had dismissed the applicant ’s request . The ORG ’s representative explained that further details of the applicant ’s background check , in particular the names of individuals from whom the relevant information had been obtained , were confidential as provided under LAW .

As the parties did not have any further proposals for the examination of evidence , ORG concluded the proceedings and scheduled a hearing for the delivery of the judgment for CARDINAL DATE .

On DATE ORG found that the judgment could not be delivered , , and ordered the ORG to provide the confidential case file containing the details of the information on the applicant ’s background check . It explained that the file at issue would be inspected by the judges and would not become part of ORG case file .

At a hearing on CARDINAL DATE ORG examined the confidential file of the police without the presence of the parties . Afterwards , in the resumed hearing in the parties’ presence , the applicant ’s representative reiterated his arguments that the applicant did not have a drinking problem . He did not seek examination of further evidence .

On DATE ORG dismissed the applicant ’s administrative action and upheld the decisions of the administrative bodies refusing to renew the applicant ’s firearms licence . It explained that it was satisfied from the examination of the confidential reports that the reasons for the police ’s refusal to renew the applicant ’s firearms licence were well founded . It also held that the medical certificate attesting that the applicant was healthy and capable of carrying firearms did not call these findings into question , as that was CARDINAL element in the assessment of an individual ’s suitability to be granted a firearms licence . The relevant part of ORG decision reads :

“ By examining the classified file of the defendant the court ... established that the police officer ’s conduct , while searching for and collecting information from citizens , ... was in accordance with the By - law on the conduct of the police in the procedure for issuing a licence for the procurement of weapons to a natural person ... and , based on data and information collected from interviewed citizens , found that the plaintiff is prone to common and excessive alcohol abuse , which indicates a possibility of weapons abuse .

Consequently , the plaintiff ’s claim that the defendant wrongly applied the substantive law , is unfounded , while the plaintiff ’s objection that the medical certificate is sufficient evidence showing that the defendant wrongly determined the facts of the case was not accepted by this court because the medical fitness for possessing and carrying weapons which is established through a certificate of medical fitness is only a special requirement for the weapons acquisition permit to natural persons within the meaning of section CARDINAL paragraph CARDINAL(CARDINAL ) of LAW , while the defendant acting in accordance with the [ above - cited ] By - law ... established that the plaintiff does not meet the requirement of section Article CARDINAL ) of LAW , as CARDINAL of the general requirements which natural persons need to meet in order to be issued a firearms licence . ”

The applicant challenged this decision before ORG ( Ustavni sud PERSON ) , complaining that he had been denied access to the evidence containing allegations against him and that therefore he had been left without any opportunity to challenge those allegations . He also argued that his right to respect for his private life had been breached by the unjustified refusal to extend his firearms licence , which prevented him from hunting . In this connection he explained that he had been a hunter for over DATE , and that hunting was his way of maintaining contact with his friends .

NORP In support of his constitutional complaint the applicant submitted a list of signatures of his neighbours attesting that he did not have a problem of alcohol abuse . He also submitted a medical certificate indicating that he had no problem of alcohol abuse .

On DATE ORG dismissed the applicant ’s constitutional complaint as unfounded . It explained that it was primarily the function of the relevant authorities to examine the facts and apply the relevant law and that it was not its function to deal with alleged errors of law or fact , in so far as they had not infringed human rights and freedoms guaranteed under LAW . ORG held that since the applicant had had access to the police reports on his background check , which contained details for dismissing his request ( see GPE the reports referred to in DATE and DATE above ) , the fact that further details on which those report had been based , including personal details about individuals who had provided information to the police , had not been disclosed to him did not infringe any of his rights .

The decision of ORG was served on the applicant ’s representative on DATE .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev

The applicant was born in DATE and lives in GPE .

The applicant is a former police officer . Criminal proceedings were brought against him in DATE .

By a decision of the competent prosecutor of DATE , as provided under domestic law at the time , the applicant was placed under house arrest . The period of arrest continued until DATE , when the applicant was remanded in custody . He was once again placed under house arrest on DATE and was released on DATE .

The applicant therefore was deprived of his liberty for DATE , DATE and DATE .

