The applicant , PERSON , is a NORP national with a degree in technical sciences from ORG . He is retired and lives in GPE in the GPE of GPE . Before the ORG he is represented by PERSON , a lawyer practising in GPE .

The applicant carried out research , together with a technical adviser , at ORG , on the effects on human beings of the consumption of food prepared in microwave ovens . In a research paper dated DATE , entitled “ Comparative study of the effects on human beings of food prepared by conventional means and in microwave ovens ” , it was concluded :

“ The measurable effects on human beings of food treated with microwaves , as opposed to food not so treated , include changes in the blood which appear to indicate the initial stage of a pathological process such as occurs at the start of a cancerous condition . ”

Subsequently , in issue no . CARDINAL ( DATE ) of the DATE ORG PERSON , in which the applicant was mentioned as a member of the editorial staff , there appeared an article by PERSON d’Ombresson entitled “ Microwave ovens : a health hazard . Irrefutable scientific evidence ” . The cover page depicted a ORG ) holding out one hand towards a microwave oven . The introductory paragraphs to the article stated , inter alia :

“ Off to the scrap heap and the rubbish dumps with microwave ovens ! The treatment to which they subject food is so pernicious that it causes a change in the blood of whoever eats it and this leads to anaemia and a precancerous condition . These are the findings of a rigorous study carried out by a professor of the ORG [ ORG ] and an independent researcher , who were determined to answer once and for all the crucial question : are microwave ovens harmful or not ? Here is a simplified summary of the study , followed by the study itself for those who are not put off by figures and scientific demonstrations . We were anxious to publish both these , albeit at the risk of repetition , so that the findings should be available to the widest possible public . ”

On DATE ORG ( ORG ) applied to ORG ( ORG ) of the GPE of GPE for an injunction under LAW ( ORG ; PERSON über den unlauteren GPE ) , seeking to have Mr GPE prohibited , on pain of penalties , from stating that food prepared in microwave ovens is a danger to health and leads to changes in the blood of those who consume it , that it causes a pathological disorder and that it presents a pattern that could be seen as the beginning of carcinogenic process . In a judgment of DATE ORG allowed the application . The injunction was confirmed by ORG ( Bundesgericht ) in a judgment dated DATE which concluded :

“ There can be no question of the ORG having been applied in breach of LAW or LAW Statutes must , in particular , define fundamental rights and other , conflicting duties of the ORG so that these CARDINAL concerns of constitutional law may be taken into consideration to the greatest possible extent ... The smooth operation of competition and economic freedom , freedom of expression , scientific freedom and freedom of the press must be guaranteed as well as possible , but at the same time limited so that the various constitutional objectives may be reconciled in practice . ... Anyone claiming scientific freedom is therefore wholly free to expound his knowledge in the academic sphere but , where competition is concerned , he may not claim to have the truth on his side where the opinion he is putting forward is disputed . An opinion which has not been confirmed scientifically must in particular not be misused as a disguised form of positive or negative advertising of one ’s own work or the work of others . In the present case , that is all the more true as ORG expressly left the applicant free to base his proposition on new scientific findings . The appeal must therefore be dismissed ... ”

On DATE the applicant lodged with ORG application no . CARDINAL/CARDINAL in which he complained that the ban imposed on him by the NORP courts under the ORG had infringed LAW . He also raised complaints under LAW and CARDINAL of the Convention . On DATE , the Commission declared the case admissible . In its report of DATE it found that there had been a breach of LAW and that no separate issue arose under LAW .

The case was referred to the ORG which , in its judgment of CARDINAL DATE , considered that the measure was “ prescribed by law ” and pursued a legitimate aim as required by LAW . In respect of the question whether the measure was “ necessary in a NORP society ” within the meaning of this provision , the ORG held , inter alia :

“ CARDINAL . The ORG observes that the applicant did no more than send a copy of his research paper to the ORG PERSON . He had nothing to do with the editing of issue no . CARDINAL of that periodical or in the choice of its illustration , of which he became aware only after its publication . That is clear from Mr PERSON ’s statement of DATE ( see paragraph CARDINAL above ) and was not called into question by either ORG of the GPE of GPE or by ORG . Both courts held that the applicant ’s liability derived from the fact that in sending his paper to the ORG PERSON he had accepted its being used in a simplified and exaggerated manner – as , given the periodical concerned , it had been foreseeable that it would be – and that , consequently , he had identified himself with the article in issue ...

As regards the content of issue no . CARDINAL relating to microwave ovens , the applicant was thus neither author nor co - author of the title on the cover page ... , the editorial column ( attributed to PERSON ... ) or of pages CARDINAL ( attributed to PERSON ... ) . The only parts that can be attributed to him are , with the exception of the titles and sub - titles appearing on them , pages CARDINAL , which contain an extract of the research paper ... ORG notes that nowhere it is expressly proposed that microwave ovens be destroyed or boycotted or their use banned and that the applicant did not repeat the statements he made in DATE and which had been published in issue no . CARDINAL ( DATE ) of the ORG PERSON . In addition and above all , the applicant ’s views on the harmful effects on human health of the consumption of food prepared in microwave ovens are expressed in far less categorical terms than the Government intimated ; that is to be seen in particular from the repeated use of the conditional mood and the choice of non - affirmative expressions . In that regard , the last lines from the extract , in which the applicant ’s conclusions from his experiments are summarised , are particularly striking . Thus , although it is stated that the results obtained “ show changes which bear witness to pathogenic disorders ” , as regards any cancerous effects it is explained that the results present a pattern which “ might ” correspond to the beginning of a cancerous development and which “ deserves attention ” ; likewise , there is no assertion that the consumption of irradiated food is harmful for man as a result of the induction of indirect radiation through food , but merely a suggestion that it “ might ” be ...

It will be seen from the foregoing that Mr GPE played no part in the choice of the illustration for issue no . CARDINAL of the ORG PERSON , that those statements that were definitely attributable to him were on the whole qualified and that there is nothing to suggest that they had any substantial impact on the interests of the members of the ORG . In spite of all that , the NORP courts prohibited the applicant from stating that food prepared in microwave ovens was a danger to health and led to changes in the blood of those consuming it that indicated a pathological disorder and presented a pattern that could be seen as the beginning of a carcinogenic process , and from using the image of death in association with microwave ovens .

The ORG can not help but note a disparity between that measure and the behaviour it was intended to rectify . That disparity creates an impression of imbalance that is materialised by the scope of the injunction in question . In that regard , although it is true that the injunction applies only to specific statements , it nonetheless remains the case that those statements related to the very substance of the applicant ’s views . The effect of the injunction was thus partly to censor the applicant ’s work and substantially to reduce his ability to put forward in public views which have their place in a public debate whose existence can not be denied . It matters little that his opinion is a minority one and may appear to be devoid of merit since , in a sphere in which it is unlikely that any certainty exists , it would be particularly unreasonable to restrict freedom of expression only to generally accepted ideas .

The fact that the NORP courts expressly reserved Mr GPE ’s freedom to pursue his research does not in any way alter that finding . As to presenting the results outside the “ economic sphere ” , it is not transparently obvious from the courts’ decisions that he was given such a possibility ; it may be that the wide scope of the ORG would prevent those reservations being seen as providing a significant reduction in the extent of the interference in question .

Furthermore , if the applicant fails to comply with the injunction he runs the risk of a penalty , which could include imprisonment .

In the light of the foregoing , the measure in issue can not be considered as “ necessary ” “ in a democratic society ” . Consequently , there has been a violation of LAW ( see Reports of Judgments and Decisions CARDINAL-VI , pp . CARDINAL - CARDINAL ) .

The ORG considered that it was unnecessary to examine the complaints under LAW and CARDINAL of the Convention . It also held that ORG was to pay to the applicant CHF CARDINAL,CARDINAL for costs and expenses .

On DATE the applicant applied to ORG for the reopening and annulment of its judgment of DATE and the reimbursement by the ORG of his court and legal costs . In its judgment of DATE ( served on DATE ) ORG held as follows :

“ CARDINAL . The appellant relied on DATE ( ORG ; GPE über die Organisation der PERSON ) . According to this provision , review of a judgment of ORG or a lower court is admissible if ORG has found a breach of LAW and redress is possible only through such review . The first requirement has clearly been met . The second remains to be considered . It may be regarded as satisfied if and insofar as the judgment of ORG and the compensation awarded are not sufficient to make good the situation in relation to LAW ORG [ FAC ] CARDINAL I CARDINAL , § CARDINAL p. CARDINAL et seq . ) .

In pursuance of LAW , ORG awarded the appellant compensation of CHF MONEY for the costs incurred in proceedings before ORG , ORG , ORG and ORG . No scope remains for further compensation claims by the applicant in relation to the same proceedings ( cf FAC I CARDINAL , § CARDINALb / bb p. CARDINAL et seq . ) . On the contrary , the ORG ’s award constitutes sufficient compensation . Accordingly , the grounds provided for in Article CARDINALa clearly do not apply . The applicant ’s claims for reimbursement of court costs , lawyer ’s fees and counsel ’s costs in previous proceedings must be rejected .

