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

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

The applicant ’s son , PERSON , was found hanging from his shoelaces which were attached to the bolt hole of his open cell hatch while he was in custody at ORG , GPE , on DATE . He died in hospital at TIME on DATE , aged DATE .

PERSON was arrested and taken into police custody at FAC at TIME on DATE . At TIME , when his detention was authorised , the arresting officer , Police Sergeant ( “ ORG MacLoughlan , remarked in a witness statement that PERSON was compliant and calm .

In a witness statement dated DATE provided by PERSON , PERSON solicitor at the relevant time , he said that he had attended PERSON at FAC at TIME on DATE . PERSON confided in him that he was a heroin user and was just beginning to experience withdrawal symptoms . Mr PERSON asked if he wanted to see a police surgeon and explained to him that the practice of local police surgeons was to prescribe the drug temazepam for withdrawal symptoms . He added that numerous clients of his who had been in the same predicament had told him that temazepam did very little to relieve their discomfort and distress . He further explained that any contact that ORG had with the police surgeon would not be confidential , as the surgeon would make an immediate written report on his custody record . He offered the advice that , if the custody sergeant became aware that PERSON was a heroin user , and that he was unemployed , that would greatly reduce his chances of obtaining bail either from the police or , subsequently , from the court . After some discussion PERSON told PERSON that he had decided not to call the police surgeon at that time . Mr PERSON described PERSON as being unhappy and apprehensive about spending a night in police custody . However , he presented himself as rational and articulate .

PERSON was charged with the offences of dangerous driving , driving whilst disqualified , and driving without insurance or an ORG ( a road worthiness certificate ) at TIME on DATE , at which time police bail was refused .

At TIME on DATE PERSON detention was reviewed . At that time he asked to see a doctor for a “ personal reason ” . ORG , the custody officer , noted on the custody record that he advised PERSON that he would arrange for a surgeon to see him at the ORG cells , to where he was shortly due to be transferred . At TIME PERSON noted the following on the custody record :

“ Conferred with police surgeon – PERSON . Problem is not an emergency . ( DP [ Detained Person ] has stated it is a problem seeing doctor in prison – where he believes he will be going - and wishes to see CARDINAL before his departure for prison ) . Issue to be handed over to ORG CARDINAL [ a private security company that , pursuant to statutory provisions , provides escort and custody services under a contract with ORG ] who will call a doctor themselves . ”

According to a statement made by ORG on DATE , PERSON seemed satisfied with the above arrangement . PERSON explained that , at the time of requesting to see a doctor , PERSON stated that he would have waited until he got to prison , but that as it was difficult to see a doctor there he preferred to see one before he got there . It was for that reason that PERSON , in consultation with the police surgeon , PERSON , concluded that the matter was not an emergency .

PERSON recalled in a witness statement that he was telephoned by ORG at TIME and told that ORG had a personal problem that he wanted to discuss with a doctor and thought that if the court sent him to prison it would be harder for him to talk to CARDINAL of the prison doctors about it . He was further told that , while PERSON had been in custody , he had acted at all times in a normal fashion , showing no particular signs of physical or mental distress . Based on that information , PERSON formed the opinion that medical attention was not urgently required and that PERSON could be transferred into the care of ORG CARDINAL as arranged , ensuring that the DATE ’s court proceedings were not delayed . PERSON asked PERSON to inform ORG request to see a doctor and left it with them to call him from ORG later on if he was still required .

ORG commented that , while PERSON was in his custody , he neither proved to be any problem nor exhibited any visible signs that he had any medical problems , was calm throughout and seemed quite resigned to the fact that he was going to go to prison . PERSON proceeded to tell both the civilian detention officer , PERSON , and the gaoler , PC PERSON , that PERSON CARDINAL should be informed that PERSON wanted to see a doctor .

At CARDINAL a.m. Stuart Gipp was handed over to Group CARDINAL custody in order to be transported to court .

According to the witness statement of PERSON of DATE , at the time of his hand - over , PERSON explained to the ORG CARDINAL officers that PERSON wished to see the police surgeon on a personal matter the nature of which he would not reveal , that PERSON had been contacted by ORG and that ORG should contact the doctor from the court cells to come out to see PERSON .

PERSON found PERSON request to see a doctor on a personal matter , without revealing what it was , to be very unusual and a factor which he specifically remembered . He also remembered making a flippant comment to CARDINAL of the ORG CARDINAL staff that it was unlikely that they would call out the police surgeon . This resulted from his understanding from other prisoners that Group CARDINAL was reluctant to call out doctors for any matter , by reason of the cost of so doing . Group CARDINAL , a private company , was responsible for the costs of the visit of a doctor . The Group CARDINAL member of staff replied that it was unlikely that a doctor would be called .

At TIME Stuart Gipp arrived at ORG .

Some time TIME ( recorded in the report carried out by the Prisoner Escort and ORG ( “ PECS ” ) , a division of ORG , as being at TIME , but possibly later in the light of the evidence in the witness statement of PERSON set out below ) , PERSON asked ORG ( “ ORG ” ) PERSON whether he could see a doctor . According to his interview with the ORG investigators on CARDINAL DATE , ORG asked ORG to tell him what the problem was . PERSON did not do so , but just kept saying that he wanted to see a doctor . ORG explained that it was LAW policy that a doctor would not be called unless there was something specific to report . As he had only worked for Group CARDINAL for a fairly short time , ORG called PCO Stevens over to speak to ORG .

In his interview with the ORG investigators on DATE , ORG PERSON stated that he asked PERSON a few questions . On not getting any response , he went into the cell , put his arm around PERSON and asked him what was wrong . He replied that he was a drug user and did not want anyone to know . PERSON continued to talk to ORG for a short while , after which the latter appeared to perk up a little . PERSON stated that he reported the facts to Senior Custody Officer ( “ ORG ” ) PERSON , who said that she would try to get his case in front of the court as soon as possible . PERSON reported this back to PERSON who appeared to him to be quite happy .

ORG PERSON denied that ORG had mentioned to him ORG request to see a doctor on that occasion . However , ORG PERSON stated that he reported both PERSON initial request to see a doctor , which had been passed on to him by the police TIME , and the fact that he was a drug user to PERSON . He stated that he did not enter these facts on ORG Prisoner Escort Record ( “ PER ” ) . He further revealed that , as a drug user , he was concerned about PERSON health , but that he was not concerned about his safety . He added that ORG did not show any signs of being physically unwell and was quite chatty after PERSON had spoken with him .

In her interview with the ORG investigators , PERSON denied that she was made aware at any time prior to TIME on DATE that ORG had asked to see a doctor or that she was ever told that he was a drug user .

At TIME the community psychiatric nurse arrived at the cells . According to PERSON in her interview with the ORG investigators , such nurses usually saw any prisoner that they had not seen before , but that was a matter left to their discretion . Group CARDINAL staff only referred a prisoner to the nurse if they had a serious concern about a prisoner or if they had been asked to do so by a solicitor . PERSON was neither seen by nor referred to the nurse .

At TIME on DATE Mr PERSON attended again on PERSON , in the ORG cells . In his witness statement , Mr PERSON stated that , at that time , PERSON appeared rather unwell but not dramatically so . Mr PERSON suggested that the time had now arrived for PERSON to ask the Group CARDINAL custody officers to call a doctor . He explained that the findings of the doctor were unlikely to be relayed to the prosecutor , the court clerk or the magistrates and that a doctor ’s visit was unlikely at that stage to prejudice his chances of being granted bail . During that attendance , PERSON stated that PERSON was calm , rational and responsive . He stated that there was nothing unusual about his behaviour and responses . He was clearly worried about the possibility of being remanded in custody . He further stated that he would think about calling a doctor : CARDINAL of the factors weighing upon him was that he did not want his mother to know that he was dependent on heroin . However , PERSON told the ORG investigators that during this visit PERSON told him that he had already requested to see a doctor , but that he had not yet been seen .

PERSON did not express any concerns about the well - being of PERSON to his custodians at the conclusion of his legal visit at TIME Thereafter , PERSON cell was checked , as was normal , he made a visit to the toilet and he was provided with lunch .

At CARDINAL p.m. Stuart Gipp was produced in court , where an application for bail was made . The magistrates retired for TIME and refused the application . PERSON was remanded in custody to ORG ( “ LOC ” ) for DATE . In a statement by PERSON , the ORG clerk , he recalled that at no time during the court hearing was anything said on ORG behalf to indicate that he was distressed .

