Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , PERSON A / S , is a private limited company registered in GPE with its main office in GPE . It was represented before the ORG by PERSON Per PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of he ORG .

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

The applicant is a company , which since DATE has extracted peat .

On DATE , the applicant company entered into a contract with ORG ( PERSON ) for the exclusive and irrevocable rights to extract peat for DATE from a ORG - owned bog called PERSON ( PERSON ) . The leased area amounted to CARDINAL hectares and according to a study carried out at the relevant time , the amount of peat available at the bog exceeded QUANTITY .

The contract of DATE contained , in so far as relevant , the following provisions :

“ The term of the lease shall commence on DATE and shall expire , without notice , on DATE . During the lease period , the contract shall not be revocable by either party , unless in the event of a breach ( see clauses CARDINAL and DATE ) . ”

“ Prior to the conclusion of the lease contract , the leased area , which is a bog area of varying depth of peat , was analysed by ORG ) , whose study including appendices is enclosed with this contract , although ORG accepts no responsibility for the accuracy of the analyses and descriptions .

The [ applicant company ] is entitled to remove or cut the layer of peat , but in such a way as to ensure that the area can subsequently be used as meadow or farm land . However , permission is granted to remove the entire layer of peat in an area of QUANTITY , in spite of the fact that henceforth this area may not be drained off , as LOC agrees to convert this area into a lake after the peat has been removed . ... ”

“ The [ applicant company ] shall be entitled to sublease or sublet cultivated areas , although not after DATE . The ... State Forest District shall be informed in writing of the person to whom the areas are subleased or sublet , and the sublessees shall be obliged under their contracts to comply with the regulations in force ... ”

“ Upon expiry of the lease , all areas except the lake area shall be returned drained off and laid down in grass of a mixture suitable for the condition of the area at the time unless the Parties have agreed otherwise ... ”

At the relevant time , the applicant company already extracted peat at other locations in GPE . PERSON was thus added to its peat reserves for later extraction . Shortly thereafter , the applicant company commenced the extraction of QUANTITY of PERSON . At the relevant time the extraction was used mainly in the production of peat briquettes , whereas later on it was used for the purposes of peat - based growing media to be sold to professional growers and for hobby gardening .

On DATE , the parties drew up an addendum to the leasing contract in which a sub - area was excluded and a new area included .

The applicant company ceased its extraction activities at PERSON in DATE .

In DATE , LAW ) was passed , subjecting the commercial extraction of raw materials to a permit . A transitional arrangement applied to individuals who had acquired such rights prior to CARDINAL DATE and notified them prior to CARDINAL DATE .

Consequently , on DATE , the applicant company notified ORG ( PERSON ) of its rights at PERSON pursuant to the contract of DATE . It added that at the relevant time QUANTITY were produced DATE and that CARDINAL persons were employed in production activities .

On CARDINAL DATE ORG acknowledged that the applicant company was entitled to continue extraction without permission under LAW .

In the meantime , on CARDINAL DATE the applicant company sublet part of PERSON amounting to QUANTITY , which had been cultivated up to and including DATE , to a company called ORG cost of the DATE lease was MONEY ( DKK ) . It appears that the sublease was in force until DATE .

In DATE , the applicant company made preparations to commence , in DATE , extracting peat in PERSON for a period of DATE . It was estimated that the initial investment in production facilities would amount to DKK CARDINAL,CARDINAL,CARDINAL . At that time in GPE , CARDINAL raised bogs and an unspecified number of lowland bogs existed . The former were variously owned by the ORG , a natural protection foundation and private persons . The applicant company was the dominant producer of peat in GPE and the only producer of peat from raised bogs . Over DATE it had succeeded in acquiring rights to extract peat in most of the bogs suitable for extraction . The only other company which produced peat in GPE did so from an area which had lost its character as a bog and none of the owners of the remaining CARDINAL raised bogs had demonstrated any intention to extract peat .

On DATE , ORG for GPE ( ORG for PERSON ) instituted a preservation procedure regarding PERSON , covering QUANTITY , under LAW ( PERSON ) . The decision was made public on DATE . ORG for GPE later stated that the procedure had been initiated at this point in time because its tasks would be transferred to the county councils ( ORG ) as of DATE .

On DATE an amendment of LAW entered into force , introducing a new provision ( section CARDINAL , subsection CARDINAL ) by which , inter alia , alterations of bogs ( which included extraction of peat in bogs ) could only take place with the permission of a county council ( see relevant domestic law and practice , chapter CARDINAL ) .

Owing to the intended preservation of PERSON , on CARDINAL DATE the applicant company produced a report in which it estimated its loss of expected profit at ORG MONEY .

Originally , the preservation procedure progressed independently on the assumption that section CARDINAL , subsection CARDINAL , did not apply to the applicant company since the procedure had been initiated on DATE , before that provision had came into force .

In a decision of CARDINAL DATE , however , ORG ) held that section CARDINAL , subsection CARDINAL , had to be taken into account in relation to the applicant company . It noted that it could not have been possible for the applicant company to commence extraction in the short period between CARDINAL DATE and CARDINAL DATE ; thus , it should not be placed in a better situation than if the preservation procedure had been instituted after the latter date .

Subsequently , various administrative proceedings were pending .

Ongoing friendly - settlement negotiations as to a possible exchange of rights over another bog of equal value to PERSON failed .

A request of DATE by the applicant company for a permit , under section CARDINAL , subsection CARDINAL , of LAW , to extract peat in GPE in an area amounting to QUANTITY was refused on DATE ( in a decision notified on CARDINAL DATE ) by ORG with regard to the southern part of the bog . In its decision , ORG attached decisive weight to the fact that the southern part of the area in question consisted of unspoiled raised bog , described as nationally unique , geologically as well as biologically . ORG was willing to grant permission , however , as regards the northern area of the bog , which contained PERCENT of the peat . Unlike the southern area , peat had been extracted in DATE in the northern area . Moreover , since the presence of a watercourse meant that there was no direct connection between the northern and southern parts of the bog , it was found that extraction of peat in the northern part would not cause irreparable damage to the bog area as a whole .

The applicant company appealed against the decision to ORG ( PERSON ) and maintained that the granting of permission to extract peat solely from the northern part of the bog was of insignificant value to it , because only so - called darker peat could be and had been extracted from there . In order to exploit the peat commercially , however , the darker peat had to be mixed with socalled lighter peat , which was in short supply in general , but could be found in the southern part of the bog .

On DATE ORG upheld the decision by ORG .

On DATE ORG for PERSON amts sydlige fredningskreds ) issued a preservation order covering an area of QUANTITY of PERSON . Having regard to the complexity of the matter , it refrained from deciding on the applicant company ’s claim for compensation .

The applicant company complained to ORG , before which the proceedings were suspended for some time pending the outcome of further friendly - settlement negotiations . When the latter proved to be in vain , on DATE ORG upheld ORG decision to preserve the bog and to refrain from deciding on the applicant company ’s claim for compensation .

As part of the friendly - settlement negotiations the applicant company was offered the right to extract sphagnum from an area of QUANTITY , which was part of a different State - owned bog called FAC . A lease to that effect was entered into in DATE . At the relevant time the applicant company therefore leased the majority of both ORG - owned and private areas where extraction of peat was possible .