In a final judgment of CARDINAL DATE ORG found the applicant guilty of failing to perform his duties and he was given a DATE suspended prison sentence .

In another set of proceedings , in a final judgment of CARDINAL DATE ORG convicted the applicant of fraud and sentenced him to DATE of imprisonment .

The court also held in the second set of proceedings that the applicant should serve a single sentence for all his offences , which was set at DATE in prison .

On DATE the applicant was once again detained and placed in prison to serve his sentence . He was released on DATE by a decision of the competent prosecutor . The prosecutor noted that the period of pre - trial detention should have been deducted from the applicant ’s sentence , which meant he had already served it .

As he had worked in prison the applicant was also entitled to a reduction of his sentence by DATE .

In DATE the applicant brought a tort action against the prosecution authorities under section PERSON ) of the ORG and Municipalities’ LAW ( see paragraph CARDINAL below ) . He claimed CARDINAL NORP levs ( ORG ) for non - pecuniary damage for his detention in DATE to the extent it had exceeded the set term of imprisonment and ORG CARDINAL for his imprisonment DATE and DATE .

The domestic courts examined witnesses and a court - appointed psychologist who said that the applicant had been traumatised by the experience and suffered from anxiety , that his personality had been “ permanently altered ” , that he had difficulties communicating with others , and that his family ties had been “ irreparably damaged ” .

In a judgment of CARDINAL DATE the Sofia ORG ( hereinafter “ the ORG ” ) allowed the claim in part , finding that the applicant had been detained for DATE and DATE in excess of his sentence and awarding him BGN CARDINAL for non - pecuniary damage . It stated that his detention in DATE had been “ unjustified ” and that his imprisonment in DATE had amounted to “ unlawful detention without any valid grounds ” .

In accordance with the applicable provisions of domestic law , ORG ordered the applicant to pay ORG MONEY ( the equivalent of MONEY – EUR ) in court fees , calculated as a pro rata percentage of the part of his claim that had been dismissed .

The judgment was upheld on DATE by ORG ( hereinafter “ the Court of Appeal ” ) , which specified that the prosecution authorities were also liable to pay default interest on the above amount , calculated from DATE .

In a final judgment of DATE ORG reduced the award to ORG CARDINAL,CARDINAL ( approximately LAW ) , plus default interest . It justified the reduction by referring to the “ nature of the offences ” the applicant had been convicted for , the “ regime under which the sentence had been served ” and the “ socially acceptable criteria for justice ” . It did not deal with the matter of court fees and took no separate decision in that regard .

The ORG has not been informed whether and when the amount above was paid to the applicant . Calculations made with a calculator available on the Internet show that the default interest on ORG CARDINAL,CARDINAL for the period from DATE to DATE would be BGN MONEY ( the equivalent of LAW ) .


André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr H. PERSON , Head of ORG at ORG .

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

On DATE at TIME the car registered in the applicant ’s name was recorded by a radar speed detector as travelling at a speed of CARDINAL k.p.h . on the ORG , thus exceeding the speed limit of CARDINAL k.p.h .

On DATE ORG ( Bezirkshauptmannschaft ) issued a provisional penal order ( Strafverfügung ) and fined the applicant CARDINAL euros ( ORG ) with a DATE suspended sentence for speeding .

On DATE the applicant filed an ( unreasoned ) objection against this decision , whereupon ordinary administrative proceedings were opened .

On DATE ORG dismissed the applicant ’s objection and issued a penal order ( PERSON ) convicting the applicant of speeding and fining her EUR CARDINAL and EUR CARDINAL in procedural costs .

On DATE the applicant appealed to ORG ( Unabhängiger Verwaltungssenat , hereinafter “ the ORG ” ) , submitting that the authority had not been in possession of any evidence indicating that she had been driving her car at the relevant time . Relying on LAW , the applicant further complained that she had been convicted solely because she had made use of her right to remain silent and the privilege not to incriminate herself in administrative criminal proceedings . She did not dispute the speeding offence itself . Furthermore she did not request a hearing .