The Group CARDINAL officer who accompanied PERSON to his court appearance , PERSON , told the ORG investigators that , on the way to court , he was talking to her without any apparent problem and that during the hearing itself he appeared calm and behaved normally . At the time at which the magistrates retired to consider their decision , PERSON talked and joked with her . She described him as fine , good - natured and conversational during this period . Once the magistrates announced that he was to be remanded at ORG she described his reaction as follows :

“ Almost instantly his demeanour changed in the dock . He became unresponsive , shut down and went quiet . He was not emotional at all and did n’t cry , shout or anything of that kind . He was told to go with the officer as is usual and I went to put the cuff on him and he pulled his arm away , resisting me . I spoke to him kindly and said ‘ come on , let ’s get you ORG . He then let me put the cuff on . As we reached the dock door he wiggled the cuff on his wrist but did n’t really try to get it off ... I was talking to him all the time but he did n’t respond to me . He did n’t pull or refuse to come with me , he was just quiet ... His reaction was not unusual and did n’t alarm me more than usual . ”

The change in ORG demeanour was not noted on the PER form .

PERSON , ORG brother , made a statement after the death in which he described PERSON demeanour in court DATE differently . He stated that he was at the back of the court when PERSON came in and that he appeared upset and looked as if he had been crying and that he put his head down in court and started to cry . He also stated that PERSON “ screamed and screamed ” as he went down the corridor with the ORG officer after the hearing . He added that ORG had never wanted to talk about his experiences at GPE the previous time that he was there and that CARDINAL of ORG friends had said that he had said that he would kill himself if he had to go back to PERSON .

According to the entries on the ORG form , PERSON was returned to his cell at TIME and Mr PERSON visited him there at TIME PCO Cannon went to open ORG cell door to allow PERSON to conduct his legal visit . She saw PERSON with his head in his hands . She informed him that his solicitor had come to see him . He did not respond , but just walked into the interview room without saying anything . In his witness statement , Mr PERSON described that visit . Upon being asked by PERSON , Stuart Gipp stated that he had asked to see a doctor some time previously but that he had not been seen by one . Mr PERSON observed that PERSON was very unhappy about the decision of the court and stated that he would not be able to stand it . He referred generally to difficulties he had experienced when he was previously at ORG , but did not want to discuss these further . Mr PERSON described the ensuing conversation as follows :

“ I told PERSON that in DATE time we could make another bail application . If that failed we could ask a Judge in ORG for bail . At that point he said : ‘ I may not be ORG . I asked him what he meant and he said that he might kill himself . I took this seriously because although he said it in a tone that appeared to lack conviction , he had his head deeply bowed throughout this conversation except when he was smoking a cigarette . He seemed to feel defeated . ”

According to the timings on the PER form , the legal visit concluded at TIME At TIME , Mr PERSON informed PERSON that ORG had requested to see a doctor . PERSON stated that she was unaware of that request . She further explained that no doctor was available at that time as she had been trying to get one to attend another detainee since TIME without success . PERSON also mentioned that PERSON was threatening to take his own life . PERSON noted on the PER form that he may try to harm himself and , at TIME , initiated a self - harm form FCARDINALSH as a result . At TIME , ORG went to check PERSON cell . Having initially not been able to see PERSON , PERSON re - checked the cell . As she opened the outer gate , she found PERSON hanging from his shoe - laces from the bolt hole of the open hatch on his cell door .

PERSON was cut down and attempts were made to resuscitate him . An ambulance was called , paramedics and police arrived to assist and ORG was transported to ORG , GPE . It was there that he subsequently died .

CARDINAL PER forms were created in respect of ORG . According to the Government , the second form was created after PERSON had hanged himself , but before he died . This was because the first form was taken by the police for the purpose of the police investigation into the hanging .

The front page of the first PER form contains a tick next to the box marked “ no known risk ” , which the Government state was filled in by PERSON at the time that PERSON was handed over to Group CARDINAL custody . There is also a tick by the box marked “ suicidal / self harm ” and , under the box marked “ further information ” are recorded the words “ may try to harm himself ” . None of the entries on the front sheet of the form are timed . On the second page of the form appear timed entries of various events TIME , at which time it was noted that the police arrived . This includes an entry timed at TIME that Mr PERSON had stated that PERSON may try to take his own life .

The front page of the second PER form contains only ORG personal details and a record of his property . The timed entries on the second page of the form commence at TIME

PECS carried out an inquiry into ORG death . The resulting report was handed to the coroner on CARDINAL DATE . A copy of the report was forwarded to the applicant ’s solicitors on DATE and received by them on DATE .

The report made , inter alia , the following findings :

– the police did not hand over to ORG CARDINAL a copy of the ORG form or the police custody record relating to the time that PERSON was held at FAC , nor was the request to see a doctor while in police custody recorded on the PER form by the police ;

– the PER form failed to record the following matters , all of which should have been recorded : ORG had requested to see a doctor , both in police custody and TIME in ORG cells , PERSON was a drug user and PERSON was concerned about PERSON health , not his safety , and PERSON demeanour had changed following his remand by the court to LOC ;

– Stuart Gipp was not referred to the community psychiatric nurse ;

– on finding PERSON hanging , the staff handling the situation worked with speed and skill and did all that they could to revive him .

The report also referred to a memorandum to all ORG CARDINAL court and escort staff in area CARDINAL dated DATE ( DATE before PERSON hanging ) which stated as follows :

“ Cell Door Hatches

With immediate effect all hatches in cell doors are to remain in the closed position when the cell is occupied .

Any faults in hatches are to be reported immediately to the ORG Manager . ”

The memorandum did not give any indication that the reason for the change in practice regarding cell hatches was a suicide prevention measure designed to ensure that all potential suspension points within the cell were eliminated , thereby reducing or eliminating the opportunity for acts of self - harm . The PECS report recommended that all court escort contractors should be alerted to the risk and dangers posed by allowing a cell door hatch to be in the open position and that , unless further close supervision was available , the cell door hatch should be closed .

On DATE , an inquest was heard into ORG death by ORG , sitting with a jury .

At the inquest , the ORG CARDINAL staff stated in evidence that it was the practice to keep all cell hatches open at GPE ORG . They further stated that they were unclear as to what general policy , if any , Group CARDINAL had regarding cell hatches . All Group CARDINAL staff who gave evidence at the inquest were either uncertain as to whether the memorandum had been brought to their attention prior to PERSON hanging , or adamant that it had not been . They were further unclear what training , if any , they had received on the suicide risks of open cell hatches . PERSON , who had overall responsibility for the safety of prisoners in the custody of Group CARDINAL at ORG , testified at the inquest that she had still , DATE after ORG death , not been made aware of the purpose of the memorandum .

In delivering a verdict that ORG had killed himself , the jury found that failures of responsible persons to follow some procedures and PERSON knowledge of his place of detention contributed towards his death .

On DATE the applicant instructed a firm of solicitors to advise and assist her in connection with the inquest into her son ’s death . The applicant was advised that neither she ( not being a dependant of PERSON ) nor ORG estate had any viable cause of action for damages which would justify the grant of a civil legal aid certificate on a cost benefit analysis . That advice was re - iterated to her by her solicitor on DATE and by counsel on DATE , following her receipt of the ORG report on DATE and the inquest . She was therefore unable to pursue any action which would have examined the liability of ORG custodians for failing to prevent him from killing himself in custody and which would have afforded the possibility of compensation in respect of his death .

The applicant lodged her application with ORG .

The duty to hold an inquest arises under LAW . Where there is reasonable cause to suspect that the deceased died in prison the coroner is obliged to hold an inquest together with a jury .

Inquest proceedings are directed solely to ascertaining the following limited matters : ( i ) who the deceased was ; ( ii ) how , when and where the deceased came by his death ( “ how ” meaning “ by what means ” as opposed to “ in what broad circumstances ” ) and ( iii ) the particulars required by the Registration Acts to be registered concerning the death ( LAW ) of the Coroner ’s LAW and rule CARDINAL of DATE , as interpreted by NORP v. GPE and GPE , ex parte PERSON [ DATE ] QB CARDINAL ( “ ex parte PERSON ) ) .

