No violation of Art. 6;Remainder inadmissible

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in GPE .

Starting from DATE the applicant made various deposits in NORP roubles with the NORP branch of ORG . These included :

( a ) sums of money deposited on CARDINAL deposit accounts ( ժամկետային ավանդ ) opened in DATE amounting to a total of MONEY as of DATE , sums of money deposited on PERCENT offset accounts ( PERCENT փոխհատուցման հաշիվ ) opened in DATE amounting to a total of MONEY as of DATE , and sums of money deposited on CARDINAL on - demand accounts ( ցպահանջ հաշիվ ) opened in DATE , DATE and DATE , the latter in the name of the applicant 's grand - daughter , amounting to a total of MONEY as of DATE ;

( b ) CARDINAL State internal premium bonds of DATE ( DATE թ. պետական ներքին շահող փոխառության պարտատոմսեր ) , each worth MONEY ;

( c ) CARDINAL special - purpose ORG interest - free bonds of DATE ( DATE թ. պետական նպատակային անտոկոս փոխառության պարտատոմսեր ) : CARDINAL worth MONEY entitling the applicant to receive a video recorder , CARDINAL worth MONEY entitling her to receive a television set , and CARDINAL others each worth MONEY entitling her to receive CARDINAL sewing machines ;

( d ) CARDINAL certificates of ORG obtained in DATE ( ORG խնայբանկի սերտիֆիկատ ) , each worth MONEY .

On DATE the Government decided to restructure the NORP branch of ORG into ORG of GPE ( hereafter , ORG ) . DATE the NORP rouble was withdrawn from circulation .

On DATE the NORP currency , the dram , was introduced , at a rate of MONEY to CARDINAL dram .

On DATE the Convention and Protocol No . CARDINAL entered into force in respect of GPE .

On DATE the applicant applied to ORG seeking to recover her deposits .

By a letter of DATE the ORG informed the applicant that :

“ ... the question of compensation for deposits made with ORG in former GPE roubles prior to DATE is currently at the centre of attention of ORG and the Government of GPE . The Decision no . CARDINAL of the Government of GPE of DATE , which states that ' ... GPE assumes responsibility for the future possible indexation of deposits made by citizens with ORG in former GPE roubles prior to the currency conversion of DATE ' , serves as proof of this .

As to your inquiry concerning the former ORG internal premium bonds of DATE and the certificates , we would inform you that all operations in their respect were stopped by the decision of ORG of GPE of DATE , until a final decision is adopted concerning their repayment by the ORG member GPE . However , no decision or directive was adopted thereafter .

As to the redemption of the former GPE special - purpose interest - free bonds given to the NORP population in DATE , which were planned to be converted into household and domestic goods starting from DATE , this was found not to be feasible by Decree no . CARDINAL of the Government of GPE of DATE .

For purposes of compensation the Government of GPE , in its Decree no . CARDINAL of CARDINAL DATE , decided to index the nominal value of the above [ special - purpose interest - free ] bonds by PERCENT and to open a deposit account or to make payments by DATE , which you failed to do within the said period .

As you see , in the above circumstances ORG has no obligation to make payments in respect of the deposits and securities .

ORG will be able to serve citizens only after a decision is taken by the Government of GPE concerning the choice of possible compensation alternatives for the deposits and the above securities and their payment . ”

On DATE the applicant lodged a claim with the GPE and ORG of GPE against the Government , seeking to recover her deposits and securities made with ORG . She requested , in particular , that her savings be returned to her in the currency in which the deposits were made .

On DATE the GPE and ORG of GPE refused to admit the applicant 's claim on the ground that :

“ ... the dispute is not subject to court examination , since ORG and the Government of GPE have not yet adopted relevant laws and decrees concerning the procedure for returning to citizens their deposits made with ORG . ”

On DATE the applicant lodged an appeal on points of law , arguing that the reasons for the refusal to admit her claim were groundless and seeking to reverse the decision of ORG .

On DATE ORG decided to dismiss the applicant 's appeal . In doing so , ORG referred to the grounds for the refusal to admit the applicant 's claim and found ORG decision to be well - founded .

Pursuant to this Decree the Government decided that , since the redemption of these bonds was not feasible due to the lack of goods , the repurchased bonds would be converted into deposit accounts .

Under LAW was allowed to restructure the NORP branch of ORG into ORG of GPE .

Under LAW GPE guaranteed the preservation and the repayment of deposits and other values made with ORG .

Under Paragraph CARDINAL the Government was asked to come up with proposals on indexation of savings and other values made with the NORP branch of ORG within DATE .

According to Paragraph CARDINAL , all transactions in respect of DATE ORG internal premium bonds and ORG certificates were to be stopped until a final decision was taken on them by the member states of ORG .

Under Paragraph CARDINAL the NORP branch of the former ORG was restructured into ORG of GPE . ORG was the legal successor of the NORP branch of the former ORG .

Under LAW the Government guaranteed the preservation and the repayment of the deposits and other values made with ORG .

Under LAW the following types of savings were indexed : ( a ) the amounts left in ORG deposit accounts as of DATE by PERCENT ; ( b ) the amounts left in ORG special deposit accounts as of DATE by PERCENT ; ( c ) the nominal value of the DATE special - purpose ORG interest - free bonds by PERCENT ; and ( d ) treasury bonds owned by the population by PERCENT .

Pursuant to this Decree the Savings Bank of GPE was sold to CARDINAL private companies . ORG was instructed to conclude a privatisation agreement with the buyers , which was to contain guarantees on behalf of GPE . In particular , GPE was to assume responsibility for the future possible indexation of deposits made by citizens with ORG in former GPE roubles prior to the currency conversion of DATE .

Section CARDINAL approved the DATE annual programme for compensation of monetary deposits made with the NORP branch of ORG before DATE , which featured as an ORG to this LAW .

Section CARDINAL prescribed that the compensation activities of monetary deposits made with the NORP branch of ORG before DATE shall be organised by ORG . The compensation of the said deposits was to be implemented on the basis of a ORG mid - term expenditure programme approved by ORG , within the limits of the budgetary allocations envisaged for that purpose as a separate budget line in each DATE 's ORG budget . ORG , based on the above - mentioned DATE annual programme , was to develop the procedure for such compensation and to specify the lists of individuals enjoying a priority right to receive such compensation .

Pursuant to Paragraph CARDINAL , those depositors , who are members of families which have been receiving family allowance continuously from DATE until DATE , are entitled to receive compensation for their deposits .

Pursuant to LAW and DATE , persons mentioned in Paragraph CARDINAL were to submit an application in order to receive compensation . The deadline for submitting applications could not be later than DATE and was to expire on DATE .

Pursuant to Paragraph CARDINAL , the depositors ' right to claim compensation from GPE arises in such budgetary DATE ( a ) in respect of which an expenditure programme for payment of compensation prescribed by this procedure is envisaged by LAW ; and ( b ) the depositor in question is included in the payment schedule for DATE in question .

According to LAW ( CARDINAL ) and DATE , the judge refuses to admit a claim if , inter alia , the dispute is not subject to court examination . The decision refusing to admit a claim can be contested through cassation proceedings within DATE from the date of its receipt .

According to LAW , as in force at the material time , a judicial act could be reviewed on the ground of newly discovered circumstances which have vital importance for the case and which the parties were not and could not be aware of .

According to Article CARDINAL , as in force at the material time , the decision of ORG entered into force from the moment of its delivery and was not subject to appeal .


Preliminary objection rejected (six month period);Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr PERSON , a NORP national born in DATE , was at the material time a bank employee . He lives in ORG .

ORG On DATE the car he was driving , in which Mr PERSON was a passenger , was in collision with another vehicle , belonging to Mr PERSON dos PERSON and driven by Mr PERSON .

As a result of his injuries Mr PERSON remained in hospital until DATE . He underwent several operations , including CARDINAL in GPE in DATE . Since the accident he has CARDINAL leg QUANTITY shorter than the other and suffers from a PERCENT permanent disability , which has made it impossible for him to return to work .