However , the applicant primarily seeks the lifting of the restrictions imposed on him . The question here , too , is whether and to what extent , with regard to compensation for the breach of the ORG , a modification of ORG judgment of CARDINAL DATE is necessary .

a ) According to LAW , everyone is entitled to freedom of expression . This right may be restricted only to the extent that it is prescribed by law , serves a legitimate purpose and is necessary in a NORP society ( LAW ) . ORG regards the ORG ( ... ) as a sufficient statutory basis for the restriction imposed on the applicant . It finds also that there is no doubt that the restriction is intended to protect the rights of others and so serves a legitimate purpose . But it concludes that the applicant ’s freedom of expression has been restricted to a greater extent than is necessary in a NORP society . In this connection , the ORG deals thoroughly with the content of ORG PERSON No . CARDINAL . It finds that the applicant is responsible , as author or co - author , neither for the title on the front page , nor for PERSON editorial column , nor PERSON d’Ombresson ’s article on pages CARDINAL . Nor did the applicant participate in the choice of illustrations . Only the extract from the research paper on pages CARDINAL could be attributed to him , not including the title and sub - titles . Nowhere in this extract was it expressly suggested that microwave ovens should be banned , destroyed or boycotted . In particular , the applicant ’s view that the consumption of food prepared in microwave ovens is harmful to human health was much more moderately expressed than the NORP authorities assumed . This impression was conveyed by the repeated use of the subjunctive and the choice of non - affirmative language . In this respect , the last lines of the extract , drawing conclusions , were particularly enlightening : the tests showed “ changes which bore witness to pathogenic disorders ” ; but they showed a pattern which “ might ” reflect the beginning of a carcinogenic process and “ deserved attention ” . Similarly , it was not stated that the consumption of irradiated food was harmful to human beings by subjecting them to indirect radiation , but merely surmised that this “ might ” be the case . Nor did ORG find any evidence that the applicant ’s statements in ORG PERSON No . DATE had substantially impaired the interests of the respondent ’s members .

Having regard to these circumstances , ORG concludes that the extent of the restrictions imposed by the NORP courts is disproportionate to the behaviour they were intended to rectify . The restrictions had the effect of partially censoring the applicant ’s work and severely limiting his opportunity for publicly defending a point of view which had its place in the current debate . The fact that it was a minority view and apparently lacking in any rational foundation mattered little . In an area where there was no certain proof , it was particularly exceptionable to restrict freedom of expression to the reproduction of generally accepted ideas .

b ) The judgment of ORG may afford the applicant satisfaction and , through the award of CHF CARDINAL , financial compensation for the cost of the proceedings . But it does not remove the restrictions imposed on the applicant by ORG and confirmed by ORG in its judgment of DATE . These restrictions may be upheld only within the bounds of necessity as defined by ORG . Since those restrictions may be lifted or limited only by means of an appeal to ORG , the requirement of Article CARDINAL FJA is met .

However , it remains to be determined in what respect and to what extent the restrictions are to be limited in order to comply with LAW . In this connection , it must first be noted that ORG found the restrictions disproportionate only insofar as they were intended as a response to the research paper published in ORG PERSON No . DATE , which paper the ORG found sufficiently moderate and whose impact on the respondent ’s members it found insufficiently proved . In its appraisal of the actual circumstances , ORG also took the view that only the text of the research paper could be attributed to the applicant and that he could not be held responsible for the titles , sub - titles and other texts by other authors which the periodical contained , nor for the illustrations . It follows that to prohibit the applicant from publishing texts of comparable moderation to the aforementioned research paper , even on competition - related grounds , would violate LAW .

On the other hand , according to ORG view of the law , it may be assumed that prohibiting the applicant from making competition - oriented statements alleging scientifically proven health - impairing effects of food prepared in microwave ovens , without any mention of current differences of opinion , can only be reconciled with LAW if there are tangible signs that such statements will be made and are of a nature substantially to impair the competitive position of the respondent ’s members ( cf . FAC , § CARDINAL p. CARDINAL , with references ) . However , these requirements are satisfied : In its judgment of DATE , ORG found as to the facts that the applicant had never disavowed the publication in ORG PERSON No . CARDINAL but had simply stated in court that he did not agree PERCENT with PERSON introduction and conclusions ; he had said that he liked the image of the Reaper ; he stood by his conclusions and intended to continue seeking to have them debated in the mass media ; behind his scientific attitude was an ideological one ; at the trial he had maintained his earlier statements and declared : “ These microwave products cause cancer , there is now no longer any doubt about that ” and “ I will continue to go my scientific way ” . These are concrete indications that there is reason to fear that the applicant will make statements contrary to fair competition , disseminating alleged scientifically proven findings of health impairment by microwave ovens ; in view of the applicant ’s professed liking for the image of the Reaper , there is also a danger of this or some other death symbol being used to illustrate such statements . It is self - evident that such statements , if aimed at wider sections of the population , are of a nature to substantially impair the competitive position of the respondent ’s members . This is all the more true if the statements are further illustrated by death symbols . Under LAW CARDINAL.a ORG , the respondent is entitled to be protected by appropriate restrictions against unlawful impairment of competition .

c ) A complete lifting of the restrictions imposed on the applicant is therefore neither necessary nor appropriate . It must be made clear that the applicant is prohibited only from making statements directed at the general public in which health - impairing effects of microwaved food are presented , without mention of current differences of opinion , as scientifically proven . The prohibition of the use in publications or public lectures of the Reaper or any similar death symbol must be maintained on the basis of the detailed grounds stated in the judgment of DATE . Lastly , the basis for the respondent ’s claim lies not in an actual violation but in the threat of violations ( Article CARDINAL § CARDINAL.a ORG ) . That such a threat exists , having regard to the applicant ’s behaviour and statements , is beyond doubt .

The applicant shall not otherwise be prevented from taking part in the current debate on the health effects of food prepared in microwave ovens . He is free to express his views , provided that he does not do so in statements addressed to the general public in such a way as to convey the false impression that they reflect scientifically proven findings . It is not a question of censoring the applicant ’s work , but of preventing inaccurate , misleading or unnecessarily damaging and therefore unfair statements of a nature to influence competition and to impair the competitive position of the respondent ’s members ( Articles CARDINAL and CARDINAL ( a ) ORG ) .

The applicant ’s appeal is only partially successful . He achieves clarification of the scope of the restrictions imposed by ORG and confirmed by ORG in its judgment of DATE , but is unsuccessful both in his application for rejection of the complaint and in his claim for reimbursement of court and lawyer ’s fees from the previous proceedings . This outcome justifies a proportional apportionment of court fees and parties’ costs arising from the appeal proceedings ... Of the court fee of CHF MONEY , CHF CARDINAL is charged to the applicant and CHF CARDINAL to the respondent ; the applicant shall also be required to pay the respondent party compensation of CHF CARDINAL .

The material amendment of the judgment on the facts of DATE , constituting partial acceptance of the appeal , is confined to clarification of the scope of the restrictions imposed on the applicant . The respondent ’s entitlement to protection is unaffected . That being so , there is no justification for re - apportioning court fees and party costs from the ORG proceedings and the appeal proceedings before ORG , especially as ORG has already awarded the applicant compensation under LAW for costs incurred in those proceedings ( cf para . CARDINAL above ) .

ORG therefore finds as follows :

The application for review is partially accepted , § CARDINAL of ORG judgment of DATE is annulled and replaced as follows :

“ CARDINAL . The appeal is partially allowed , insofar as it is admissible , and § CARDINAL of the judgment of DATE of ORG is amended as follows :

The defendant is prohibited , subject to the penalties provided for in Art CARDINAL of the Code of Criminal Procedure and Art CARDINAL of the Code of Civil Procedure ( imprisonment or fine MONEY CARDINAL,CARDINAL ; detention or , in serious cases , imprisonment of DATE ) , from making statements addressed to the general public alleging that it is scientifically proven that food prepared in microwave ovens , without reference to current differences of opinion ( verboten , in ORG , die an weitere Bevölkerungskreise gerichtet sind , ohne PERSON auf den herrschenden GPE als wissenschaftlich gesichert darzustellen , dass i m GPE zubereitete Speisen … ) , is harmful to health and causes changes in the blood of persons who consume it , indicating a pathological disorder and showing a pattern that could be seen as the beginning of a carcinogenic process .

The remainder of ORG judgment is confirmed . ”

The further applications for review are rejected .

The court fee of CHF MONEY is apportioned in the amounts of CHF MONEY to the applicant and CHF CARDINAL to the respondent .

