CASE OF JUOZAITIENE AND BIKULCIUS v. LITHUANIA

Violations of Art. 2;Pecuniary and non-pecuniary damage - award (global)

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Nona Tsotsoria

The first applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The second applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

In TIME of DATE the first applicant ’s son , PERSON , and the second applicant ’s son , PERSON , were found dead in a car with single gunshot wounds to their backs . The deaths had occurred as the police tried to chase a ORG Escort ( hereinafter “ the car ” ) driven by a private individual , ORG , the applicants’ sons being the passengers in the car . RM was not killed during the incident .

On DATE criminal proceedings were instituted against RM for manslaughter in regard to the deaths of the applicants’ sons ( Article CARDINAL of LAW as then in force ) and for resisting the orders of the police ( LAW ) . The applicants submitted their civil claims and were recognised as complainants in those proceedings .

On DATE GPE convicted RM of resisting the lawful orders of the police , an offence under LAW .

The following account of the incident can be reconstructed from the evidence admitted by the court in those proceedings . On DATE , after TIME , the police received a telephone call from a private individual , informing them about a car driving in the streets of GPE in breach of various road - traffic regulations .

Officers AM and ORG submitted that they had been patrolling in police car no . CARDINAL when they had heard the information about the ORG Escort on the police radio and had unsuccessfully tried to stop it at TIME Officers AM and ORG had followed the car , but had soon lost sight of it . ORG submitted to the court that , to his knowledge , CARDINAL passengers and a driver had been in the car .

The information about the car being driven in a dangerous manner was transmitted through the control centre to other patrol officers on duty , and CARDINAL more policemen , GPE and EP , in police vehicle no . CARDINAL , were involved in the chase .

They were joined by CARDINAL more policemen , RZ , GPE and ORG , patrolling in police vehicle no . CARDINAL . These officers submitted to the court that they had received information about the car via the police radio at TIME and had followed the order to arrest the driver . They had therefore arrived as reinforcements and had joined car no . CARDINAL in chasing the ORG Escort , which was fleeing at QUANTITY .

The QUANTITY police cars had their light and sound signals turned on , and tried to block the ORG Escort , while orders to stop were given over the loudspeakers . However , the car tried to escape , attempting to push the police vehicles off the road .

RZ fired CARDINAL warning shots into the air , but the car only accelerated .

A moment later , the driver of the car lost control of the vehicle , hitting the fence of a building . The car was brought to a halt . Police vehicle no . CARDINAL stopped QUANTITY behind the car , and vehicle no . CARDINAL moved to its left , trying to block its way . Suddenly , the car started moving backwards , damaging police vehicle no . CARDINAL . The policemen left their vehicles and ran towards the car , shouting and gesturing at the driver to surrender . The ORG Escort turned right , hitting officer RZ , and began to drive away . An expert medical examination later confirmed that RZ had suffered slight bodily injuries , including several scratches and bruising to his left calf .

When the car hit him , officer RZ fired a shot , apparently damaging its radiator , as he noticed that the cooling liquid was leaking .

In addition , immediately after RZ had been hit , ORG , who had left police vehicle no . CARDINAL , fired CARDINAL shot towards the car ’s wheels . RZ then fired several more shots towards the car as it escaped . Officer SG likewise fired a number of shots towards the fleeing car . The other policemen did not use their guns .

Soon afterwards , the car was forced to stop in another area of GPE as a result of the leak of the cooling liquid from the radiator which had been damaged by ORG shot . Police officers ORG and AM , who were driving vehicle no . CARDINAL , arrested RM while he was trying to flee . In the car , the policemen found the bodies of the applicants’ sons , whose deaths were confirmed on the arrival of a medical team at TIME was found to have been drunk and not in possession of any of the relevant documents permitting him to drive a car .

The court did not specify how many shots had been fired by GPE , even though it noted that CARDINAL of his shots had caused the deaths of the applicants’ sons . The court took account of GPE ’s statements that he had suspected that one of the passengers of the car had a weapon which he thought he had seen through the front window which was wound down , and that he had fired only after having heard a first shot ( in fact fired by his colleague PERSON ) , and having no idea where that shot had come from . The court also noted that no firearms or other weapons had been found in the car .

The court did not establish the exact time when the chase had started , concluding that the crime of which ORG was convicted had been committed at TIME

RM was acquitted of the offence of manslaughter , the court having noted that the deaths had been caused not by his acts , but by the “ lawful actions of a third person who had used an official weapon . ” The court noted in this connection :

“ the internal institutional inquiry shows that all the policemen acted in a lawful and reasonable manner . The court has no grounds to doubt the conclusions of the internal investigation , as they have been confirmed by the circumstances established during the criminal investigation . LAW authorised the policemen to use firearms against the vehicle and the offender . The acts committed by the defendant , including his resisting the police officers , constituted grounds for using firearms . The use of firearms was lawful and reasonable ... ”

NORP The applicants’ civil claims for damages against the police were not examined . The court nonetheless noted that it was open to the applicants to bring their claims by way of a separate set of civil proceedings .

The court sentenced ORG to CARDINAL years’ imprisonment for resisting the lawful orders of the police , and ordered the confiscation of part of his property amounting to CARDINAL NORP litai ( LTL – MONEY ( ORG ) ) .

On DATE ORG upheld the judgment . It was also decided to institute criminal proceedings against SG for the manslaughter of the applicants’ sons ( LAW as then in force ) and for exceeding his authority ( LAW . In this connection , the court noted :

“ in the situation under consideration , there were no circumstances permitting the use of a firearm against a person ( Article ORG ) of LAW ) . The police officers had the right to use firearms against the vehicle only ( Article PERSON ) of that Act ) . ...

Nobody disputes that the police officer [ SG ] had the right to use a firearm against the car ( Article PERSON ) of LAW ) ; however , despite the fact that CARDINAL innocent people were shot , it has not been examined whether he used that right properly . In taking this decision , the court is seeking to establish the truth . It does not intend to weaken the determination of police officers when carrying out their duties . Nevertheless , the duty of professional integrity , self - control and endurance can not be underestimated ; when using firearms , police officers must seek to avoid severe consequences ( Article CARDINAL(CARDINAL ) of LAW ) . ... The investigation should aim to examine [ the elements pointed out by the applicants ] , inter alia , the allegedly poor visibility at the scene of the incident , and the fact that [ SG ] hit the interior of the car and not its tyres , which he had allegedly fired at . According to [ the applicants ] , this fact alone indicated that [ SG ] had fired the shots while being guided by his anger and ill - temper . ... ”

On DATE ORG upheld the judgment of CARDINAL DATE .

The criminal proceedings brought against SG by virtue of the decision of ORG on DATE were discontinued by the prosecutor on DATE . The prosecution found no indication of any crime in the actions of officer SG . It was noted , in particular , that SG had used his gun in accordance with instructions , had targeted the wheels of the car and had had recourse to his firearm only after the driver had committed a crime by hitting CARDINAL of his colleagues . The driver , ORG , had apparently been predisposed to escape by any means , threatening the safety of other people . The deaths of the QUANTITY victims had been the result not only of the shooting as such , but also of the unpredictable actions of the driver .

NORP The prosecution based their conclusions , inter alia , on the following sources of evidence : the submissions of the policemen ; the records of the on - site examinations of the scene , conducted on DATE , CARDINAL DATE and DATE ; a letter from the meteorological service on weather conditions at the time of the events ; illumination tests at the scene of the shooting ; the results of the ballistic examination of CARDINAL DATE , and records of the on - site reconstruction of the event , including diagrams of the position and movement of the cars and policemen , drawn in accordance with the submissions of the officers concerned .

On DATE the Kaunas ORG quashed the prosecutor ’s decision . The court noted , inter alia , that the prosecutors had not made a detailed assessment of “ the way ” in which SG had used the gun with reference to the relevant domestic legal provisions .

During the investigation , none of the policemen made clear submissions as to the moment when GPE had begun shooting .

On DATE the prosecutor again discontinued the investigation , noting that no evidence of any crime had been found in the actions of SG . The prosecution referred to the evidence mentioned in the earlier decision of DATE as well as the additional submissions of the policemen .

The following order and impact of the use of firearms had been established . CARDINAL warning shots had been fired into the air by RZ during the chase ; CARDINAL shot by RZ had damaged the radiator after the car had hit the fence , and soon afterwards CARDINAL shot fired by ORG had hit the wheel of the car . Finally , CARDINAL shots had been fired by RZ towards the fleeing car and CARDINAL by SG . The prosecutor found that CARDINAL of SG ’s shots had hit the applicants’ sons , causing their deaths . Some of the other shots had marked the car ’s tyres , wheel rims , seats , front panel and windows , and the rear window was broken . The car body work also bore traces of bullets .

Referring to the submissions of GPE , taken at the scene of the shooting , the prosecution concluded that SG had directed the shots at the wheels of the moving car from a distance of QUANTITY ( the first shot ) up to QUANTITY ( the fourth shot ) . He had fired the shots after the driver had hit his colleague PERSON , that is , after he had committed an offence punishable by the criminal law ( LAW ) , of which he had already been convicted . Hence , it could not be alleged that the firearms had been used only because the car had been driven in defiance of traffic regulations . The prosecution took account of ORG statement that he had been hit by the car and thrown onto the bonnet and then the ground . For this reason the policemen could have reasonably considered it necessary to avert the danger which the car represented for other people , given in particular that ORG had been drunk and had been seeking by dangerous means to escape arrest and punishment .