On DATE the applicant company appealed against ORG decision regarding compensation to ORG for Nature Preservation ( PERSON vedrørende PERSON ) , which upheld it on DATE .

On DATE the applicant company claimed compensation under section CARDINAL of the LAW ( Grundloven ) in the amount of at least DKK CARDINAL .

On DATE the claim was dismissed by ORG , which found that the amendment to section CARDINAL , subsection CARDINAL , of LAW did not constitute expropriation of possessions belonging to the applicant company . It added :

“ ... [ the applicant company ] may possibly have a claim for recovery of some of the rent payments which the company has been paying since DATE after deduction of the rent attributable to the area which , after reclamation , is being used for agricultural purposes and the area which is covered by the exemption . The ORG and ORG is therefore ... willing to enter into negotiations with a view to reaching a settlement on this matter . ”

On DATE the applicant company instituted proceedings before ORG ( ORG ) against the Forest and ORG under ORG , claiming compensation in the amount of ORG MONEY or , in the alternative , a lesser amount to be fixed at ORG discretion or , in the further alternative , a refund of the rent in respect of QUANTITY in the southern part of PERSON ( on average approximately ORG CARDINAL DATE ) and property taxes , plus the interest accruing on these payments , paid in the period DATE ( amounting in total to MONEY CARDINAL,CARDINAL , equivalent to MONEY ( ORG ) ) . The applicant company ’s compensation claim relied on CARDINAL legal bases , namely LAW as then applicable and LAW of the LAW .

Before ORG , various witnesses were heard . In addition , CARDINAL experts were appointed , who confirmed that extraction solely of the darker peat from the northern area of PERSON was of insignificant value .

In a judgment of DATE ORG found for the applicant company , stating as follows :

“ The provision of section DATE , subsection CARDINAL , of LAW to the effect that alterations of the state of bogs may only be effected with the permission of ORG was inserted into LAW No . CARDINAL of CARDINAL DATE , which entered into force on DATE .

This provision meant that [ the applicant company ] was unable to exercise its extraction rights at PERSON without permission from ORG from DATE . This also applies even though the extraction rights of [ the applicant company ] had previously been notified in accordance with the rules of the legislation on raw materials and even though the preservation procedure had been instituted before the amending Act entered into force .

The fact that [ the applicant company ] was already prevented from exercising its extraction rights when the preservation procedure was instituted on DATE can not lead to [ the applicant company ’s ] achieving a better position in the determination of possible compensation for preservation than if the preservation procedure had been instituted after DATE as the applicant company had not had the possibility in practice of initiating peat extraction in DATE prior to DATE .

The provision in LAW , subsection CARDINAL , of LAW must be considered an objectively motivated part of the regulation which has been implemented in view of the general interest in preserving ... the NORP wetlands . The provision applies to everybody and entails only a limited interference as regards [ the use of ] bogs in general .

The [ applicant company ] , however , whose request for a permit to extract peat [ in PERSON ] had been refused in part , was affected in a substantial and atypically severe manner by the regulation , since the sole purpose of the company ’s lease of the bog had been to extract peat , which inevitably would result in a change of the state of the bog .

On this basis , in relation to the [ applicant company ] , the legislation has the character of expropriation , for which reason compensation must be awarded in accordance with LAW of the LAW .

The calculation of the amount of compensation takes as its starting point the report of DATE , produced by the managing director ... According to the information provided , since DATE the applicant company has extracted , processed and sold peat from other bogs in GPE as well as abroad , thereby being able to meet its market demands . The profit thus acquired is to be subtracted when determining the loss for which the [ applicant company ] may claim compensation . Having regard to the expert opinion , however , the compensation should not be reduced on account of the fact that the [ applicant company ] has obtained permission by ORG decision of DATE to extract the dark peat north of the stream in accordance .

Taking all circumstances into account , the [ applicant company ] ... should be awarded compensation in the amount of DKK CARDINAL . ”

On DATE , the ORG and ORG lodged an appeal against the judgment with ORG ( Højesteret ) . The applicant company reiterated its claims and their legal bases , namely LAW as then applicable and LAW of the LAW . Various witnesses and experts were heard , including the applicant company ’s managing director , who stated , among other things , that extraction of peat in PERSON had ceased “ in CARDINAL ” .

A report of DATE was also submitted , prepared by ORG on bogs in GPE , stating that in DATE raised bogs had covered QUANTITY , whereas in CARDINAL they had covered QUANTITY . CARDINAL examples of raised bogs QUANTITY remained , including PERSON .

In a judgment of DATE ORG , by a majority of CARDINAL , overturned the judgment of ORG . ORG stated as follows :

“ For the reasons stated by ORG , ORG endorses the finding that it was not the preservation , but the general prohibition in section CARDINAL , subsection CARDINAL , of LAW that was the reason why [ the applicant company ] was prevented from exercising its right to extract peat ( sphagnum ) from PERSON , and that the [ applicant company ] is therefore not entitled to compensation for preservation under the rules of LAW . ”

Thereafter the majority of ORG ( CARDINAL judges ) found as follows :

“ Section CARDINAL , subsection CARDINAL , of LAW , which took effect on DATE , entailed a general prohibition against changing the state of bogs . It follows from the preparatory works that the object of the provision was to introduce a regulation to protect the bogs as ‘ a highly significant part of our freshwater wetlands’ without having to pay compensation – see GPE CARDINAL - CARDINAL , Supplement A , p. CARDINAL , and Supplement B , p. CARDINAL .

The prohibition resulted in [ the applicant company ] being unable as of DATE to exercise its rights of extraction in PERSON without the permission of ORG .

ORG refusal of CARDINAL DATE to grant permission to continue peat extraction states , inter alia , that ‘ the southern part of the area in question consists of unspoiled raised bog , which must be described as nationally unique , geologically as well as ORG . When on DATE ORG confirmed the decision , it stated , inter alia , that ‘ PERSON is nationally of the greatest value in terms of nature preservation’ .

Whether or not the refusal can justify a claim for compensation for expropriation is to be determined on the basis of an overall assessment of the interference with [ the applicant company ’s ] right of extraction .

The interference was motivated by significant nature and environmental interests . It was part of a general programme to preserve bogs and included a general restriction on the right to extract peat in GPE . This affected all manufacturers of sphagnum , and it has not been shown that [ the applicant company ] , which at the relevant time had not invested in production facilities for the purpose of exercising its extraction rights at PERSON , and which , moreover , had access to the extraction of considerable amounts of peat [ elsewhere ] in this country , was affected in a particularly severe manner .

Against this background , we find no basis for awarding [ the applicant company ] compensation under LAW of the LAW . Accordingly , we vote in favour of the claims of ORG . ”

The minority of ORG ( CARDINAL judges ) found as follows :

“ It can be established as a fact that GPE has a shortage of sphagnum and that , owing to transportation costs , the import of sphagnum is significantly more expensive than extraction in GPE . On this basis , it can also be established as a fact that the sphagnum which could have been extracted in PERSON represented substantial value to [ the applicant company ] . This applies even though extraction had not commenced on DATE , when the prohibition in section CARDINAL , subsection CARDINAL , of LAW took effect . In addition , [ the applicant company ] was in an extraordinary situation as LAW allowed the company to extract peat from PERSON and the company had leased the area from the ORG for a period of DATE for this sole purpose . Thus , despite the fact that the prohibition in section CARDINAL , subsection CARDINAL of LAW was justified by substantive preservation interests , we find , in concurrence with ORG , that in relation to [ the applicant company ] the legislative interference was to be regarded as expropriation and that , consequently , the [ applicant ] company is entitled to compensation under LAW of the LAW .