The applicant shall pay the respondent CHF CARDINAL in costs .

This judgment shall be communicated in writing to the parties and to ORG . ”

On DATE ORG adopted at the PERSON meeting of ORG the following resolution :

“ Resolution ResDH(CARDINAL)CARDINAL concerning the judgment of ORG DATE in the case of GPE against GPE

ORG , under the terms of former LAW ( hereinafter referred to as “ the LAW ) ,

Having regard to the judgment of ORG in the PERSON case delivered on DATE and transmitted DATE to ORG ;

Recalling that the case originated in an application ( No . CARDINAL/CARDINAL ) against GPE , lodged with ORG DATE under former LAW by Mr PERSON , a NORP national , and that the Commission declared admissible the applicant ’s complaints that ORG CARDINAL , CARDINAL and DATE , paragraph CARDINAL , of the Convention had been breached on account of the fact that he had been prohibited from publishing his research results about the hazardous effects of microwave ovens on human health ;

Recalling that the case was brought before the ORG by the applicant on DATE and thereafter by ORG and the Government of the GPE on DATE and DATE respectively ;

Whereas in its judgment of CARDINAL DATE the ORG :

- held , by CARDINAL votes to CARDINAL , that there had been a violation of LAW ;

- held , unanimously , that it was unnecessary to consider the complaints under LAW , paragraph CARDINAL and LAW ;

- held , by CARDINAL votes to one , that the Government of the respondent ORG was to pay the applicant , within DATE , MONEY in respect of costs and expenses and that simple interest at an DATE rate of PERCENT would be payable on this sum from the expiry of the above - mentioned DATE until settlement ;

- dismissed , unanimously , the remainder of the claim for just satisfaction ;

Having regard to the Rules adopted by ORG concerning the application of former LAW ;

Having invited the Government of the respondent ORG to inform it of the measures which had been taken in consequence of the judgment of CARDINAL DATE , having regard to GPE ’s obligation under LAW to abide by it ;

Whereas during the examination of the case by ORG , the Government of the respondent ORG gave the ORG information about the measures taken preventing new violations of the same kind as that found in the present judgment ; this information appears in the appendix to this resolution ;

Having satisfied itself that on DATE , within the time - limit set , the Government of the respondent ORG paid the applicant the sum provided for in the judgment of CARDINAL DATE ;

Having noted that the applicant has brought before ORG a new application ( No . CARDINAL/CARDINAL ) concerning the restrictions still applicable after the retrial judgment ( arrêt en révision ) by ORG ( see notably the appended information submitted by ORG ) and that the ORG remains competent to assess the compatibility with the LAW of such restrictions ,

Considers that it is not necessary , in the circumstances of the present case , that ORG itself continue to examine this last issue , in the context of the present execution control procedure ,

Declares , in the light of the above considerations and having taken note of the information supplied by ORG of the GPE , that it has exercised its functions under former LAW in this case .

Appendix to Resolution ResDH(CARDINAL)CARDINAL

Information provided by the Government of GPE during the examination of the GPE case by ORG

The ORG judgment of CARDINAL DATE was brought to the attention of ORG and excerpts were published notably in ORG – Droit européen PERSON ( No . DATE , DATE , pages CARDINAL - CARDINAL ) .

In order to erase the consequences of the violation found by ORG , the applicant filed an application for retrial before ORG in conformity with LAW law on judicial organisation , providing for review of judicial proceedings in order to give effect to judgments from ORG . In its judgment of DATE , ORG took note of the violation of the applicant ’s freedom of expression found by ORG and , accordingly , modified the challenged decision by clarifying its content and softening the scope of the restrictions imposed on PERSON GPE .

As a result , it has now been clarified that the restrictions to the applicant ’s freedom to express himself on the harmful effects of microwave ovens only apply in case the applicant would address a large public , stating that the harmful effects of microwave ovens on human health are a scientifically proven fact without referring to the controversial nature of the issue . The Government of GPE considers that ORG judgment has remedied the violation of LAW , as regards the applicant ’s situation .

The Government also considers that these measures will prevent in the future the risk of new violations similar to the CARDINAL found in this case and that GPE has thus fulfilled its obligations under LAW in this case . ”

LAW ( ORG ) states in LAW , CARDINAL and CARDINAL ) as follows :

Section CARDINAL

“ This Act is intended to guarantee , in the interests of all the parties concerned , fair , undistorted competition . ”

Section CARDINAL

“ Any conduct [ ORG ] or commercial practice [ ORG ] shall be unfair and illegal if it is deceptive or in any other way offends the principle of good faith and if it affects relations between competitors or between suppliers and customers . ”

Section CARDINAL

“ A person acts unfairly if , in particular ,

( a ) he denigrates others or the goods , work , services , prices or business of others by making inaccurate , misleading or unnecessarily wounding statements ;

Articles CARDINAL et seq . of LAW ( ORG ) concern , inter alia , the reopening of proceedings . Section CARDINALa , entitled “ Breach of LAW states as follows :

“ CARDINAL . The reopening of a decision of ORG or of a lower instance shall be admissible if ORG have upheld an individual application on account of a breach of the Convention of CARDINAL.CARDINAL.CARDINAL for ORG and its Protocols , and if compensation is only possible by means of reopening .

If ORG determines that reopening is called for , though a lower instance is competent , it shall refer to the lower instance to reopen proceedings on the matter .

The cantonal lower instance shall then also decide on the request for reopening if cantonal law does not envisage such a ground for the reopening of proceedings . ”


Preliminary objection rejected;Not necessary to examine Art. 2;Not necessary to examine Art. 3 (complaint in respect of applicant's son);Violation of Art. 5;Violation of Art. 3;Violation of Art. 13;No violation of Art. 14+2;No violation of Art. 14+3;No violation of Art. 14+5;No violation of Art. 18;Violation of Art. 25-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP citizen who was born in DATE and is at present living in Bismil in south - east GPE . At the time of the events giving rise to her application to the Commission she was living in the nearby village of GPE . Her application to the Commission was brought on her own behalf and on behalf of her son , PERSON , who , she alleges , has disappeared in circumstances engaging the responsibility of the respondent ORG .

The facts surrounding the disappearance of the applicant ’s son are disputed .

The facts presented by the applicant in her final observations on the merits of her application in the proceedings before the ORG are contained in LAW below . This account of the facts also addresses her allegation that she and her lawyer have been subjected to intimidation by the authorities on account of her decision to lodge an application with the ORG . The applicant did not reconstitute her version of the circumstances surrounding the disappearance of her son in her memorial to the ORG , relying rather on the facts as established by the ORG in its report ( DATE ) adopted on DATE .

The facts as presented by the Government are set out in Section B.

A description of the materials submitted to the ORG is contained in LAW description of the proceedings before the domestic authorities regarding the disappearance of the applicant ’s son , as established by ORG , is set out in Section D.

The Commission , with a view to establishing the facts in the light of the dispute over the circumstances surrounding the disappearance of the applicant ’s son , conducted its own investigation pursuant to LAW § CARDINAL ( a ) of the LAW . To this end , the ORG examined a series of documents submitted by both the applicant and the Government in support of their respective assertions and appointed CARDINAL delegates to take evidence of witnesses at a hearing conducted in GPE on CARDINAL and DATE . The ORG ’s evaluation of the evidence and its findings thereon are summarised in Section E.

From DATE security forces , made up of gendarmes and a number of village guards , carried out an operation in the village of GPE . On DATE , following intelligence reports that CARDINAL terrorists would visit the village , the security forces took up positions around the village . CARDINAL clashes followed . During DATE they spent in the village they conducted a search of each house . A number of houses , CARDINAL , were burnt down during the operation , including those of the applicant and PERSON and PERSON , PERSON being her son ’s aunt . CARDINAL of the houses were near the clashes . Other houses were burnt down on a second occasion during the military operation . The

villagers were told that they had DATE to evacuate the village . The villagers fled to ORG , many as they were homeless , and those who were not being too scared to remain .

According to the applicant , TIME on DATE , when the villagers had been gathered by the soldiers in the schoolyard , the soldiers were looking for her son , PERSON , who was not in the schoolyard . He was hiding in the house of his aunt PERSON ( see paragraph DATE above ) . When the soldiers asked PERSON , his daughter , where her father was , PERSON told them he was at his aunt ’s house . The soldiers went to PERSON ’s house with PERSON , another of the applicant ’s sons , and took PERSON from the house . PERSON spent TIME CARDINAL–CARDINAL DATE with soldiers in the house of PERSON .

On TIME CARDINAL November CARDINAL , the applicant received a message from a child that PERSON wanted some cigarettes . The applicant took cigarettes and found LOC in front of PERSON house surrounded by about CARDINAL soldiers and CARDINAL village guards . She saw bruises and swelling on his face as though he had been beaten . PERSON told her that he was cold . She returned with his jacket and socks . The soldiers did not allow her to stay so she left . This was the last time she saw PERSON . The applicant maintains that there is no evidence that he was seen elsewhere after this time .