ORG in ex parte PERSON defined the role of the coroner as follows at page CARDINAL :

“ It is the duty of the Coroner as the public official responsible for the conduct of inquests , whether he is sitting with a jury or without , to ensure that the relevant facts are fully , fairly and fearlessly investigated . He is bound to recognise the acute public concern rightly aroused where deaths occur in custody . He must ensure that the relevant facts are exposed to public scrutiny , particularly if there is evidence of foul play , abuse or inhumanity . ”

Rule CARDINAL of the Coroners Rules DATE provides :

“ No verdict shall be framed in such a way as to appear to determine any question of- ( a ) criminal liability on the part of a named person , or ( b ) civil liability . ”

Rule DATE was stated to express the following in ex parte PERSON at page CARDINAL :

“ It is not the function of a coroner or his jury to determine , or appear to determine , any question of criminal or civil liability , to apportion guilt or attribute blame . ”

In R ( on the application of PERSON and PERSON ) v. Secretary of ORG for ORG [ DATE ] EWCA Civ CARDINAL , ORG held that , in the light of the enactment of LAW DATE , which came into force in DATE and imposed a duty on NORP courts to act compatibly with rights set out in the LAW thereafter , in order to satisfy the investigative obligation under LAW it would be necessary , in an appropriate case , to permit a jury to return a verdict of “ system neglect ” in circumstances where , previously , domestic law , specifically ex parte PERSON , forbade such an outcome ( § § CARDINAL and CARDINAL ) . ORG also held in that case that , where a death occurred in ORG custody , either at the hands of another prisoner or as a result of a suicide , the investigative obligation under LAW was engaged ( § MONEY ) .

“ A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly . ”

A coroner ’s court does not have jurisdiction to award compensation in respect of a death .

Pursuant to the common law , no one can recover damages in tort for the death of another .

LAW DATE confers a right of action for a wrongful act causing death . LAW ) provides :

“ If death is caused by any wrongful act , neglect or default which is such as would ( if death had not ensued ) have entitled the person injured to maintain an action and recover damages in respect thereof , the person who would have been liable if death had not ensued shall be liable to an action for damages , notwithstanding the death of the person injured . ”

The statutory right of action is however for the deceased ’s dependants ( section CARDINAL(CARDINAL ) ) which allows the recovery of their pecuniary loss . If there is no dependency , there is no pecuniary loss to recover as damages . Bereavement damages ( fixed at MONEY ) are only available to the parents of a deceased child under DATE at the time of death or to the spouse of the deceased ( section CARDINALA(CARDINAL ) ) . Funeral expenses are recoverable ( section CARDINAL(CARDINAL ) ) .

LAW ( Miscellaneous Provisions ) Act DATE provides for the survival of causes of action for the benefit of the deceased ’s personal estate . LAW ) provides as relevant :

“ Subject to the provisions of this section , on the death of any person after the commencement of this LAW all causes of action subsisting against or vested in him shall survive against , or , as the case may be , for the benefit of , his estate . ”

This enables recovery on behalf of the estate of damages for losses suffered by the deceased before he died , including any non - pecuniary loss such as damages for pain and suffering experienced between the infliction of injury and death . Where death is instantaneous or it can not be proved that the deceased experienced pain and suffering before death , damages are not recoverable under LAW and the only amount recoverable would be funeral expenses .

It was accepted in ORG case of PERSON v. Commissioner of ORG CARDINAL A.C. CARDINAL that there was a common law duty of care upon the police to take reasonable steps to prevent a person of sound mind who was known to be a suicide risk from taking his own life while in custody . The duty had been breached on the facts of the case when the deceased had been able to hang himself as a result of the officers having left the hatch of his cell door open . Liability for the death was shared equally with the deceased , as a result of his voluntary act .

In GPE v. the Chief Constable of GPE [ DATE ] CARDINAL WLR CARDINAL , ORG addressed the question , left open by ORG in PERSON , as to whether the duty under consideration in PERSON arose only where the authorities knew or ought to have known that the individual prisoner presented a suicide risk , or whether it was a duty owed to all prisoners in custody . ORG held that suicide was not a foreseeable risk in relation to every prisoner and that the obligation to take reasonable care to prevent a prisoner from taking his own life deliberately only arose where the custodian knew or ought to have known that the individual prisoner presented a suicide risk . It further held that the increased risk of suicide amongst prisoners gave rise to an obligation , within the general duty of care of the custodian for the health and safety of the prisoner , to take reasonable steps to identify whether or not a prisoner presented a suicide risk . As , on the facts , the police had been justified in concluding that the deceased was not a suicide risk , no duty of care was owed to him to prevent him from taking his own life and therefore it was not a breach of any duty to permit the deceased to retain his belt or to have placed the deceased in a cell in which the gate on the door , from which the deceased had hanged himself using his belt as a ligature , did not comply with recommendations contained in ORG circulars . As PERSON elected not to petition ORG for leave to appeal , the issue in GPE has not yet been addressed by ORG .

In ORG referred to the NORP case of PERSON v. PERSON ( DATE ) CARDINAL DLR ( CARDINALth ) CARDINAL , in which the allegations were that , although the deceased , a prisoner who had hanged himself , was not known to be a suicide risk , the standard procedures in the police operating manual should have been followed . ORG stated the following principle ( cited at page CARDINAL of Orange ) :

“ Suicide being reasonably foreseeable for prisoners as a group , and the defendants not having time to examine each person to see whether or not he is likely to attempt suicide , the reasonable course is to adopt a minimum standard applicable to all prisoners except those who require special attention . The steps outlined in an operating manual seem appropriate for that purpose . ”

ORG No . CARDINAL , dated DATE and implemented on DATE , introduced the ORG form and described its purpose as follows :

“ It is essential that those responsible for the custody and care of a detainee / prisoner are made fully aware at all times of any associated risks from the prisoner and/or of any medical or psychiatric conditions of the prisoner . To ensure that such information is recorded for each prisoner and therefore accessible to all police officers , prison officers or escort custody officers in whose custody the prisoner may be , a form has been introduced for national use by the police , prison , court and escort services . ...

... The PER form is designed for use by everyone who comes into custodial contact with prisoners and should help minimise the danger of relevant information about the prisoner not being passed on to receiving authorities and , importantly , to those officers who take over responsibility for prisoners from others . Correct use of the form should not only ensure that prisoners are given the correct level of care and attention at all stages but that those who have responsibility for custody and transfer are made aware of the risks or potential risks they may face . ”

Paragraph CARDINAL.CARDINAL of Code C of the Police and Criminal Evidence Act DATE provides :

“ If a detained person requests a medical examination the police surgeon must be called as soon as practicable . He may in addition be examined by a medical practitioner of his own choice at his own expense . ”

ORG No . CARDINAL/CARDINAL , dated DATE , provides in relevant part :

“ Police authorities and police officers are aware of the need to ensure that fittings in cells should not provide opportunity for a prisoner to do himself injury ... Chief Constables are requested to arrange for early inspection of all police cells to ensure that there are no projections or fittings which prisoners might use to cause themselves injury . ...

... where cell doors are fitted with a drop - down service hatch , the hatch should not be left open when the cell is occupied by a prisoner . With the hatch open it would be possible for a person inside the cell to secure a ligature on the handle of the hatch . ”

Paragraph CARDINAL.CARDINAL of the PECS report , headed “ Area CARDINAL LOC ” stated , in relevant part , as follows :

“ ORG in LOC commenced on DATE with a phased introduction DATE . It provides court escort and custody services across the CARDINAL counties of GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE .

The contract in DATE has been fully operational for DATE . The contractor is ORG . In DATE of the contract operation , Group CARDINAL has undertaken an average of CARDINAL prisoner movements and handled an average of CARDINAL prisoners . During this period the contractor has been faced with numerous incidents , including attempted suicide and self - harm . The number of attempted suicides / self - harm incidents recorded in DATE is illustrated in the table below :

The nature of these incidents varies considerably , ranging from a determined attempt where a prisoner swallowed medication which had previously been concealed about the person , to smaller incidents where individual prisoners have struck hard surfaces causing minor injuries to their hands or grazes to their heads . The contractor has , however , always taken each incident seriously . One has to be cautious given the vulnerable nature of some prisoners , particularly those on remand or appearing at court for the first time . ORG has a very good record of prisoner care . ”


Violation of Art. 8;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE .

In DATE the applicant was suspected by police officers in LOC in robbery . The view was taken by ORG that it was necessary to place a hidden battery - powered listening and recording device in the applicant ’s home . An application was therefore made to the Chief Constable for the instalment of such a device , which was authorised on DATE , pursuant to the non - statutory LAW of DATE .