On DATE the ORG asked the applicant , with reference to her general obligation as an accused to cooperate in administrative criminal proceedings , to submit concrete details regarding the driver of the car at the relevant time or to submit any other evidence to prove that she had not been driving the car . On DATE the applicant submitted a statement in which , referring to the case NORP v. GPE ( no . CARDINAL , DATE ) , she maintained that she had not been in GPE at the relevant time and that there were several other persons who could have been driving the car .

On DATE the ORG held an oral hearing of its own motion . Even though the applicant had been summoned properly , she did not attend the hearing . However , she was represented by her lawyer Mr. PERSON , who substituted his mandate to ORG , a law firm practising in GPE . The lawyer who was appointed to attend the hearing merely pointed to the written submissions of DATE ( see paragraph CARDINAL above ) . According to the minutes of the hearing , no apology was made for the applicant ’s absence , nor was further evidence presented and , in particular , the applicant ’s representative did not request postponement of the hearing .

On DATE the ORG dismissed the applicant ’s appeal , upheld the penal order and imposed a further ORG CARDINAL in procedural costs . In its reasoning , the ORG pinpointed the accused ’s general duty to cooperate in administrative criminal proceedings , indicating at the same time that the applicant had not contested the speeding but merely denied that she had been driving the car herself . However , she had not submitted any concrete information with regard to the identity of the real driver . In particular the ORG reasoned as follows :

“ As the relevant fact , namely that the speed limit had been exceeded , remained undisputed during the proceedings , this can be taken as an established fact . The accused alleges that she was not driving at the time the offence was committed , however she failed to comply with the duty to cooperate in these proceedings . In accordance with NORP law and the unanimous jurisprudence of ORG , the accused has the duty to cooperate in the establishment of the facts . In case of traffic - related offences this encompasses the duty of the registered car keeper to be able to provide information on which persons had use of the car at a specific time . As an ultimate consequence of this jurisprudence , the inference may be drawn that the registered car keeper herself was driving the car , as long as she refuses to provide information on the fact of who had been driving the car at a certain time . In the present case the accused did not comply with her duty as she had answered the ORG ’s request of DATE by merely stating that she had not been in GPE on DATE . As various family members could have been the driver , she could not define the real driver . Since she had simply denied having been the driver in both instances without submitting any concrete evidence , the authorities were , in the absence of any other evidence , allowed to assume that the accused had committed the offence herself . ( ... )

ORG found a violation of LAW and LAW in the case of NORP as it was not permissible to draw an inference solely from the applicant ’s refusal to disclose the identity of the driver . Where the authority wished to draw such an inference , an oral hearing for the purpose of obtaining a direct impression of his credibility had to be conducted .

In the present case , the applicant had not been ordered to disclose the full name and address of the person who had been driving her car . Nevertheless the ORG ordered her on DATE , indicating her duty to cooperate in the proceedings , to provide the authority with information regarding the driver of the car at the relevant time or to submit any evidence showing that she had not committed the offence . ( ... )

The applicant had solely denied in a very general way that she had been driving the car , without submitting any evidence . As it can be taken as an established fact that the registered keeper of a car has the most intensive relationship to the car and should therefore know who was driving the car at a relevant time , the authorities were allowed to assume – in the absence of any other evidence – that the applicant herself had committed the offence . ( ... ) ”

On DATE the applicant lodged a complaint with ORG ) claiming that the ORG had not been in possession of any evidence indicating that she herself had been driving her car and had thus wrongly established a prima facie case against her . Therefore , the ORG had not only shifted the burden of proof onto her , but had also violated her right to remain silent . Moreover , as the applicant had not been able to attend the hearing due to a sudden illness for which she had been excused by her representative , the ORG should have scheduled another hearing of its own motion in order to obtain a direct impression of her credibility . Thus , not only had the burden of proof been shifted onto her , but her right to remain silent had also been violated .