On DATE the applicant applied to the ORG public prosecutor , ORG , to find out information on the whereabouts of her son . On DATE , she received a response from Captain PERSON at the provincial gendarmerie headquarters stating that it was supposed that GPE had been kidnapped by the ORG ( ORG ) . Captain Cural , who had proposed the plan for the operation in the village , replied in identical terms on DATE . The district gendarmerie commander noted on the bottom of the applicant ’s petition of CARDINAL DATE that PERSON had not been taken into custody and that he had been kidnapped by the ORG .

On DATE the applicant applied to ORG in ORG which replied that he was not in their custody records . On DATE she contacted the ORG public prosecutor again but was referred to the gendarmerie . Finally , on DATE the applicant approached ORG for help and made a statement on the circumstances surrounding her son ’s disappearance .

On DATE PERSON ( PERSON ’s cousin ) , PERSON ( PERSON ’s uncle and muhtar of the village ) and PERSON ( another of LOC ’s cousins ) were taken to the gendarmerie and questioned about what they knew of “ PERSON who was abducted by representatives of the ORG terrorist organisation ” . On DATE the ORG public prosecutor issued a decision of non - jurisdiction on the grounds that a crime had been committed by the ORG .

The applicant maintains that since submitting her application to the Commission on CARDINAL DATE she has been the target of an extraordinarily concerted campaign by the ORG authorities to make her withdraw her application .

On DATE the applicant was called to give a statement to the ORG public prosecutor on the instructions of ORG . In this statement she was questioned about the statement she made to ORG on DATE ( see paragraph CARDINAL above ) as well as about her application to the Commission . She denied in her statement to the public prosecutor that the villagers had been tortured by the security forces as had been alleged in the statement taken down by ORG and rejected the reference in the latter statement to the effect that her son had been tortured . She had simply told ORG that her son ’s face looked like it was swollen .

On DATE the applicant signed a statement addressed to ORG which said that her petitions were written by the ORG terrorist organisation and were being used for propaganda purposes . A similar statement was addressed DATE to ORG in GPE .

On DATE the applicant was called by the ORG authorities to go to a notary in Bismil and was accompanied there by a soldier . She did not pay the notary . The statement which was signed indicated that her only wish was to find her son and that it was for this reason that she had contacted ORG . She indicated that an ill - founded petition had been made in her name by the ORG accusing the security forces of her son ’s disappearance . She rejected the application made in her name to the ORG and did not wish to pursue it .

On DATE a statement was taken by ORG office , as part of a file prepared by the authorities for the purpose of bringing a complaint against the applicant ’s lawyer , PERSON Mahmut PERSON ( see paragraph CARDINAL below ) .

On DATE the applicant made another statement before the notary in ORG which purported to withdraw her application to the ORG . While she was not forced to say anything to the notary and she told him what she wanted to be written , the applicant maintained that the statements do not represent her wishes and she had no opportunity to verify the contents of the statements .

The applicant states that the authorities have taken steps with a view to prosecuting her lawyer , PERSON , for his involvement in her application to the Commission . She refers to a request made in a document dated DATE by Mr Özkarol of ORG that an investigation be opened against PERSON who was suspected of exploiting the applicant and had made an application against GPE .

Ağıllı is a CARDINAL - household village . From this village and its surroundings , QUANTITY men and women have joined the ORG , which is a high ratio for such a small village . These include ORG , the daughter of PERSON , CARDINAL of the applicant ’s sons .

While an operation did take place in the village and clashes occurred between the security forces and suspected terrorists , PERSON was not taken into custody by the security forces . He had no history of previous detention or problems with the authorities and there was no reason for him to be taken into custody .

The Government submit that there are strong grounds for believing that PERSON has in fact joined or been kidnapped by the ORG . They refer to the fact that the family allege that his brother died in gendarme custody DATE before ; the fact that the applicant stated that he hid when the security forces arrived in the village ; and the fact that his house was burnt down following the clash in the village . Further , some members of the family had already joined the ORG and DATE after the operation in the village a shelter was found outside the village which it was said was used by PERSON in his contacts with the ORG . There is also a strong tradition of villagers escaping to the mountains at the onset of any military action . Villagers have also stated that they heard that he had been kidnapped by the ORG .

The Government submit that LOC could have hidden in the village at the commencement of the operation and then , under cover of darkness and poor weather , slipped through the security forces’ blockade . Mehmet PERSON testified before the ORG ’s delegates at the hearing in GPE that on TIME following the first clash PERSON was in LOC ’s home sleeping ( see paragraph CARDINAL above ) but that when he woke in the morning PERSON was no longer there . The Government stress that PERSON testified that he had not seen or heard soldiers in LOC ’s house , which would confirm that PERSON went off of his own accord .

The only person who claims to have seen LOC after that is the applicant , whose accounts are inconsistent , contradictory and unsubstantiated . In particular , she affirmed to the delegates at the hearing in GPE ( see paragraph CARDINAL above ) that the villagers assembled in the schoolyard were blindfolded . She subsequently retracted this statement . Furthermore , her statements to ORG and to the Commission in her application refer to CARDINAL visit to her son to give him cigarettes , whereas in her oral testimony before the delegates she referred to CARDINAL visits ; her descriptions of how she received a message from her son vary and she could not identify the child who allegedly delivered the message to her that her son wanted cigarettes ( see paragraph CARDINAL above ) . In addition , her account of making CARDINAL visits passing through the village when the security forces stated they were keeping people in their houses for security reasons is implausible . The Government also maintain that it would have been impossible for the applicant to retrieve her son ’s jacket and socks from his house on DATE ( see paragraphCARDINAL above ) since it was alleged by the applicant that it had been burnt down DATE .

The Government place particular emphasis on the fact that Hasan GPE ( see paragraph CARDINAL above ) in his statement to the gendarmes of DATE affirmed that the applicant came to his house , talked to her son who had spent TIME there and then left with him . The soldiers had not left with GPE . Furthermore , LOC had not asked for cigarettes to be brought to him at the house ; nor did he see LOC being detained in front of his house by soldiers and village guards , as alleged . In fact , as Captain Cural told the delegates at the hearing in GPE , no village guards had entered the village to back up the military operation .

In further support of the inconsistencies and contradictions in the applicant ’s account of the events , the ORG also point to the allegations originally made in the applicant ’s application to the ORG in which it was stated that the soldiers killed the livestock , pillaged goods and beat the villagers . The applicant acknowledged that these allegations were incorrect when giving evidence to the delegates .

The Government submit that the applicant was not subjected to any pressure not to give evidence before the delegates as was strongly alleged by the applicant ’s representatives .

The Government submit that the applicant has clearly stated that she did not wish to make a complaint against the ORG . Her only concern was to find her son and it was for that purpose only that she went to ORG . She had never been subjected to pressure by the authorities to withdraw her application to the Commission . She had freely made statements to a ORG notary on DATE and DATE ( see paragraphs CARDINAL and DATE above ) in which she rejected the application to the ORG which ORG had presented in her name . No soldiers were around her when she made these statements , there was an interpreter present and her statements were read out to her before she fingerprinted them .

According to the ORG , the applicant has been manipulated by the representatives of ORG who distorted the information which she gave them about the disappearance of her son into unfounded allegations that the soldiers , inter alia , slaughtered and ate the villagers’ livestock during the operation in the village , looted their goods and tortured the persons kept in the schoolyard ( see paragraph CARDINAL above ) . These and other serious allegations were later shown to be fabrications and the applicant has herself denied that she made them . She had never been put under pressure by the authorities not to attend the delegates’ hearing in GPE . In fact , she had been minded not to attend since she was anxious to discontinue the application . It was in fact her lawyers who put pressure on her to appear since they discovered that she in fact did not want to attend .

As to the prosecution of the applicant ’s lawyer , PERSON , the Government state that he has been instrumental in the manipulation of the application to the Commission and has exploited the Convention system for propaganda purposes . The ORG ’s decision to take proceedings against him was justified .

In the proceedings before the ORG the applicant and the ORG submitted a number of statements which she had made DATE and DATE to ORG , the ORG public prosecutor , the gendarmes , ORG office at ORG and to the notary in Bismil . The applicant also submitted official documents concerning the inquiry into the conduct of her lawyer , PERSON . These materials were studied by the Commission when assessing the merits of the applicant ’s allegations as regards both the disappearance of her son and the intimidation of both her and her lawyer .