NORP In order to install the device , the police decided to arrest the applicant and his partner in connection with another matter ( credit card fraud ) and to remove them and their children from their home . Enquiries into the credit card fraud had previously lapsed without any arrest or questioning of the applicant or his partner . However , ORG of ORG and ORG , an officer in the intelligence bureau of ORG , decided to revive the investigation for the purpose of removing the applicant and his partner from their home for long enough to enable the installation of the listening device .

WDC Fletcher briefed CARDINAL officers about purported grounds for arresting the applicant and his partner for credit card fraud , without informing them of the intended installation of the device .

At TIME on DATE the CARDINAL officers arrested the applicant ’s partner in her home and shortly thereafter arrested the applicant . Both were taken to the police station . The officers seized the keys to the applicant ’s home and car . Officers from ORG then used the house key to enter the applicant ’s home and install the listening device . They also had a copy of the key cut to enable them to enter the house at DATE .

NORP The applicant and his partner were released from police custody on TIME DATE after being interviewed . Neither was charged , but both were released on police bail and required to report back to the police station on DATE . The applicant ’s keys to his home and car were returned to him .

On DATE the applicant and his partner attended the police station in accordance with their bail and were interviewed again . Neither was charged at that time or subsequently with credit card fraud . During their interview police officers entered their home using the duplicate key in order to renew the battery in the listening device .

During DATE , police officers again entered the applicant ’s home to renew the battery in the listening device .

As a result of conversations that were recorded between the applicant and J , his co - defendant in the criminal proceedings , both men were arrested in DATE . They were charged with conspiracy to commit robbery and burglary DATE and DATE .

The trial was at ORG in DATE . An application was made , in a voir dire procedure , on behalf of the defendants for the tape recorded evidence to be excluded under section CARDINAL of ORG on the basis that it had been obtained unlawfully and in breach of LAW . This application was rejected by the trial judge on DATE . The judge found that the officers who carried out the arrests on DATE did have reasonable grounds for suspecting those whom they arrested and that if further information had arisen at the interviews or from the other enquiries which were carried out it was possible that charges would have been brought for those matters . He did find that the removal of the applicant ’s keys was in breach of the search and seizure requirements of PACE , that the taking and use of the house key constituted a civil wrong , that there was a trespass to the applicant ’s home and that minor criminal damage had taken place . However , balancing the various factors , including the fact that the tape - recordings amounted to confessions of serious crimes involving the possible use of firearms , that there was no suggestion of improper inducement or incitement to commit the offences and that there was no dispute about the content of the conversations , the judge ruled the evidence admissible .

As a result of the ruling on admissibility , the applicant and his co - defendant changed their pleas to guilty . They were each sentenced to CARDINAL years’ imprisonment .

On DATE , after being granted leave to appeal , the applicant ’s appeal against conviction was dismissed by ORG ( NORP v. PERSON and PERSON [ DATE ] CARDINAL All ER CARDINAL ) .

On DATE ORG refused the applicant ’s petition for leave to appeal .

In DATE , the applicant was released on licence .

Guidelines on the use of equipment in police surveillance operations ( ORG of DATE ) provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices . The Guidelines were available in the library of ORG and were disclosed by ORG on application .

In each case , the authorising officer had to satisfy himself that the following criteria were met : ( a ) the investigation concerned serious crime ; ( b ) normal methods of investigation must have been tried and failed , or must from the nature of things , have been unlikely to succeed if tried ; ( c ) there was good reason to think that use of the equipment would be likely to lead to an arrest and a conviction , or where appropriate , to the prevention of acts of terrorism ; d ) the use of equipment was operationally feasible . The authorising officer had also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance was commensurate with the seriousness of the offence .

The CARDINAL Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy . The relevant sections relating to the authorisation of surveillance operations , including the procedures to be adopted in the authorisation process , entered into force on CARDINAL DATE .

Since DATE , these controls have been augmented by Part II of ORG ( “ RIPA ” ) . In particular , covert surveillance in a police cell is now governed by sections CARDINAL ) and CARDINAL ) of RIPA . ORG also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police .


CASE OF NEWS VERLAGS GmbH & Co. KG v. AUSTRIA

Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

NORP The applicant , a limited liability company with its seat in GPE , is the owner and publisher of the magazine News .

NORP In DATE a series of letter bombs was sent to politicians and other persons in the public eye in GPE . Some of the addressees were severely injured .

On DATE B. , a right - wing extremist , was arrested on suspicion of having been involved in the so - called letter - bomb campaign . He was taken into detention on remand . Preliminary investigations were instituted against him on suspicion of attempted murder and of having committed offences under LAW ( GPE – “ the LAW ” ) . He was later charged with offences under LAW and with having aided and abetted assault .

NORP In DATE the applicant company published a special issue and later an article in CARDINAL of the regular issues of its magazine News , dealing with the letter - bomb campaign , the activities of the extreme right and , in particular , the suspect PERSON The respective reports were illustrated with several pictures of B. The cover page of the special issue for instance showed a small picture of PERSON , subtitled in big letters “ The Mad World of Perpetrators ” . Under the headline “ Terror for the NORP ” a full - page picture showed PERSON together with CARDINAL other persons . According to the comments , this picture was taken in a courtroom , where PERSON stood up in protest when the verdict was pronounced against his “ ORG , the neo - NORP leader GPE Furthermore , it was stated that , when GPE was sentenced to DATE imprisonment , his companions , including PERSON , swore vengeance . According to another comment on the same page , these companions who had been supposed to be harmless lunatics were now arrested as bomb terrorists . The cover page of the second issue carried the headline “ Victims and NORP ” and showed a large picture of CARDINAL of the victims and a smaller picture of PERSON and CARDINAL others . The victim was quoted as saying : “ I want to meet the perpetrators . ” At the bottom of the page the words “ NORP scene uncovered ” appeared . In the article , a further picture of PERSON and another suspect , NORP , was shown . According to the comment , it had been taken on the occasion of the trial of the neo - NORP leader PERSON The comment went on to state that NORP and PERSON , who had both wished to succeed GPE , were now suspected of having dispatched the bombs . Moreover , a wedding picture of PERSON was published . The comment accompanying it stated that , according to the investigations of the police , PERSON and NORP had probably collaborated in order to organise the letter - bomb campaign . In the article itself , PERSON was described as pathologically ambitious , one of the most brutal members of the neo - NORP scene and the possible successor to the neo - NORP leader PERSON

On DATE B. brought proceedings under section CARDINAL of LAW ( Urheberrechtsgesetz ) against the applicant company , requesting that the latter be prohibited from publishing his picture in connection with reports on any criminal proceedings against him . He also requested a preliminary injunction ( einstweilige GPE ) to that effect .

On DATE ORG ( ORG ) dismissed PERSON 's application for a preliminary injunction .

The court observed that section CARDINAL of LAW prohibited publishing a person 's picture if the publication violated that person 's legitimate interests . However , where criminal proceedings were conducted against the person concerned , that interest had to be weighed against the public interest in receiving information . As the present case related to very serious offences based on anti - democratic , subversive ideology , the publication of a suspect 's picture was justified in principle . Further , the court found that it did not have to examine whether the accompanying comment violated PERSON 's right to respect for his private life as he had failed to indicate which passages of the articles at issue might go beyond the limits of acceptable reporting .

On DATE ORG ( Oberlandesgericht ) , upon PERSON 's appeal , issued a preliminary injunction prohibiting the applicant company from publishing PERSON 's picture in connection with reports on the criminal proceedings against him on suspicion of having committed offences under LAW and of having aided and abetted assault through letter - bomb attacks .

ORG pointed out that section CARDINAL of LAW was directed against the abuse of pictures in public . Section CARDINAL sought above all to prevent a person from being disparaged by the publication of a picture , or his private life being made public or his picture being used in a way giving rise to misinterpretation , or in a disparaging and degrading manner . Further , the court observed that section CARDINAL of LAW did not define the term “ legitimate interests ” , thus conferring discretion on the courts in order to enable them to take the particular circumstances of each case into account . It also required the courts to weigh the interest of the person concerned in the protection of his or her picture against the publisher 's interest in conveying information .