NORP On DATE ORG dismissed the applicant ’s complaint . In its reasoning the ORG held that the decision was sufficiently reasoned and clear , especially since the applicant had failed to submit any credible evidence in her defence , even though she had had various opportunities to do so in the course of the proceedings . Moreover , the ORG had DATE contrary to PERSON ( cited above ) – held an oral hearing and had , according to the minutes of the hearing , not been informed about the applicant ’s illness , and the legal representative had not requested postponement of the hearing . Therefore ORG found that the ORG could not be blamed for not having postponed the hearing of its own motion and for assuming that the applicant had been driving the car herself . Thus , no violation of LAW was found . Subsequently the case was transferred to ORG .

On DATE ORG declined to deal with the applicant ’s complaint , since the amount of the fine did not exceed the legal value threshold of ORG CARDINAL and no important legal issue was at stake . This decision was served on the applicant ’s counsel on DATE .

B. Relevant domestic law and legislation

Section CARDINALe of LAW ( GPE , hereinafter “ the ORG ” ) , which was in force at the relevant time , reads as follows :

“ ( CARDINAL ) ORG shall hold hearings in public .

( CARDINAL ) ORG may dispense with an appeal hearing if

NORP the appeal is based solely on an incorrect legal assessment , or

NORP the appeal is directed solely against the amount of the penalty , or

NORP the decision being appealed against imposed a financial penalty not exceeding QUANTITY

NORP the appeal is directed against a procedural decision

and no party has requested that a hearing be held . Any request by the appellant for a hearing to be held must be made in the appeal itself ... ”

Section CARDINAL of LAW ( Allgemeines Verwaltungsgesetz , hereinafter “ the ORG ” ) reads as follows :

“ The main purpose of the investigation proceedings is to establish the relevant facts and to provide the parties with the opportunity to exercise their rights and legal interests . ( ... ) ” .

Section CARDINAL of the ORG reads as follows :

“ „ ( CARDINAL ) Facts , which are evident or facts for which the law draws a presumption regarding their existence , do not have to be proved .

( CARDINAL ) Apart from that , the authority has to assess freely , giving careful consideration to the results of the investigation proceedings , whether or not a given fact is to be accepted as proved .

( CARDINAL ) The parties are to be informed regarding the evidence obtained and be provided with the opportunity to submit a statement . ”

Section CARDINAL ( CARDINAL ) of LAW as amended in DATE ( ORG ) provides as follows :

“ The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date . The registered car keeper ( Zulassungsbesitzer ’s right to require such information shall take precedence over the right to refuse to give information . ”

The duty to cooperate with the authorities has been established by ORG jurisprudence , starting with its decision no . CARDINAL/CARDINAL/CARDINAL , issued on DATE , and ever since has been applied constantly in administrative criminal proceedings . Even though it is the authorities’ duty to establish the relevant facts , the parties are not dispensed from their obligation to contribute to the establishment of these facts . That encompasses the duty to submit equally specific statements in reply and adduce the relevant evidence . ORG also agreed to draw inferences from an accused ’s evasive or unspecified answer , namely that it can be assumed that the registered keeper of a car had himself committed the offence charged ( ORG , no . CARDINAL/CARDINAL/CARDINAL , decision of DATE [ quoted in the ORG ’s decision ] ; see also ORG , no . CARDINAL/CARDINAL/CARDINAL , decision of DATE ) .


CASE OF RASHAD HASANOV AND OTHERS v. AZERBAIJAN

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 18+5-1-c - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5 - Right to liberty and security;Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer

NORP The applicants’ years of birth and home addresses are listed in the Appendix .

The applicants are civil society activists . They are board members of the civic movement PERSON , a non - governmental organisation established by a group of young people in DATE . According to its manifesto , PERSON wants liberty , justice , truth and change in GPE and it rejects violence and uses only non - violent methods of struggle . PERSON is governed by a board of members composed of CARDINAL people . The first , second and fourth applicants are also co - founders .

In DATE and DATE a number of peaceful demonstrations were held in GPE in protest against the death of soldiers in the NORP army in non - combat situations . The demonstrations were organised through social media and the applicants and other members of PERSON actively participated in organising and conducting them . CARDINAL of the demonstrations was scheduled for DATE in the city centre .

On DATE CARDINAL members of PERSON ( ORG , ORG and PERSON ) were arrested by agents of ORG ( “ the ORG ” ) . Domestic proceedings concerning the arrest and pre - trial detention of ORG and ORG are the subject of other applications pending before ORG ( see applications nos . CARDINAL/CARDINAL and CARDINAL ) .