Statements were taken by gendarmes from CARDINAL villagers DATE and DATE . On DATE PERSON , the muhtar of NORP village at the relevant time , PERSON and PERSON PERSON ( both cousins of PERSON ) were interviewed by gendarmes and asked about “ their knowledge and observations about the hostage PERSON who had been kidnapped by the ORG ” . PERSON ( see paragraph CARDINAL above ) , PERSON ( see paragraph CARDINAL above ) and other villagers present at the time of the military operation were questioned by PERSON gendarmes on DATE . None of the villagers questioned saw PERSON being taken into custody . PERSON affirmed in his statement that PERSON had arrived at his house on TIME CARDINAL November , spent TIME there and left TIME when his mother arrived . While there had been soldiers staying in the house TIME , PERSON maintained that the applicant and her son left the house together and the soldiers definitely did not leave with PERSON .

All the above statements were studied by the Commission when assessing the evidence before it . The Government rely on these statements to support their contention that the applicant ’s son had not been detained in the village by the security forces as alleged and that there was a reasonable likelihood that he had either been kidnapped by the ORG or left to join the ORG .

The Government also produced in the proceedings before the ORG the incident report drawn up by security forces on DATE ; a report dated DATE from the ORG public prosecutor to ORG office suggesting that the evidence pointed to the applicant ’s son having been kidnapped by the ORG following the clash on DATE ; and a report dated DATE prepared by Colonel PERSON of ORG , ORG , on the conduct of the operation in GPE and confirming , inter alia , that the applicant ’s son had not been taken into custody .

On DATE the applicant submitted a thumb - printed petition to the ORG public prosecutor , ORG . It stated that her son had been taken into custody following a clash between the gendarmes and the ORG at her village and that she was concerned about his fate . She requested that she be informed of his fate . On DATE the public prosecutor passed the petition to the district gendarmerie command with a handwritten request for the information to be provided . The district gendarmerie command noted in handwriting on the petition DATE that it was not true that PERSON had been taken into custody and that it was supposed that he may have been kidnapped by the ORG .

NORP By letter dated CARDINAL DATE Captain Cural , under heading of the provincial gendarmerie command , informed ORG office in answer to their unnumbered letter that PERSON had not been taken into custody and it was thought that he had probably been kidnapped by terrorists .

By letter dated CARDINAL DATE Captain Cural , district gendarmerie commander , under heading of the district gendarmerie command at Bismil , informed ORG office that PERSON had not been taken into custody and it was thought that he had probably been kidnapped by terrorists ( identical terms to the letter of CARDINAL DATE in the preceding paragraph ) .

On DATE the applicant submitted a fingerprinted petition to ORG at ORG at ORG . She stated that her son PERSON had been taken into custody DATE previously by gendarmes and since they had had no news , they were concerned for his life . She requested that information be given to her concerning his whereabouts . On the bottom of the petition , ORG noted in handwriting DATE that the name PERSON PERSON was not in their custody records .

On DATE the applicant submitted a second written petition to the ORG public prosecutor which repeated the terms of her petition of DATE . The public prosecutor wrote on the petition an instruction to the gendarmerie regional command to provide her with the information requested .

On DATE the ORG public prosecutor , ORG , issued a decision of dismissal . The document identifies the complainant as the applicant and the victim as PERSON . The crime was identified as membership of an outlawed organisation and kidnapping and the suspects as members of the ORG . The text of the decision stated that following a clash between the ORG and the security forces , ORG members escaped from the village , kidnapping the said victim . Since this crime fell within the jurisdiction of ORG , the case was dismissed and referred , with the file , to ORG .

The Commission had regard to the documentary evidence submitted by the applicant and the Government in support of their respective assertions ( see paragraphs CARDINAL and CARDINAL above ) . Furthermore , at a hearing held in GPE from DATE the ORG ’s delegates heard the oral testimony of the following witnesses : the applicant ; PERSON , the muhtar of NORP village and brother - in - law of the applicant ; PERSON , the public prosecutor in ORG who had been first approached by the applicant about her son ’s disappearance ( see paragraph CARDINAL above ) ; PERSON , commander of ORG district gendarmerie , who had proposed the plan for the military operation in GPE ( see paragraph CARDINAL above ) ; PERSON , a commander of a commando unit which was deployed during the military operation in the

village ; and PERSON , who had seen the applicant ’s son for the last time at PERSON and PERSON house when the military operation began ( see paragraph CARDINAL above ) .

While CARDINAL witnesses had been summoned to give evidence , only the above CARDINAL witnesses actually appeared at the hearing and testified .

The Commission approached its task in the absence of any findings of fact made by domestic courts and of any thorough judicial examination or other independent investigation of the events in question . In so proceeding , it assessed the evidence before it having regard , inter alia , to the conduct of the witnesses who were heard by the delegates at the hearing in GPE and to the need to take into account when reaching its conclusions the coexistence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact . The Commission also made due allowance for the difficulties attached to assessing evidence obtained at the delegates’ hearing through interpreters and to the vulnerable position of villagers from south - east GPE when giving evidence about incidents involving the ORG and the security forces .

The Commission found that the written and oral evidence was largely consistent as regards the general course of events during the operation . It was established that the villagers were gathered in the schoolyard on TIME and searches were then carried out of the villagers’ houses . During the clashes between the security forces and the terrorists who had entered the village TIME a number of houses including those of the applicant and her son were burned down . The villagers were again assembled in the schoolyard on DATE . CARDINAL terrorists and CARDINAL member of the security forces were killed in the clashes which occurred during the operation . CARDINAL villagers were taken into custody on DATE and were released on CARDINAL DATE . The security forces left the village late on DATE .

The Commission noted that it was established that PERSON was present in the village of GPE on TIME of DATE and that the evidence pointed to his having stayed TIME at the house of his uncle and aunt , PERSON and PERSON , because of the clash between the ORG and the security forces .

It was also established that when the villagers were gathered in the schoolyard by the security forces on TIME CARDINAL DATE , PERSON was not among them .

While PERSON maintained that PERSON had left with his mother on TIME CARDINAL DATE having spent TIME at his house , the applicant had however consistently stated that her son was with the soldiers after the villagers had been gathered during DATE in the schoolyard . The last time she saw him was when she brought him cigarettes and clothing at LOC house where he was being held by the security forces . Her account was largely consistent with her original statement of CARDINAL DATE taken by ORG and with her statements and evidence thereafter . While the statement to ORG needed to be treated with caution , having regard to previous criticism which ORG had made of the accuracy of the statements taken by that association from applicants in other cases , the Commission nonetheless considered that it had evidential value in so far as it was corroborated by the applicant ’s detailed account to the delegates . While the statement of PERSON appeared to contradict the applicant ’s account that her son was detained as alleged , the Commission found that it did contain inaccuracies and was open to differing interpretations . The Commission regretted that PERSON did not respond to the summons to attend the hearing and give evidence . Where his written statement appeared to conflict with the account of the applicant who did give oral evidence before the delegates , the Commission preferred the evidence of the applicant , who was found by the delegates to be credible and convincing .

The Commission did not consider that the ORG ’s criticism of the applicant ’s account sufficed to undermine her credibility ( see paragraphs CARDINAL–CARDINAL above ) . As regards her initial allegation that the villagers were blindfolded , it was possible that this was a reference to the CARDINAL persons who were removed from the schoolyard and taken into custody for questioning in Bismil ( see paragraph QUANTITY above ) . As to the applicant ’s account of finding cigarettes and a jacket , the Commission saw no particular significance in her omission to specify where she obtained the jacket : the question was never directly put to her . Further , there was nothing in the gendarmes’ testimony to indicate that villagers were not able , if they wished , to move freely from house to house in the period in TIME before they were gathered for DATE in the schoolyard .

It had been maintained that the village guards had all been positioned outside the village to mind the military ’s vehicles and their members could not therefore have been outside LOC house as alleged by the applicant . However , the Commission did not find it excluded on the evidence that village guards were in the village at some time during the operation , contrary to the apparent operational practice whereby the role of village guards should be restricted to areas outside villages other than their own .

The ORG found that it was the applicant ’s genuine and honestly held belief that her son was taken into custody by the security forces after which he “ disappeared ” and that there was no basis for inferring that the applicant ’s testimony was influenced by a reluctance to accord blame to the ORG or to acknowledge their involvement . Having regard to the assessment of the evidence before it , the ORG accepted her evidence that she saw him surrounded by soldiers and village guards outside LOC house on TIME DATE . It found that this was the last time he was seen by any member of his family or person from the village .

The ORG found it unnecessary to make any findings as to the cause of the burning of the applicant ’s house or as to the role , if any , played by the security forces in the decision of the villagers to abandon the village ( see paragraph CARDINAL above ) .

CARDINAL

Article CARDINAL of LAW provides as follows :

“ All acts or decisions of the administration are subject to judicial review ...

The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

This provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose liability is of an absolute , objective nature , based on the theory of “ social risk ” . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

LAW makes it a criminal offence

– to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil servants ) ,

– to issue threats ( Article CARDINAL ) ,

– to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL ) .