ORG at ORG was notified of the accident by the local police and instituted criminal proceedings against both drivers for unintentionally causing physical injury . The file on the case was closed in DATE following an amnesty under a legislative decree .

ORG On DATE Mr PERSON and Mr PERSON ( " the plaintiffs " ) brought a civil action in ORG against PERSON , PERSON dos PERSON , the ORG company , on whose behalf the journey was made , and the insurance company " Imperio " , whose liability was contractually limited to CARDINAL escudos , ( " the defendants " ) . The applicant sought compensation of QUANTITY , together with various amounts to be calculated during the enforcement proceedings ( liquidação em execução de sentença ) in respect of future expenses stemming from the accident .

Pursuant to LAW , the action fell to be heard under a summary procedure , which entailed shorter time - limits ( Articles CARDINAL to CARDINAL of LAW and see the GPE v. GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , para . CARDINAL ) .

ORG On the conclusion of the preliminary proceedings and the hearing ( for a detailed description of the proceedings see the PERSON v. GPE judgment of DATE , Series A no . CARDINAL , pp . CARDINAL , paras . CARDINAL - CARDINAL ) , ORG gave judgment on DATE . It declared the action brought by Mr PERSON and Mr PERSON well - founded in part and ordered the defendants , jointly and severally , to pay the applicant compensation of CARDINAL escudos - CARDINAL for pecuniary damage , taking into account inflation , and CARDINAL for non - pecuniary damage .

The court reserved for the subsequent enforcement proceedings , in accordance with LAW para . CARDINAL of the Code of Civil Procedure ( see paragraph CARDINAL below ) , the question of the transport costs incurred by the plaintiffs to enable them to receive treatment after the accident .

ORG On DATE the applicant and Mr PERSON appealed from that judgment to ORG . They did not dispute the facts as established by the first - instance court , but they complained that the sums awarded were inadequate .

ORG Their appeals and that of the ORG company were declared admissible on DATE . On CARDINAL DATE ORG dismissed PERSON appeal , whereas it increased the sum awarded to his co - plaintiff .

ORG On DATE the defendant company , ORG , appealed on points of law to ORG ( Supremo Tribunal de Justiça ) . The plaintiffs lodged a " secondary " appeal ( " recurso subordinado " ) with the same court on DATE .

ORG gave judgment on DATE . Taking into account the permanent disability from which the plaintiffs suffered after the accident , it found in their favour on this point and awarded them additional compensation , to be determined in the enforcement proceedings , for the damage flowing from their reduced capacity to work and diminished ability to move , damage which it had not been possible to assess at first instance . Its judgment was notified to the applicant on DATE .

ORG On DATE , since the defendants refused to make a payment of their own accord , the applicant and Mr PERSON asked the ORG court to enforce payment of the part of the damages that had already been calculated , " without prejudice to the remainder once the details necessary for its calculation have been established ( LAW ) " ( " sem prejuizo de logo que recolhidos os necessários elementos , deduzirem liquidação da restante ( arto CARDINALo do ORG ) " ) . They listed the attachable assets of the ORG company . However , a writ issued for service in GPE ordering the attachment of the goods in question proved impossible to execute ; on DATE the court found that the company was subject to insolvency proceedings .

ORG On DATE the applicant indicated to the judge at the ORG court the attachable assets of PERSON dos PERSON and asked him to make a formal request to ORG court for the seizure of assets situated within its jurisdiction .

On DATE the same judge ordered the seizure of movable goods and a building situated within the jurisdiction of the ORG court ; this took place on DATE and CARDINAL DATE . He also made the formal request to ORG court .

ORG On DATE PERSON , whose marriage was subject to the rules on community of property ( comunhão geral PERSON ) , requested the judge , in accordance with Article CARDINAL para . CARDINAL of the Code of Civil Procedure ( see paragraph CARDINAL below ) , to order the separation of her assets from those of her husband . She further sought to have the proceedings stayed until the couple ’s property had been divided up .

ORG The process of dividing up the property continued until DATE , on which date the applicant and Mr PERSON concluded an out - of - court settlement with the defendants , pursuant to which Mr dos PERSON paid to them QUANTITY as full compensation .

ORG A translation of the main provisions of LAW referred to in this case is set out below :

( Correspondence between the right and the action )

" For each right , except as provided otherwise , there is a corresponding action whose purpose is to secure judicial recognition of the right in question or to enforce it , accompanied by measures to ensure the effectiveness of the action . "

( Classification of actions according to their purpose )

" CARDINAL . There are CARDINAL types of actions : declaratory actions ( declarativas ) and enforcement actions ( executivas ) .

Declaratory actions may have as their purpose ( a ) a mere assessment , ( b ) an order or ( c ) the creation of a right ( constitutivas ) . They seek to obtain respectively :

( a ) ORG a mere declaration as to whether a right or fact exists ;

( b ) ORG an order , presupposing or aimed at preventing the violation of a right , for the handing over of an article or the accomplishment of an act ;

( c ) ORG the authorisation for a modification of an existing legal situation .

Enforcement actions are those by which the plaintiff seeks adequate measures to secure effective reparation for the right infringed . "

( Limits of the action for an order )

" CARDINAL . ...

If insufficient information is available to determine the nature or the amount [ of the reparation ] , the court shall make its order in respect of a sum to be fixed in subsequent enforcement proceedings , without prejudice to its power to make an immediate order in respect of the part of the award already calculated . "

Article CARDINAL

( Calculation by the court )

" CARDINAL . Where the damages have not been calculated and their calculation is not merely a matter of simple arithmetic , the plaintiff must mention in his application instituting the enforcement proceedings the sums which he considers to be included in the damages owed and submit a final claim for a specific amount .

( Rules applicable where part of the damages has been calculated and the rest not )

" CARDINAL . If part of the damages awarded has not been calculated , but the rest has , the order in respect of the calculated damages shall be immediately enforceable .

Where the enforcement proceedings concern solely the part of the award which has been calculated , the payment of the remaining damages , if it is sought while the enforcement proceedings are in progress , shall be requested by an interlocutory application ; where an appeal is lodged , a certified copy of the enforcement decision must be attached together with , if the enforcement is founded on a judgment , the memorials and submissions of the parties . "

( Attachment of half the assets of a couple )

" CARDINAL . ...

... the common property may be attached immediately provided that the creditor has included the goods in question in the list of attachable assets and has asked that the debtor ’s spouse be summoned so that he or she may , if they wish , seek the division of the assets .

Within DATE of being summoned , the spouse must request the division of the property or submit a certificate proving that such division has already been requested in connection with other proceedings pending , failing which the attachment order shall be enforced in respect of the goods in question .

Once that request has been made or the relevant certificate lodged , enforcement shall be suspended until the division of the property has been effected ... "


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

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

, may be summarised as follows .

On DATE the DATE newspaper “ GPE ” of which the first applicant was editor - in - chief , published an article entitled “ Holidays with an agent ” ( “ PERSON z agentem ” ) , written by the second and third applicants . The authors made an allegation that the then President of GPE elected in DATE , PERSON , had spent DATE in DATE , before he had been elected to office , in the same hotel as a NORP spy resident in GPE at that time , a certain PERSON , and had had extensive contacts with him . He had at that time been a member of ORG ( PERSON ) and represented the ORG of the NORP Left ( ORG “ the SLD ” ) .

The opening text under the heading read :

“ There were no accidental visitors to the PERSON [ a hotel in Władysławowo ] . The élite of the NORP post - communists and business had been spending their holidays there for a long time . And , as it happens , an agent of the NORP intelligence services , PERSON , also stayed there . And they formed , as the employees of the hotel say , ' a particularly close - knit company ' .