Having regard to the expert opinions submitted before ORG , [ we find it established ] that since DATE [ the applicant company ] has only had limited opportunities for increasing its sale , as compared to its actual sale , at least until DATE . On the other hand , it must be taken into consideration that extraction in PERSON would have reduced the extraction – and thus increased the reserves – of peat at the company ’s other production sites in GPE . On this basis , and considering the reasons by ORG , compensation must be awarded on a discretionary basis , which we , like ORG , find should be set at DKK CARDINAL .

Accordingly , ... we vote in favour of upholding the judgment of ORG . ”

Finally , ORG ordered the applicant company to pay costs to ORG in the amount of DKK CARDINAL .

With regard to the background of the case , it is important to be aware of the difference between lowland bogs , which are sustained by groundwater , and raised bogs , which are sustained exclusively by atmospheric precipitation . In both types of bog , peat is formed primarily from sphagnum , but the remaining flora , and thus also fauna , differs significantly , as raised bogs are nutrient - poor with high acidity .

As a general rule , the peat in lowland bogs is dark brown with a high degree of decomposition of organic substances . This quality of peat is suitable for use as fuel , although less suitable for soil improvement and horticultural purposes ( referred to below as “ soil improvement ” as a single category ) .

In raised bogs , apart from dark peat there is also light raised - bog peat which is suitable for soil improvement , but less suitable as fuel .

The formation of a peat layer happens over a long period of time . A one- metre - thick layer of light raised - bog peat will form over a period of DATE . A similar layer of dark peat will typically form over a period of DATE .

Subsequent to peat extraction , it will not be possible to regenerate the quantity of peat that has been removed through nature restoration , and extraction of peat can therefore not be considered to involve sustainable exploitation of natural resources .

Originally , bogs took up such a big part of the area of GPE that it was considered beneficial to drain and cultivate bog areas . In DATE , land in GPE was so humid that peat had formed on PERCENT of the total area .

During DATE and DATE a large area of the bogs was drained and cultivated . Furthermore , peat was extracted for use as fuel and , to a lesser extent , for bedding in livestock stables .

The production of peat for fuel purposes increased rapidly during and just after the CARDINAL world wars , when imports of foreign fuel were limited .

By DATE , the production of peat for fuel had almost ceased . The total NORP production of fuel peat was thus down to QUANTITY in DATE , whereas the DATE production on average over DATE had reached QUANTITY .

The production of peat for soil improvement ( including horticultural purposes ) was insignificant until DATE , when it increased and reached QUANTITY DATE by DATE . In DATE , production increased slightly and currently amounts to QUANTITY DATE .

There is no ongoing registration of the size of NORP bog areas , particularly in the case of raised bogs . A survey carried out in DATE showed that raised bogs , and bogs including areas of raised bog , constituted QUANTITY , or PERCENT of the total surface area of GPE .

In recent statements under ORG ( GPE ) ORG , a total of QUANTITY , corresponding to PERCENT of the total area of GPE , has been classified under the habitat types “ active raised bogs ” ( No . DATE ) and “ degraded raised bogs still capable of natural regeneration ” ( No . CARDINAL ) .

Since bogs became a protected habitat type from DATE as a result of the entry into force of Act no . CARDINAL , no permits for extracting from , or any permits to otherwise alter raised - bog areas with natural vegetation have been issued . Until then , peat production took place in the significant areas of peat deposits , which , by DATE , had already lost the characteristics of bogs in their natural state .

The area of raised bogs in their natural state has thus remained the same from DATE to the present day .

The majority of the remaining raised bogs are small in area . Larger coherent areas of active raised bog ( areas of QUANTITY ) exist in CARDINAL places in GPE . PERSON is among these .

Several bog areas are covered by preservation that interferes to a greater or lesser extent with the ORG options for use of the land .

The possibility of protecting areas through specific rulings on nature preservation has been available in GPE since DATE .

In DATE general protection of habitat types without compensation was introduced as regards the habitat types of lakes and public streams and in DATE the habitat types of private streams and bogs were added ( for further details as to the latter , see relevant domestic law and practice , chapter CARDINAL ) .

In most NORP countries , bogs are endangered to about the same extent as in GPE . PERCENT of the original bog area is left . This has enhanced the focus on the significance of bogs for society , not only as natural areas with a high degree of biodiversity , but also as factors in the hydrological cycle ( abating flooding from large NORP rivers ) and as regulators of climate .

ORG , LAW ) and LAW on the Conservation of LOC and LOC ) are of special significance for bogs .

Within the ORG , the PERSON Directive and the Habitats Directive are important . In the Habitats Directive , “ active raised bogs ” are considered a prioritised natural habitat , meaning that Member GPE have a duty to launch preservation and improvement measures especially promptly .

PERSON has been designated as a preservation area under both directives .

ORG ( retsplejeloven ) provides , in so far as relevant :

“ ( CARDINAL ) The losing party shall compensate the opponent for the expenses incurred by the opponent as a result of the proceedings , unless otherwise agreed by the parties .

( CARDINAL ) The court may decide that the losing party shall not or shall only partially compensate the opponent for the expenses incurred if particular reasons make this appropriate .

( CARDINAL ) ... ”

In a ORG decision of DATE , published in ORG ( ORG ) DATE , p. CARDINAL ( see PERSON and Others v. GPE ( dec . ) , no . CARDINAL , QUANTITY DATE ) , section CARDINAL , subsection CARDINAL was applied in a case between individuals and a public authority . The case was filed by a child and its parents against a GPE council and ORG upheld ORG judgment . Even though the plaintiffs lost the case , in consideration of the extraordinary length of the legal proceedings , ORG applied section CARDINAL , subsection CARDINAL , and exempted the plaintiffs from compensating the county council for its legal costs .

The relevant chapter of ORG was amended by Act no . CARDINAL of DATE . The preparatory works on section CARDINAL , subsection CARDINAL , as in force from DATE , contained no reference to LAW , nor is the length of the proceedings mentioned as a potential “ particular reason ” for reducing costs in accordance with the provision in question .

The LAW ( Grundloven ) provides , in so far as relevant :

“ ( CARDINAL ) The right of property shall be inviolable . No person shall be ordered to surrender his property except where required in the public interest . This shall be done only as provided by statute and in return for full compensation . ”

Public interference with private property rights covered by LAW , subsection CARDINAL , does not always give rise to compensation . In the public interest , the legislature may lay down general provisions limiting property rights without providing compensation .

An overall balancing exercise must be carried out to determine whether interference with protected rights not intended to transfer the exercise of the rights to the ORG or to others is to give rise to compensation for expropriation or is to be considered general regulatory legislation without compensation . The factors to be emphasised in this assessment are particularly whether the interference is general or particular , how burdensome the interference is and what interests to society the interference is to serve .