On DATE ORG and the ORG made a joint public statement to the press , stating that “ illegal attempts to undermine the social - political stability established in the country have recently been made by some radical destructive forces ” ( son dövrlər radikal yönümlü bəzi destruktiv qüvvələr tərəfindən ölkədə bərqərar olmuş ictimai - siyasi sabitliyin pozulmasına yönəlmiş qanunazidd cəhdlər göstərilir ) . The statement was also public confirmation that ORG , ORG and PERSON had been arrested for planning to incite violence and civil unrest during the unlawful demonstration scheduled for DATE . It also said that criminal proceedings had been instituted against ORG , ORG and GPE as narcotic substances had been found in their flats . It further stated that CARDINAL Molotov cocktails had been found in PERSON ’s flat , CARDINAL Molotov cocktails had been found in ORG ’s flat and CARDINAL leaflets worded “ Democracy urgently needed ( təcili demokratiya tələb olunur ) , tel : + CARDINAL , address : GPE ” had been found in GPE ’s flat . In that connection , the statement said that “ it was established during the preliminary investigation that since DATE all CARDINAL individuals , being addicted to narcotic substances and becoming members of PERSON through the Internet , had actively participated in a number of illegal activities of the organisation and prepared a flammable liquid known as Molotov cocktails , found in their flats ” ( PERSON istintaqla müəyyən edilmişdir ki , hər üç şəxs CARDINAL-ci ilin ortalarından etibarən internet vasitəsilə “ ORG ” vətəndaş hərəkatının üzvləri və narkotika aludəçisi olmaqla , təşkilatın bir sıra qanunsuz tədbirlərində fəal iştirak etmiş və yaşadıqları mənzillərdən aşkar edilmiş “ Molotov kokteyli ” adlanan tez alışan maye onlar tərəfindən hazırlanmışdır ) .

On DATE PERSON made a public statement , saying that the arrest of ORG , ORG and ORG had been politically motivated and had aimed to silence the protesters by creating a feeling of fear among them before the demonstration of DATE .

It appears from the documents in the case file that on the basis of the investigator ’s decision of CARDINAL DATE QUANTITY - CARDINAL Molotov cocktails found in the flats of ORG and ORG were submitted for an expert examination , which began on DATE . Expert report no . CARDINAL/CARDINAL , dated DATE and signed by CARDINAL experts , concluded that CARDINAL of the Molotov cocktails “ were only flammable ( incendiary ) tools which could not be considered explosive devices ” . The report further stated that the CARDINAL remaining Molotov cocktails could be considered explosive devices because there had been a syringe with gunpowder attached to the bottles .

On DATE the first applicant , on DATE the third and fourth applicants and on DATE the second applicant were arrested and taken to ORG of ORG .

It appears from the documents in the case file that on the respective dates of their arrest the applicants were informed that they had been charged with an offence under LAW ( illegal acquisition , transfer , sale , storage , transportation and carrying of arm , its accessories , supplies , explosive substances and devices by an organised group ) of LAW . The decisions charging the applicants were made on various dates but by the same investigator . They were identical in their wording except for the name of the person charged . The description of the charges consisted of a single sentence CARDINAL a page long . The relevant part of the decision concerning the first applicant stated :

“ ... PERSON oglu NORP has been charged on the basis of sufficient charging evidence because in DATE in GPE , in an organised group with ORG , ORG and others with whom he had close ties , [ he ] unlawfully obtained twentytwo glass bottles of explosive devices known as Molotov cocktails , which are prepared with flammable liquid petrol as an explosive substance by inserting a cotton rag preventing the liquid from dispersing and evaporating , as well as acting as a fuse , [ and arranged storage ] until DATE by giving CARDINAL of them to PERSON who lives in ... and CARDINAL of them to ORG who lives in ...

Through these actions , PERSON committed a criminal offence under LAW .