The article read :

“ PERSON [ the President ] often spent his holidays in FAC in GPE ] . In DATE he arrived there with his family and took a room in the Rybitwa . Subsequently , PERSON took a room in the same building . The PERSON should not be confused with the main building of FAC . The latter can house up to CARDINAL people , while the LOC , situated only a short distance away in a secluded place contains CARDINAL apartments .

As the employees of the ORG say , visitors to the PERSON are most certainly not there by chance . Most often they are friends of PERSON , the ORG 's director , a former official of the NORP ORG ( PZPR ) . NORP officials often visited the ORG , and later also officials of the SLD . When wellknown public figures visited the hotel it was kept under special surveillance by security agents . The PERSON visited PERSON from DATE to CARDINAL DATE . They got the best apartment , on the third floor . On CARDINAL DATE , in TIME , PERSON arrived at the LOC and remained there also until DATE . He was introduced to the employees by the deputy director of the ORG as a “ special guest of director PERSON .

This colonel of the NORP intelligence was given apartment no . CARDINAL , just beside the main entrance to the hotel and close to the reception room . Neither A. nor PERSON was listed in the official list of the hotel 's guests , even though it was mandatory . Nonetheless , thanks to the efforts of some of the former employees of the Centre , we managed to obtain copies of invoices by which they had both paid for their stay in the PERSON .

After we announced on DATE the publication of the present article , at DATE 's press conference the journalists asked PERSON whether he had ever had contacts with A. ' I have never met him ' said the President firmly . Nevertheless , having conducted some investigations , we have found persons who tell us of meetings which A. and PERSON held at FAC . We have talked with CARDINAL employees of the LOC , past and current . Most of them are afraid to talk about what was going on in the LOC . Some of them remember , however , that its visitors were good chums . They often had drinking parties . On CARDINAL such occasion A. and PERSON were seen together .

CARDINAL former employee remembers another meeting between PERSON and GPE This time , it was a tête - à - tête .

' They met in the socalled lower dining room in the main building of ORG says the employee , who was serving at their table .

' Apart from PERSON and the NORP , nobody else was present . I remember that they spoke in NORP , but some NORP words were thrown in from time to time . '

After a while , having looked at a photo , this employee recognised A. and remembered that it was he who had had lunch with PERSON .

A. served in the ORG from DATE . DATE he worked in GPE embassy in GPE . DATE he was First Secretary of the embassy responsible for political affairs , and at the same time deputy to the Head of the ORG in GPE , General PERSON .

A. formally left the service in DATE . After that he worked as a socalled secondline officer , which meant that he carried on his spying activities , posing as a businessman and a civilian without any links to the NORP State apparatus . He became known in GPE after it became publicly known that he had been a longtime friend of the then Prime Minister , PERSON . Minister [ of ORG ] PERSON accused PERSON of being a spy . However , the investigation was discontinued as the prosecution authorities found that there was insufficient evidence to put PERSON on trial .

During his stays in GPE A. was , as far back as DATE , kept under surveillance by ORG ( ORG ) . In the White Paper , a compilation of documents published by ORG and relating to the PERSON case , we find information that during DATE the NORP was in ORG . However , we find no information there about his activities or contacts during that time – despite the fact that there is a wealth of information concerning his movements before and after his stay in ORG .

In DATE ORG warned PERSON that he should sever his ties with A. The then Director of the Office , PERSON , stated later that it had been found that ORG had been particularly active during the holidays , the better part of which he , like PERSON , spent at the PERSON .

The newspaper also published CARDINAL portrait photographs , CARDINAL of the plaintiff and CARDINAL of A. , with the following caption :

Friends from the beach – President PERSON and GPE , NORP and NORP intelligence officer .

The article was accompanied by copies of invoices paid by the President and PERSON for their stay at the LOC .

In the same issue of “ GPE ” an article entitled “ The Biggest Scandal of GPE ” was published . It summarised the affair in which in DATE TIME , the then Minister of the ORG , declared in ORG that the then Prime Minister PERSON , a member of the same political party to which the President had belonged before his election in DATE , had been a NORP spy recruited by PERSON

The President lodged a civil action with ORG against the applicant and the publishing house which published “ GPE ” , claiming that the defendants should publish apologies for the text , which he qualified as deliberately misleading given that he had never met PERSON He also requested that the applicants pay , jointly , MONEY ( ORG ) to ORG .

During the proceedings the court heard evidence from CARDINAL witnesses with whom the authors had spoken before the article was published and CARDINAL other witnesses whom they had contacted after its publication . The court further heard evidence from CARDINAL witnesses called by the plaintiff . It also had regard to CARDINAL documents submitted by both parties , which all related to the plaintiff 's schedule and private and public activities DATE . The court examined an expert opinion verifying the plaintiff 's signature on attendance lists of various parliamentary bodies during the material period .

The applicants argued , inter alia , that in publishing the article they had exercised their freedom of expression , and referred to LAW .

By a judgment of CARDINAL DATE the court partially allowed the plaintiff 's claim . It had regard to CARDINAL documents relating to the essential message of the article , namely that the plaintiff had spent his holidays in Władysławowo in DATE at the same time as A. and had had friendly contacts with him . The court concluded that the evidence before it was insufficient to make a finding that the applicants had shown sufficient diligence in gathering the material for their article . It further observed that the material which they had had at their disposal before publication was insufficient for the conclusion , which they had nevertheless presented in the article , that the plaintiff had indeed spent the period concerned in PERSON , that he had been A 's friend and that they had stayed in the same hotel at the same time .

It ordered the applicants to publish an apology in their newspaper , worded as follows :

“ Editor - in - chief of “ Życie ” [ ... ] and [ the second and third applicant ] present their apologies to Mr PERSON for having breached his personal rights by publishing in “ GPE ” of DATE , No . CARDINAL ( CARDINAL ) , in the article “ DATE with an agent ” , untrue information suggesting that in DATE he had spent holidays in hotel “ LOC in FAC in ORG and that he had had close contacts with [ GPE ] ; moreover the [ applicants ] apologise for the manner in which the title of that article was formulated , for publication of the photographs on the first page of the newspaper and for the caption underneath . ”

The court dismissed the remainder of the claim and ordered each defendant to pay ORG CARDINAL in reimbursement of the court fee paid by the plaintiff . No award regarding the reimbursement of other costs borne by the plaintiff was made .

The applicants appealed . They argued that the courts had failed to establish the facts of the case correctly and had wrongly assessed the evidence . This failure had had a direct bearing on the court 's conclusion that they had failed to act with diligence when preparing and publishing the article concerned . They further argued that the court had ordered them to publish an apology with a different content from that requested by the plaintiff . The applicants finally referred to the LAW , in so far as it guaranteed freedom of expression and access to information .

By a judgment of DATE ORG allowed the appeal in so far as the first - instance court had ordered the applicants to apologise for the photographs published on the first page of the newspaper and for the caption underneath , and discontinued the proceedings in the relevant part . The court observed in this connection that the plaintiff 's claim had not related to the photographs and the caption and that the court , consequently , had not been required to rule over and above the claim .

The court dismissed the appeal in its remainder .