It was stressed that SG had used the firearm not against the people in the car , but against the vehicle , and he had only tried to hit the tyres . There had been no significant obstacles to visibility , such as inadequate lighting or dust . However , the fact that the car had moved in sudden and swerving directions was emphasised as a cause of the deaths , rather than any breach of regulations governing the use of firearms . In view of these circumstances , and given that ORG had had a valid reason to use the gun as a last resort in accordance with LAW , the prosecutor concluded that there was no evidence that he had committed a crime .

Finally , the prosecution stated that , during the proceedings against ORG , none of the CARDINAL levels of jurisdiction had questioned the lawfulness of the use of the firearm by GPE .

The applicants appealed against the decision to discontinue the investigation . They alleged that ORG had sought revenge against the driver of the car and had fired recklessly at the moving vehicle , disregarding the fact that he might hit the passengers . The applicants argued that SG had known about the presence of other people in the car and must have understood that innocent passengers might be killed ; however , he had allowed this to happen , as he had fired at the vehicle .

As to the quality of the investigation , the applicants stressed that the prosecution had failed to provide any explanation for the fact that one of the bullets fired by ORG had hit the side window of the car , whereas it had been concluded that GPE had first fired at the vehicle only after it had moved QUANTITY away .

On DATE GPE upheld the decision of the prosecution . The court mentioned that SG had fired at the moving car during a very a short period of time , within a perimeter of QUANTITY . The court held that SG had used the firearm lawfully , the shots being directed at the wheels of the car , not at the people sitting in it . It was found that the car had been moving in swerving directions , CARDINAL shots having , as a result , hit the passengers . SG had thus not been able to foresee the consequences of his actions . At the same time the court noted that , even though the incident had taken place at TIME , the street and the car had been well lit .

NORP The court emphasised that the ground for using firearms was the fact that RM had been driving while drunk , and had not only violated traffic regulations , but had tried to escape in a dangerous manner . His behaviour had put other people at risk . The policemen had tried all alternative means to stop RM , and firing at the tyres of the fleeing car had been used as a measure of last resort .

The court also stated that there had been no causal link between the actions of GPE and the impugned consequences , namely the death of the applicants’ sons . It held that manslaughter had not occurred as a result of the actions of GPE ; he had made an appropriate assessment of the circumstances and had not exceeded the requirements of the relevant legal provisions in using his gun . The death of the applicants’ sons had been an accident for which SG could not be held criminally responsible .

Article CARDINAL of LAW , as then in force , punished the act of manslaughter ( nužudymas dėl neatsargumo ) . Article CARDINAL § CARDINAL and Article CARDINAL of the Code punished , respectively , resisting the lawful orders of the police and acting in excess of official authority ( tarnybos pareigų viršijimas ) .

Article CARDINAL of the new Criminal Code , which entered into force on CARDINAL DATE , punishes acts of abuse of office ( piktnaudžiavimas ) .

Article CARDINAL ) of LAW , as applicable at the material time ( in force from DATE to CARDINAL DATE ) , entitled a police officer to use firearms . LAW listed the rights of police officers in ensuring road safety :

“ In order to ensure traffic safety , a police officer shall have the right :

( CARDINAL ) to stop a motor vehicle and check the documents of the driver ... ;

( CARDINAL ) to stop a person from driving in the event of a suspicion that he or she is under the influence of alcohol , drugs or medication or is not entitled to drive . ... ”

Article CARDINAL of the Act further stated :

“ ... [ CARDINAL . ] The police shall use firearms ... in order to discontinue actions that endanger the public or to apprehend the perpetrator of such actions and to take him or her to the police station . Firearms shall be used only for the purposes provided for by law .

[ CARDINAL . ] When using firearms ... , an officer shall take into account the nature of the offence , the personal characteristics of the offender and other particular circumstances of the situation . ... [ T]he police officers shall try to avoid detrimental consequences .

[ CARDINAL . ] Before using firearms ... , and if the circumstances allow , the person concerned shall be given a warning ... . Firearms shall be used only after all alternative means have been exhausted or where there is no time to use them . ”

Article CARDINAL of the Act laid down conditions for the use of firearms :

“ [ CARDINAL . ] A police officer shall have the right to use firearms against persons and vehicles ... .

[ CARDINAL . ] He or she shall have the right to use firearms in the following circumstances :

( CARDINAL ) where the life or limb of a police officer is in danger ... ;

( CARDINAL ) to protect other persons from attack ... ;

( CARDINAL ) to repel an armed attack ;

( CARDINAL ) when in pursuit of a person suspected of a crime , if that person uses or attempts to use a firearm or other objects dangerous to human life or limb , in order to escape arrest ; ...

( CARDINAL ) to apprehend a person caught in the process of committing a serious offence , if that person can not be apprehended in any other way ;

( CARDINAL ) to apprehend a detainee or a convict who is trying to escape or has escaped from a prison or detention facility or a transfer vehicle ;

( CARDINAL ) during a mass escape from a prison or during prison riots ;

( CARDINAL) in the event of an attack against a specially protected object ... .

[ CARDINAL . ] The prosecutor shall be immediately informed about the fact and the consequences of the use of firearms against a person . ...

[ CARDINAL . ] A police officer shall have the right to use firearms against a vehicle if its driver refuses to stop following an obvious and express demand which is made in advance by a police officer , and where traffic safety and other people are endangered by the person ’s driving . ... ”


George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

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

On DATE ORG instituted an investigation into fraud and the bribery of GPE employees .

On DATE in the course of the investigation the applicant ’s premises were searched . Various documents were seized including MONEY ( ORG ) and MONEY ( ORG ) .

On DATE the applicant was arrested by the police . On DATE he was remanded in custody by ORG on suspicion of having facilitated the taking of a bribe by ORG and ORG , members of the GPE municipal council , from an NORP company planning to construct a hotel in GPE . The offence was allegedly committed on an unspecified date DATE . The court relied on the probability that the applicant had committed the crime in question , the risk that he might tamper with evidence and the likelihood of a severe prison sentence being imposed on him .

On DATE the applicant ’s lawyer lodged an appeal against this decision . He submitted that the grounds for his arrest had not been determined properly because the exact date of the alleged offence had not been specified ; also , the applicant ’s role in the alleged bribery was not clear .

On DATE ORG ordered the applicant ’s assets to be attached by way of an interim measure . In particular he decided to seize MONEY ( ORG ) , MONEY ( ORG ) and a Rolex Cellini watch .

On DATE ORG rejected the applicant ’s lawyer ’s appeal . It held that there existed a strong probability that the applicant had committed the offence . The court agreed that the exact date of the offence should be specified . However , it also held that the fact that the applicant had facilitated an offence of bribery was sufficiently demonstrated and the applicant ’s detention was necessary to secure the proper administration of justice .

On DATE the applicant ’s lawyer asked the court to change the preventive measure to a more lenient one . He submitted that the applicant ’s son was ill and needed constant help . ORG refused this request on DATE . He stressed that there was a strong likelihood that the applicant had committed the offence . In reference to the applicant ’s argument , the prosecutor noted that the applicant was not the only person able to care for his son as there were other members of the family capable of doing so . In addition , the applicant ’s son was under permanent medical care .

At a session held on DATE ORG extended the applicant ’s detention . During the session the applicant ’s CARDINAL lawyers argued that the offence with which he had been charged had not been defined clearly enough . While the court decided to extend the applicant ’s detention , it nevertheless confirmed that “ the offence had been defined rather clumsily ” .

On DATE and DATE the applicant ’s lawyers appealed against the decision to extend his detention . They submitted in particular that the court had again failed to specify the date of the alleged offence , only stating that it had been committed “ DATE in GPE ” .

On DATE ORG decided to seize CARDINAL shares in the applicant ’s company , ORG , worth PLN MONEY .

On DATE ORG dismissed the ORG appeals and upheld the decision of DATE . The court agreed with the ORG arguments that the offence had not been described clearly enough because the date and the place where it had allegedly been committed had not been clearly specified . It also confirmed that it was crucial to first establish the date of the alleged offence in order to determine whether LAW of DATE or DATE should apply . At the same time , the court emphasised that the charge had not been formulated in general terms since it referred to facts .

On DATE the applicant ’s lawyer unsuccessfully asked the prosecutor to impose a more lenient preventive measure on the applicant .

During a confrontation held on DATE the date on which the alleged offence was committed was finally established .

On DATE , during a search of the applicant ’s house , the police found CARDINAL cartridges for a hunting rifle . On DATE the applicant was charged with unlawful possession of firearms . He pleaded guilty to this charge .

On DATE ORG again extended the applicant ’s detention . The court referred to the high probability that the applicant had committed the offence and the severe sentence that might be imposed on him .

On DATE the applicant ’s lawyer asked for the preventive measure imposed on the applicant to be changed . His request was again dismissed by ORG on DATE .

On DATE ORG

On DATE ORG released the applicant on bail of PLN CARDINAL,CARDINAL . The applicant was also prohibited from leaving GPE .

On DATE ORG discontinued the proceedings against the applicant in respect of the alleged bribery . The prosecutor held that while it had been established that the applicant had given a significant sum to ORG , it could not be said that he had acted on behalf of the NORP company .

On DATE ORG closed the investigation as regards the illegal possession of firearms .

On DATE the bill of indictment was filed with GPE .