LAW ( GPE ) , no . CARDINAL of DATE , was amended by Act no . CARDINAL of CARDINAL DATE , henceforth referred to as Act no . CARDINAL , which took effect on DATE , introducing inter alia a new provision , section CARDINAL , subsection CARDINAL , which read as follows :

“ Alterations of private watercourses with a bed width of CARDINAL QUANTITY , and of the state of bogs , may only take place with the permission of ORG ... ” .

According to the preparatory works , wetlands were diminishing so rapidly that private watercourses and bogs had to be included in the protection hitherto confined to lakes and publicly owned watercourses . Moreover , the protection of bogs was found to be necessary with reference to their special fauna and flora and to interests relating to landscape conservation , education and recreation ( GPE DATE , Supplement A , pp . DATE ) . Accordingly , bogs were no longer considered reserves of raw materials ( peat ) but part of a general campaign for the protection of the remaining NORP wetlands . The aim of the LAW was to include all private watercourses and bogs in this protection .

Act no . CARDINAL also reformed the preservation procedure and the administrative framework . On DATE the local preservation planning committees were abolished and their powers transferred to the county councils .

Pursuant to LAW ( Råstof - loven , no . CARDINAL of DATE ) , extraction of raw materials was subject to a permit being granted by ORG , unless rights had been acquired prior to CARDINAL DATE and notified to ORG prior to DATE .

ORG were the responsibility of ORG ( Skov- og Naturstyrelsen ) , which was ultimately attached to ORG ) .

General regulations to limit the exercise of property rights without providing compensation may be found DATE , when the first LANGUAGE LAW was adopted and laws on agricultural land , forests , sand dunes and hedges were in place to limit landowners’ rights . Similarly , legislation to regulate activities harmful to human health was implemented in the DATE .

In DATE legislation on landscape protection through the prohibition of construction along forests and beaches ( later expanded to areas along watercourses and lakes and around churches and ancient monuments ) was enacted through amendments to the DATE LAW . The first LAW authorising local authorities to lay down spatial plans with legal effect on NORP rights was passed in DATE .

Subsequently , a significant amount of legislation on planning , environmental protection and nature preservation was passed within a relatively short period in DATE and DATE . Among the instruments enacted were LAW ( DATE ) , the ORG and GPE ( DATE ) , LAW ( DATE ) , ORG ( DATE ) , LAW and LAW ( DATE ) . A number of existing acts were comprehensively amended during this period , including LAW ( DATE ) , LAW ( DATE ) and LAW ( DATE ) . Since then the legislation mentioned above has been updated or amended on numerous occasions .

The legislation was enacted as a response to the growing pressure on nature and natural resources from , for example , industrialisation , agricultural intensification , urbanisation and the consequent degradation of the environment and nature . A similar development occurred in other western NORP countries from DATE . This development was also a response to a growing number of international obligations either through ORG legislation or through international treaties , including a number of generally accepted principles , such as the precautionary principle , the polluter - pays principle and the principle of sustainable development .

In addition to general regulations governing private property rights , general regulations have been passed with a view to protecting specific habitat types in GPE . First and foremost , a number of habitat types which had been in serious decline during DATE were covered by the general preservation scheme under LAW in DATE . Thereafter , any alteration of an area covered by the scheme was prohibited without an exemption having been granted by the relevant authority .

The scheme was successively extended . In DATE it covered lakes and public watercourses , and in DATE it was extended to cover private watercourses and bogs . In DATE salt marshes , swamps , coastal meadows and heaths were included . The last extension occurred in DATE , when humid permanent grassland , uncultivated dry grassland and stone and earth dykes were included in the scheme as well . Also , in DATE a general prohibition on cultivation closer than QUANTITY from watercourses was introduced .

In GPE , civil proceedings are as a rule subject to the so - called adversarial system , whereby the court has to make its decision on the basis of the claims and particulars produced and provided by the parties . Hence , in accordance with section CARDINAL of ORG ( retsplejeloven ) , the court can not award a party more than his or her claim , and it may only take into consideration submissions relied on by the party or submissions that can not be excluded .

The adversarial system is based on the assumption that the parties are the best placed , in view of their advance knowledge of the facts of the case , to assess what claims the case can support , and what submissions may be relevant for inclusion in the proceedings before the court .

The court may only take into consideration submissions relied upon by the parties . The parties are thus subject to a burden of production , as the court is supposed only to refer to the specific circumstances relied upon in support of the parties’ litigation claims when it passes judgment . If a party has not produced a certain submission , the court is unable to take it into consideration on its own motion .

A submission can only be considered to have been relied upon if a specific circumstance has been emphasised as an element in the reasoning for the party ’s litigation claim . A submission must contain a certain clarification of a legal fact , relating both to the pure facts and to their possible legal significance . The wording of a submission may require a certain legal description or qualification of the particulars presented to the court . A certain legal qualification of the bare facts may be necessary to allow the court and the opponent to understand the connection which is believed by the party to exist between his statement of facts and his litigation claims ( see GPE ) , CARDINALth ed . , DATE , p. CARDINAL ) .

In addition to claims and submissions , the adversarial system also includes the provision of evidence ( except in certain proceedings , such as matrimonial proceedings , in which the parties do not have full control of the outcome despite their pleadings , even if the parties agree ) . By contrast , the adversarial system does not apply as concerns the rules of law .


Until DATE the applicant was employed in the private sector , working mainly as a management and accountancy consultant . On the basis of the professional experience he had thus acquired , he applied for a job working for ORG under the overseas cooperation programme .

ORG recruited him – under a contract signed on DATE as a technical adviser to the Minister for ORG . As head of project , he was to be responsible for drawing up the budget of ORG investment for DATE and was to participate in the preparation of the DATE plan and the DATE programme of public investment , in liaison with NORP civil servants and international organisations .

The contract stipulated that the applicant was to be placed at the disposal of the government of GPE for CARDINAL DATE spells separated by a period of home leave calculated on the basis of DATE for DATE worked . The contract also laid down the conditions of his remuneration and in respect of all other matters referred to the regulations issued pursuant to the PERSON of DATE ( see paragraph CARDINAL below ) .

On DATE , following a number of local disagreements , the NORP authorities placed the applicant once more at the disposal of the NORP authorities . This caused the termination of his contract on expiry of his period of home leave ( see paragraph CARDINAL below ) .

The Ministry intended to give the applicant a new contract when he had completed his home leave , assigning him to duties in GPE . To be eligible , he had to satisfy CARDINAL prior conditions , as required of all other applicants for cooperation posts : firstly , candidates had to obtain the approval of the authorities of the country where they were to serve ; secondly , they had to be certified medically fit to serve overseas .

As the approval of the NORP authorities was slow in coming , ORG notified the applicant – by a letter of CARDINAL DATE that his contract was to be terminated and informed him that he would subsequently be removed from the ORG ’s establishment with effect from DATE .

The Gabonese authorities’ approval was later given for a post of financial analyst at ORG . By a letter of CARDINAL DATE ORG noted this approval and accordingly declared the striking - off decision announced on DATE null and void . The applicant was then summoned to attend the compulsory medical examination to assess his fitness to serve .