It observed that the provisions of the LAW adopted in DATE relied on by the applicants could not be applied because they had entered into force after the events concerned . Nonetheless , at the material time freedom of expression had been guaranteed by LAW , ratified by GPE in DATE . The court went on to state :

“ The caselaw of ORG provides that freedom of expression of the press plays an essential role in a NORP society . Although the press should not overstep certain bounds , in particular in respect of reputation and rights of others , its duty is nevertheless to impart DATE in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest . There is little scope for restrictions on political speech or on debate on questions of public interest . The limits of acceptable criticism are wider with regard to a politician than with regard to a private individual . A politician is entitled , like any other citizen , to legal protection of his or her personal rights and reputation , but the scope of this protection is considerably narrower than in respect of private individuals . Such an interpretation of LAW was made in [ the ORG 's ] cases PERSON v. GPE ( no . CARDINAL ) , CARDINAL DATE , Series A no . CARDINAL ; PERSON v. GPE , CARDINAL DATE , Series A no . CARDINAL ; PERSON v. GPE , DATE , Series A no . CARDINAL ( ... ) All these cases were brought [ to the ORG ] by journalists who had been parties to criminal proceedings on charges of defamation against politicians . Neither the veracity of information which they had published nor their diligence had been challenged by domestic courts . None the less , various criminal sanctions had been imposed on them . The [ NORP ] Court did not criticise the mere fact that the applicants had been found criminally liable ; it found violations of LAW finding that the measures complained of had not been necessary in a democratic society . ”

The court further noted that the article had attributed to the plaintiff close and friendly contacts with the agent of the ORG , an assertion which in NORP society could not but provoke negative reactions . Hence , the firstinstance court had been right in its finding that the plaintiff 's reputation , protected by LAW as one of his personal rights , could be negatively affected . The defendants ' conduct could only be protected if it was found to be lawful within the meaning of that provision . However , it could not be so qualified . It was true that the defendants had shown diligence and good faith when gathering the material for the article , in that they had talked with many persons who could have known about the plaintiff 's holidays in DATE . Nevertheless , the conclusions which they had drawn on the basis of that material published in their article , were seriously flawed . While there had been sufficient grounds for a finding that the plaintiff and his family had spent some time in the hotel concerned in DATE and DATE , it was also clear that during this period the plaintiff had left Władysławowo from time to time to attend to his political duties . There were no indications , let alone any sound evidence to show that he as much as had ever seen PERSON during this period , let alone been friends with him , as was strongly suggested , or that the CARDINAL men had met in private while at the LOC . While it was true that , on the whole , the article did not contain obvious statements of opinion , it was clearly implied that the plaintiff 's conduct had been reprehensible .

The court went on to state that the reasoning of the first - instance court as to the admissibility and assessment of the voluminous evidence before it had been correct and logical . The defendants had failed to show that the article 's conclusion that the plaintiff and PERSON had indeed been friends , who in DATE had spent holidays together , had any factual basis . Their conduct when publishing the article presenting such a conclusion regarding facts , based on manifestly flimsy grounds , was open to criticism and the lower court had been right in making such a finding .

The court further noted that in the same issue another article had been published . It referred to the close contacts between PERSON , one of the leaders of the party to which the plaintiff belonged , and PERSON The tone of the article concerned , seen in that context , clearly suggested to the reader that there might have been close relations also between the plaintiff and the ORG officer in question . This was not sufficiently borne out by the evidence , either that gathered by the plaintiffs prior to the publication or that available to the first - instance court .

The applicants lodged a cassation appeal with ORG , making essentially complaints similar to those contained in their appeal .

By a judgment of CARDINAL DATE ORG quashed the judgment of the appellate court in so far as it had dismissed the applicants ' appeal , and remitted the case to be reheard by that court .

ORG observed :

Pursuant to section CARDINAL of LAW the press is obliged to safeguard the citizens ' right to obtain reliable information , to ensure transparency of the public life and to exercise public control and supervision of public affairs . This is why the press enjoys the freedom of speech and print , guaranteed by LAW , and when the impugned article was published – by the constitutional provisions as amended in DATE and DATE , and also by LAW . The importance of tasks to be fulfilled by the press and their character taken together with the freedom it should enjoy provide foundations for its crucial role in a democratic society . This is why it is often referred to as “ a fourth power ” .

The press is obliged to impart an accurate picture of social phenomena which it presents to the public . The significance of this duty flows from the fact that it has been included in LAW . Hence , it is not open to doubt that the press should provide accurate information . However , the obligations incumbent on journalists could not be interpreted as a straightforward obligation to present only “ true ” information to society . Similarly , one can not say that every instance of publishing untrue information amounts to unreliability on the part of the press . It should be borne in mind that the journalists have at their disposal only limited measures , that it is impossible for them to have access to all sources of information and that , as a result , it often is not feasible to give a complete picture of a given situation or event . If the journalists were obliged to write only “ truth ” , it would amount to a serious restriction on the exercise of the freedom of expression guaranteed by LAW .

ORG referred to the ORG v. GPE judgment of ORG v. GPE [ ORG ] , no . ORG , ORG CARDINALVI ) . However , it noted that journalists were obliged to act with diligence when gathering and verifying information for the purposes of publication . It was a lack of such diligence which could make their conduct unlawful and consequently entail a breach of LAW . It had not been convincingly demonstrated that the defendants ' conduct when preparing and publishing the article concerned had lacked such diligence . Hence , the judgment of the appellate court had to be quashed and the applicants ' appeal reexamined .

By a judgment of DATE ORG reexamined the applicants ' appeal and dismissed it . As a result , the firstinstance order to publish their apologies for having published the article was upheld . The defendants were also ordered to pay ORG CARDINAL to the defendant to cover his costs incurred in the appellate proceedings .

The court was of the view that the defendants had failed to show diligence when gathering the material on which they had later based their article . The evidence gathered by them and by the first - instance court had shown that the plaintiff had indeed been in ORG to CARDINAL DATE which , in any event , had not been in dispute . However , on DATE he had travelled from GPE to GPE . Subsequently , he had come back to GPE on DATE and from that date until CARDINAL DATE had attended to his political duties , as confirmed by various witnesses and documents . In the light of the evidence , there had been no grounds on which to accept that he had been in ORG from CARDINAL to DATE , when PERSON had been spending his holidays there . Likewise , there were no grounds for a conclusion that the plaintiff and ORG had been friends or that they had been members of a “ particularly close - knit company ” as alleged in the article .

The court concluded that in the light of the evidence gathered by the defendants themselves prior to publication of the article and , additionally , other evidence submitted to the first - instance court , the conclusions drawn by the defendants , namely that the president and PERSON had spent DATE in the same hotel as good friends , lacked any factual basis . It was of the view that the defendants had not demonstrated the necessary objectivity and detachment when presenting their conclusions to the public , also because they had omitted to present in reasonable detail the basis on which they had reached those conclusions .

The applicants lodged a cassation appeal with ORG , raising various procedural complaints to the effect that the courts had failed to establish the facts of the case correctly and had wrongly assessed the evidence .

By a decision of DATE served on the applicants ' lawyer on CARDINAL DATE , ORG refused to entertain their appeal .

LAW , adopted in DATE , provides as follows :

“ GPE shall ensure freedom of the press and other means of social communication . ”

LAW reads :

“ CARDINAL . NORP The freedom to express opinions to acquire and to disseminate information shall be secured to everyone .

Preventive censorship of the means of social communication and licensing of the press shall be forbidden . ORG may require that permits be sought and obtained for the operation of a radio or television station . ”

LAW , in so far as relevant , provides :

“ CARDINAL . Each citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions . Such right shall also include the obtaining of information on the activities of self - governing economic or professional organs and other persons or organisational units , relating to the field in which they perform the duties of public authorities and manage municipal assets or property of ORG .

The right to obtain information shall encompass the right of access to documents and entry to sittings of collective organs of public authority formed by universal suffrage , with the opportunity to make sound and visual recordings .

Limitations upon the rights referred to in DATE and CARDINAL above may be imposed by statute solely to protect the freedoms and rights of other persons ... public order , security or important economic interests of the ORG . ”

LAW contains a list of the rights referred to as “ personal ” ( dobra osobiste ) . It reads :

“ The personal rights of an individual , such as in particular the rights to health , liberty , reputation ( cześć ) , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work [ as well as ] inventions and improvements shall be protected by civil law regardless of the protection enshrined in other legal provisions . ”

Article CARDINAL of the LAW provides for ways of redressing infringements of personal rights . A person facing the threat of an infringement may demand that the perpetrator desist from the wrongful activity , unless it is lawful . Where an infringement has taken place the person affected may , inter alia , request that the wrongdoer make a relevant statement in an appropriate form , or demand satisfaction from him / her . If the infringement of a personal right causes financial loss , damages may be sought before a civil court .