On the respective dates of their arrest the First Deputy Prosecutor General of GPE requested that the courts remand each applicant in custody ( həbs qətimkan tədbiri ) . In each case , the prosecutor used the exact same wording as in the decisions charging the applicants .

On the same dates the applicants were brought before a judge of ORG . Referring to the official charges brought against them and the prosecutor ’s requests to remand them in custody , the judges ordered their detention for a period of DATE . It appears from the transcripts of the court hearings before ORG available in the case file that the applicants denied the charges against them , stating that their arrest was related to their social and political engagement . Although ORG decisions were delivered on various dates and by different judges , their wording was almost identical . Each time , the judges justified the applicants’ detention pending trial by the gravity of the charges and the likelihood that if released they might abscond or obstruct the investigation . Moreover , in respect of the first applicant , the judge also noted that the first applicant had avoided the investigation until his arrest on DATE because he had been wanted by the police since DATE on the basis of the investigator ’s decision charging him with a criminal offence under LAW .

On various dates in DATE and DATE the applicants appealed against the decisions ordering their pre - trial detention . They complained that there was no evidence that they had committed a criminal offence and there had been no justification for their detention pending trial . The first applicant also submitted that he had never been informed of any decision of the investigator charging him with a criminal offence until his arrest on DATE . In that connection , he pointed out that CARDINAL March CARDINAL he had not gone into hiding and had actively participated in the political life of the country , giving an interview to a newspaper and participating in the gathering of a political movement .

On various dates in DATE and DATE ORG dismissed the ORG appeals , finding that the detention orders were justified . In that connection , the appellate court held that ORG had correctly taken into account the seriousness of the criminal offence attributed to the applicants and the likelihood that if released they might abscond or obstruct the normal functioning of the investigation .

On DATE the first applicant lodged a request with ORG asking to be put under house arrest in place of pretrial detention . He claimed , in particular , that his detention was not justified and that there was no reason for it to continue . In support of his request , he pointed out that he had a permanent address , had never been convicted , and that there was no risk of his absconding or obstructing the investigation .

On DATE ORG dismissed the request , finding it unfounded .

On DATE ORG upheld the first - instance court ’s decision .

On CARDINAL DATE the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the first applicant ’s pre - trial detention of DATE , submitting that more time was needed to complete the investigation .

On DATE ORG extended the first applicant ’s detention pending trial until DATE . The court substantiated the need for the extension by the complexity of the case , the gravity of the charges , and the likelihood that if released the first applicant might abscond or obstruct the investigation by influencing those participating in the criminal proceedings .

On DATE the first applicant appealed against that decision . He complained , in particular , that there was no evidence that he had committed a criminal offence and that the first - instance court had failed to justify the extension of his detention pending trial .

On DATE ORG dismissed the appeal and upheld ORG decision of CARDINAL DATE .

No further extension decisions were included in the case file .

On DATE the second applicant lodged a request with ORG asking to be put under house arrest in place of pretrial detention . He claimed , in particular , that there was no risk of his absconding or obstructing the investigation and that the courts had failed to take his personal situation into consideration .

On DATE the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the second applicant ’s pre - trial detention for DATE . In that connection , he submitted that more time was needed to complete the investigation .

On DATE ORG extended the second applicant ’s detention pending trial by DATE , until DATE . The court substantiated the need for the extension by the complexity of the case , the gravity of the charges and the need for additional time to carry out further investigative measures .

On DATE the second applicant appealed against that decision , reiterating that there was no evidence that he had committed a criminal offence and that ORG had failed to justify his continued detention .

On DATE ORG dismissed the appeal , finding that the extension of the second applicant ’s detention pending trial was justified .

On DATE the second applicant again lodged a request with ORG asking to be put under house arrest in place of pre - trial detention , reiterating his previous arguments .

On DATE ORG dismissed the request , finding that the grounds for his pre - trial detention had not changed .

On DATE the prosecutor lodged a request with the court asking for an extension of the second applicant ’s pre - trial detention for DATE . The prosecutor gave as the reason for the need to extend the detention the complexity of the case and the need for more time for the accused and his lawyer to familiarise themselves with the material in the case file .