ORG went on to say that , in assessing whether a person 's legitimate interests within the meaning of section CARDINAL of LAW had been violated , not only the picture itself , but also the accompanying text had to be taken into account . Also , a person suspected of having committed an offence had a legitimate interest in not being denounced in public by the publication of a picture in connection with a disparaging text . In the present case , the contested publication constituted not only a gross insult , but also a serious violation of the presumption of innocence . Quoting some headlines and comments from the articles at issue , ORG noted that the applicant company had called B. a “ perpetrator ” of the letter - bomb attacks , a “ NORP ” , a “ terrorist for the ' PERSON ' ” and a companion of the neo - NORP GPE who had been sentenced to DATE imprisonment . These gross violations of PERSON 's legitimate interests justified a prohibition on the publication of his picture in the context of the criminal proceedings which were at the time conducted against him .

Despite this line of reasoning , the judgment had the effect of prohibiting the publication of PERSON 's picture not only in connection with a text that was prejudicial but DATE even more restrictively – in connection with reports on the criminal proceedings against him irrespective of the accompanying text .

On DATE ORG ( Oberster Gerichtshof ) rejected both parties ' extraordinary appeals on points of law ( außerordentlicher Revisionsrekurs ) , finding that they did not raise any important legal issues . As to the applicant company 's appeal , it found that section ORG of LAW ( Mediengesetz ) , to which the applicant company had referred in its submissions , did not lead to the result that a suspect 's legitimate interests could not be violated by the publication of his picture . There was thus no contradiction with section CARDINAL of LAW . Further , there were no clear indications in the present case that the public interest justified the publishing of B. 's picture . Thus , the appellate court 's decision was not based on a gross misinterpretation of the law .

Supplementing his application of DATE , PERSON had in the meantime filed an alternative claim ( PERSON ) , requesting that the applicant company be ordered to refrain from publishing his picture in connection with such statements as had been made in the articles at issue and which he listed in detail .

On DATE ORG , in the main proceedings , granted PERSON 's alternative claim , ordering the applicant company to refrain from publishing PERSON 's picture where the publication was likely to violate PERSON 's legitimate interests , namely in connection with statements in which PERSON was referred to as the perpetrator of the letter - bomb attacks or as being involved in terror or letter - bomb attacks , or in connection with such statements – listed in detail – as had been made in the articles at issue .

The court found that the publication of PERSON 's picture together with the accompanying text constituted not only a gross insult , but also a serious violation of the presumption of innocence . These gross violations of PERSON 's legitimate interests justified a prohibition on publishing his picture in the context of the criminal proceedings against him , but only if he was referred to as the perpetrator of the offences or if otherwise the rules of objective reporting were violated . Having regard to the seriousness of the charges brought against PERSON and the notoriety of the victims , the public interest in PERSON 's appearance outweighed his interest in not having his picture published as long as such reports did not overstep the boundaries of objective journalism . Further , the court emphasised that it did not intend to sanction reporting ( PERSON ) as such . It repeated that , when assessing a person 's claim under section CARDINAL of LAW , the text accompanying the pictures was of importance . It made a difference whether a person , along with the publication of his picture , was stigmatised as the perpetrator of a crime or whether an objective report on the criminal proceedings against him was given .

On DATE ORG dismissed the applicant company 's appeal but granted PERSON 's appeal . It ordered the applicant company to refrain from publishing PERSON 's picture in connection with reports on the criminal proceedings against him on suspicion of having committed offences under LAW and of having aided and abetted assault through letter - bomb attacks .

The court recalled the reasons given in its decision of CARDINAL DATE ( see paragraphs DATE above ) concluding once again that the publication of B. 's picture in the context of the accompanying comments had constituted a gross violation of his legitimate interests , which justified a prohibition on publishing his picture in the context of the criminal proceedings against him . It added that the onus was not upon B. to specify the statements which the applicant company had to refrain from publishing in connection with the pictures since , in general , new accusations were published in the course of the proceedings , and there was no interest in repeating the previous ones . Thus , ORG judgment was worded too narrowly .

On DATE ORG rejected the applicant company 's extraordinary appeal on points of law . It found that the applicant company undoubtedly had a right to impart information about the proceedings conducted against B. However , the right to impart information had to be distinguished from the right to publish pictures of B. , which had to be balanced against PERSON 's interest in the protection of his picture . Even the publication of a picture accompanied by a correct statement of facts , which violated neither section ORG nor section CARDINALb of LAW , could infringe the legitimate interests of the person concerned . Finally , ORG , referring to LAW , found that the applicant company 's right to freedom of expression had not been violated , since it had not been prohibited from reporting on the proceedings , but only from publishing PERSON 's picture in that context .

NORP In DATE a first - instance court acquitted PERSON of the charges of assault but convicted him of offences under LAW . The criminal proceedings against B. received extensive news coverage . Contrary to the applicant company , other newspapers remained free to publish PERSON 's picture .

On DATE ORG , in proceedings brought by LAW under section CARDINALb of LAW , found that the applicant company had violated the presumption of innocence and ordered it to pay MONEY by way of compensation to B. The court found that in its articles of DATE the applicant company had referred to B. as the perpetrator of the “ letter - bomb terror ” .

The relevant provision of LAW reads as follows :

“ ( CARDINAL ) Images of persons shall neither be exhibited publicly , nor disseminated in any other way in which they are made accessible to the public , where the legitimate interests of the person in question or , in the event that they have died without having authorised or ordered publication , of a close relative would be injured .

This provision has been interpreted in ORG case - law . In particular ORG found that in determining whether the publication of a person 's picture violated his or her “ legitimate interests ” regard was to be had to the accompanying text . Where the publisher of the picture claimed that there was a public interest in its publication , the courts had to carry out a weighing of the respective interests involved . As regards reporting on criminal cases , ORG constantly held that there was no predominating public interest in the publication of the suspect 's picture if it had no additional independent information value . The only effect was that the intensity of such reporting was increased by joining the suspect 's picture and , thus , made his or her appearance known to the public at large ( see for instance , PERSON , p. CARDINAL ; ORG , p. CARDINAL ; PERSON , p. CARDINAL ; ORG , p. CARDINAL ) .

The relevant provisions of LAW read as follows :

“ ( CARDINAL ) Where publication is made , through any medium , of a name , image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who

NORP has been the victim of an offence punishable by the courts , or

NORP is suspected of having committed , or has been convicted of , a punishable offence ,

and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person 's position in society , of some other connection with public life , or of other reasons , the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered . The award of damages shall not exceed CARDINAL schillings ; additionally , section DATE ) , second sentence , shall apply .

( CARDINAL ) ORG interests of the victim shall in any event be injured if the publication

NORP in the case of subsection ( CARDINAL)CARDINAL is such as to give rise to an interference with the victim 's strictly private life or to his or her exposure ,

NORP in the case of subsection ( CARDINAL relates to a juvenile or merely to a lesser indictable offence or may substantially prejudice the victim 's advancement .

“ ( CARDINAL ) Where a person who is suspected of having committed a punishable offence but has not been finally convicted is portrayed in a medium as guilty , or as the offender and not merely a suspect , the victim shall have a claim in damages against the owner of the medium ( publisher ) for the injury suffered . The award of damages shall not exceed QUANTITY ; additionally , section CARDINAL ) , second sentence , shall apply .


DENESOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

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

On DATE ORG ( “ the first - instance court ” ) convicted the applicant and PERSON of misdemeanours punishable under sections CARDINAL and CARDINAL of the DATE LAW ( see “ Relevant domestic law ” below ) . They were fined MONEY ( ORG ) . The court also ordered a security measure in respect of PERSON , namely confiscation of a car which he had imported free of customs duties ( “ the confiscation order ” ) . On DATE ORG overturned that decision and suspended the misdemeanour proceedings since they had not been instituted by a competent authority .

On DATE a fresh application for misdemeanour proceedings was lodged against the applicant and PERSON , now under LAW ( see “ Relevant domestic law ” below ) .

On DATE the first - instance court found the applicant and PERSON A. guilty and fined them MKD CARDINAL,CARDINAL each . It observed that PERSON had imported the above - mentioned car free of customs duties in DATE . Under the applicable rules , the car should not have been disposed of for DATE after being imported . However , PERSON had transferred the car to a company ORG under an uncertified investment agreement ( договор за вложување ) . The court further established that on DATE , at CARDINAL , CARDINAL a.m. , the police had stopped the applicant while he was driving the car . The court ruled that the applicant knew or , in the circumstances , ought to have known that the car had been imported free of customs duties and that he could not use it . By a rectifying decision of DATE the confiscation order was issued in respect of PERSON On DATE ORG quashed these decisions and remitted the case for fresh consideration .