A party to civil proceedings could , at the material time , lodge a cassation appeal with ORG against a final judicial decision of a secondinstance court . Article PERSON of LAW as applicable at the material time listed the grounds on which a cassation appeal could be lodged . It read as follows :

“ The cassation appeal may be based on the following grounds :

( CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;

( CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”

ORG could , pursuant to LAW , refuse to entertain the cassation appeal if :

“ ( i ) there [ was ] no appearance of any significant legal issue in the case ;

( ii ) there [ was ] no need for the interpretation of provisions raising serious doubts or giving rise to discrepancies in the courts ' case - law ;

( iii ) the appeal [ was ] manifestly ill - founded . ”

Article CARDINAL continued :

“ CARDINAL . Paragraph CARDINAL shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law . ”


Violation of Art. 6-1;Violation of Art. 6-3-c

The applicant was born in DATE and lives in GPE . In or DATE the applicant breached an earlier probation order ( concerning a charge of deception ) and was sentenced to CARDINAL months’ imprisonment . It was her first time in prison .

Her term of imprisonment began in DATE . She was accorded an unconditional release date of DATE .

The applicant suffered from cerebral palsy , a disorder of the central nervous system which can inhibit voluntary muscle control . She used a wheelchair and could only walk a few steps with assistance . She did not have voluntary control of her bladder meaning that on occasion she either could not urinate for TIME or she urinated uncontrollably and required medication to restrain this . The condition did not affect her intelligence but rather her ability to process information so that she required explanations in plain language and sufficient time for full comprehension .

A short medical report from a general practitioner dated DATE noted that the applicant was a patient of the relevant practice and that her condition could have affected her ability to produce a urine sample on demand as voluntary control of the nervous system is always affected by cerebral palsy . While he suggested obtaining a neurologist ’s report on these matters , the applicant stated that she could not afford to obtain one .

The prison psychotherapist ’s report of DATE noted that the applicant had been referred in DATE given her distress and difficulties in coping with her imprisonment . It noted as follows :

“ Largely confined to a wheelchair , [ the applicant ] manifests obvious physical symptoms of cerebral palsy as well as somewhat less obvious mental ones . [ The applicant ] possesses an excellent vocabulary and a reasonably well - developed capacity to think logically that places her well in the highest range of mental functioning for those who have the condition from which she suffers . Thus it seems that she often strikes those who meet her as an individual with a normal range of mental functioning but a difficult personality .

In fact , [ the applicant ] experiences problems dealing with any sort of symbolism in language : she is openly vocal about her distaste for what she calls slang . Any explanation given to her needs to be couched in concrete terms devoid of metaphor or simile . Often it may be advisable or necessary to write down an explanation so that she may study it at her leisure in order to take it in fully and remember it . When this procedure is followed , she proves well able to make use of information or advice .

From [ the applicant ’s ] standpoint , these features of her mental functioning often make it difficult for her to think things through completely and thus to envision what the consequences of her actions may be . From the view point of those who deal with her , it often may seem that she is being difficult or uncooperative when it is in reality the case that she simply has not fully grasped the nuances of the subject at hand .

[ The applicant ’s ] life circumstances seem to have been troubled and unhappy . She has felt it necessary to fight ferociously to consolidate and maintain her independence . Thus the stay in < prison > appears to have been a sobering experience for her . It seems rather graphically to have brought home to her the consequences of some of her own actions – actions for which she previously had been unable to envisage consequences .

It is difficult for [ the applicant ] to trust anyone completely , as she feels herself to have been badly let down by key figures in her life ( including her mother , foster carers et al ) . Yet , in a relationship which [ the applicant ] experiences as one of confidence and caring , she is able to show herself as a warm , even endearing individual . ”

The applicant was detained in the medical wing of the prison since the normal prison cells were not wheelchair accessible .

At about CARDINAL.CARDINALam on DATE a female prison officer asked the applicant to leave her education classes . They were then met by CARDINAL other female prison officers . CARDINAL of them asked the applicant if she had heard about PERSON . The applicant replied that she had not and she was informed that it was mandatory drug testing . One of the officers requested the applicant to provide a urine sample immediately . The applicant alleged that she said that she would not be able to produce a sample : the Government did not accept this .

She was taken to the ORG unit , given a container and asked to provide a specimen . While the applicant claimed that she said again that she could not provide a urine sample , the ORG maintained that she simply refused to provide a sample . She claimed that she began to explain why she could not provide a sample but that her explanation was brushed aside . She was offered a cup of water , which she declined . She maintained that this was because she knew that the water would not assist because the problem was not whether her bladder was full or not but whether she had the motor control to provide a specimen on demand and because she was concerned as to whether the water was fresh .

The applicant was taken to her cell by the officers and she was told that she could provide her sample there . A female officer remained in the cell with her and the applicant felt distressed by this . She claimed that , at TIME , she reiterated that she could not urinate . She submitted that the prison officer appeared irritated and informed her that she was going to put that down as a refusal which could result in additional days’ detention . The Government claimed that she refused once again to provide a sample .

She claimed that the officers who dealt with her were brusque and business - like . None of the officers asked her about her condition or whether she would need assistance in providing the urine sample and she was not offered the possibility of speaking confidentially with a medical officer or a structured manner of providing the sample over TIME . She admitted , however , that she did not explain to them that she could not urinate as a result of her disability . She alleged that she did inform the officers that she was menstruating ( the Government disputed this ) but , in any event , she accepted that she did not use her menstruation as an excuse for not providing a urine sample .

On DATE , at TIME , a male officer came into the applicant ’s cell and read an “ official - sounding ” paper about “ a refusal ” . The applicant was asked to sign it but refused to do so . She maintained that this was because she had just woken up and did not understand what was happening . The paperwork was left in her cell . This paperwork appears to have been a notice of report , which informed the applicant that she had been placed on report for the alleged offence of disobeying a lawful order to provide a urine sample .

DATE , she was sent to see the Governor when it was explained to her that she was being “ put on report ” . There were CARDINAL officers in the room at the same time . Her account was that , feeling intimidated and not understanding the jargon they were using , she asked if she could have someone with her . The Governor refused , stating that this would only be allowed for someone with severe learning difficulties . The Governor did not ask her if there were any medical reasons why she should be assisted . The Government disputed the applicant ’s account of this meeting .

The matter was adjourned to DATE , to allow the relevant prison officer to attend to give evidence . In the meantime , the applicant was seen by a medical officer who certified her as fit to take part in the hearing . She did not inform the medical officer either that her disability had prevented her from providing a urine sample , explaining that this was because the medical officer never asked .

On DATE the applicant appeared again before the Governor . The Government submitted the record of the adjudication hearing which was filled out by the Governor at the hearing . Question CARDINAL on Part CARDINAL of the form enquires : “ Do you want any additional help at this hearing ? ( If yes , explain the possibilities of assistance by a legal friend or legal representative ) ” . The Governor had ticked the box saying “ No ” . The applicant claimed that her request for legal representation was refused .

The applicant submitted that she was not asked any questions about her disability or whether she had problems urinating . The allegation of a refusal to give a sample was put to her . She claimed that she tried to explain as best she could and that the Governor indicated that most people could provide a sample when asked and he noted that she had refused water . She accepted that she did not inform the Governor during the adjudication hearing that her disability had prevented her from providing a urine sample . The Governor found the charge of disobeying a lawful order to have been proven and sentenced the applicant to CARDINAL additional days’ detention . She was informed that she could appeal .

With the assistance of the prison chaplain , she obtained and completed on DATE a complaint form . She noted in the form that she had not represented herself as well as she wished and would have benefited from a prepared statement . She indicated that she had bladder problems , exacerbated by the stress of her imprisonment and she disclosed that she had been menstruating . She indicated her willingness to provide a urine sample and requested to be allowed the time for which Rule CARDINAL ) of the Prison Rules DATE had provided . In an attached statement , she made it clear that she had not refused to provide the sample but simply could not due to her disability . She indicated that she had recently gone more than TIME without urinating . She further requested some assistance in order to comply with the prison rules as they had been drafted with able - bodied persons in mind and did not make allowances for those with disabilities . She expressed extreme distress at having to discuss her bodily functions and requested that the DATE additional days’ be withdrawn .