In respect of all these offences complaints may be lodged , pursuant to Articles CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

Generally , if the alleged author of a crime is a ORG official or civil servant , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind . If the offender is a member of the armed forces , he would fall under the jurisdiction of the military courts and would be tried in accordance with the provisions of Article CARDINAL of LAW .

Any illegal act by civil servants , be it a criminal offence or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Pursuant to Article CARDINAL of LAW , an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully , negligently or imprudently . Pecuniary loss may be compensated by the civil courts pursuant to LAW and non - pecuniary or moral damages awarded under LAW .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .

In previous cases against the respondent ORG in which they were involved , the applicant ’s representatives have pointed to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme . Decree no . CARDINAL modifies the application of PERSON no . ORG ( the Prevention of Terrorism Act DATE ) , in those areas which are subject to the state of emergency , with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils . These councils are made up of civil servants and have been criticised for their lack of legal knowledge , as well as for being easily influenced by the regional governor or provincial governors , who also head the security forces .

The applicant as well as ORG in their written submissions to the ORG have drawn attention to international material on the issue of forced disappearances . The ORG made reference to the following texts and decisions , which are analysed more fully in an appendix to its report ( Article CARDINAL ) .

LAW on ORG from Enforced Disappearance ( G.A. res . CARDINAL/CARDINAL , DATE ) provides , inter alia :

“ The systematic practice of disappearance is of the nature of a crime against humanity and constitutes a violation of the right to recognition as a person before the law , the right to liberty and security of the person , the right not to be subjected to torture : it also violates or constitutes a grave threat to the right to life . ”

The United Nations Human Rights Committee , acting within the framework of LAW ( “ NORP ” ) has drawn up reports on a number of cases of forced disappearances : PERSON v. GPE ( ORG , ORG , CARDINALth Session , Supplement no . DATE ) Annex GPE , § CARDINAL ; PERSON v. GPE , decision of CARDINAL July

DATE , ORG ’s views under LAW of LAW to the ORG concerning communication no . CARDINAL/CARDINAL : ORG ( “ ORG ” ) vol . CARDINAL nos . CARDINAL–CARDINAL , p. CARDINAL ; PERSON GPE , decision of CARDINAL DATE , ORG ’s views under LAW of LAW to the ORG concerning communication no . CARDINAL/CARDINAL : HRLJ vol . QUANTITY . CARDINAL–CARDINAL , p. CARDINAL ) .

The Inter - American Convention on Forced Disappearance of Persons ( resolution adopted at the CARDINALth Plenary Session by ORG , DATE , ORG . P ORG / doc . CARDINAL/CARDINAL rev.CARDINAL : not yet in force ) provides , inter alia :

… Considering that the forced disappearance of persons constitutes an extremely serious form of repression , one that violates basic human rights enshrined in LAW , LAW , LAW and LAW ,

For the purposes of this LAW , forced disappearance is understood to be the abduction or detention of any person by an agent of a ORG or by a person acting with the consent or acquiescence of a ORG in circumstances where , after a reasonable period of time there has been made available no information that would permit the determination of the fate or whereabouts of the person abducted or detained .

The forced disappearance of a person is a crime against humanity . Under the terms of this LAW , it engages the personal responsibility of its perpetrators and the responsibility of the ORG whose authorities executed the disappearance or consented to it .

By means of ratification or accession to LAW parties adopt ORG for the Treatment of Prisoners ( Resolution CARDINAL C [ XXIV ] of ORG , of DATE ) as an integral part of their domestic law . ”

ORG had considered the question of enforced disappearances in a number of cases under the provisions of ORG and prior to the adoption of ORG on Forced Disappearance of Persons : PERSON v. GPE , judgment of CARDINAL DATE ( ORG . GPE . PERSON ( Ser . C ) no . CARDINAL ) ( DATE ) ) ; PERSON v. GPE , judgment of DATE ( ORG . GPE . PERSON ( Ser . C ) no . CARDINAL ) ( DATE ) ) ; and ORG and PERSON v. GPE , judgment of DATE ( ORG . GPE . PERSON ) .

DATE . In their written submissions to the ORG , ORG identified the following elements of the crime of “ disappearances ” from their analysis of the relevant international instruments addressing this phenomenon : ( a ) a deprivation of liberty ; ( b ) by government agents or with their consent or acquiescence ; followed by ( c ) an absence of information or refusal to acknowledge the deprivation of liberty or refusal to disclose the fate or whereabouts of the person ; ( d ) thereby placing such persons outside the protection of the law .

According to ORG , while “ disappearances ” often take the form of a systematic pattern , they need not do so . Furthermore , a “ disappearance ” is to be seen as constituting a violation not only of the liberty and security of the individual but also of other fundamental rights . They refer to the decision of ORG in the Velásquez Rodríguez v. GPE case ( judgment of CARDINAL DATE ) wherein that court affirmed that “ the phenomenon of disappearances is a complex form of human rights violation that must be understood and confronted in an integral fashion . ” This complex of rights includes the right to life and the right not to be subjected to ill - treatment . The gravity of the violations of the rights attendant on a disappearance has led ORG to conclude in relation to LAW should take specific and effective measures to prevent the disappearance of individuals and should establish facilities and procedures to investigate

thoroughly cases of missing and disappeared persons which may involve a violation of the right to life ( General PERSON no . CARDINAL ( CARDINALth Session DATE ) [ CARDINAL ORG GAOR , ORG , no . CARDINAL ( A/CARDINAL/CARDINAL ) , Annex V ] paragraph CARDINAL ) . ORG later affirmed this statement in its PERSON v. GPE decision of DATE with respect to the need to safeguard disappeared persons against the risks of ill - treatment .

Citing the above - mentioned PERSON v. GPE judgment of ORG , ORG reported that the practice of disappearances often involves the secret execution without trial and concealment of the body and that the prolonged isolation and deprivation of an individual are in themselves cruel and inhuman treatment , which is harmful to the psychological and moral integrity of the victim . In its PERSON v. GPE decision of DATE , ORG considered that the disappearance of a person is inseparably linked to treatment that amounts to a violation of LAW which mirrors LAW .

Furthermore , ORG has drawn attention to the fact that “ disappearances ” gravely violate the rights of the “ disappeared ” person ’s family , who almost certainly suffer severe mental anguish , often prolonged for DATE while uncertainty exists over their loved one ’s fate . ORG notes that ORG has taken this approach in its GPE v. GPE decision of CARDINAL DATE .


RINGIER AXEL SPRINGER SLOVAKIA, A.S. v. SLOVAKIA

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

NORP The applicant , GPE PERSON Springer GPE , a. s. ( “ the applicant company ” ) , is a joint - stock company established under the laws of GPE with its head office in GPE . At the time of the introduction of the application , the applicant company was called RINGIER GPE a.s .

The applicant company was represented by Mr PERSON , a lawyer practising in GPE .

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

NORP The applicant company was established in DATE and has its seat in GPE . It is a multimedia publishing house .

NORP The applicant company ’s legal predecessor in respect of the events giving rise to the present application was a limited - liability company established under the laws of GPE in DATE and had its seat in GPE . It was the publisher of a popular national DATE newspaper .

In the course of the proceedings described below , in DATE , the applicant company ’s legal predecessor was merged with the applicant company . ORG the applicant company ” includes the applicant company ’s legal predecessor .

On DATE criminal charges of conspiracy and illegal possession of firearms within the meaning of Articles CARDINAL § CARDINAL and QUANTITY ( b ) and CARDINAL ( b ) of LAW ( Law no . QUANTITY . , as in force at that time ) were brought against an individual , A. , on the basis of a suspicion that he had assembled a booby trap by connecting a fuse , an alarm clock and cables .

By the same document , charges were brought against another individual , PERSON , on the basis of a suspicion that he had arranged for the booby trap to be planted by the house of a judicial enforcement officer .

A. was arrested on the charges against him and his house and the premises of his employer were searched by the police .

On DATE the proceedings against A. were terminated on the ground that the actions of which A. stood accused had not taken place and he had not been involved in the plan in question . The decision followed a finding that key witness evidence against A. was false .

The case file contains no information in respect of the further course and outcome ( if any ) of the proceedings against the other accused or the plot as such .

The applicant company learned of the above - mentioned alleged incident from the law - enforcement authorities . However , it did not have access either to the document containing the charges or to the case file .