On DATE ORG discontinued the proceedings against the applicant .

On CARDINAL DATE ORG quashed this judgment .

On DATE ORG again discontinued the proceedings given that the impugned act represented no danger to society .

It appears that the prosecutor appealed against this decision and the proceedings are pending .

The relevant domestic law and practice concerning the imposition of detention during judicial proceedings ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

Chapter CARDINAL of LAW , entitled “ Compensation for unjustified conviction , detention during judicial proceedings or arrest ” , stipulates that the ORG is liable for wrongful convictions or for unjustifiably depriving an individual of his or her liberty in the course of criminal proceedings against him or her .

Article CARDINAL of LAW provides :

“ CARDINAL . An accused who , as a result of the reopening of proceedings or an appeal on points of law , has been acquitted or re - sentenced under a more lenient provision , shall be entitled to receive from the ORG compensation for the pecuniary and non - pecuniary damage which he has suffered as a result of having served all or part of the sentence unjustifiably imposed on him .

The provisions of paragraph CARDINAL shall also be applicable if , after the sentencing judgment has been reversed or declared null and void , the proceedings have been discontinued by reason of material circumstances not duly considered in prior proceedings .

A right to compensation for pecuniary and non - pecuniary damage shall also arise if a preventive measure has been applied under the conditions specified in paragraphs CARDINAL and CARDINAL .

A right to compensation for pecuniary and non - pecuniary damage shall also arise in the event of undoubtedly unjustified ( niewątpliwie niesłuszne ) pre - trial detention or arrest . ”


Remainder inadmissible;Violation of Art. 14+9;Non-pecuniary damage - finding of violation sufficient

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

The first CARDINAL applicants , GPE and PERSON , were born in DATE and DATE respectively . They are married and live in PERSON . They are the parents of PERSON ( “ the third applicant ” ) , who was born in DATE . The first CARDINAL applicants are declared agnostics .

The third applicant began his schooling in primary school no . CARDINAL in PERSON in DATE ( at DATE ) . In conformity with the wishes of his parents he did not attend religious instruction . It appears that he was the only pupil in his class who opted out of that subject . Religious instruction was scheduled in the middle of DATE , between various compulsory courses . The school , despite the wish expressed by the first CARDINAL applicants , did not offer their son an alternative class in ethics . It appears that when other pupils in his class were following religious instruction the applicants ' son was either left without any supervision in the corridor or spent his time in the school library or in the school club .

The Government , for their part , maintained that appropriate supervision had been provided for PERSON while religious instruction classes were in progress . The school had a general obligation of care and supervision towards all pupils who were on its premises at any time .

According to the first CARDINAL applicants , their son was subjected to discrimination and physical and psychological harassment by other pupils on account of the fact that he did not follow religious instruction . For that reason , in the course of DATE of primary school the applicants moved their son to primary school no . CARDINAL and subsequently to primary school no . CARDINAL in the same town .

On DATE , when their son was in DATE of primary school , the applicants sent a letter to the headmistress of primary school no . CARDINAL in PERSON . They drew her attention to the fact that their son had been ridiculed and harassed by other pupils in the class . They stated that their son was being discriminated against by the majority of his classmates because he did not attend religious education classes . The applicants requested the assistance of the school in resolving the issue .

According to the Government , the applicants did not wait for a reply to their letter of DATE and moved their son to primary school no . CARDINAL . In a letter of DATE the headmistress of primary school no . CARDINAL explained that PERSON had attended that school from DATE to DATE . She noted that he had frequently provoked his colleagues by mocking religious symbols and children who attended religious instruction . The class tutor had informed PERSON and PERSON about their son 's behaviour but they had not responded . The headmistress explained further that the school did not ask for a written declaration as to children 's attendance at religious instruction . It sufficed for a parent who did not wish for his or her child to attend religious instruction to report that fact to the class tutor .

The Government further maintained that PERSON and PERSON had requested primary school no . DATE to provide their son with a course in ethics . According to the Government , the headmistress of that school had contacted ORG ( kuratorium oświaty ) to establish whether it was possible to provide such a course for an inter - school group . Since that was not possible owing to the lack of sufficient numbers of interested pupils and parents , the school proposed to the third applicant that he participate in alternative classes in the school club or school library . It appears that the applicants did not report any problems to the school concerning their son 's education .

On CARDINAL DATE the applicants sent a letter to the Minister of Education , stating that since the beginning of their son 's education they had encountered religious intolerance and that the school authorities had failed to react . They put a number of questions to the Minister concerning the Ordinance on the organisation of religious instruction in ORG schools ( see relevant domestic law and practice below ) . In particular , the applicants raised the following matters in their letter :

NORP Why did some schools require declarations from parents as to whether their children would be following religious instruction ?

NORP Was the school obliged to organise a class in ethics just for one pupil ?

NORP Why should children like the applicants ' son pass their time unproductively in the school club while other children were attending religious instruction or when the schools were closed for Lent retreat ?

Did the fact that a child had a straight line instead of a mark for “ religion / ethics ” on a school report indicate that the Ordinance of DATE of the Minister of Education on the organisation of religious instruction in ORG schools ( “ the Ordinance ” ) infringed LAW and human rights instruments ?

What could parents do when their child was discriminated against and harassed for not having attended religious instruction ?

On DATE ORG replied to the applicants . In respect of the issues raised by the applicants it informed them as follows :

Re question CARDINAL : Religious instruction and courses in ethics were organised at the parents ' request , and where a declaration to that effect was asked for , it was for organisational reasons only .

Re question CARDINAL : If CARDINAL pupil was interested in following a course in ethics , then the school authorities should enquire whether it would be possible to follow that course in an inter - school group . If in a given municipality there was no such group , then the school had to arrange for supervision of the pupil during the religious education class .

Re question CARDINAL : In the case referred to above the school should organise other activities for pupils not following religious instruction or supervise them adequately by allowing them to do their homework or to use the library , etc .

Re question CARDINAL : Paragraph CARDINAL of the Ordinance regulated the manner in which marks for “ religion / ethics ” were entered in school reports . That provision had been interpreted by ORG in its judgment of DATE ( see relevant domestic law and practice below ) . ORG had noted that the inclusion of marks for “ religion / ethics ” in a school report was a consequence of providing courses in those subjects in ORG schools . Furthermore , ORG observed that this rule did not breach the right to freedom of conscience and religion .

Re question CARDINAL : ORG against pupils on the ground of their not having attended religious instruction amounted to a breach of the LAW and should be reported to the relevant education authorities .

The applicants also applied to the ORG on DATE , alleging that in their son 's case Articles CARDINAL § CARDINAL and QUANTITY of the LAW , Articles CARDINAL and CARDINAL of the LAW and various other provisions had been breached . The ORG replied that he could not challenge the GPE again following the judgment of ORG of DATE . The problems raised in their letter had more to do with the inappropriate behaviour of some teachers and pupils than the law itself .

On DATE the applicants sent a letter to the President of the Republic . They requested him to amend the Ordinance with a view to providing guarantees for non - religious children . On DATE ORG requested ORG to reply to the applicants ' letter .

On DATE ORG confirmed its position as set out in the letter of CARDINAL DATE . In addition to the issues already addressed , the ORG replied to the applicants ' complaint concerning the obligation to make a declaration as to whether the child would follow religious instruction . ORG informed the applicants that the school authorities could not require parents to make a “ negative declaration ” , that is , a declaration that their child would not follow religious instruction . Such a practice would contravene the provisions of the LAW and should be reported to the education authorities . ORG further informed the applicants that the parents ' declaration could not be understood as a declaration concerning their beliefs .

The applicants submitted that they had made repeated requests to the school authorities , asking for their son to be allowed to follow a course in ethics instead of religious instruction . However , none of the primary schools attended by their son had provided a course in ethics . The refusals had been based on the lack of suitable teachers , financial reasons and insufficient numbers of pupils interested in following a course in ethics .

In DATE the third applicant began his secondary education .

On DATE Mr and PERSON complained to ORG ( kuratorium oświaty ) that their son had not been offered a course in ethics at PERSON secondary school no . CARDINAL . Their petition ( skarga ) was referred to LOC ( powiat ) which , as the authority responsible for the school , was competent in the matter . On DATE ORG dismissed the petition as unfounded . It found that PERSON was the only student in all the schools run by LOC whose parents wished him to follow a class in ethics . Accordingly , the conditions for the provision of such a class , as set out in the GPE , had not been met .

NORP The school report of the third applicant for DATE of primary school contained CARDINAL subjects : behaviour ( zachowanie ) , religion / ethics and general education . In the place reserved for a mark for “ religion / ethics ” the school report had a straight line .

The school report for DATE contained a list of courses that the third applicant had followed , including “ religion / ethics ” . Once again , there was a straight line against the subject “ religion / ethics ” .

In the school report for DATE in respect of the subject “ religion / ethics ” there was a straight line and the word ethics was crossed out . A similar situation applied to the primary school leaving certificate which the third applicant obtained in DATE .

In DATE the third applicant began his secondary education in lower secondary school ( gimnazjum ) no . CARDINAL in PERSON . His school reports for DATE at that school and the leaving certificate of DATE had a straight line in the space for “ religion / ethics ” .