On DATE the Governor replied that he had spoken to the prison chaplain , read the applicant ’s submissions and discussed the case with the prison service area manager , the latter of whom had read the papers . The area manager agreed that the charge had been proven and that the award of DATE could be reduced to DATE ( with no association with other prisoners for DATE and CARDINAL days’ stoppages in pay ) . She was also to provide a urine sample under the ORG arrangements .

The applicant sought legal advice . Her legal representatives could not contact her by telephone and were offered a visit after her initial release date . Accordingly , they made written representations by letter dated DATE to the Governor and to the prison service area manager outlining the applicant ’s condition , how that had prevented her providing the sample and her distress and embarrassment . They sought the withdrawal of the CARDINAL additional days’ award , in default of which proceedings under LAW DATE would be pursued .

NORP The applicant was released on DATE . In his letter of CARDINAL January CARDINAL to the applicant ’s representatives ( confirming a telephone conversation of DATE ) the area manager stated that , while information was received by the Governor after the adjudication causing him to vary the sentence , that information did not cause the Governor or the writer to consider that the finding of guilt was flawed or should be quashed . He was further satisfied that the adjudication was conducted in a fair and proper manner . He noted that the applicant had not explained her difficulties to the officers involved in the test process , nor availed herself of the opportunity subsequently to talk through the issues with the Governor . That letter indicated that a medical officer had informed the Governor that she had been fit to appear and had made no comment to the Governor that she was unable to comply with an order to provide a sample .

On DATE the applicant ’s representatives complained to the Home Secretary about the prison adjudication matter . They received an acknowledgement dated DATE .

The ORG refers to its outline of the relevant domestic law and practice in the case of Ezeh and PERSON v. GPE ( [ ORG ] , ORG . CARDINAL and CARDINAL , § § DATE ) .

MDT is permitted by section DATE ) of LAW ( as amended in DATE ) . Section CARDINAL ) allows the request for a sample of any other description specified in the authorisation , not being an intimate sample , instead of or in addition to a urine sample .

Rule CARDINAL of the Prison Rules DATE provides as follows :

“ ( CARDINAL ) This rule applies where an officer , acting under the powers conferred by section CARDINALA of LAW ( power to test prisoners for drugs ) , requires a prisoner to provide a sample for the purpose of ascertaining whether he has any controlled drug in his body .

( CARDINAL ) In this rule “ sample ” means a sample of urine or any other description of sample specified in the authorisation by the governor for the purposes of section CARDINALA of LAW .

( CARDINAL ) When requiring a prisoner to provide a sample , an officer shall , so far as is reasonably practicable , inform the prisoner :

( a ) that he is being required to provide a sample in accordance with section CARDINALA of the Prison Act DATE ; and

( b ) that a refusal to provide a sample may lead to disciplinary proceedings being brought against him .

( CARDINAL ) An officer shall require a prisoner to provide a fresh sample , free from any adulteration .

( CARDINAL ) An officer requiring a sample shall make such arrangements and give the prisoner such instructions for its provision as may be reasonably necessary in order to prevent or detect its adulteration or falsification .

( CARDINAL ) A prisoner who is required to provide a sample may be kept apart from other prisoners for a period not exceeding one hour to enable arrangements to be made for the provision of the sample .

( CARDINAL ) A prisoner who is unable to provide a sample of urine when required to do so may be kept apart from other prisoners until he has provided the required sample , save that a prisoner may not be kept apart under this paragraph for a period of TIME .

( CARDINAL) A prisoner required to provide a sample of urine shall be afforded such degree of privacy for the purposes of providing the sample as may be compatible with the need to prevent or detect any adulteration or falsification of the sample ; in particular a prisoner shall not be required to provide such a sample in the sight of a person of the opposite sex . ”

Rule CARDINAL(CARDINAL ) of the Prison Rules DATE provides that it is an offence against prison discipline to disobey a lawful order .


CASE OF MOREIRA DE AZEVEDO v. PORTUGAL (ARTICLE 50)

Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

ORG For the facts of the case the ORG refers to the principal judgment ( pp . CARDINAL - CARDINAL , paras . CARDINAL ) and will merely bring it up to date here .

ORG On DATE Mr PERSON brought an action for damages in FAC of First Instance against Mr PERSON , the defendant in the criminal proceedings for assault whose duration , according to the principal judgment , had exceeded the " reasonable time " . On DATE the court held that the applicant ’s right to compensation was statute - barred , and this decision ( despacho saneador ) was upheld by ORG ( tribunal de relação ) on DATE .

Mr PERSON lodged an appeal ( revista ) and ORG ( Supremo Tribunal de Justiça ) quashed ORG decision on DATE , holding that the said right was not statute - barred and ordering the case to be proceeded with .

In a letter of CARDINAL DATE the Government informed the Registrar that this decision had not yet become final , as Mr PERSON had applied for a declaration of nullity ( LAW ) .


The applicant was born in DATE and lives in GPE .

On DATE the applicant filed an application with ORG ( hereafter “ the Ministry ” ) , for registration of a newspaper entitled Letters to the President ( Письма Президенту ) .

NORP By letter of DATE , the deputy head of ORG informed the applicant that , judging by its title , the newspaper could be perceived as an official bulletin published by a competent ORG authority . As that was likely to mislead potential readers , the applicant was advised to “ obtain the approval of the competent authorities ” .

The applicant replied to the deputy head and to the Minister , insisting that either the newspaper be registered or an official refusal be issued .

On DATE the applicant challenged the ORG 's failure to act before ORG of GPE . He claimed that he had satisfied the legal requirement to be the founder of a newspaper and that the ORG 's procrastination was unlawful .

On DATE the applicant received the ORG 's official refusal to register the newspaper , based on CARDINAL grounds . First , it was said that the information in the application was “ inconsistent with the real state of affairs ” ( сведения , не соответствующие действительности ) because the newspaper purported to cover a broader range of subjects than its title suggested . Second , the ORG considered that only ORG of GPE could consent to the publication of letters to the President or be a founder of a newspaper with such a title .

On DATE the applicant amended his claim , seeking to have the ORG 's refusal overturned .

On DATE the ORG of GPE upheld the refusal on the following grounds :

“ ... The court considers it possible to agree with the argument [ of the Ministry ] that the title of a newspaper denotes its specialisation which [ in this case ] could be perceived by the readership as an official publication founded by a competent ORG body ... which prepares the President 's direct answers to incoming letters from citizens .

The court considers that the above fact may give rise to incompatibility of the actual specialisation of the publication under the title Letters to the President with the current legislation . In this connection the court concludes that the ORG 's argument as regards the specialisation of the newspaper in question is a sufficient ground to refuse its registration ... under section CARDINAL(CARDINAL)(CARDINAL ) of LAW , which does not violate [ the applicant 's ] rights to found a newspaper and to choose its title ... ”

On DATE ORG upheld the judgment of the district court , endorsing the above reasoning . The court also held :

“ ... the [ first - instance ] court rightly concluded that [ the applicant ] had failed to comply with the time - limit for bringing court proceedings without a valid excuse . Having received on DATE the refusal to register his newspaper , he lodged his claim before a court only on DATE ...

The expiry of the DATE time - limit for lodging such claim is an independent reason for rejecting the applicant 's claims ( LAW ) . ”

A newspaper may be founded by an adult who has not been convicted or declared legally incapable ( section CARDINAL ) . The editor 's office may begin functioning upon registration of a newspaper ; an application for registration is to be examined within DATE of being lodged ( section CARDINAL) .

An application for registration must specify , in particular , the title of the newspaper and an approximate list of subjects and/or specialisation ( section ORG ) and ( CARDINAL ) ) .