On DATE the applicant was found guilty of committing an offence punishable under the DATE LAW and was fined MKD CARDINAL . The confiscation order was issued again in respect of PERSON This decision was set aside on DATE .

On DATE the first - instance court found the applicant guilty and imposed the same fine . Relying on the evidence admitted in the first set of proceedings , the court found the applicant ’s conduct to be in breach of section CARDINAL § CARDINAL of the DATE LAW . It established that on DATE at TIME , the applicant had been driving the car even though he knew or , in the circumstances , ought to have known that he could not use it given the preferential customs regime under which it had been imported . The court further stayed the proceedings in respect of PERSON since the DATE time - bar provided for in the DATE LAW had expired . In this connection , it established that on CARDINAL DATE Mr A. had transferred the car to company ORG although he was legally not supposed to dispose of it until after DATE . Lastly , the court issued the confiscation order in respect of PERSON as holder of title to the car .

The applicant appealed , submitting , inter alia , that the prosecution was time - barred , that his conviction was based on the DATE LAW , which was not in force at the date of the purported offence , namely DATE , that no evidence for his guilt had been presented nor any reason given in respect of the confiscation order and the fine imposed .

On DATE ORG dismissed the applicant ’s appeal . It held that there was sufficient evidence of his guilt ; that it was irrelevant when the applicant had acquired factual possession of the car since the offence was regarded as being committed on DATE and that the DATE time - bar , specified in the DATE LAW , had not expired in the applicant ’s case . It further stated that the confiscation order had been lawful . No comment was made on the applicant ’s complaint that his conviction had been based on the DATE LAW .

On DATE this decision was served on the applicant .

On DATE the first - instance court dismissed PERSON claim for restitution of the car . It further regarded the applicant ’s claim submitted on the same ground as having been withdrawn . On DATE ORG upheld this decision .

Section CARDINAL of the DATE LAW identified persons eligible to import goods free of customs duties . A person concerned was obliged to pay the customs levies if he or she , within DATE after the import , intended to sell or to transfer to another person or to use the goods concerned for a purpose other than those for which the customs exemption or customs privilege had been granted .

According to section CARDINAL § CARDINAL ( CARDINAL ) , an enterprise or other legal entity would be fined by an amount of CARDINAL to CARDINAL times the evaded customs duty or CARDINAL to CARDINAL times the value of the undeclared goods if , before the expiration of the DATE time - limit , it had sold , transferred to another person or used the goods concerned for a purpose other than those for which the customs exemption had been granted .

Section CARDINAL § CARDINAL provided that an enterprise or other legal entity which bought , sold , accepted as a gift , retained , used or held on any ground the goods concerned , although it knew or in the circumstances ought to have known , that an offence had been committed , inter alia , under section CARDINAL § CARDINAL ( CARDINAL ) , would be sentenced to the same penalty as the offender . Under paragraph CARDINAL of this provision the same applied to individuals , both nationals and foreigners .

Section CARDINAL § CARDINAL of the DATE LAW provided that goods free of customs duties could not , within DATE after being imported and without import levies having been paid , be sold , transferred to another person or used for a purpose other than that for which the customs exemption had been granted .

Under section CARDINAL § CARDINAL ( CARDINAL ) , an individual was to be fined by an amount of CARDINAL times the evaded customs duty or CARDINAL times the value of the goods if he or she , contrary to CARDINAL and without having paid the customs duty , sold , transferred to another person or used goods for a purpose other than that for which the customs exemption had been granted .

Section CARDINAL § § CARDINAL and CARDINAL provided that legal entities which , in relation to the activity pursued , bought , sold , accepted as a gift , retained or for transport purposes , held , used or secured possession of goods in respect of which it knew or , in the circumstances ought to have known , that an offence under sections CARDINAL - CARDINAL had been committed , would be sentenced to the same penalty as the offender . That provision applied likewise to individuals .

The date when the DATE LAW was to enter into force was postponed on several occasions . By a law of DATE ( Official Gazette no . CARDINAL ) , it became applicable as of DATE .


The applicants , PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE .

On DATE the applicants’ first child was born with severe physical disabilities , having , inter alia , no arms and hands , a shortened thigh and serious hip dysplasia .

The applicants brought a civil action in ORG , seeking alimony and compensation for non - pecuniary damage from the attending gynaecologist . They argued that , had the mother been informed about the disability , she would have opted for an abortion .

During a hearing , ORG conveyed to the parties its intention to first take evidence on the question of whether the gynaecologist had committed a grave diagnostic error . On DATE ORG informed the applicants that , contrary to its earlier intention , the taking of evidence would commence with the issue of whether an abortion would have been legally possible .

On DATE ORG dismissed the action in its entirety . It considered that it could leave open the question of whether the gynaecologist had committed a grave diagnostic error as the alimony claim required proof of whether , had the parents been informed of the disability , an abortion would have been legally possible . The court found that , for the abortion to be legal , the applicants had to demonstrate that it would have been the only reasonable means to avert a risk for the mother ’s life or severe interference with her physical or mental integrity . Referring to an expert report , the court found that the mother had not demonstrated that an abortion could have been legally possible . The expert had noted in his report that the applicants had failed to submit sufficient documents and provide sufficient facts from the time of the pregnancy to allow him to come to the conclusion that the requirements for a legal abortion were met . The applicants appealed against the judgment .

On DATE ORG notified the applicants of its intention to decide the appeal without conducting a hearing , giving the applicants DATE to make further submissions . It informed the applicants that it was of the opinion that ORG had correctly desisted from taking evidence on the alleged grave diagnostic error . As to their claim in respect of non - pecuniary damage , ORG considered that the applicants had failed to sufficiently substantiate it ; in particular , they had not explained how the shock had manifested itself and had not described the psychological condition of the mother after the birth of the child . With respect to the alimony claim , ORG also confirmed that ORG had been under no obligation to hear evidence on the alleged grave diagnostic error , as the lack of proof of the abortion ’s legality already meant that the claim was unfounded and that an expert opinion on the existence of the grave diagnostic error was redundant . It also rejected the ORG complaint that they had not been granted a hearing as to ORG decision to first take evidence on the question of whether the child could have been legally aborted . It observed that the applicants had had plenty of time to object to ORG decision of DATE , but had chosen not to . In so far as the applicants challenged the expert report , ORG held that the expert ’s conclusions , though not clearly distinguishing between issues of law and fact , had been sufficiently clear . The expert had found that no documents or indications existed that demonstrated an elevated risk of grave interference with the mother ’s mental integrity , either during the pregnancy or after the delivery . ORG noted in that context that the parents had failed to submit further documentation , despite having been asked by ORG to do so . Furthermore , the expert had sufficiently explained that an examination of the mother , DATE after the delivery of the baby , would have been inconclusive without further documentary proof .

On DATE the applicants made further submissions to ORG .

On DATE ORG , referring to the reasoning set out in its decision of DATE , dismissed the appeal without holding a hearing , also dismissing the ORG further submissions contesting the expert report .

On DATE ORG dismissed an objection alleging a violation of the right to be heard ( Anhörungsrüge ) as being manifestly illfounded . The applicants had been informed of the reasons why it intended to dismiss the appeal . It had addressed all the arguments put forward by the applicants , in particular the submissions concerning the claim for damages , the requirements of the legality of the abortion , the challenges against the expert report , and the alleged denial of the right to be heard .

On DATE ORG held that the constitutional complaint by the applicants had no prospect of success as there was no appearance of a violation of the right to be heard or the principle of equality of arms .


Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

PERSON ( ORG , hereafter referred to as “ HADEP ” ) was a political party which was established on DATE . It opened branches in CARDINAL cities and in CARDINAL of districts . The applicants were members of ORG and they held executive positions within the party .

On DATE the chief prosecutor at ORG brought proceedings before ORG and demanded that HADEP be dissolved . The prosecutor argued that ORG had become a “ centre of illegal activities against the integrity of GPE ” . In support of his allegations he referred to a number of pending criminal proceedings against HADEP members , including the applicants .

In its decision of CARDINAL DATE , which was published in ORG on DATE and thus became final , ORG dissolved HADEP . The ORG based its decision on sections CARDINAL and CARDINAL of the LAW and sections FAC and CARDINAL of Law no . CARDINAL on Political Parties . In arriving at its conclusion , ORG took account of the actions and statements of certain leaders and members of ORG , including the applicants . As an ancillary measure under LAW § CARDINAL of the LAW and section CARDINAL of Law no . CARDINAL , ORG banned the applicants and CARDINAL other HADEP members and leaders from becoming founder members , ordinary members , leaders or auditors of any other political party for DATE .