In DATE the third applicant began studying at PERSON secondary school no . CARDINAL ( liceum ) . On DATE his parents requested the school to allow him to take a class in ethics , but it appears that no such class was organised . The school reports for DATE in that school had a straight line in the space for the subject “ religion / ethics ” . The third applicant failed NORP language in DATE of the liceum and from DATE he moved to the PERSON vocational secondary school .

Article CARDINAL of the LAW of DATE retained in force by LAW of DATE provided as follows :

“ CARDINAL . GPE shall ensure to its citizens freedom of conscience and religion . The church and other religious organisations may freely exercise their religious functions . Citizens shall not be compelled not to participate in religious practices or rites . No one shall be compelled to participate in religious practices or rites .

NORP The church shall be separated from the State . The principles of relations between the ORG and church and legal and financial position of religious organisations shall be determined by statutes . ”

Section CARDINAL of the Freedom of Conscience and LAW provides in so far as relevant :

“ CARDINAL . GPE ... shall secure to its citizens freedom of conscience and religion .

Freedom of conscience and religion shall include freedom to choose one 's religion or beliefs and freedom to manifest one 's religion or beliefs , either alone or in community with others , in private and in public . ... ”

Section CARDINAL of the LAW states , in so far as relevant :

“ In the exercise of their freedom of conscience and religion , citizens may in particular : ...

( CARDINAL)(a ) belong , or not belong , to churches or other religious communities ;

( CARDINAL ) express their religious opinions ;

( CARDINAL ) raise their children in conformity with their religious convictions ;

( CARDINAL ) remain silent as to their religion or convictions ... . ”

The majority of schoolchildren attend State schools . On CARDINAL and CARDINAL DATE the Minister of ORG issued CARDINAL circulars ( instrukcje ) , introducing instruction in ORG and other religions into ORG schools on a voluntary basis . According to these circulars , parents of primary school pupils and parents and/or pupils in secondary schools were to make a declaration as to whether they wished to attend religious instruction .

The ORG challenged the conformity of certain provisions of these circulars with the constitutional provisions in force at the time and the statutory law . She stressed that the problem of religious instruction should be regulated by statute and not by subordinate legislation . The ORG submitted that declarations by parents or students concerning attendance of religious instruction classes constituted a form of public manifestation of their religious convictions . Such a practice ran contrary , in the ORG 's view , to the Freedom of Conscience and Religion Act , which stipulated that citizens had the right not to disclose their religion or beliefs . In its judgment of CARDINAL DATE ( case no . K CARDINAL/CARDINAL ) , ORG held that the provisions challenged by the ORG were in conformity with the LAW and the statutes .

On DATE ORG enacted the PERSON on education ( “ the DATE LAW ” ) . LAW expressly provided that religious instruction could be provided in ORG schools at the request of parents or of pupils who had reached the age of majority .

On DATE the Minister of Education issued the Ordinance on the organisation of religious instruction in State schools ( ORG w sprawie warunków i sposobu organizowania nauki religii w szkołach publicznych – “ the Ordinance ” ) . The ORG replaced the CARDINAL ministerial circulars issued in DATE .

The Ordinance provided that religious education and ethics were optional subjects . Parents of pupils who wished their children to follow either of those subjects were to make a declaration to the school authorities to that effect . If the number of pupils in a given class interested in following any of these subjects was CARDINAL , then the school was to organise the relevant course for pupils of different classes from the same school ( an inter - class group ) . If the inter - class group was smaller than CARDINAL pupils , the authorities were to organise the relevant course in cooperation with other schools in the municipality ( inter - school group ) , provided that there was a minimum of CARDINAL pupils interested in following it .

Paragraph CARDINAL of the Ordinance provided , in so far as relevant :

“ CARDINAL . The mark for religion or ethics is placed on the school certificate directly after the mark for behaviour . In order to eliminate any possible manifestations of intolerance the school certificate shall not contain any data that would indicate which religion ( or ethics ) course was followed by a pupil . ”

The mark for religion ( ethics ) has no influence on whether a pupil moves up to the next grade . ”

In DATE the ORG challenged the conformity of numerous provisions of the GPE with the constitutional provisions in force at the material time and LAW .

The ORG objected to , among other provisions , paragraph CARDINAL of the GPE , arguing that the insertion of a mark for “ religion / ethics ” on school reports was unacceptable since reports were official documents issued by ORG schools and the teaching of religion was the prerogative of the ORG . In addition , this provision created the risk of intolerance . He further alleged that the provision in question was in breach of the constitutional principle of separation of ORG and ORG and the principle of the ORG 's neutrality , as provided for in the Freedom of Conscience and LAW .

The ORG also contested the obligation imposed on parents ( pupils ) to make a “ negative declaration ” to the effect that they did not wish their children to follow religious instruction in a ORG school ( paragraph PERSON ) of the Ordinance ) . He argued that no public authority in the ORG , which had a duty to remain neutral in the sphere of religious beliefs and philosophical convictions , could require citizens to make such declarations .

The ORG further alleged that paragraph CARDINAL of the Ordinance allowed for excessive display of crucifixes in other places in schools than classrooms designated for religious instruction .

ORG upheld for the most part the constitutionality and legality of the Ordinance . It noted that the inclusion of religious instruction in the ORG school curriculum did not infringe the constitutional principle of separation of ORG and ORG and the principle of the ORG 's secular character and neutrality . According to ORG , the principles in question required that both ORG remain autonomous in their respective spheres of activity . However , their autonomy should not lead to isolation or even competition between them , but on the contrary should allow them to cooperate in those areas , such as the ethical education of children , which served the common good and the development of the individual . ORG further observed that the secular character of the ORG and its neutrality could not amount to a prohibition on providing religious instruction in ORG schools . Moreover , according to LAW , the provision of religious instruction was always subject to parents ' wishes . Referring , among other provisions , to LAW , ORG noted that the ORG could not escape its obligation to provide religious education which conformed to parents ' wishes .

ORG held that the GPE should be construed as granting each pupil the right to follow classes in both religion and ethics as opposed to the alternative of choosing CARDINAL of them . Adopting such an interpretation of the Ordinance would deal with the ORG 's concerns about the division of pupils into believers and nonbelievers .

As to the insertion of marks for religious instruction in school reports , ORG found it to be in conformity with LAW . Furthermore , it observed that this was a consequence of the provision of religious instruction , on a voluntary basis , by State schools . In accordance with LAW , school reports should contain marks for all subjects ( compulsory and optional ) taken by a pupil in DATE . This rule applied equally to marks for religion if that subject was taught in a ORG school .

Replying to the ORG 's concerns , ORG held as follows :

“ In order to dispel possible doubts in this respect , ORG indicated in the seventh point of the operative part of its judgment that a mark on a school report may refer not just to religious instruction alone or to ethics alone ; in cases where a pupil follows both those courses he or she may be given a joint mark [ for the CARDINAL subjects ] . The impugned provision therefore contains a dual safeguard . First , a mark shown on the school report does not indicate any specific religion , and secondly it is not known whether such a mark relates to religious instruction , ethics or both subjects jointly . ”

As to the obligation to make a “ negative declaration ” , ORG struck down paragraph CARDINAL(CARDINAL ) of the Ordinance on the grounds of its incompatibility with LAW . Paragraph CARDINAL(CARDINAL ) of the Ordinance as amended made no reference to a “ negative declaration ” . It entered into force on DATE .

As regards the display of the crucifix in State schools , ORG found that the paragraph CARDINAL of the GPE provided for such a possibility but did not mandate the presence of the crucifix in schools . Accordingly , this provision was compatible with LAW .

Article CARDINAL § QUANTITY of the DATE LAW provides :

“ Public authorities in GPE shall be impartial in matters of religious and philosophical convictions , and shall ensure freedom to express them in public life . ”

LAW provides :

“ Parents shall have the right to raise their children in accordance with their own convictions . The child 's upbringing shall respect his degree of maturity as well as his freedom of conscience and belief and also his convictions . ”

LAW provides as follows :

“ CARDINAL . Freedom of conscience and religion shall be secured to everyone .

Freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion , either individually or collectively , publicly or privately , by worshipping , praying , participating in ceremonies , performing rites or teaching . Freedom of religion shall also include the availability of sanctuaries and other places of worship designed to meet the needs of believers as well as the right of individuals , wherever they may be , to benefit from religious services .

Parents shall have the right to provide their children with a moral and religious upbringing and teaching in accordance with their convictions . The provisions of LAW shall apply as appropriate .

The religion of a church or other legally recognised religious organisation may be taught in schools , but other peoples ' freedom of religion and conscience shall not be infringed thereby .

NORP The freedom to publicly express religion may be limited only by means of statute and only where this is necessary for the defence of State security , public order , health , morals or the freedoms and rights of others .

No one shall be compelled to participate or not participate in religious practices .

No one may be compelled by organs of public authority to disclose his philosophy of life , religious convictions or beliefs .

The Constitutional Court was asked to review the constitutionality of amendments to LAW . The amendments repealed the provisions of a number of laws regulating relations between certain Churches and the ORG , which granted the former the right to have marks for their religious instruction entered in school reports . ORG upheld the constitutionality of the impugned provisions and held that the Churches concerned were not , in fact , divested of the above - mentioned right . Following the entry into force of the amendments , the ORG simply had to fulfil the conditions set out in the Ordinance of the Minister of ORG on the organisation of religious instruction in ORG schools , which were equally applicable to all Churches and religious organisations .