Registration may only be refused on the following grounds : ( CARDINAL ) the application is lodged by an individual who can not be a founder ; ( CARDINAL ) the information in the application is “ inconsistent with the real state of affairs ” ; ( CARDINAL ) the title , range of subjects and/or specialisation represent an abuse of the freedom of mass media as defined in DATE ; ( CARDINAL ) if an existing newspaper with the same title has been registered earlier ( LAW ) .

Section CARDINAL prohibits using the mass media for the commission of criminal offences , the disclosure of ORG secrets or protected information , for extremist activities , or for the dissemination of pornography or the promotion of violence and cruelty .

An individual may bring a complaint within DATE when he or she became aware of a violation of his or her rights or freedoms ( LAW ) . The court must examine the reasons for any failure to comply with the DATE period and may reject the complaint on that ground ( LAW ) .

If the complaint is rejected owing to failure to comply with the time - limit for lodging the complaint before a court without a valid reason , the court 's reasoning must be limited to the indication of the circumstances confirming the above ( LAW ) .


Preliminary objection rejected (victim);No violation of Art. 8;No violation of Art. 13;No violation of Art. 6

The applicants , who are NORP nationals , are PERSON , an GPE , PERSON , a lawyer , PERSON , a judge , PERSON and PERSON , lawyers . Mr. PERSON lives in GPE , the others in GPE .

All CARDINAL applicants claim that Article CARDINAL para . QUANTITY of LAW ) and a statute enacted in pursuance of that provision , namely LAW DATE on Restrictions on the Secrecy of the Mail , Post and Telecommunications ( Gesetz PERSON Brief- , Post- under PERSON , hereinafter referred to as " the G CARDINAL " ) , are contrary to the Convention . They do not dispute that the ORG has the right to have recourse to the surveillance measures contemplated by the legislation ; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event , and in that it excludes any remedy before the courts against the ordering and execution of such measures . Their application is directed against the legislation as modified and interpreted by ORG ( Bundesverfassungsgericht ) .

Before lodging their application with the ORG , the applicants had in fact appealed to ORG . By judgment of DATE , that ORG held that LAW . CARDINAL , sub - paragraph CARDINAL of the G CARDINAL was void , being incompatible with the second sentence of Article CARDINAL para . CARDINAL of LAW , in so far as it excluded notification of the person concerned about the measures of surveillance even when such notification could be given without jeopardising the purpose of the restriction . ORG dismissed the remaining claims ( Collected Decisions of ORG , PERSON . CARDINAL , pp . CARDINAL et seq . ) .

Since the operative provisions of the aforementioned judgment have the force of law , the competent authorities are bound to apply the G CARDINAL in the form and subject to the interpretation decided by ORG . Furthermore , the Government of GPE were prompted by this judgment to propose amendments to the G CARDINAL , but the parliamentary proceedings have not yet been completed .

As regards the applicants’ right to apply to ORG , that ORG held , inter alia :

" In order to be able to enter a constitutional application against an LAW , the applicant must claim that the LAW itself , and not merely an implementary measure , constitutes a direct and immediate violation of CARDINAL of his fundamental rights ... These conditions are not fulfilled since , according to the ORG own submissions , it is only by an act on the part of the executive that their fundamental rights would be violated . However , because they are not apprised of the interference with their rights , the persons concerned can not challenge any implementary measure . In such cases , they must be entitled to make a constitutional application against the LAW itself , as in cases where a constitutional application against an implementary measure is impossible for other reasons ... " ( ibid , pp . DATE ) .

Although , as a precautionary measure , the applicants claimed before both ORG and the Commission that they were being subjected to surveillance measures , they did not know whether the G CARDINAL had actually been applied to them .

On this point , the Agent of the Government made the following declaration before the ORG :

" To remove all uncertainty as to the facts of the case and to give the ORG a clear basis for its decision , the Federal Minister of the ORG , who has competence in the matter , has , with ORG approval , authorised me to make the following statement :

At no time have surveillance measures provided for by the LAW enacted in pursuance of LAW been ordered or implemented against the applicants . Neither as persons suspected of CARDINAL or more of the offences specified in the LAW nor as third parties within the meaning of DATE , paragraph CARDINAL , sub - paragraph CARDINAL , of the G CARDINAL have the applicants been subjected to such measures . There is also no question of the applicants’ having been indirectly involved in a surveillance measure directed against another person - at least , not in any fashion which would have permitted their identification . Finally , there is no question of the applicants’ having been subjected to surveillance by mistake - for example through confusion over a telephone number - , since in such cases the person concerned is notified of the surveillance measure . "

The contested legislation

After the end of the Second World War , the surveillance of mail , post and telecommunications in GPE was dealt with by the occupying powers . As regards GPE , neither the entry into force on DATE of LAW nor the foundation of ORG altered this situation which continued even after the termination of the occupation régime in DATE . Article CARDINAL para . CARDINAL of the Convention of CARDINAL DATE on Relations between the CARDINAL Powers ( GPE , GPE and GPE ) and GPE - as amended by LAW of DATE - specified in fact that the CARDINAL Powers temporarily retained " the rights ... heretofore held or exercised by them , which relate to the protection of the security of armed forces stationed in GPE " . Under the same provision , these rights were to lapse " when the appropriate NORP authorities ( had ) obtained similar powers under NORP legislation enabling them to take effective action to protect the security of those forces , including the ability to deal with a serious disturbance of public security and order " .

The Government wished to substitute the domestic law for the rights exercised by ORG and to place under legal control interferences with the right , guaranteed by LAW , to respect for correspondence . Furthermore , the restrictions to which this right could be subject appeared to the Government to be inadequate for the effective protection of the constitutional order of the ORG . Thus , on DATE , the ORG introduced CARDINAL Bills as part of ORG . The first sought primarily to amend LAW para . CARDINAL of LAW ; the second - based on LAW para . CARDINAL so amended - was designed to limit the right to secrecy of the mail , post and telecommunications . The CARDINAL Acts , having been adopted by the federal legislative assemblies , were enacted on DATE and CARDINAL DATE respectively .

ORG had come to the view on DATE that these CARDINAL texts met the requirements of Article CARDINAL para . CARDINAL of the above - mentioned LAW . Their statements declared :

" The rights of the Three Powers heretofore held or exercised by them which relate to the protection of the security of armed forces stationed in GPE and which are temporarily retained pursuant to that provision will accordingly lapse as each of the above - mentioned texts , as laws , becomes effective . "

In its initial version , LAW guaranteed the secrecy of mail , post and telecommunications with a proviso that restrictions could be ordered only pursuant to a statute . As amended by LAW of DATE , it now provides :

" ( CARDINAL ) Secrecy of the mail , post and telecommunications shall be inviolable .

( CARDINAL ) Restrictions may be ordered only pursuant to a statute . Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land , the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people ’s elected representatives . "

The G CARDINAL , adopting the solution contemplated by the second sentence of paragraph CARDINAL of the above - quoted LAW ( in LAW . CARDINAL ) the cases in which the competent authorities may impose the restrictions provided for in that paragraph , that is to say , may open and inspect mail and post , read telegraphic messages , listen to and record telephone conversations . Thus , Article CARDINAL para . CARDINAL empowers those authorities so to act in order to protect against " imminent dangers " threatening the " free democratic constitutional order " , " the existence or the security of the GPE or of a Land " , " the security of the ( allied ) armed forces " stationed on the territory of the Republic and the security of " the troops of CARDINAL of ORG stationed in GPE " . According to LAW , these measures may be taken only where there are factual indications ( tatsächliche PERSON ) for suspecting a person of planning , committing or having committed certain criminal acts punishable under LAW , such as offences against the peace or security of the ORG ( sub - paragraph CARDINAL , no . CARDINAL ) , the democratic order ( sub - paragraph CARDINAL , no . CARDINAL ) , external security ( sub - paragraph CARDINAL , no . CARDINAL ) and the security of the allied armed forces ( sub - paragraph CARDINAL , no . CARDINAL ) .