Details of the criminal proceedings which had been brought against the applicants and which were referred to by ORG in its decision are detailed below . In the opinion of ORG , the actions of the applicants which are set out below , as well as the actions of the remaining CARDINAL HADEP members and leaders , proved that a link existed between the applicants , HADEP and the ORG .

These applicants were executive members of ORG 's ORG branch . In DATE criminal proceedings were brought against them for lending assistance to an illegal organisation , namely the ORG , contrary to LAW then in force . The allegations against them included allowing hunger strikers to use HADEP premises in their protest against the arrest of PERSON in GPE . Banners had also been displayed on ORG 's premises expressing discomfort with the arrest , as well as denigrating the NORP state and actions of the NORP security forces . People present on the premises had also been allowed to watch ORG propaganda broadcasts on ORG . Various pro - ORG newspapers and journals , as well as photographs of various ORG members who had been killed in operations , were also recovered from the LOC .

These applicants were subsequently tried by ORG and were found guilty on DATE . They were sentenced to DATE and DATE imprisonment and their conviction was upheld by ORG on DATE .

The execution of the applicants ' prison sentences was suspended following the entry into force of Law no . DATE on Conditional Release , Stay of Proceedings and Suspension of Punishment .

These applicants were executive members of ORG 's PERSON branch . In DATE criminal proceedings were brought against them for lending assistance to the ORG , contrary to LAW then in force . The allegations against them included allowing hunger strikers to use HADEP premises in their protest against the arrest of PERSON in GPE and keeping a NORP flag on the same LOC .

The execution of the applicants ' prison sentences was suspended following the entry into force of PERSON no . DATE .

On DATE ORG found Mr Bülbül guilty of lending assistance to the ORG , contrary to LAW then in force , in a speech he had made at a HADEP congress . He was sentenced to DATE and DATE imprisonment . While the proceedings were pending before ORG , PERSON no . DATE entered into force . ORG accordingly suspended the criminal proceedings against him on DATE .

In DATE another set of criminal proceedings was brought against the applicant on account of a document entitled “ The NORP who Suffered Historical Injustices , the NORP Problem and Recommendations for its Solution ” , which had been found in his house . The proceedings were suspended following the entry into force of Law no . CARDINAL .

Mr LOC was chairman of the GPE branch of ORG until DATE . On DATE ORG found him guilty of lending assistance to the ORG , contrary to LAW then in force , in a speech he had made at a HADEP congress in DATE . He was sentenced to DATE and DATE imprisonment . While they were pending against him the proceedings were suspended following the entry into force of Law no . DATE .

Mr PERSON was a member of the HADEP party council . A number of documents and books prepared by ORG members having been found in his law firm , on DATE ORG found him guilty of lending assistance to the ORG , contrary to LAW then in force , and sentenced him to DATE and DATE imprisonment . The proceedings were suspended before ORG following the entry into force of Law no . DATE .

Mr GPE was the chairman of the GPE branch of ORG . On DATE ORG convicted him of “ incitement to hatred and hostility by making a distinction based on race and regional identity ” , in breach of LAW in force at the material time .

Mr Ateş was the chairman of the youth commission of ORG . On DATE the ORG found him guilty on CARDINAL counts of spreading separatist propaganda , in breach of section CARDINAL of the Prevention of Terrorism Act , in CARDINAL speeches he had given DATE . In his speeches the applicant had advocated recognition of the NORP identity , and argued that the NORP in GPE were being suppressed by those ruling the country . He had also stated that the ceasefire declared by PERSON had raised the peoples ' hopes . He was sentenced to DATE and DATE imprisonment and his conviction was upheld by ORG on DATE . While the applicant was serving his prison sentence , Law no . DATE entered into force and the execution of the remainder of his sentence was suspended . On DATE section CARDINAL of the Prevention of Terrorism Act was repealed .

Mr PERSON was the chairman of the youth council of ORG in ORG . On DATE the ORG convicted him of lending assistance to the ORG , contrary to LAW then in force , and sentenced him to DATE and DATE imprisonment . The court found that the applicant had committed this offence by having organised seminars for university students , during which he had claimed that there were NORP people in GPE who were experiencing a number of problems .

His conviction was upheld by ORG on DATE but the execution of the sentence was suspended following the entry into force of Law no . DATE .

Mr Atalay was the secretary of the GPE branch of ORG . On DATE the ORG convicted him of incitement to hatred and hostility , contrary to LAW in force at the time . He was sentenced to DATE imprisonment . His conviction was based on a speech which he had made during a party congress . According to ORG , during his speech Mr Atalay had said things such as that the NORP and NORP were different people , that GPE was at war with the NORP people and that the NORP who were killed during that war were martyrs .

Mr NORP was the deputy leader of HADEP . On DATE he was found guilty by ORG of spreading separatist propaganda , contrary to LAW then in force . According to ORG , in an article he had written in DATE the applicant had argued that the NORP and NORP were CARDINAL different nations and that the fight the NORP armed forces had been waging against the ORG was a “ dirty war and murder ” . He was sentenced to DATE imprisonment and his conviction was subsequently upheld by ORG . On DATE execution of the applicant 's prison sentence was suspended in accordance with Law no . DATE concerning the suspension of pending cases and penalties in media - related offences .

On DATE PERSON made a speech during PERSON celebrations in his capacity as chairman of the LOC branch of ORG . In his speech the applicant stated the following :

“ We , the NORP people , should join forces with the revolutionaries , workers and patriots ... The NORP like the colour red ; because red is the colour of the blood they have been shedding for DATE for their freedom . The NORP like the colour green ; because it is the colour of getting ready for liberation . The NORP like the colour yellow ; because it is the colour of getting ready for everything ” .

Criminal proceedings were brought against him for spreading separatist propaganda in breach of section CARDINAL of the Prevention of Terrorism Act . On DATE he was found guilty as charged and sentenced to DATE imprisonment . He was also ordered to pay a fine . His conviction was upheld by ORG on DATE .

On DATE Law no . CARDINAL entered into force and the execution of the judgment against the applicant was suspended . On DATE section CARDINAL of the Prevention of Terrorism Act was repealed .

Article CARDINAL of LAW in force at the relevant time provided as follows :

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

Article CARDINAL of the Criminal Code in force at the relevant time provided as follows :

“ Non - public incitement to commit an offence

A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall , on conviction , be liable to DATE imprisonment and a heavy fine of DATE MONEY .

A person who incites people to hatred or hostility on the basis of a distinction between social classes , races , religions , denominations or regions , shall , on conviction , be liable to CARDINAL imprisonment and a fine of DATE . If this incitement endangers public safety , the sentence shall be increased by CARDINAL to CARDINAL .

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in LAW . ”

Section CARDINAL of the Prevention of Terrorism Act provided , in so far as relevant , as follows :

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not DATE imprisonment and a fine of CARDINAL . The penalty imposed on a reoffender may not be commuted to a fine . ”

Article CARDINAL § CARDINAL of the LAW provides as follows :

“ Founding members or ordinary members whose actions or declarations lead to the permanent dissolution of a political party shall be disqualified from acting as founders , ordinary members , administrators or financial controllers of another political party for DATE starting from the date of publication in ORG of the reasoned decision of ORG . ”

Section CARDINAL of Law no . CARDINAL on Political Parties provides as follows :

“ Founding members or ordinary members whose actions or declarations lead to the dissolution of a political party shall be disqualified from acting as founders , ordinary members , administrators or financial controllers of another political party for DATE starting from the date of publication in ORG of the reasoned decision of ORG ... ”

Under PERSON no . DATE , execution of sentences in respect of offences committed before DATE could be suspended if no crime of the same or a more serious kind was committed by the offender within a DATE period .


Violation of Art. 10;No violation of Art. 6-3-d+6-1;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings

On DATE the applicant , who is a journalist , published in the NORP DATE newspaper ORG , in the “ ORG mouth ” column ( GPE bocca del leone ) , an article about Mr PERSON , who was at that time ORG in GPE . The article purported to be a “ portrait ” of Mr Caselli . It was entitled “ PERSON , the judge with the white tuft ” and bore the sub - title “ NORP schooling , communist militancy – like his friend PERSON ... ” .