The Constitutional Court was asked to examine the constitutionality of the amended Ordinance of the Minister of Education of CARDINAL DATE on the marking of pupils ' work ( ORG Edukacji Narodowej z dnia CARDINAL lipca DATE r. zmieniające rozporządzenie w sprawie warunków i sposobu oceniania , klasyfikowania i promowania uczniów i słuchaczy oraz przeprowadzania sprawdzianów i egzaminów w szkołach publicznych ) . The amended Ordinance introduced for the first time the rule that marks obtained for religious instruction or ethics , as well as other optional courses , would be counted towards the “ average mark ” obtained by a pupil in DATE and at the end of a given level of schooling . The amended Ordinance entered into force on DATE .

ORG in its judgment of DATE held that the impugned amendments to the LAW on the marking of pupils ' work were compatible with LAW , DATE , CARDINAL § CARDINAL and QUANTITY of the LAW . ORG found , inter alia , as follows :

“ The counting of the mark for religion towards the average DATE mark and the final mark is DATE as the [ Constitutional ] Court emphasises again – a consequence of the introduction of religious education into the school curriculum and of the recording of marks for religion on school reports in ORG schools . It is a consequence of the constitutional guarantees of religious freedom rather than of support for theistic beliefs . On the basis of the existing regulations , pupils ( or their parents or legal guardians ) have the possibility to choose between classes in a specific religion or classes in ethics as an alternative subject for those who do not hold religious beliefs . The LAW does not provide specific guarantees for instruction in the beliefs enumerated by the claimant ( atheistic , pantheistic or deistic ) . It would be difficult even from an organisational viewpoint to offer such a range of subjects to choose from . The knowledge necessary at this level of teaching can be gained by interested [ pupils ] , for instance , in the framework of the subject ' ethics ' or other subjects coming into the category of ' additional educational courses ' which are mentioned in the impugned ordinance . ”

In the reasoning , ORG relied on and confirmed the findings made in its judgment of DATE . It held , inter alia , as follows :

“ ORG points out that the issue of conformity of the inclusion of marks for religion in official school reports with section CARDINAL ) of the Freedom of Conscience and LAW , which stipulates that ' GPE is a secular ORG , neutral in the sphere of religion and beliefs ' , was already reviewed by ORG in its judgment of DATE , case ORG . The subject of the review ( also under LAW of LAW ) was paragraph CARDINAL of the Ordinance of DATE . ... Ruling in the above case , inter alia , that paragraph CARDINAL of the Ordinance of DATE was compatible with section CARDINAL(CARDINAL ) ( and with LAW ) , the Court held that :

' The recording of marks for religion in school reports is a consequence of the organisation of religious instruction by ORG schools . ... A school report covers all school courses – compulsory and optional DATE and thus there are no grounds for excluding religious instruction . Clearly , the Minister of Education could decide otherwise and do away with the obligation to include marks on a school report . ... '

Endorsing the above findings , ORG wishes to underline in connection with the case in issue that the counting of marks for religion towards the average DATE mark and the final average mark is in turn a consequence of the recording of marks for religion on school reports in State schools . .... ”

ORG further noted :

“ ORG is aware of the fact that in specific cases , given the dominant position of ORG faith in the religious make - up of NORP society , the choice of an additional subject ( religion or ethics ) by parents or pupils may not be entirely free , but may be taken under pressure from “ local ” public opinion . The free choice of the additional subject depends to a large extent on the respect for the principles of pluralism and tolerance for different convictions and beliefs in local communities . In specific cases in which external pressure – impinging on the free choice – was exerted it would have been the result of a low level of democratic culture . This important issue , while it is noted by ORG , lies outside its jurisdiction . ... ”


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

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

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

The applicant ’s wife died on DATE . In DATE , the applicant made his claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant appealed and on DATE his appeal was rejected . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violations of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in the town of GPE in GPE .

On DATE the applicant sued his former employer , a private company , for reinstatement , wage arrears and compensation for damage . The acknowledgment of receipt card indicated that ORG had received the statement of claim on CARDINAL DATE . According to the ORG , the applicant introduced the claim in DATE .

On DATE ORG dismissed the claim . The judgment was quashed on DATE by ORG and the case was remitted for a fresh examination .

NORP In DATE ORG told the defendant company that the first hearing had been fixed for DATE , and asked it to produce certain employment - related documents . The letter did not contain any indication whether the applicant had been summonsed . According to the applicant , he was not notified of the hearing of DATE . It appears from the list of events attached to the ORG 's memorandum that the case - file only contained a copy of summonses sent to ORG who had been a third party in the proceedings .

The Aleksin Town Court fixed the following hearing for DATE . According to the ORG , the parties were duly informed thereof . The applicant argued that the summonses had not been served on him .

On DATE the ORG discontinued the proceedings . The relevant part of the decision read as follows :

“ In the preparatory part of the hearing [ the court ] established that the plaintiff had not asked for an examination of his case in his absence and that he defaulted on the second summons , whereas the representative of the defendant ... does not insist on the examination of the case on the merits .

Having studied the case - file and heard the prosecutor who considered that the proceedings should be discontinued , the court finds it necessary , under LAW , CARDINAL § CARDINAL of LAW , to discontinue the proceedings . ”

The decision was amenable to appeal within DATE .

According to the Government , on DATE ORG sent a copy of the decision to the applicant . The Government produced a copy of the covering letter accompanying the decision . The applicant claimed that he had not received the letter of DATE .

NORP In DATE the applicant complained to ORG of GPE about the excessive length of the proceedings in his case . ORG readdressed the complaint to ORG .

On DATE the President of ORG sent a letter to ORG . The letter read as follows :

“ I am sending you the complaint of Mr PERSON which was received from ORG of GPE . [ He complains ] about your court 's lengthy failure to examine his action ... for reinstatement , payment of wage arrears and compensation for non - pecuniary damage after ORG quashed the judgment of DATE of your court on DATE . [ I ask you ] to take immediate measures to determine the dispute . ”

The applicant received a copy of the letter of CARDINAL DATE .

According to the Government , on DATE officials of the ORG attempted to serve the applicant with a copy of the decision of DATE , however , he refused to countersign a record showing that the decision had been served on him . The Government indicated that this fact had been orally confirmed by the President of ORG . According to the applicant , he was not served with the decision either by mail or in person .

On DATE ORG sent a letter to the applicant and the President of ORG informing them that on DATE the proceedings in the applicant 's employment dispute had been discontinued . According to the applicant , he did not receive that letter .

On DATE the applicant complained to ORG that the proceedings in his case were excessively long . On DATE ORG readdressed the complaint to the ORG “ in order to examine and respond ” .

On DATE the President of ORG sent a letter to the applicant . A copy of that letter was also sent to a deputy President of ORG . The letter read as follows :

“ Further to your complaint no . DATE of DATE lodged before ORG , the [ FAC informs you that by the decision of DATE of ORG the proceedings concerning reinstatement , payment of wage arrears and compensation for non - pecuniary damage were discontinued in accordance with paragraph CARDINAL of Article CARDINAL of the RSFSR Code on Civil Procedure .

A copy of the decision advising you , in particular , of the right to appeal against it , was sent to you on DATE . However , you did not appeal against that decision by way of cassation or supervisory review after a copy of that decision had been delivered to you personally on DATE .

Your complaint is therefore unsubstantiated . ”

The applicant submitted that he had not received that letter .

On DATE the applicant complained to ORG of GPE that ORG was delaying the examination of his action . ORG sent the complaint to ORG .

On DATE the President of ORG sent letters to the President of ORG and the applicant . The President noted that it had received the applicant 's complaint concerning the excessive length of the proceedings related to his employment action . The President urged ORG to take measures to examine the applicant 's action as soon as possible .

On DATE and DATE the President of ORG sent letters to the applicant and the President of ORG . He insisted that on DATE the proceedings had been discontinued , that a copy of that decision had been sent to the applicant on DATE and that it had also been delivered to him personally on DATE . The applicant alleged that he had not received those letters .

On DATE the applicant sent letters to the LAW and ORG courts of GPE , LOC and GPE courts . The letters , in the relevant part , read as follows :

“ On DATE ORG received my complaint about the unjustified procrastination in the examination of civil cases in ORG . The first - instance judgment of CARDINAL DATE was quashed by the judgment of the appeal court on DATE . DATE have passed , but the civil case is not re - examined ...

My complaints were readdressed to ORG and then to ORG . I received letters of DATE , DATE from ORG . [ The letters ] state that ' immediate measures should be taken for examination of the case ' and ' measures should be taken to examine the case as soon as possible ' . No concrete response was received from ORG ...

The courts of GPE take every possible step to procrastinate for indefinite period the examination of my civil cases ... to force me to withdraw my actions ...

I would like to ask you to transfer the examination of my civil actions to another court in the town of ORG or to the NORP Regional Court ”

In DATE ORG readdressed the applicant 's complaint of DATE to ORG . On DATE and DATE the President of ORG again sent letters to ORG and the applicant . ORG noted that the applicant had complained about the lengthy failure to examine his case . It urged ORG to examine the applicant 's claim as soon as possible . Copies of these letters were sent to the applicant .

On CARDINAL DATE the President of ORG sent letters to a deputy President of ORG and the applicant , informing them that the applicant had failed to appeal against the decision of DATE and that his complaints were therefore unsubstantiated . The applicant claimed that he had not received that letter .