On DATE the doctor responsible for the interministerial medical service , a specialist in tropical medicine , examined the applicant and ordered an additional psychiatric report . In the light of the results of the additional diagnosis , the doctor declared on DATE that the applicant was permanently unfit to serve overseas .

On DATE ORG noted that opinion and accordingly informed the applicant that his name was to be removed from the list of the ORG ’s establishment with effect from DATE .

On DATE the applicant lodged an application with ORG to set aside the decision of DATE as being unlawful .

On DATE the Minister for Cooperation and Development filed his defence .

By an interlocutory judgment of DATE ORG ordered a medical report in order to ascertain whether , on account of his state of health , the applicant had been unfit in DATE to serve as a technical adviser under the overseas cooperation programme .

On DATE the medical expert filed his report , having interviewed the applicant and given him a medical , psychological and neuropsychiatric examination on DATE . He gave it as his opinion that ORG administrative reaction had been excessive and that the applicant ’s state of health had not made him unfit to resume his duties after CARDINAL months’ sick - leave , after which he could have gone before a medical board .

On DATE the applicant filed a compensation claim , seeking an order requiring the ORG to pay him CARDINAL different sums . Firstly , he claimed MONEY ( ORG ) , which he considered to be the amount of remuneration he would have received if he had remained in post ; secondly , he claimed ORG CARDINAL,CARDINAL in compensation for the personal , pecuniary and non - pecuniary damage he considered he had sustained on account of being struck off .

By a decision of CARDINAL DATE ORG fixed the amount payable in costs for the medical report . By a decision of DATE it corrected a clerical error in the operative provisions of the first decision .

On DATE the Minister for ORG submitted his observations on the medical report .

On DATE the applicant filed a reply .

On DATE the Minister for Cooperation and Development submitted his defence to the applicant ’s compensation claim of CARDINAL DATE , arguing that it was unfounded .

On DATE and DATE the Minister for ORG filed a rejoinder and a number of documents .

On DATE the applicant filed a reply .

The case was set down for hearing on DATE . On DATE the applicant was informed that the case had been put off to a date to be determined later .

On DATE and DATE the Minister for ORG submitted additional observations and a number of documents .

On DATE the applicant submitted a reply .

By a judgment of DATE , following a hearing on DATE , ORG dismissed the applicant ’s application , as regards both the request to have the striking - off decision set aside and the compensation claim . It held in particular :

“ ... As to the application to set aside the Minister for ORG ’s decision of [ CARDINAL ] DATE

Firstly , the documents in the file show that PERSON contract with the ORG to work in GPE as a participant in the cooperation programme was terminated when the NORP authorities placed him once more at the disposal of ORG . Although , by a letter of DATE , the Minister declared null and void the decision of CARDINAL DATE announcing that PERSON name would be removed from the list of the ORG ’s establishment with effect from DATE , which he did with a view to the signing of a new contract , he did not intend to reactivate the contract under which PERSON had been assigned to duties in GPE , since that contract had been automatically terminated when the foreign State placed him once more at the disposal of the French State . Consequently , PERSON may not validly argue that the decision of [ DATE unlawfully rescinded the decision of CARDINAL [ DATE .

Secondly , in deciding to remove the applicant ’s name from the list of the ORG establishment with effect from DATE , the Minister was merely drawing the consequences of the fact that the contract assigning PERSON to duties in GPE expired on that date and of the fact that no new contract had been signed . Consequently , his decision was not invalidated by any unlawful retrospectiveness ; ...

Thirdly , the medical report of CARDINAL DATE shows that on [ CARDINAL ] DATE PERSON did not satisfy the physical fitness conditions for service overseas . Consequently , he may not validly maintain that the decision of [ DATE , which cited the … opinion that he was unfit as ground for refusing him a new contract for the cooperation service in GPE , was vitiated by an error of judgment ; ...

As to the compensation claim

It follows from the rejection of PERSON arguments in support of his application to set aside the decision of [ DATE that he may not rely on any culpable unlawfulness making the ORG liable . Consequently , his claim for compensation from the ORG for prejudice caused by the decision of [ DATE must be dismissed ... ”

On DATE the applicant gave notice of appeal against the above judgment , which had been served on him on DATE , and filed his statement of the grounds of appeal .

On DATE the Minister for Cooperation and Development filed a pleading .

On DATE the applicant filed a further pleading .

The case is pending in ORG .

The relevant provisions of the law governing the position of civilian cultural , scientific and technical cooperation staff in post in foreign GPE ( in respect of which CARDINAL implementing decrees were promulgated on DATE ) provide :

“ The civilian staff on whom the ORG calls to perform cultural , scientific or technical cooperation duties outside NORP territory at the service of foreign GPE , particularly by virtue of agreements between GPE and those GPE , shall be governed by the provisions of the present Law ... ”

“ Without prejudice to the rules governing the exercise of judicial functions , the staff contemplated by the present PERSON shall serve , while performing their duties , under the authority of the Government of the foreign ORG or the body at whose service they have been placed , under conditions laid down by agreement between ORG and the foreign authorities concerned .

They shall be required to maintain the propriety and discretion befitting persons performing their duties in the territory of a foreign ORG and inherent in the publicservice nature of the tasks they carry out ... They shall be forbidden to engage in any act or participate in any event which might be damaging to ORG , local public policy or the relations the NORP ORG maintains with foreign GPE .

In the event of failure to respect the obligations contemplated in DATE , their turn of duty may be terminated immediately , without prior formalities , and without prejudice to any administrative proceedings that may be brought against them on their return to GPE . ”

Article GPE ) of LAW DATE instituting ORG ( “ the LAW ” ) provides for a derogation from the principle of freedom of movement for workers within the Community in respect of “ employment in the public service ” .

ORG of ORG has developed a restrictive interpretation of this derogation . In its judgment of CARDINAL DATE in the case of GPE v. GPE ( C-CARDINAL/CARDINAL , PERSON ) it decided that the derogation concerned only posts which involved direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the ORG or of other public authorities , and which thus presumed on the part of those occupying them the existence of a special relationship of allegiance to the ORG and reciprocity of rights and duties which formed the foundation of the bond of nationality .

ORG , to which LAW assigned responsibility for ensuring the correct application of Community rules , noted that a large number of posts likely to be caught by the derogation had in reality no bearing on the exercise of powers conferred by public law or protection of the general interests of the State .

NORP In a communication of DATE it set itself the task of listing separately those activities which are covered by the derogation and those which are not . It thus established CARDINAL distinct categories of activities according to whether or not they involved “ direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State ” . These categories were defined as follows :

“ Exclusion of specific activities in the national public service [ from freedom of movement for workers ]

On the basis of current ORG rulings , and bearing in mind the present conditions for establishing the single market , the ORG considers that the derogation in Article PERSON ) covers specific functions of the ORG and similar bodies such as the armed forces , the police and other forces for the maintenance of order , the judiciary , the tax authorities and the diplomatic corps . This derogation is also seen as covering posts in ORG , regional government authorities , local authorities and other similar bodies , central banks and other public bodies , where the duties of the post involve the exercise of ORG authority , such as the preparation of legal acts , the implementation of such acts , monitoring of their application and supervision of subordinate bodies ...