On DATE ORG extended the second applicant ’s detention pending trial by DATE , until DATE . The court substantiated the need for the extension by the complexity of the case , the gravity of the charges , the need for additional time to carry out further investigative measures and the likelihood that if released the second applicant might abscond or obstruct the investigation by influencing those participating in the criminal proceedings .

On DATE ORG upheld the firstinstance court ’s decision .

It appears from the documents in the case file that on an unspecified date in DATE the third applicant lodged a request with ORG asking to be put under house arrest in place of pre - trial detention . In that regard the ORG notes that it explicitly requested the ORG to submit copies of all the documents relating to the ORG pre - trial detention ; they failed to do so .

On DATE ORG dismissed the request , finding that there was no need to use an alternative preventive measure to custody .

On DATE the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the third applicant ’s pre - trial detention for DATE , submitting that more time was needed to complete the investigation .

On DATE ORG extended the third applicant ’s remand in custody by DATE , until DATE . The court substantiated the need for the extension by the gravity of the charges , the risk of his reoffending , and the likelihood that if released he might abscond or obstruct the investigation .

It appears from the documents in the case file that on an unspecified date in DATE the third applicant appealed against that decision . The Government did not make a copy of the appeal available to the ORG .

On DATE ORG dismissed the appeal , finding that the extension of his detention pending trial was justified .

On DATE the third applicant again lodged a request with ORG asking to be put under house arrest in place of pre - trial detention . He claimed that his continued detention was not justified and that no investigative measures had been carried out since the beginning of his pre - trial detention .

On DATE ORG dismissed the request .

On DATE the fourth applicant lodged a request with ORG asking to be put under house arrest in place of pretrial detention . He claimed , in particular , that there was no risk of his absconding or obstructing the investigation and that the courts had failed to take his personal situation into consideration .

On DATE ORG dismissed the request .

On DATE the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the fourth applicant ’s pre - trial detention for DATE , submitting that more time was needed to complete the investigation .

On DATE ORG extended the fourth applicant ’s remand in custody by DATE , until DATE . The court substantiated the need for the extension by the complexity of the case , the need for additional time to carry out further investigative measures and the possibility of the fourth applicant ’s absconding or influencing persons participating in the criminal proceedings .

On DATE the fourth applicant appealed against that decision , reiterating that there was no evidence that he had committed a criminal offence and that the first - instance court had failed to justify his continued detention .

On DATE the fourth applicant again lodged a request with ORG asking to be put under house arrest in place of pre - trial detention or to be released on bail . He submitted in support of his request that there was no reason justifying his continued detention and that the courts had failed to take into account his personal situation .

It appears from the documents in the case file that on an unspecified date in DATE the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the fourth applicant ’s pre - trial detention for DATE . The Government did not make a copy of the request available to ORG .

On DATE ORG decided to extend the fourth applicant ’s detention pending trial for DATE , until DATE .

On DATE the fourth applicant appealed against that decision , complaining that there was no justification for his continued detention . He reiterated that there was no reasonable suspicion that he had committed a criminal offence and that the first - instance court had failed to justify its decision .

It appears from the documents in the case file that on DATE ORG upheld ORG decision of CARDINAL DATE . The Government did not make a copy of the appellate court ’s decision available to ORG .

It appears from the documents in the case file that in DATE the applicants were additionally charged with new criminal offences under LAW ( preparation of a crime ) and CARDINAL ( mass disorder ) of LAW . The Government did not make the investigator ’s decisions in this respect available to the ORG .

On DATE ORG found the applicants guilty on all counts and sentenced the first applicant to CARDINAL half years’ imprisonment , the second applicant to CARDINAL years’ imprisonment , the third applicant to DATE imprisonment and the fourth applicant to DATE imprisonment .

On DATE ORG upheld that judgment .

DATE . On DATE ORG upheld the appellate court ’s judgment in respect of the first and third applicants .

On DATE ORG upheld the appellate court ’s judgment in respect of the second and fourth applicants .

In the meantime , on DATE the second and third applicants were released from serving the remainder of their sentence after being pardoned by a presidential decree .

On DATE the first and fourth applicants were also released from serving the remainder of their sentence after being pardoned by a presidential decree .