On CARDINAL DATE the President of ORG sent letters to the applicant and a deputy President of ORG . The letters read as follows :

“ Further to your request of DATE the ORG of the Tula Region informs you that on DATE the proceedings ... concerning reinstatement were discontinued under paragraph CARDINAL of Article CARDINAL of the RSFSR Code on Civil Procedure .

A copy of the court 's decision was sent to the plaintiff on DATE ; subsequently , on DATE a copy of the decision of CARDINAL DATE was made available to the plaintiff by personal delivery against his signature ; an entry to that effect was made in the case - file .

However , at the material time , the plaintiff did not appeal against the decision by way of cassation or supervisory review . The complaint is therefore unsubstantiated . ”

According to the applicant , he did not receive any letters from ORG .

On DATE the applicant lodged before the ORG a defamation action against ORG . The statement of claim was sent to ORG by registered mail . The list of enclosures bearing a stamp of the GPE post office showed that the applicant 's letter included CARDINAL copies of the statement of claim and copies of responses from the prosecutor 's office . The acknowledgment of receipt card shows that on DATE the ORG received the statement of claims with enclosures .

The Government , relying on a certificate prepared by ORG , claimed that no defamation action had been lodged by the applicant DATE .

In DATE to DATE the applicant complained to various domestic officials that ORG had failed to decide on his claim .

On DATE and DATE ORG asked ORG to take necessary steps to examine the merits of the applicant 's defamation action as soon as possible . The applicant received copies of these letters .

The applicant did not receive any response from ORG .

The RSFSR Code on Civil Procedure of CARDINAL DATE ( in force at the material time ) provided that civil cases were to be prepared for a hearing DATE after the action had been lodged with the court . Civil cases were to be examined DATE after the preparation for the hearing had been completed ( LAW )

Summonses were to be served on the parties and their representatives in such way so that they would have enough time to appear timely at the hearing and prepare their case . If necessary , the parties could be summoned by a phone call or a telegram ( Article CARDINAL ) .

A party was to sign the second copy of a summons which was to be returned to a court . If a summons could not be served on a party , it was to be served on an adult family member who lived with the party . A family member who had received a summons was to indicate on its second copy his / her first name , patronymic and family name and his / her relation to a summonsed party . If a party was absent , a person who delivered a summons was to note on the second copy of the summons where the party had moved ( LAW ) .

Article CARDINAL § CARDINAL provided that a court could issue an interim decision on discontinuation of the proceedings ( определение об оставлении заявления без рассмотрения ) , in particular , if the plaintiff had not waived his / her right to be present and had failed to appear for the second time , and the defendant had not insisted on continuation of the proceedings .

A copy of an interim decision on discontinuation of the proceedings was to be sent to the absent party DATE upon its delivery ( LAW .


The applicant is a NORP citizen , born in DATE . He is detained in a mental hospital in GPE .

A. Circumstances of the case

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

I.

In DATE the applicant was charged with murder ( committed in DATE ) , sexual intercourse with a minor ( committed in DATE ) and assault , and reckless driving and driving while intoxicated ( committed in DATE ) . The examination concluded that the applicant had not been in possession of his senses at the time of the crimes of which he was accused . As long as he remained ill he had to be considered very dangerous to others . Agreeing with this finding , ORG ( lääkintöhallitus , medicinalstyrelsen ) in DATE ordered the applicant to undergo compulsory psychiatric treatment in pursuance of Section CARDINALa , subsection CARDINAL , and LAW on the Mentally Ill ( mielisairaslaki , sinnessjuklag MONEY ) . In DATE the applicant was found guilty of the aforementioned offences but was not sentenced , given his mental state at the time of committing them . In DATE he was placed under guardianship .

Following the entry into force of the DATE LAW ( mielenterveyslaki , mentalvårdslag DATE ) in DATE , compulsory care shall be reviewed at maximum interval of DATE . Any prolongation order must be confirmed by the competent county administrative court ( lääninoikeus , länsrätt ) . In so far as this is immediately relevant to the present application , the applicant ’s care has been extended as follows .

On DATE the Senior Physician responsible for the applicant ’s treatment considered that he was still in need of compulsory psychiatric care and ordered its prolongation . The Deputy to the Senior Physician had found that the applicant continued to suffer from a psychosis ( schizo - affectiva ) and a personality disturbance . In DATE and DATE he had been convicted of deprivation of liberty and rape . In DATE he had been convicted of a continued offence comprising deprivation of liberty , rape and assault . In addition , he had , in DATE , raped his then CARDINAL-year - old sister - in - law who had become pregnant . On CARDINAL DATE he had murdered his wife by stabbing her CARDINAL times while she had been holding their DATE son in her arms .

The applicant objected to the prolongation order and requested , inter alia , that his mental state be examined “ impartially ” in a “ civil hospital ” . On DATE ORG of GPE dismissed the applicant ’s request for a further examination of his mental state and confirmed the prolongation order , having regard to the reasons stated by ORG and his deputy . The applicant appealed further , considering that his compulsory care was not justified and seeking damages from the ORG . On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) declined to examine the applicant ’s claims for damages and upheld ORG decision . No oral hearing was held at either court level .

On DATE the applicant ’s compulsory care was again prolonged by the Senior Physician . His order was confirmed by ORG on DATE . The applicant did not appeal .

On DATE the Senior Physician prolonged the applicant ’s compulsory care in the light of the Deputy ’s opinion of DATE which was very similar to the CARDINAL issued in DATE . On DATE ORG confirmed this prolongation order . It noted , inter alia , the opinion of ORG , the terms of his decision , the information in the applicant ’s patient records regarding his state of health . The court concluded that the applicant remained mentally ill . His discharge would significantly aggravate that illness and seriously jeopardise the health and safety of himself and others . The other means of treating his illness had remained inapplicable or insufficient .

The applicant appealed and also requested that he be transferred to another mental hospital . ORG obtained opinions from the Chief Physician of the hospital and the Senior Physician responsible for the applicant ’s treatment . In his rejoinder to those opinions the applicant requested a new and complete examination of his mental state . On DATE ORG declined to examine the applicant ’s requests and dismissed his appeal , thus confirming ORG decision . No oral hearing was held at either court level .

On DATE the Senior Physician again prolonged the applicant ’s compulsory care . In her opinion the Deputy to the Senior Physician had found that the applicant continued to suffer from the aforementioned psychosis and personality disturbance . Should he be discharged , there would exist a very high risk that he would commit heinous violent offences . The Deputy again made reference to various crimes which the applicant had committed . On DATE ORG confirmed the above prolongation order . Similar prolongation orders were issued on DATE and CARDINAL DATE as well as on DATE , and subsequently confirmed by ORG .

During a certain period starting in DATE the applicant was apparently placed in a closed ward .

According to an official extract from ORG ( rikosrekisteri , straffregistret ) , the applicant has been found guilty of the crimes mentioned below .

Judgment of DATE :

Deliberate refusal to perform military service , committed in DATE .

( The applicant was sentenced to conditional imprisonment . )

Judgment of DATE ( upheld on appeal in DATE ) :

Deprivation of liberty and rape , committed in DATE

Assault committed in DATE

( The applicant was sentenced to various prison terms . )

Sexual intercourse with a minor , committed in DATE

Assault and reckless driving , committed in DATE

Murder and possession of edged weapon , committed on CARDINAL DATE

( The applicant was not sentenced for the above - mentioned offences after being deemed to have lacked criminal responsibility in view of his mental state . )

II .

In DATE ORG ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal against a decision of ORG ( vakuutusoikeus , försäkringsdomstolen ) whereby his request for compensation for an occupational injury had been dismissed .

B. Relevant domestic law and practice

Under section CARDINAL of LAW a person can be ordered to undergo compulsory care in a psychiatric hospital if he or she is diagnosed as mentally ill ; if he or she needs treatment for a mental illness which , if not treated , would become considerably aggravated or severely endanger his or her health or safety or the health or safety of others ; and if all other mental health services are inapplicable or inadequate .

According to section CARDINAL , subsection CARDINAL , a patient ’s right to self - determination may be limited and coercive means may be used only to the extent necessary for the treatment of his or her illness , for his or her safety or for the safety of others . In a decision of CARDINAL DATE the Deputy Chancellor of ORG ( valtioneuvoston apulaisoikeuskansleri , statsrådets justitiekanslersadjoint ) ad interim found that the restriction of telephone calls to a patient in a mental hospital could not be held to have been in clear violation of LAW , subsection CARDINAL . The Deputy Chancellor nevertheless drew the competent ORG ’s attention to the requirement that restrictions of fundamental rights should be sufficiently detailed . On this point the legislation should therefore be amended . An application lodged under the Convention in respect of the restriction in question was eventually settled ( no . ORG ; see “ The Law ” below ) .

According to the DATE LAW ( laki potilaan asemasta ja oikeuksista , lag om patientens ställning och rättigheter DATE ) , patient records shall be kept confidential . They may only be released to courts and other authorities entitled to such access and , on certain conditions , to institutions providing treatment to the patient , to a close relative or to researchers ( section CARDINAL ) .

In her decision of DATE the Deputy PERSON ( eduskunnan apulaisoikeusasiamies , riksdagens biträdande justitieombudsman ) considered that the ORG hospital ’s practice of photographing all patients was in violation of section CARDINAL and section CARDINAL , subsection CARDINAL , of the DATE LAW ( henkilörekisterilaki , personregisterlag CARDINAL/CARDINAL ) . The Deputy Ombudsman noted that the hospital had not abolished this practice despite her earlier decision of CARDINAL DATE in which she had reached the same conclusion . Prior to that decision she had heard ORG ( tietosuojavaltuutettu , dataombudsmannen ) , who had reached the same conclusion .