Activities concerned by action in the public service sector

The Commission considers that the functions involved in certain forms of public employment are for the most part sufficiently remote from the specific activities of the public service as defined by ORG that they would only in very rare cases be covered by the exception in Article PERSON ) of the LAW .

The Commission proposes therefore to implement its action in the following areas by order of priority :

– bodies responsible for administering commercial services ( e.g. public transport , electricity and gas supply , airline and shipping companies , posts and telecommunications , radio and television companies ) ,

– public health care services ,

– teaching in ORG educational establishments ,

– research for non - military purposes in public establishments .

Each of these activities also exists in the private sector , to which Article PERSON ) does not apply , or may be exercised in the public sector without the imposition of nationality requirements ... ”

Where the second category is concerned , the ORG has left it open to ORG member GPE to try to show that the duties of a given post involve the specific activities of the public service ; this would , exceptionally , justify application of the derogation .

ORG has applied and developed these principles in a number of judgments . In its judgment of DATE in the case of ORG v. the GPE of GPE ( C-CARDINAL/CARDINAL , ORG I-CARDINAL ) , it held :

“ § CARDINAL ... in order to determine whether posts fall within the scope of Article PERSON ) of the LAW , it is necessary to consider whether or not the posts in question typify the specific activities of the public service in so far as it exercises powers conferred by public law and has responsibility for safeguarding the general interests of the ORG or of other public bodies . For that reason , the criterion for determining whether LAW is applicable must be functional and must take account of the nature of the tasks and responsibilities inherent in the post , in order to ensure that the effectiveness and scope of the provisions of the LAW on freedom of movement of workers and equal treatment of nationals of all Member GPE is not restricted by interpretations of the concept of public service which are based on domestic law alone and which would obstruct application of ORG rules ( judgment in Case ORG v. GPE [ DATE ] ECR CARDINAL , paragraph CARDINAL ) .

§ CARDINAL ... the generality of posts in the areas of research , health , inland transport , posts and telecommunications and in the water , gas and electricity supply services are remote from the specific activities of the public service because they do not involve direct or indirect participation in the exercise of powers conferred by public law or duties designed to safeguard the general interests of the ORG or of other public authorities ( see , in particular , as regards the area of health , the judgment in Case ORG v. GPE , and , as regards research for civil purposes , the judgment in Case CARDINAL/CARDINAL Commission v. GPE [ DATE ] ECR CARDINAL ) .

§ CARDINAL NORP ... the Court has already stated that the very strict conditions which posts must satisfy in order to come within the exception laid down in Article PERSON ) of the LAW are not fulfilled in the case of trainee teachers ( judgment in Case CARDINAL PERSON [ DATE ] ECR CARDINAL , paragraph CARDINAL ) , in the case of foreign - language assistants ( judgment in Case CARDINAL/CARDINAL PERSON and PERSON [ DATE ] ECR CARDINAL , paragraph CARDINAL ) or in the case of secondary school teachers ( judgment in Case C-CARDINAL/CARDINAL PERSON [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ) .

§ CARDINAL For the same reasons , the same applies to primary school teachers ... ”


Preliminary objection rejected (non-exhaustion);Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr PERSON , a NORP national , resides at GPE ( Guipúzcoa ) , where he is a lawyer . At the material time he was a senator elected on the list of ORG , a political grouping supporting independence for ORG .

In DATE , the DATE magazine " ORG " published an article entitled PERSON ( Outrageous Impunity ) and signed by the applicant . The article read as follows :

" In DATE , at LOC holiday , DATE will have gone by since the murders of ORG GPE ) and of PERSON at GPE ) . The authorities have not identified the perpetrators of these crimes . They have not even acknowledged to which organisations they belong . Nor have they identified the persons who killed , between CARDINAL andCARDINAL DATE , PERSON , aged DATE , and PERSON , aged DATE , at ORG , PERSON and PERSON at GPE ; on DATE , again in DATE , PERSON at GPE , and , at around DATE , in the same town , IsidroSusperregui Aldekoa , over DATE ; at the beginning ofJune , still in DATE , PERSON at Bilbao;Francisco PERSON , PERSON , PERSON , PERSON and ORG , on DATE at ORG , and , in DATE , on DATE at GPE , PERSON , on DATE at ORG , PERSON and ORG , in DATE PERSON at GPE , in DATE PERSON Zabala at GPE , in DATE PERSON and PERSON at GPE and GPE PERSON at ORG ; PERSON , DATE , and PERSON , DATE , on DATE and DATE , CARDINAL at PERSON and the other at ORG . I only mention the dead ones and the list is far from being exhaustive . These are only examples . Not one , I repeat , not one of the murders , of the interminable list of fascist murders carried out in GPE ) , has shown the slightest sign of being cleared up by the authorities . Will the individuals who assassinated PERSON , PERSON , ORG , PERSON , PERSON , PERSON and ORG , the most recent murders , be identified ? And when I say most recent I should specify the date -CARDINAL DATE - because DATE there will be others .

And there remain the CARDINAL of cases , for there are CARDINAL of them , in which people burst in , pistols at the ready , to the bars of the villages and the suburbs ( ORG , Durango , PERSON , ORG , etc . ) or simply run through the streets wounding and beating up everyone they come across ; the bombs left in popular meeting FAC , Bordatxo , Alay Bar , GPE , Askatasunaetc . ) or in cars , attacks whose survivors suffer the consequences for life etc .

The perpetrators of these crimes act , continue to work and remain in posts of responsibility , with total impunity . No warrant has been issued for their arrest . The description of the persons who carried out these acts has been neither drawn up or published ; nor have there been any lists of suspects in the newspapers , or photokit pictures , and , far less , rewards offered to the public , or arrests , or inspections or searches of their homes . The public 's help has not been sought through the media , as has happened in other cases . Indeed it is significant that such help is not even accepted in connection with these crimes . No link has been established , there have been no official communiqués full of explicit accusations and reprobation inthe press , as in other cases .

The right - wing , who are in power , have all the means at their disposal ( police , courts and prisons ) to seek out and punish the perpetrators of so many crimes . But do n't worry , the right will not seek itself out .

Extreme right - wing organisations ? Before PERSON 's death no one in ORG thought that it was possible to secure the arrest or conviction for " unlawful association " of a single member , and far less one of the leaders , of the " Triple A " , of the " PERSON " , of the " PERSON " , of the ATE , of the PERSON commando , of the PERSON commando , ofthe PERSON commando , of ORG , of ORG , of ORG " , of " Acción Nacional Española"or of ORG . No one can believe it now either .

" ORG " members held as prisoners ? CARDINAL of them havebeen to prison . Persons suspected of being members of " ETA " ? CARDINAL of them have been detained in police stations . Sympathisers ? One could go on with the list forever . Yet not a single leader or member of ORG has been bothered .

Those responsible for public order and criminal prosecutions are the same DATE as they were before . And here in GPE nothing has changed as far as impunity and questions of liability are concerned .

The period when PERSON was Director General of ORG , and PERSON was Minister of the ORG , wasalso a time when there was a great increase in so - called extreme right - wing activities in ORG . The same phenomenon , the same coincidences are recurring now .