In the article the applicant , after referring to the proceedings instituted by PERSON against PERSON , a very well known NORP statesman accused of aiding and abetting a mafia - type organisation ( appoggio esterno alla mafia ) , who had in the meantime been acquitted at first instance , expressed himself as follows :

“ ... At university , [ ORG ] moved towards the ORG [ ORG ] , the party which exalts the frustrated . When he entered ORG he swore a threefold oath of obedience DATE to God , to the PERSON and to via PERSON [ formerly the headquarters of the ORG , now those of the PDS – ORG of the Left ] . And [ ORG ] became the judge he has remained for DATE pious , stern and partisan .

But he can not really be understood without a mention here of his alter ego PERSON , his twin brother . Both from GPE ; DATE ; both raised by the NORP teaching orders ; both NORP militants ; both judicial officers ; and a deep understanding between them : when PERSON , the head , calls , PERSON , the arm , responds .

PERSON ] has always been CARDINAL step ahead of PERSON [ PERSON ] . In DATE he indicted for an attempted coup PERSON , a former member of the Resistance , but also an anticommunist . It was a typical political trial which led nowhere . Instead of facing a judicial inquiry , PERSON found that his career began to take off . In DATE he was elected as a NORP MP . And ever since then he has been the via PERSON shadow Minister of Justice ...

... [ Caselli ] is a judge in the public eye . He is in the first line of the fight against terrorism . It was he who obtained the confession of PERSON , whose evidence as a witness for the prosecution was a disaster for the BR [ the red ORG ] .

In the meantime , the ORG set in motion its strategy for gaining control of the public ORG offices in various cities . That campaign is still going on , as the ORG has picked up the baton . ... The first idea was that if the NORP did not manage to gain power through the ballot box , they could do so by forcing the lock in the courts . There was no shortage of material . The NORP and the NORP were nothing but thieves and it would be easy to catch them out . The second idea was more brilliant than the first : the opening of a judicial investigation was sufficient to shatter people ’s careers ; there was no need to go to the trouble of a trial , it was sufficient to put someone in the pillory . And to do that it was necessary to control all the public ORG offices .

And that was the start of GPE . The FAC , GPE and others were immediately caught with their hands in the till and destroyed . But PERSON was needed to complete the picture ...

It was at that precise moment that PERSON [ PERSON ] was getting ready to leave the rain of GPE for the sun of GPE ...

Once in GPE his fate and ORG ’s became intertwined , whereas the CARDINAL men had remained apart for DATE . DATE the senator for life was suddenly accused of belonging to the mafia . The file was an implausible rag - bag ...

In DATE PERSON flew off to GPE , where he met PERSON . He offered the informer MONEY DATE to continue to co - operate . [ Buscetta ] could still be useful to him during the investigation , even if the outcome was no longer of much importance . The result sought had already been achieved .

What will happen next is already predictable . In CARDINAL to CARDINAL months’ time the investigation will be closed . But ORG will not be able to resurrect his political career . What a stroke of luck . PERSON , on the other hand , will be portrayed as an objective judge . ... ”

On DATE , acting on a complaint by PERSON , the judge responsible for preliminary investigations committed the applicant and the manager of ORG for trial in the Monza ORG . The applicant was accused of defamation through the medium of the press ( diffamazione a mezzo stampa ) , aggravated by the fact that the offence had been committed in respect of a civil servant in the performance of his official duties .

During the first - instance proceedings the defence asked to take evidence from PERSON as the complainant and civil party . It also asked for CARDINAL press articles concerning the professional relations between PERSON and the criminal - turned - informer ( pentito ) PERSON to be added to the file . ORG refused both the above applications on the grounds that there was no point taking evidence from PERSON in view of the content of the article written by the applicant and that the documents in question would not have had any influence over the decision .

On DATE ORG found the accused guilty of defamation within the meaning of Articles QUANTITY and CARDINAL and QUANTITY of LAW and LAW no . CARDINAL of CARDINAL DATE ) . It sentenced the applicant to a fine of MONEY ( ITL ) , payment of damages and costs in the sum of ITL CARDINAL,CARDINAL,CARDINAL and publication of the judgment in ORG . It held that the defamatory nature of the article was evidenced by the fact that it denied that PERSON performed his duties conscientiously , attributing to him a lack of impartiality , independence and objectivity which had allegedly led him to use his judicial activity for political ends . The applicant was not entitled to assert the right to report current events ( diritto di cronaca ) and comment on them ( diritto di critica ) as he had not adduced any evidence in corroboration of such serious accusations .

The applicant appealed . Relying on the freedom of the press and in particular the right to comment on current events , he submitted , among other arguments , that the reference to ORG ’s political tendencies reflected the truth and that ORG could have tested whether this was so by agreeing to take evidence from the complainant himself , that PERSON and PERSON actually were friends and that in the proceedings against ORG actually had made use of the assistance of the pentito Buscetta and had paid him sums of money as the representative of the ORG , since all the pentiti were in receipt of money from the NORP ORG . He further described himself as a commentator ( opinionista ) , arguing that his intention had not been to present a biography of PERSON but to express his critical opinions , in a figurative and effective way , on the basis of true and uncontested facts . Lastly , he insisted that the complainant , together with journalists and other well - known personalities on the NORP political stage who , like PERSON , had been militant NORP , should be required to give evidence . In particular , he asked for evidence to be taken from Mr PERSON and PERSON , both political comrades of the complainant during DATE in GPE and demanded that ORG add to the file press articles relating interviews in which they had confirmed the complainant ’s active political militancy . In particular , in an interview published in the DATE newpaper ORG on DATE , extracts from which were quoted in the applicant ’s appeal , PERSON had declared , among other statements , that the complainant was a courageous man of great integrity but that he was influenced by the NORP cultural and political model , that his links with the former ORG were very close and that ORG had subsequently become all but a member of it . In an interview published by another DATE newspaper , ORG , on DATE , also quoted in extract form in the applicant ’s appeal , PERSON had stated that in DATE he had participated in CARDINAL of political meetings attended by PERSON and PERSON , among others , held by the GPE federation of the former ORG . He had gone on to say that although ORG , a man of integrity , had done good work in fighting terrorism and as a judicial officer , he was highly politicised and should therefore avoid making speeches like a tribune .

NORP In a judgment of DATE ORG gave judgment against the applicant . It held that he had attributed acts and conduct to PERSON in a clearly defamatory way .

The Court of Appeal gave separate rulings on the various key parts of the article .

It first examined the phrase concerning the “ oath of obedience ” ( giuramento di obbedienza ) :

“ When he entered ORG he swore a threefold oath of obedience DATE to God , to the PERSON and to via PERSON [ formerly the headquarters of the ORG , now those of the PDS – ORG of the Left ] . And [ ORG ] became the judge he has remained for DATE pious , stern and partisan .

ORG held that this sentence was defamatory because , while it had a symbolic value , it indicated dependence on the instructions of a political party , which was inconceivable for persons who , on being admitted to judicial office , had to swear an oath of obedience ( not a symbolic one but a real one ) to the law and nothing but the law .

ORG next examined the remainder of the article , particularly the allegations that

- Caselli , with the support of ORG , also a judicial officer ( the relations between the CARDINAL being described as relations between “ the arm and the head ” ) , had played a crucial role in the former ORG plan to gain control of the public ORG offices in each NORP city in order to annihilate their political opponents ;

- Caselli had accused ORG and used the pentito Buscetta in the full knowledge that he would eventually have to discontinue the proceedings for lack of evidence , which confirmed that the sole purpose of his actions had been to destroy ORG ’s political career .

ORG ruled that these allegations were very serious and highly defamatory in that they were not backed up by any evidence .

As to the request for cross - examination of the complainant and other notable figures of NORP political life and for certain articles to be added to the file , ORG held that this was unnecessary since the applicant ’s remarks about PERSON ’s political leanings , the friendship between PERSON and PERSON and the use of PERSON , a pentito paid by the ORG , in the proceedings against ORG , were not defamatory and therefore did not have to be proved .

In a judgment of CARDINAL DATE , deposited with the registry on DATE , ORG upheld ORG decision . It held that it was a correct decision both in procedural terms and as regards the merits of the case . On the merits , it held that the offensive nature of the article for PERSON , both as an individual and as a judicial officer , could not be doubted , as the applicant had accused him of deeds which implied a lack of personality , dignity , autonomy of thought , coherence and moral integrity .