On DATE the daily published by the applicant company printed an article about the suspected incident . The article was entitled :

“ [ They ] wanted to plant an explosive by the office of a judicial enforcement officer ”

and contained the following passage :

“ Members of ORG of ORG have uncovered a plan to commit a serious criminal offence . [ B. ] and [ A. ] manufactured , and contracted a man to plant , a QUANTITY booby trap of [ explosive ] and [ explosive ] by the office of a judicial enforcement officer in a family house in [ town ] . Both men have been charged by an investigator in [ city ] with general endangerment and illegal possession of firearms , and face a penalty of imprisonment of DATE , or an exceptional penalty . In a search of residential LOC , the police found not only components for the manufacturing of a booby trap , but also several cartridges , a machine gun ammunition strip and an illegally held handgun . In the vicinity of the judicial enforcement officer ’s office , there is a company involved in the exchange and sale of propane - butane and , in the event of blowing up the enforcement officer ’s office , a number of adjacent houses could have been severely damaged . It is a singular attempt to evade enforcement proceedings . ”

In the article , both PERSON and PERSON were identified with reference to their profession , first name , the initial of their surnames and their age .

The name of the town B. was from was also mentioned .

On DATE the daily published a follow - up piece to the article of CARDINAL DATE . It was entitled “ A bomb and an error ” .

The alleged incident was also reported in another paper and a DATE magazine .

Following the publication of the article of CARDINAL DATE and in response to it , ORG sued the applicant company for libel . He claimed an apology and the equivalent of QUANTITY ( ORG ) in compensation for non - pecuniary damage .

A. submitted that the article was factually false in that he had had nothing to do with the incident , that the article contained information enabling him to be identified and that , without justification , it had labelled him a perpetrator as opposed to a suspect .

A. claimed that he had been made aware of the article by colleagues who had identified him easily , as had several other residents of the town . The article had interfered with his personal integrity , his reputation in the municipal public sphere and his position in his private and family life .

A. also contended that the article had thwarted his political ambitions in an important national association , of which he had been CARDINAL of the founding members , from which he eventually had to withdraw in DATE .

In the course of a hearing of the action on DATE , A. reduced the amount of his claim for damages to the equivalent of some ORG CARDINAL .

On DATE the applicant company offered to settle the case by publishing an apology . A. rejected the offer as it contained no financial compensation .

On DATE ORG Okresný súd ) found for the claimant .

ORG had examined the article ( see paragraph CARDINAL above ) , the investigation file against A. and oral evidence from CARDINAL witnesses , including PERSON ’s family members , colleagues and employer .

ORG observed that the article contained personal information about A. , such as his profession , age , first name , the initial of his family name and the place of his residence . ORG concluded that the article perfectly allowed for ORG ’s identification . Moreover , the article referred to A. as a person guilty of an offence , as opposed to a detainee or a suspect .

In conclusion , it held that the article interfered with A. ’s right to be presumed innocent .

ORG acknowledged that the impugned article , as well as the follow - up piece ( see paragraph CARDINAL above ) , fell within the realm of reporting , the purpose of which was to inform the public on matters of public interest . However , in view of the course and outcome of the investigation against GPE , the reporting in the present case could not be considered “ socially desirable ” .

Observing that the article “ had been published relatively widely ” , ORG held that , by definition , the dignity and public image of A. , who was known beyond his municipality mainly on account of his involvement in the association , had been diminished to an extent that called for monetary compensation .

The interference with ORG ’s personal integrity had been serious and gave rise to negative and still persisting consequences , in particular in his personal life and in relation to his public reputation . It was also established that the article had had negative consequences on ORG ’s private life , at work and in the area of his political ambitions .

In reaching these conclusions ORG relied on “ the statements of witnesses who [ had ] confirmed that the article provoked negative reactions in relation to the above - specified areas of [ A. ’s ] life ” .

The applicant company was accordingly ordered to publish an apology and PERSON was awarded the equivalent of some ORG CARDINAL,CARDINAL in compensation for non - pecuniary damage and the reimbursement of his legal costs .

On DATE the applicant company lodged an appeal ( odvolanie ) . It contended that ORG had failed to make clear what had constituted the interference with the rights of A. , the article in question or other articles about the same events which had been published in other papers ( see paragraph CARDINAL above ) . As for the impugned article , it had only reported the information available to the law - enforcement authorities at the given time and , from the language and context , it was plain that PERSON was merely a suspect and that the proceedings were at the investigation stage only .

Moreover , it was not true that the article contained full details of A. ’s identity . In particular , only the profession , but not the employer , of ORG had been mentioned and , contrary to ORG observation , there had been no mention of where PERSON was from .

In sum , the published information had to be considered accurate , and had been published in an appropriate manner . This ruled out the alleged lack of justification in respect of the interference with the rights of A.

On DATE , through the intermediary of a new lawyer , the applicant company made an additional submission in support of its appeal , arguing that ORG had misconceived the notion of the right to be presumed innocent , and that it in any event that right had not been interfered with .

The applicant company had relied on the accuracy of information that it had obtained from an official source , namely , the law enforcement authorities . The publication of the article had not been unlawful but had been consonant with the applicant company ’s freedom of expression and the latter was consequently not liable for any damage suffered by A.

The identification of A. had been a result of his arrest and searches of his house and the premises of his employer – factors which were outside the control of the applicant company and for which it accordingly bore no responsibility - rather than a result of the article and the information contained therein .

Furthermore , in its judgment , the first - instance court had also referred to the follow - up article ( see paragraphs DATE and DATE above ) and had probably taken that article into account in making its decision , even though the follow - up piece had not been contested by the claimant .

The ruling concerning damages and their amount was not supported by adequate and sufficient reasons and the amount of damages awarded was excessive .

Moreover , in determining the amount of damages , no consideration had been given to the attenuating circumstance that the applicant company had taken precautions against the identification of A.

On DATE the ORG ( Krajský súd ) upheld the judgment in so far as the essence of the orders for an apology and payment of damages was concerned ( see paragraph CARDINAL above ) .

Nevertheless , ORG corrected typographical errors in the apology to be published pursuant to the operative part of the judgment , which consisted of an incorrect figure concerning DATE and the fact that , contrary to the facts , the quotation of the relevant part of the article in the operative part of ORG judgment erroneously included a mention of the town A. was from ( see paragraph CARDINAL above ) .

ORG also shortened the text of the apology .

ORG observed that the applicant company ’s submission of DATE ( see paragraph CARDINAL above ) , which contained further grounds for its appeal , had been filed after the expiry of the statutory period for appealing ( see paragraphs CARDINAL and CARDINAL in the “ Relevant domestic law and practice ” below ) and that , therefore , it could not be taken into account .

ORG acknowledged that the article fell within the purview of a “ news - reporting licence ” and that , as such , it could be published without the consent of those concerned .

ORG also acknowledged that the press was not only entitled to report on illicit activities , it was in fact also obliged to do so . If such reporting was based on official information from the law - enforcement authorities , and if that information was reported accurately , the media could not be required to verify the veracity of such information independently .

The applicant company had therefore been entitled to report on everything contained in the charge sheet against ORG However , the article suggested more .

In particular , the article suggested that ORG had been involved in arranging for the booby trap to be planted by the house of a judicial enforcement officer while the charge sheet had only accused him of having assembled a component constituting such a device . Similarly , the charge sheet contained no mention that any arms had been found in GPE ’s illegal possession . The description of the actions imputed to A. was therefore distorted .

As for the personal details about A. contained in the article , in correlation with those contained therein about B. , they did enable PERSON to be identified unequivocally and had therefore interfered with A. ’s constitutional right to the protection of his name .

NORP The combination of the elements mentioned in the preceding CARDINAL paragraphs also constituted a violation of A. ’s right to the preservation of his human dignity , personal honour and good reputation .

In addition to the negative repercussions that the article had had on ORG ’s life , as established by the first - instance court , ORG also observed that , as a consequence of the article , A. had been prevented from carrying out his job for some time .

The loss that ORG had suffered by being prevented from carrying out his job and in the area of his political ambitions was not sufficiently compensated by an apology and called for financial compensation , the amount of which , as reduced by the first - instance court in relation to the claim , reflected the fact that these consequences were due not only to the article in question but also to other articles on the same topic in other media ( see paragraph CARDINAL above ) .

ORG made no express pronouncement in respect of the right of A. to be presumed innocent .

On DATE the applicant company lodged an appeal on points of law ( dovolanie ) , relying on Articles CARDINAL ( f ) , CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ( “ the ORG ” ) ( see paragraphs DATE in the “ Relevant domestic law and practice ” below ) .

The applicant company objected mainly that ORG had unilaterally corrected the operative part of the first instance judgment without the claimant having requested it , while that correction had benefited the claimant .

The applicant company also argued that ORG had substantially changed the legal reasoning of the first - instance court , that the defendant had only learned of the change from ORG judgment and that it had accordingly had no possibility to contest the new reasoning .

In particular , the central reason behind the first - instance court ’s judgment had been the alleged interference with ORG ’s right to be presumed innocent , a conclusion that had not been endorsed by ORG . The latter on its part had considered it decisive that the article had been factually inaccurate in part .

The applicant company contended specifically that the above mentioned objections were not merely formalistic but had direct implications for the evidence taking and assessment in respect of the causal link between the alleged unlawful interference and the occurrence and extent of the alleged non pecuniary damage .