The increase in the activities of groups free to act asthey will is generally accompanied in the NORP Country byan increase in the strength of the security forces .

These commandos , because we have to call them something , seem totally at home in LOC , in the middle of a community completely hostile to them . This is too inexplicable for there not to be an obvious explanation . They have precise information to carry out their attacks , often more detailed than that available to local people .

They have substantial files which are kept up to date . They have a considerable supply of weapons and of money . They have unlimited material and resources and operate with complete impunity . Considering the timing of their operations and the conditions in which they are carried out it can be said that they are guaranteed legal immunity in advance . Forbidding people to see this is futile .

This is important to the people . In ORG it is more important than all the provisional schemes for self - government , democratic consensus and other meaningless or abstract nonsense , because it is a visible , tangible reality which confronts people on a DATE basis .

Frankly , I do not believe that the fascist associations which I cited earlier have any independent existence , outside the ORG apparatus . In other words I do not believe that they actually exist . Despite all these different badges , it is always the same people .

Behind these acts there can only be the Government , the party of the Government and their personnel . We know that they are increasingly going to use as a political instrument the ruthless hunting down of NORP dissidents and their physical elimination . If they want to be so lacking in a sense of political vision that 's their problem ! But for the sake of the next victim from our people , those responsible must be identified right away with maximum publicity . "

On DATE the prosecuting authorities instituted criminal proceedings against Mr Castells for insulting the Government ( Article CARDINAL of LAW ; see paragraph CARDINAL below ) . The court with competence for the investigation procedure , ORG , requested the ORG to withdraw the applicant 's parliamentary immunity , which it did by a majority on CARDINAL DATE .

On DATE ORG charged the applicant with having proffered serious insults against the Government and civil servants ( Articles CARDINAL para . CARDINAL and CARDINAL of LAW ) . It further ordered his detention on remand , taking into account the sentences laid down for the offences in question ( DATE imprisonment ; see paragraph CARDINAL below ) , but allowed his release on bail in view of his status as a senator and the " lack of alarm " ( falta de alarma ) caused by the alleged offences .

On DATE the court varied its previous decision . It allowed the applicant 's provisional release subject solely to the obligation to report to the judge at regular intervals . In addition to the circumstances already cited , it stressed that , during his questioning , Mr Castells had shown a co - operative attitude and had declared that his article had been intended merely as a political denunciation and not to insult or threaten the ORG or its members .

On DATE the applicant 's defence counsel challenged CARDINAL of the CARDINAL members of the relevant division of ORG . It was submitted that their political convictions and the posts which they had held under the previous political regime disqualified them from hearing a case concerning the freedom of opinion of an individual who , like the applicant , had been a notorious opponent of the regime in question . They relied on Article CARDINAL para . CARDINAL of LAW .

After several interlocutory applications , including one which resulted in a decision of ORG on DATE enjoining ORG to find the challenge admissible , the latter court , sitting in plenary session , dismissed the challenge on its merits on DATE . ORG took the view that although the judges had indeed sat in ORG under the previous political regime and CARDINAL of them had , from DATE to DATE , been the presiding judge in ORG , they had at that time merely applied the legislation in force .

On DATE ORG dismissed an appeal ( amparo ) which Mr Castells had lodged alleging a violation of Article CARDINAL para . CARDINAL of the LAW ( right to an impartial tribunal ) . It found that the fact that the judges in question might have political convictions differing from those of the applicant could not be regarded as being of direct or indirect relevance ( interés directo o indirecto ) to the solution of the dispute within the meaning of Article CARDINAL para . CARDINAL of LAW .

In the meantime the investigation of the case had progressed . On DATE the public prosecutor had concluded that the facts constituted an offence of proffering serious insults against the ORG and demanded a prison sentence of DATE .

In their memorial ( conclusiones provisionales ) of DATE , the defence lawyers contended that the disputed article contained accurate information and did not express the accused 's personal opinion , but the views of the general public . They offered to adduce evidence to establish the truth of the information . In particular they suggested that the competent authorities should produce reports on any police inquiries , detentions , prosecutions or other measures undertaken against the members of the extreme right - wing groups responsible for the attacks denounced in the article ; as the facts reported were common knowledge they could not be said to be insulting . In addition , the defence lawyers requested that evidence be taken from CARDINAL witnesses , including members of the NORP , NORP , LANGUAGE , LANGUAGE , NORP and NORP parliaments and of ORG , on the matter of parliamentary practice regarding the freedom of political criticism ; they argued that the accused had acted in his capacity as an elected representative and in conformity with the obligations attaching thereto .

By decision ( Auto ) of CARDINAL DATE , ORG refused to admit the majority of the evidence put forward by the defence , on the ground that it was intended to show the truth of the information disseminated .

There were divergences in academic opinion and even in its own case - law as to whether the defence of truth ( exceptio veritatis ) could be pleaded in respect of insults directed at the ORG institutions , but the reforms of LAW then under way clarified the question : those institutions fell outside the scope of that defence and LAW ( see paragraph CARDINAL below ) authorised it only where civil servants were involved . The evidence which the defence proposed to adduce was not therefore admissible in the proceedings pending , without prejudice to the possibility available to the accused of instituting criminal proceedings as he considered fit .

Mr PERSON filed an appeal ( recurso de súplica ) , but on DATE ORG confirmed its decision on the ground that the accuracy of the information was not decisive for a charge of insulting the Government .

The applicant then filed an appeal ( amparo ) in ORG , alleging that the rights of the defence had been disregarded . That court dismissed it on DATE , holding that the question could be resolved only in the light of the proceedings in their entirety and after the decision of the trial court .

ORG of ORG held a hearing on DATE and gave judgment on DATE . It sentenced the applicant to a term of imprisonment of DATE and a day for proffering insults of a less serious kind ( menos graves ) against the Government ; as an accessory penalty he was also disqualified for the same period from holding any public office and exercising a profession and ordered to pay costs .

It found in the first place , with regard to the objective element of the offence , that the expressions used in the article were sufficiently strong to damage the reputation of the injured parties and to reveal an attitude of contempt . As far as the subjective element was concerned , it considered that , as a senator , Mr Castells had available to him very obvious means of expression , provided for in the ORG 's rules of procedure , through which to carry out his duties of monitoring and criticising the ORG 's activities ; as he had failed to use these means , he could not claim to have acted on behalf of his electorate . The defence 's second argument , based on the aim of political criticism ( animus criticandi ) , did not remove its defamatory purpose ( animus injuriandi ) , but reduced the importance thereof . In the case under examination , the insults proffered with the aim of political criticism had exceeded the permissible limits of such criticism and attacked the ORG 's honour . It was therefore preferable to apply LAW , which provided for the offence of proffering less serious insults against the Government , rather than LAW . On the question of the constitutional right to freedom of expression ( LAW ; see paragraph CARDINAL below ) there were limits to that right , in particular in relation to the right to honour and to a private life and the right to control use of one 's likeness . Furthermore , the fact that the insult appeared in a press article suggested that it was the fruit of a more complicated intellectual process and a degree of reasoning which made it more clear and precise .

Finally , ORG confirmed its decision of CARDINAL DATE regarding the admissibility of the defence of truth .