Paragraph CARDINAL of LAW further states that the surveillance provided for in paragraph CARDINAL is permissible only if the establishment of the facts by another method is without prospects of success or considerably more difficult ( aussichtslos oder wesentlich erschwert ) . The surveillance may cover only " the suspect or such other persons who are , on the basis of clear facts ( bestimmter PERSON ) , to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use " ( sub - paragraph CARDINAL ) .

Article CARDINAL para . CARDINAL of the LAW provides that an application for surveillance measures may be made only by the head , or his substitute , of one of the following services : ORG and the Länder ( GPE für GPE ; PERSON ) , ORG ( ORG für ORG ) and ORG ( Bundesnachrichtendienst ) .

The measures are ordered , on written application giving reasons , either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor . The Chancellor has entrusted these functions to the Ministers of the ORG and of Defence each of whom , in the sphere falling within his competence , must personally take the decision as to the application of the measures ( DATE . CARDINAL , sub - paragraphs CARDINAL and CARDINAL ) .

Measures ordered must be immediately discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary ( DATE . CARDINAL , sub - paragraph CARDINAL ) . The measures remain in force for a maximum of DATE and may be renewed only on fresh application ( Article CARDINAL para . CARDINAL , sub - paragraph CARDINAL ) .

Under the terms of LAW . CARDINAL , sub - paragraph CARDINAL , the person concerned is not to be notified of the restrictions affecting him . However , since ORG judgment of DATE ( see paragraph CARDINAL above ) , the competent authority has to inform the person concerned as soon as notification can be made without jeopardising the purpose of the restriction . To this end , the Minister concerned considers ex officio , immediately the measures have been discontinued or , if need be , at regular intervals thereafter , whether the person concerned should be notified . The Minister submits his decision for approval to the Commission set up under the G CARDINAL for the purpose of supervising its application ( hereinafter called " ORG " ) . ORG may direct the Minister to inform the person concerned that he has been subjected to surveillance measures .

Implementation of the measures ordered is supervised by an official qualified for judicial office ( Article CARDINAL para . CARDINAL , sub - paragraph CARDINAL ) . This official examines the information obtained in order to decide whether its use would be compatible with the LAW and whether it is relevant to the purpose of the measure . He transmits to the competent authorities only information satisfying these conditions and destroys any other intelligence that may have been gathered .

The information and documents so obtained may not be used for other ends and documents must be destroyed as soon as they are no longer needed to achieve the required purpose ( LAW . CARDINAL and CARDINAL ) .

The competent Minister must , at least once DATE , report to a ORG consisting of CARDINAL Members of ORG on the application of the G CARDINAL ; the Members of ORG are appointed by the GPE in proportion to the parliamentary groupings , the opposition being represented on ORG CARDINAL para . CARDINAL , sub - paragraph CARDINAL , of the G CARDINAL and Rule CARDINAL of the Rules of Procedure of the GPE ) . In addition , the Minister is bound DATE to provide ORG with an account of the measures he has ordered ( Article CARDINAL para . CARDINAL ) . In practice and except in urgent cases , the Minister seeks the prior consent of this Commission . The Government , moreover , intend proposing to ORG to amend the G CARDINAL so as to make such prior consent obligatory .

ORG decides , ex officio or on application by a person believing himself to be under surveillance , on both the legality of and the necessity for the measures ; if it declares any measures to be illegal or unnecessary , the Minister must terminate them immediately ( LAW para . CARDINAL , sub - paragraph CARDINAL ) . Although not required by ORG judgment of DATE , the ORG has , since that judgment , also been called upon when decisions are taken on whether the person concerned should be notified of the measures affecting him ( see paragraph CARDINAL above ) .

The ORG consists of CARDINAL members , namely , a Chairman , who must be qualified to hold judicial office , and CARDINAL assessors . The Commission members are appointed for the current term of the GPE by the above - mentioned ORG of ORG after consultation with the Government ; they are completely independent in the exercise of their functions and can not be subject to instructions .

ORG draws up its own rules of procedure which must be approved by ORG ; before taking this decision , ORG consults the Government .

For the ORG , their legislatures lay down the parliamentary supervision to which the supreme authorities are subject in the matter . In fact , ORG have set up supervisory bodies which correspond to the federal bodies from the point of view of organisation and operation .

According to LAW CARDINAL , sub - paragraph CARDINAL , of the G CARDINAL :

" ... there shall be no legal remedy before the courts in respect of the ordering and implementation of restrictive measures . "

The official statement of reasons accompanying the PERSON contains the following passage in this connection :

" The surveillance of the post and telecommunications of a certain person can serve a useful purpose only if the person concerned does not become aware of it . For this reason , notification to this person is out of the question . For the same reason , it must be avoided that a person who intends to commit , or who has committed , the offences enumerated in the LAW can , by using a legal remedy , inform himself whether he is under surveillance . Consequently , a legal remedy to impugn the ordering of restrictive measures had to be denied ...

The PERSON presented during the CARDINALth legislative session ... provided for the ordering ( of such measures ) by an independent judge . ORG abandoned this solution in LAW , introduced as part of ORG , mainly because the Executive , which is responsible before the GPE , should retain the responsibility for such decisions in order to observe a clear separation of powers . The present PERSON therefore grants the power of decision to a Federal Minister or the supreme authority of the Land . For the ( above-)mentioned reasons ... , the person concerned is deprived of the opportunity of having the restrictive measures ordered examined by a court ; on the other hand , the constitutional principle of government under the rule of law demands an independent control of interference by the Executive with the rights of citizens . Thus , the PERSON , in pursuance of LAW ... , prescribes the regular reporting to a ORG and the supervision of the ordering of the restrictive measures by a ORG appointed by ORG ... " ( GPE document FAC of DATE , p. CARDINAL) .

Although access to the courts to challenge the ordering and implementation of surveillance measures is excluded in this way , it is still open to a person believing himself to be under surveillance pursuant to the G CARDINAL to seek a constitutional remedy : according to the information supplied by the ORG , a person who has applied to ORG without success retains the right to apply to ORG . The latter may reject the application on the ground that the applicant is unable to adduce proof to substantiate a complaint , but it may also request the Government concerned to supply it with information or to produce documents to enable it to verify for itself the individual ’s allegations . The authorities are bound to reply to such a request even if the information asked for is secret . It is then for ORG to decide whether the information and documents so obtained can be used ; it may decide by CARDINAL majority that their use is incompatible with State security and dismiss the application on that ground ( Article CARDINAL para . CARDINAL of LAW ) .

The Agent of the Government admitted that this remedy might be employed only on rare occasions .

If the person concerned is notified , after the measures have been discontinued , that he has been subject to surveillance , several legal remedies against the interference with his rights become available to him . According to the information supplied by the ORG , the individual may : in an action for a declaration , have reviewed by an administrative court declaration , the legality of the application to him of the G CARDINAL and the conformity with the law of the surveillance measures ordered ; bring an action for damages in a civil court if he has been prejudiced ; bring an action for the destruction or , if appropriate , restitution of documents ; finally , if none of these remedies is successful , apply to ORG for a ruling as to whether there has been a breach of LAW .

LAW has also amended LAW by inserting therein CARDINAL ORG which authorise measures of surveillance of telephone and telegraphic communications .

Under LAW ( a ) , these measures may be taken under certain conditions , in particular , when there are clear facts on which to suspect someone of having committed or attempted to commit certain serious offences listed in that Article . Under LAW ( b ) , such measures may be ordered only by a court and for a maximum of DATE ; they may be renewed . In urgent cases , the decision may be taken by the public prosecutor ’s department but to remain in effect it must be confirmed by a court within DATE . The persons concerned are informed of the measures taken in their respect as soon as notification can be made without jeopardising the purpose of the investigation ( LAW para . CARDINAL of the Code of Criminal Procedure ) .

These provisions are not , however , in issue in the present case .