In other words , as it transpired from the oral evidence taken , what was crucial for the witnesses’ perception of A. was the very fact that he had been charged with a criminal offence and not the offence itself and its details . The question of the relevance of the inaccuracy of the reported information to the occurrence and extent of the non - pecuniary damage had not been examined at all .

On DATE , in a private session ( bez pojednávania ) , ORG ( Najvyšší súd ) rejected the appeal on points of law without examining the merits of the case .

In the decision , ORG noted that “ [ CARDINAL claimant [ had ] requested that the defendant ’s appeal on points of law be dismissed ” .

ORG observed that although ORG had not endorsed the conclusion of the first - instance court concerning the violation of A. ’s right to be presumed innocent ( see paragraph CARDINAL above ) , it had not rejected it either .

ORG conclusion concerning the distortion of facts by the applicant company did not amount to a new and different legal assessment of the case but rather was a clarification and precision as to the nature , form and circumstances of the interference with ORG ’s personal integrity .

The applicant company had thus not been prevented from acting before the courts within the meaning of LAW ( f ) of the ORG and its appeal was not admissible on the ground envisaged by that provision .

Furthermore , ORG correction of typographical errors in the first - instance judgment did not amount to a “ modification ” of that judgment within the meaning of LAW ORG , which was why the appeal was not admissible under that Article either .

In sum , the appeal was not admissible on any of the statutory admissibility grounds .

On DATE the applicant company challenged the decisions of DATE and DATE in ORG ( Ústavný súd ) by way of a complaint under LAW ( see paragraph CARDINAL in the “ Relevant domestic law and practice ” below ) .

In substance , it relied on its rights to a fair trial and to freedom of expression ( to impart information ) , repeating its previous arguments and disputing the ORG conclusions .

In addition , on page CARDINAL of the complaint , the applicant company argued that , in violation of the equality - of - arms principle , ORG had obtained and taken into account the observations of the claimant in reply to its cassation appeal ( see paragraph DATE above ) without giving the applicant company an opportunity to acquaint itself with those observations and to comment on them .

On DATE ORG declared the complaint inadmissible , having found no constitutionally relevant unlawfulness or arbitrariness imputable to ORG .

Moreover , the decision of ORG could not be reviewed by ORG as it had been taken outside the statutory DATE time - limit for bringing a constitutional complaint .

In reaching these conclusions , ORG took no notice of , and gave no response to , the applicant company ’s argument concerning the claimant ’s observations in reply to its appeal on points of law ( see paragraphs DATE above ) .

The decision was served on the applicant company ’s lawyer on DATE .

Everyone has the right to the preservation of his or her human dignity , personal honour , good reputation and the protection of his or her name ( LAW ) .

NORP The freedom of expression is guaranteed ( LAW ) . It may be restricted by an act of parliament if such a measure is necessary in a democratic society to protect the rights and freedoms of others , national security , public order , or protection of public health and morality ( LAW ) .

Article CARDINAL provides :

“ CARDINAL . The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order such authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

NORP In its decision on a complaint ORG may grant appropriate financial compensation to the person whose rights under paragraph CARDINAL have been violated . ”

The protection of personal integrity is governed by the provisions of Articles CARDINAL et seq . In so far as relevant , these provide :

“ LAW

Every natural person shall have the right to protection of his or her personal integrity , in particular his or her ... civil honour and human dignity , as well as privacy , name ...

LAW

Every natural person shall have the right , inter alia , to request an order restraining any unjustified interference with his or her personal integrity , an order cancelling out the effects of such interference and an award of appropriate compensation .

NORP If the satisfaction afforded under paragraph CARDINAL of this LAW is insufficient , in particular because the injured party ’s dignity or social standing has been considerably diminished , the injured party shall also be entitled to financial compensation for non pecuniary damage .

When determining the amount of compensation payable under paragraph CARDINAL of this LAW , the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred . ”

In a judgment of DATE in unrelated case no . CARDINAL Cdo CARDINAL/CARDINAL ORG held that

“ if the non - pecuniary damage to the personal integrity of an individual can be outbalanced by some of the forms of moral satisfaction , the moral satisfaction shall be favoured . Only in those cases where an individual ’s dignity or social standing have been diminished to a considerable degree ( v značnej miere ) and where the extent of this interference is too great to be adequately repaired by other legal tools can financial compensation be considered justified .

An award of financial compensation by a court under LAW presupposes the fulfilment of CARDINAL statutory requirements , that is to say

( a ) if moral satisfaction appears insufficient in a given case , and

( b ) the unlawful interference has resulted in diminishing an individual ’s dignity or social standing to a considerable degree .

In determining the amount of financial compensation , the following CARDINAL specifically and exhaustively defined criteria emanating from LAW of LAW must be applied by the court :

( a ) the seriousness of the non - pecuniary damage suffered , and

( b ) the circumstances in which the unlawful interference with personal integrity occurred .

In this context , the seriousness of the non - pecuniary damage is to be judged in particular with regard to its extent , scope , repercussions and duration .

The fact that LAW imposes expressly upon a court the duty to take into account the circumstances in which the violation of a person ’s personal integrity has taken place leads to the conclusion that the seriousness of the non - pecuniary damage alone is not the only and exclusive factor for determining the final amount of financial compensation .

From the point of view of LAW and CARDINAL of the Civil Code non pecuniary damage shall only be considered legally relevant if its occurrence is in causal connection with an unlawful interference that has significantly diminished an individual ’s dignity and social standing . ”

In another unrelated case , no . CARDINAL Cdo CARDINAL/CARDINAL , ORG held that :

“ As to determining the degree to which interference has diminished an individual ’s dignity or social standing , the starting point must be the subsequent reaction that the interference provoked in the family , work or other environment of that individual . This degree is to be determined by taking and assessing evidence and it is to be judged on the basis of a sound knowledge and assessment of that reaction . Only in those cases where it has been sufficiently established that there has been a reaction that shows that an individual ’s dignity or social standing has been diminished to a considerable degree may the individual exceptionally , and as a subsidiary measure , be awarded financial compensation in respect of non - pecuniary damage . Although the determination of the amount of financial compensation in respect of non pecuniary damage is subject to judicial discretion , this does not imply non - reviewable arbitrariness . The court must always rely on duly established facts and base its decision on absolutely concrete and reviewable considerations and relevant evidence that demonstrates how ... the defamatory information [ ... ] impacted on the dignity or social standing of the claimant and with what negative consequences . ”

An appeal must be lodged within DATE of the service of the challenged decision ( LAW ) .

The scope of and the reasons for the appeal can be extended as long as the time - limit for appealing has not expired ( LAW ) .

Under LAW an appeal on points of law lies against final and binding decisions of appellate courts if certain statutory admissibility criteria are met .

The general admissibility criteria , that is , those applicable to both judgments ( rozsudok ) and resolutions ( uznesenie ) , are set out in Article CARDINAL . Under its letter ( f ) , an appeal on points of law is available in situations where the courts prevented a party to the proceedings from acting before them . Further grounds for appealing on points of law under this Article are summarised in ORG v. GPE ( no . CARDINAL , § CARDINAL , DATE ) , PERSON v. GPE ( no . CARDINAL , § CARDINAL , DATE ) and GPE PERSON Springer GPE , a. s. v. GPE ( no . CARDINAL , § DATE , DATE , not final , subject to LAW ) .

In addition to the above - mentioned general admissibility criteria , special admissibility criteria apply if ORG decided in the form of a judgment . These are defined in LAW . Under paragraph CARDINAL of that Article , an appeal on points of law is admissible where the appellate court overturned the judgment of a first - instance court . Further grounds for appealing on points of law under this LAW are summarised in PERSON ( cited above , § CARDINAL ) PERSON spoločnosť ORG , ORG . v. GPE ( no . CARDINAL , § DATE and DATE , CARDINAL DATE ) and PERSON GPE , a. s. ( cited above , § § DATE ) .

DATE . As to the merits , an appeal on points of law can only be based on the grounds defined in LAW , that is to say , that the proceedings have been vitiated by an error envisaged in LAW ( letter ( a ) ) , that the proceedings have been vitiated by another error that resulted in an incorrect decision on the merits ( letter ( b ) ) and that the decision rests on an error of law ( letter ( c ) ) .

At the relevant time indemnification of the victims of violent crime was governed by PERSON no . CARDINAL/CARDINAL Coll . , as amended .

Under its sections CARDINAL ) and CARDINAL , the maximum amount of indemnification under the LAW was indexed to the minimum wage under LAW ( Law no . LAW . , as amended ) and was defined as its multiple by CARDINAL .

On DATE , when the article was published ( see paragraph CARDINAL above ) , the minimum wage was the equivalent of some EUR CARDINAL . Consequently , the maximum amount of indemnification at that time amounted to the equivalent of some ORG CARDINAL,CARDINAL .