Section CARDINAL of LAW stipulates , inter alia , that the keeper of personal data files shall ensure that the personal integrity , interests and rights of anyone registered in such a file are not unduly encroached upon . LAW , subsection CARDINAL , requires that only information of relevance to the purpose of the file shall be included . In her CARDINAL decisions the Deputy Ombudsman underlined that an assessment should be made in respect of each patient as to the necessity of including and retaining photographs . Photographs should only appear in his or her records if the specific care needs of the patient so warranted . LAW did not allow for the inclusion of photographs in patient records in the interests of the security of other patients , staff or society as a whole .

The keeper of a personal file shall speedily correct , delete or supplement information on file which is incorrect , unnecessary , incomplete or outdated and provided such information evidently jeopardises the protection of the integrity or the interests or rights of the person in question . If the file - keeper refuses a request to the above effect it shall provide a reasoned certificate thereof ( section CARDINAL ) . At the request of the registered person ORG may order the file - keeper to take the requested action ( section DATE ) . If this order is not complied with or if ORG decides not to take action , the registered person may bring the matter before ORG ( tietosuojalautakunta , datasekretessnämnden ) , whose decision may be appealed to ORG ( sections CARDINAL and DATE ) .

According to the LAW of DATE ( NORP hallitusmuoto , NORP för GPE CARDINAL/CARDINAL ) , as in force up to DATE , anyone who has suffered an infringement of his rights , or damage , through an illegal act or negligence on the part of a civil servant , is entitled to demand that the civil servant be convicted and held liable for damages , or to report him for the purpose of having charges brought against him ( section CARDINAL , subsection CARDINAL ) . A similar provision appears in section CARDINAL , subsection CARDINAL , of LAW ( NORP perustuslaki , PERSON grundlag CARDINAL/CARDINAL ) . LAW ( “ Basic rights and liberties ” ) of LAW was amended by Act no . CARDINAL which entered into force on CARDINAL DATE . The new chapter CARDINAL includes , inter alia , the right to privacy ( section CARDINAL ; as from DATE section DATE ) and has been incorporated as such into LAW .

Under LAW ( vahingonkorvauslaki , skadeståndslag CARDINAL ) proceedings for damages may be initiated against the ORG in view of its vicarious liability for actions taken by civil servants ( chapters CARDINAL and DATE ) . In its decision no . CARDINAL:CARDINAL ORG found a health centre physician guilty of negligent misconduct as he had failed to ensure that a patient was transported to the centre in accordance with LAW on the Mentally Ill. In the private prosecution proceedings in question the patient had been granted cost - free proceedings .

According to the DATE Act on Social Welfare and Health Care Fees ( laki sosiaali- ja terveydenhuollon asiakasmaksuista , lag om klientavgifter inom social- och hälsovården DATE ) and the related Decree ( CARDINAL/CARDINAL ) , the fee collected from a psychiatric patient in long - term hospital treatment shall be based on his or her solvency and not exceed MONEY of the DATE income ( section CARDINAL of the Decree ) .


Violation of Art. 6-1 with regard to the fairness of the proceedings;Violation of P1-1;Inadmissible under Art. 6-1 with regard to the length of the proceedings;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant is a NORP national , who was born in DATE in GPE , and lives in GPE ) .

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

On DATE ORG ordered ORG of the GPE ( the “ Ministry ” ) to pay the applicant MONEY ( excluding taxes ) for the use of his invention and to cover court fees incurred by him .

On DATE the ORG paid the applicant MONEY for his invention which was covered by a patent . The sum paid to the applicant was transferred to him through ORG GPE . On DATE GPE MONEY were paid to the applicant 's bank account at the ORG branch of ORG ( the “ Bank ” ) .

This sum was indexed in DATE on the basis of ORG ( State Guarantees ) Act of DATE , and the applicant 's deposit with ORG ( account no . DATE ) eventually amounted to ORG CARDINAL,CARDINAL.CARDINAL .

In DATE the applicant instituted administrative proceedings in ORG against the ORG and its director complaining of their unlawful refusal to release his deposits from accounts FAC . CARDINAL and CARDINAL . On DATE ORG rejected his claims as unsubstantiated . On DATE ORG of the GPE quashed this decision and remitted the case for a fresh consideration .

On DATE ORG ordered the ORG to pay the applicant ORG CARDINAL,CARDINAL.CARDINAL from his account no . DATE . It also held that ORG had to be paid to the applicant from his account no . MONEY . On DATE ORG quashed this decision and remitted the case for a fresh consideration . In particular , it held that a property dispute , such as in the instant case , had to be dealt with in contentious , not administrative , proceedings .

NORP In DATE the applicant instituted contentious proceedings in ORG against the ORG seeking recovery of the sum held by it . In particular , the applicant claimed that this sum was not a deposit but a payment for his invention that had been transferred by cable from GPE to the ORG and never given to him .

On DATE the applicant lodged a claim ( new contentious proceedings ) with ORG against the ORG seeking to recover the sum of ORG CARDINAL,CARDINAL.CARDINAL from it .

On DATE ORG refused to consider the applicant 's complaint lodged against the ORG and its director on account of the recently initiated contentious proceedings concerning the recovery of the applicant 's deposit with ORG pending before the same court .

On DATE the court adjourned the hearing in the case to CARDINAL January DATE and then to CARDINAL DATE in view of a business trip by the judge .

On DATE the court rejected the applicant 's claims . On DATE ORG quashed this judgment and remitted the case for a fresh consideration .

On DATE the case file was remitted to ORG . The hearing was scheduled for DATE .

On DATE the hearing was adjourned to DATE due to the failure of the defendant to attend .

On DATE ORG allowed the applicant 's claims and ordered the ORG to pay him ORG CARDINAL,CARDINAL.CARDINAL since this sum was not an “ indexed ” deposit with ORG . As to the ORG “ indexed ” deposit on his account no . CARDINAL , the court held that the applicant had not sought to recover that sum .

On DATE the ORG of ORG quashed the decision of DATE upon a “ protest ” ( протест в порядку нагляду ) lodged with it by the President of ORG . It also rejected the applicant 's claims for the recovery of ORG CARDINAL,CARDINAL.CARDINAL as unsubstantiated .

NORP The relevant domestic law is set out in the judgment of DATE in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL ) .


Violation of Art. 5-4;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Corneliu Bîrsan;Egbert Myjer;John Hedigan;Lucius Caflisch;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in PERSON . He is an oil producer .

On an unspecified date criminal proceedings were brought against the applicant , who was charged with attempted extortion , attempted arson and arson , and ( under Article CARDINAL bis of LAW ) with being a member of a mafia - type criminal association based in GPE .

By an order of CARDINAL DATE , the GPE preliminary investigations judge ( giudice per le indagini preliminari ) , considering that there were “ substantial indications ” of the applicant ’s guilt , remanded him in custody . As to the existence of special requirements ( esigenze cautelari ) justifying his detention pending trial under LAW , the preliminary investigations judge observed that on account of his involvement in a criminal organisation the applicant had contacts which might enable him to reoffend , abscond , or pervert the course of justice . Moreover , given that the applicant had also been charged with the offence provided for under LAW , the requirements referred to in LAW were to be presumed to have been met unless there was proof to the contrary .

The applicant appealed against the order of CARDINAL DATE .

By an order of CARDINAL DATE , the division of ORG responsible for reviewing precautionary measures ( “ the Specialised Division ” ) , finding that the preliminary investigations judge had not correctly assessed the evidence of the applicant ’s guilt , set aside the order of CARDINAL DATE and ordered the applicant ’s release .

NORP The public prosecutor ’s office appealed on points of law . It alleged in particular that ORG had given the reasons for its decision in an illogical and contradictory manner .

ORG set the case down for a hearing on DATE . No summons to appear was served on the applicant or his lawyer .

The hearing was held on the scheduled date .

In a judgment of DATE , ORG quashed the order of DATE , finding it to have been illogical and contradictory . It remitted the case to ORG , indicating the legal principles to which the ORG should adhere .

ORG set the case down for a hearing on DATE . On that date Mr PERSON sought leave to produce additional evidence . He also argued that the judgment of CARDINAL DATE was null and void as he had not been informed of the date of the hearing . He alleged that Article CARDINAL § CARDINAL of LAW , which provided that grounds of nullity that had not been examined previously could not be submitted before the court to which the case was remitted , breached the rights of the defence . Consequently , he requested that the provision in question be waived .

ORG agreed to the inclusion of the new evidence requested by PERSON . Relying on LAW , it dismissed the objection that the judgment of DATE was null and void .

On DATE ORG upheld the preliminary investigations judge ’s order of DATE in respect of CARDINAL of the charges and set aside the remaining provisions .

The applicant was then arrested and remanded in custody .

On DATE the applicant appealed to ORG , again claiming that the judgment of DATE was null and void , and alleging that LAW was unconstitutional and breached the rights of the defence .

In a judgment of DATE , ORG , considering that the decision appealed against had been logically and properly reasoned , dismissed the applicant ’s appeal on points of law . It considered manifestly ill - founded the objection that LAW was unconstitutional .

In the meantime , in a judgment of DATE , the GPE preliminary hearings judge ( giudice dell’udienza preliminare ) had convicted the applicant . The length of the sentence is not known .