The applicant again indicated in ORG his intention of filing an appeal ( amparo ) against the judgment , relying inter alia on Articles DATE and CARDINAL of the LAW . He lodged his appeal on DATE .

The enforcement of the latter measure was nevertheless stayed by ORG on DATE .

In his appeal ( amparo ) of CARDINAL DATE , Mr PERSON complained that he had not been able to have ORG judgment examined by a higher court and of the length of the proceedings .

He maintained further that the court had violated the principle of the presumption of innocence by refusing to allow him to adduce evidence . He considered it contrary to the most elementary rules of justice to convict someone - and in this case a senator - for making statements which were accurate and sufficiently important for it to be necessary to bring them to the attention of the community as a matter of urgency and in detail , without having allowed him to establish their truth .

He alleged , in addition , a breach of the principle of equality before the law ( LAW ) , taken alone or in conjunction with the right to freedom of expression ( LAW ) , as other persons had published similar articles without encountering difficulties . Furthermore , he claimed that he had been the victim of a violation of his right to formulate political criticism , which he argued was inherent in LAW as it applied to him in his capacity as a senator . According to him , that provision , which guarantees the right to participate in public affairs , entitled him to carry out his parliamentary duties of scrutiny through any organ or means generally available .

The applicant made a further reference to LAW in the summary of his complaints ( suplico ) .

In his observations of CARDINAL DATE , the public prosecutor noted that LAW guaranteed equality before the law and not equality outside the law . As regards the complaint based on LAW , it overlapped with the preceding complaint or was based on a misunderstanding : clearly a member of parliament did not carry out his duties only in the assembly , but outside it he did not enjoy any immunity ; although he could , like any citizen , criticise the action of the Government , he should not forget that the freedom of expression had its limits , fixed by LAW .

For his part , Mr Castells , by a letter of CARDINAL DATE , again offered to prove the truth of his statements , because that demonstrated " the violation by the contested judgment of the right to ` receive and communicate true information by any means of dissemination ' , referred to in LAW " . He also mentioned this right in his appeal ( recurso de súplica ) against the rejection of this offer by ORG ( DATE ) and in his observations of CARDINAL DATE .

ORG dismissed the appeal on DATE .

In summarising the applicant 's complaints CARDINAL of the " As to the LAW " part of its judgment , it took together , like the public prosecutor , those relating to LAW and DATE , without referring to LAW alleged violation of the right to equality before the law , guaranteed under LAW taken alone or in conjunction with LAW , inasmuch as the contested decision restricted the powers of monitoring , scrutiny and criticism of a senator .

At point CARDINAL it stated that parliamentary privileges were to be interpreted strictly as otherwise they could become instruments for infringing the rights of others ; they lapsed when their holder had acted as a mere citizen , even in his capacity as a politician .

At points CARDINAL and CARDINAL it considered the central issue : the right to rely on relevant evidence in presenting the defence case , and in particular to plead the defence of truth in respect of an offence of the type in question . The court noted in this connection :

" In order to assess whether evidence which it is sought to adduce is relevant , it is necessary to establish a link between that evidence and the thema decidendi , which must first be determined on the basis of the parties ' allegations . Except in the case of facts which are manifest or common knowledge , the court must not intervene in this regard , otherwise it will prejudge the merits , if only in part ... . It is preferable for the courts to avoid [ such a preliminary assessment ] ; it does not however in itself infringe constitutional rights provided that the other defence rights are respected . Even though in the present case the court ought perhaps not to have anticipated its opinion on the defence of truth when assessing the relevance of the evidence , [ that irregularity ] therefore infringes the constitutional right to use relevant evidence - particularly where as here the decision is taken at a single level of jurisdiction - only if there has been a breach of a substantive right in issue .

Article CARDINAL of LAW had given rise to criticism among academic writers because it restricted the freedom of expression . In any event , it should be read in conjunction with LAW which guaranteed that freedom . In this connection it had to be accepted that criminal legislation could constitute an adequate means of regulating the exercise of fundamental rights provided that it respected the essential content of the right in question . The limits of the freedoms of information and of opinion were beyond question to be found in the area of ORG security , which could be jeopardised by attempts to discredit democratic institutions . In conclusion the question whether the defence of truth was or was not admissible in this field was purely one of statutory interpretation and the specific application of LAW in the case under review was a matter falling within the exclusive jurisdiction of ORG .

On DATE ORG ruled that the term of imprisonment had been definitively served . Subsequently , the record of the conviction was annulled in accordance with LAW . It could therefore no longer be disclosed by investigation of the applicant 's criminal record unless the request came from judges or courts in connection with a new criminal inquiry .

The relevant articles of the LAW provide as follows :

" All NORP citizens are equal before the law . Any discrimination based on birth , race , sex , religion , opinion or any other condition or personal or social circumstances shall be prohibited . "

" CARDINAL . The right to honour , to a private life and to a family life and the right to control use of one 's likeness shall be protected .

The following rights shall be recognised and protected :

( a ) the right freely to express and disseminate thoughts , ideas and opinions by word of mouth , in writing or by any other means of reproduction ;

( d ) the right to receive and communicate true information by any means of dissemination . The right to invoke the conscience clause and that of professional confidentiality shall be governed by statute .

The exercise of these rights may not be restricted by any prior censorship .

These freedoms shall be limited by respect for the rights secured in this Title , by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one 's likeness and to the protection of youth and children . "

" CARDINAL . ORG shall have the right to participate in public life directly or through their representatives freely elected at periodically held elections by universal suffrage .

LAW CARDINAL/CARDINAL of DATE reformed LAW . It provides that the offences of insulting the Government shall be punishable by the following penalties :

" The following shall be liable to long - term prison sentences [ from DATE to QUANTITY years - Article CARDINAL of LAW ] :

Those who seriously insult , falsely accuse or threaten ... the Government ... ;

" When the insult or threat referred to in DATE is not serious , it shall be punishable by a short- term prison sentence [ from DATE to six years - Article CARDINAL of LAW ] . "

These provisions appear in a separate chapter of LAW . The chapter in question is based on the principle of authority ( decision of ORG of DATE ; see paragraph CARDINAL above ) and provides for a strengthened protection for the life , freedom and honour of the senior officials of the ORG . The offence of falsely accusing the ORG was not introduced until DATE .

LAW of LAW defines the offences of proffering insults and making false accusations . The latter consists of accusing a person wrongly of an offence coming within the category of those which have to be prosecuted even without a complaint ( LAW ) . On the other hand , an insult is any expression or action which discredits a person or exposes him to contempt , in particular by accusing him of an offence of the kind which may be prosecuted only if a complaint is laid ( Articles CARDINAL and CARDINAL of LAW ) . The practical importance of the distinction is that the defence of truth is admissible for the offence of false accusation ( Article CARDINAL ) but not for the offence of proffering insults , except where the insults are directed against civil servants in respect of acts relating to the performance of their duties ( Article CARDINAL of LAW ) .

By the judgment of DATE ORG specified that the defence of truth could not be pleaded in connection with the offence of insulting one of the senior institutions of the ORG : in the first place no official as such was concerned and , secondly , the institutions in question enjoyed extra protection in this field under the criminal law ( see paragraphs CARDINAL above ) .