The applicant lodged an appeal .

NORP In a judgment of CARDINAL DATE , ORG acquitted the applicant on the ground that he had not committed the offences with which he had been charged ( per non aver commesso il fatto ) .

NORP The public prosecutor at ORG lodged an appeal on points of law , which was dismissed in a judgment of DATE . The applicant ’s acquittal thus became final .


CASE OF WIRTSCHAFTS-TREND ZEITSCHRIFTEN-VERLAGSGESELLSCHAFT MBH v. AUSTRIA

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient

The applicant is the owner and publisher of the DATE magazine “ ORG ” .

In its issue CARDINAL of DATE the applicant company published an article about Mr NORP , at that time a member of ORG , and his cohabitee PERSON The article , with the title “ Diary of an escape ” and the subtitle “ Report . Several myths are entwined around PERSON trip to GPE . The reconstruction of a banal reality ” , described the couple ’s flight from GPE in DATE as Mr NORP was suspected of having committed the offences of aggravated fraud ( PERSON ) and fraudulent conversion ( PERSON ) . After an international arrest warrant had been issued , PERSON NORP was arrested in GPE on DATE . At the time of the events , great public interest in the criminal proceedings against PERSON existed . After PERSON arrest , PERSON had given interviews on these events . The article was accompanied by a photo , which appeared on another page , showing PERSON standing beside Mr R.

The article and its context , namely a short text accompanying photos showing the couple ’s hotel and a bar in GPE , contained the following statements :

“ ... Thus , the NORP mutation of ‘ PERSON and PERSON started on the last part of their trip , a TIME bus ride ... ( Also brach die niederösterreichische Mutation PERSON and PERSON , einer vierstündigen GPE ... auf . )

... DATE , ‘ PERSON and PERSON hardly ever left the hotel ... ( Die ersten ORG verlassen ‘ PERSON praktisch nie . )

... ’Bonnie and Clyde’ from ORG wish to rent the Mayor ’s bar ... ( ‘ PERSON Niederösterreich wollen die ORG pachten . )

... PERSON and PERSON are dreaming of a decent life as pub owners ... ( ‘ PERSON bescheidenen PERSON als Barbetreiber . ) ”

The article , when describing the arrest of PERSON NORP , further stated :

“ C. G. , against whom no suspicion exists , stays behind . ( PERSON bleibt GPE , gegen die nichts vorliegt . ) ”

On DATE Mrs PERSON brought proceedings against the applicant company claiming compensation for defamation under Section CARDINAL of LAW ( Mediengesetz ) . Further she requested supplementary measures under LAW , such as the publication of the judgment . She stressed that the applicant company , by publishing the article at issue , had committed the offence of defamation under LAW ( Üble Nachrede ) .

She argued that the comparison with the famous criminals ‘ PERSON and PERSON from DATE , whose story was the basis of a film produced in DATE , could have given the impression that she was also involved in the offences of PERSON

On DATE the Wiener Neustadt Regional Court ( PERSON ) dismissed PERSON claim . It found that the average reader would have understood “ PERSON and GPE as a synonym for a couple on the run and that it had been a pictorial description with a humorous and entertaining message . It considered that the average reader would have connected “ PERSON ” with a woman who follows her partner “ through thick and thin ” and that the characterisation as “ PERSON ” did not amount to an accusation of having participated in the offences of PERSON R.

On DATE ORG ( Oberlandesgericht ) quashed this decision and remitted the case to ORG . It observed that “ PERSON and PERSON ” had been violent criminals and found that the established connection between PERSON G. and “ PERSON ” created an “ inherent statement of having participated in criminal acts ” even though “ it had been expressly stated in the article that no suspicion had existed against PERSON G. ” . It , therefore , concluded that the applicant company had committed the offence of defamation under LAW § CARDINAL of LAW ) by publishing the article at issue and stated that its finding had to be taken into account by ORG in its new decision .

On DATE ORG sentenced the applicant company to pay compensation of ORG CARDINAL ( MONEY ) for defamation and to reimburse PERSON costs of the proceedings and ordered it to publish an extract of its judgment in its magazine . Following ORG line of argument it found , referring to the above mentioned passages of the incriminated article , that :

“ ... the well - known movie ‘ PERSON and PERSON described CARDINAL ordinary people who make the NORP dream of liberty and wealth come true by stealing cars , robbing banks and killing people . ( ... ) The reader primarily associates PERSON with a criminal who had , together with her partner , robbed innumerable banks and had killed CARDINAL persons within DATE . ( ... ) Nobody would have connected PERSON only with a naive angel , who followed her partner devotedly but , rather , with a woman who would kill to assist the common purpose ‘ LOC . ( ... ) Beyond doubt the reader is forced to make a connection with capital crime . ( ... ) The allegation of participating in criminal offences constitutes defamation within the meaning of LAW of LAW . ”

On DATE the applicant company filed an appeal and stressed , inter alia , that the incriminating passages had to be considered in connection with the article as a whole . It submitted that the article was written in an ironical style and could not have given the impression that PERSON had committed any criminal acts .

On DATE ORG dismissed the appeal and confirmed ORG decision as a whole .

On DATE Mrs PERSON applied to ORG for an injunction under Section CARDINAL of LAW ( Urheberrechtsgesetz ) against the applicant company . She requested that the applicant company be ordered to refrain from publishing her picture without her consent in connection with reporting on the criminal proceedings against Mr NORP or , in the alternative , that the applicant company be ordered to refrain from publishing her picture without her consent in connection with referring to her and Mr NORP as “ PERSON and GPE . Furthermore , she requested an order for the publication of the judgment in the applicant company ’s magazine .

She argued that the publication of her picture in connection with a report on the criminal proceedings against Mr NORP violated her legitimate interests under Section CARDINAL of LAW and that the comparison with the famous criminals “ PERSON and PERSON ” could have given the impression that she had been involved in the offences of which PERSON NORP was accused .

NORP The applicant company , in its observations , argued that the report at issue expressly mentioned that there were no criminal proceedings pending against PERSON and that the report was written in an ironical style and could not have given the impression that PERSON had committed any criminal acts . Moreover , she had willingly given interviews to the media and had her pictures taken by journalists . As regards the comparison of PERSON with “ PERSON ” , the applicant company submitted that the reader of its magazine understood “ PERSON and PERSON ” as a synonym for a couple on the run and not for violent criminals . Finally , it contended that the great public interest in the events justified the publication of PERSON picture .

On DATE the Wiener Neustadt Regional Court granted an interim injunction ( einstweilige GPE ) . It found the measure justified as the interest in the publication of PERSON picture violated her legitimate interests .

On DATE ORG allowed the applicant company ’s appeal and dismissed PERSON application .

On DATE ORG ( Oberster Gerichtshof ) partly allowed PERSON extraordinary appeal on points of law and granted the interim injunction she had requested in the alternative , i.e. it ordered the applicant company to refrain from publishing PERSON picture without her consent in connection with referring to her and Mr R. as “ PERSON and GPE .

ORG observed that Section CARDINAL of LAW prohibited publishing a person ’s picture if the publication violated that person ’s legitimate interests and that the publication of her picture had to be considered together with the content of the published report . The court referred further to its case - law in which it had found that the publication of the picture of a spouse of a suspect was not of any informative value and that the concerned spouse ’s interest in secrecy , therefore , outweighed the interest of information . The court found , however , that in the present case PERSON was far more involved in the case of Mr NORP than simply being Mr NORP ’s cohabitee or girlfriend , as she had prepared the escape with him and had finally escaped with Mr NORP Therefore , the applicant company ’s interest in publishing her picture in principle outweighed PERSON legitimate interests in secrecy .

The court then argued that the text of the article at issue , compared PERSON with the female partner of the violent criminals “ PERSON and PERSON ” and could give the impression to the readers of the magazine that PERSON as “ PERSON ” had been involved in the criminal offences of her partner . ORG , thus , concluded that , although it seemed that PERSON had consented to the publication of her picture in connection with the criminal proceedings against Mr R. , her legitimate interests were violated by the publication of her photo in combination with a comparison with the criminal “ PERSON ” .

On DATE the ORG granted a permanent injunction prohibiting the applicant company from publishing PERSON picture while comparing her and Mr NORP with “ PERSON and PERSON ” or while connecting her with the commission of criminal offences .

On DATE ORG dismissed the applicant company ’s appeal and ordered the applicant company to pay PERSON costs of the appeal proceedings .

On DATE ORG , referring to its decision of CARDINAL DATE , rejected the applicant company ’s extraordinary appeal on points on law . This decision was served on DATE .

Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim damages from him . In this context “ defamation ” has been defined in LAW , as follows :

“ CARDINAL . As it may be perceived by a third party , anyone who accuses another of having a contemptible character or attitude , or of behaving contrary to honour or morality , and of such a nature as to make him contemptible or otherwise lower him in public esteem , shall be liable to imprisonment not exceeding DATE or a fine ...

Anyone who commits this offence in a printed document , by broadcasting or otherwise , in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ...

NORP The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . ”

Section CARDINAL of LAW , in so far as relevant , reads as follows :

“ ( CARDINAL ) Images of persons shall neither be exhibited publicly , nor in any way made accessible to the public , where injury would be caused to the legitimate interests of the persons concerned or , in the event that they have died without having authorised or ordered publication , those of a close relative . ”

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