CASE OF EUROPAPRESS HOLDING D.O.O. v. CROATIA

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

NORP The applicant company , Europapress holding d.o.o . , is a limited liability company incorporated under NORP law , which has its registered office in GPE .

The applicant company was founded in DATE and is the biggest newspaper and magazine publishing company in GPE , which publishes CARDINAL DATE newspapers and CARDINAL magazines with an average DATE circulation of CARDINAL copies . Its most prominent DATE publication , the news magazine ORG , on DATE published an article headlined “ Minister PERSON pointed a handgun at journalist GPE ! ” , in which it reported on an incident that had allegedly occurred in the Government building on DATE and had involved Mr B.Š. , the then Minister of Finance and a deputy Prime Minister , and a journalist from the DATE newspaper ORG list , PERSON The article suggested that B.Š and PERSON had had a conversation on the staircase of the building and that PERSON , displeased with a recent article by GPE , had told her that she should be killed . It also reported that ORG had subsequently followed GPE to the press room , where he had allegedly taken a handgun from a security officer and pointed its barrel at GPE , saying that he would kill her , after which he had laughed loudly at his own joke . The article was published inside the magazine in the column “ Political Terminator ” . The circulation of FAC at the time was CARDINAL copies .

The article in question reads as follows :

Minister PERSON pointed a handgun at journalist GPE !

“ Judging by the unusual scene made by ORG DATE in the press room of the ORG 's headquarters , journalists may be facing a qualitatively different expression of disapproval of texts which are not to the Deputy Prime Minister 's liking .

Having published a critical text concerning the new budget entitled ' PERSON 's phenomenal numbers ' , PERSON , commentator at ORG , will remember her subsequent Government session for a very long time .

ORG was waiting for her on the stairs of the building in FAC and , still trying to give his voice a somewhat relaxed tone , started claiming that it had not been all right , that it all reminded him of settling personal scores and the like , and at some point he allegedly blurted something like : ' You should be killed ! '

Obviously irritated by GPE 's presence , he followed her to the press room , where , in addition to several other journalists , he found one of the security officers .

And then ORG , cool as a cucumber [ ' mrtav - hladan ' ] , reaches for his [ the security officer 's ] belt , takes out the handgun and points its barrel at the dumbfounded journalist , saying : ' I will kill you now ! '

He then started laughing uproariously at his own ' joke ' , whereas the [ other ] journalists forced a smile .

GPE , however , did not find it funny at all . ”

On DATE and CARDINAL DATE ORG list published the same information , as did another DATE newspaper , PERSON , on DATE .

DATE after the incident GPE lodged a criminal complaint and brought an action in damages against ORG Both her criminal complaint and her action were dismissed on the ground that she was unable to prove that there had been a risk to her personal safety from a serious threat to her life .

On DATE PERSON brought a civil action for defamation against the applicant company in ORG ( PERSON ) , seeking CARDINAL NORP kunas ( HRK ) as compensation for non - pecuniary damage . He argued that the published information had been untrue and that it had harmed his reputation as a public and political figure , in that the article had been published in a high - circulation DATE magazine , in which he had been depicted as an irresponsible and foolish person who was prone to bad and highly inappropriate jokes . The case was subsequently joined with CARDINAL other actions brought by PERSON on DATE against ORG list and PERSON .

The applicant company maintained that the information published was true or based on facts which it had had valid reasons to believe were true . Furthermore , the incident was of public interest and the public was therefore entitled to know about it , while the journalist PERSON was a serious and trustworthy source of information . Despite several attempts , the ORG journalists had been unable to obtain any comment from ORG 's office DATE following the incident . Lastly , the applicant company claimed that the published article had been presented in such a way as to show that it had involved a joke rather than a serious threat .

During the proceedings the court heard evidence from the eyewitnesses , namely the security officer PERSON , the journalist PERSON , a journalist from PERSON , PERSON , and a journalist from the State news agency ORG , ORG , who were all present in the press room when the alleged incident took place . The court also heard evidence from the plaintiff , the author of the article , PERSON , and the chief editor of ORG , PERSON At the applicant company 's request , the court also heard evidence from the ORG list journalist PERSON , who had been President of ORG at the time , and admitted a written statement from ORG , a journalist at the DATE magazine ORG ( although it refused to call her as a witness ) .

At the hearing on DATE the court heard evidence from security officer PERSON The relevant part of his testimony reads as follows :

“ I remember that at [ the time of ] the incident there was a meeting of the Government , on which occasion I was in the security team . After the meeting the chief of ... the cabinet told me to invite PERSON , indicating that he was in the press room . I went there and found [ him ] . As well as B.Š , there were some other persons present , PERSON and H.P .... Mr. PERSON was talking with a woman whom I did not know . I can not remember who that person was exactly . I addressed Mr PERSON and informed him that the Prime Minister was looking for him , to which he jokingly replied , asking whether I had come to apprehend him . I noticed that the atmosphere in the room was relaxed and that they were joking about something .

I remained standing next to the exit , and on his way out PERSON passed next to me . Under his left arm he was holding documents , and with his right arm he [ inadvertently ] touched my right side , where my official handgun was [ kept ] .

He said something when he touched it , something like ' these are the arguments ' .

On that , I took out the handgun of my own initiative , emptied the magazine ... and took out the frame of the handgun . I then placed the handgun horizontally on my left hand . At that , PERSON , who was [ sitting ] ... on my left side and was writing , commented that we should not play with weapons . I replied that she had nothing to fear , that I had emptied the weapon and put the ammunition in my pocket . The plaintiff then commented : ' Please , put that away , because they will write that I have threatened a journalist ' .

After that , Mrs. PERSON commented on the plaintiff 's statement and said ' I will publish that ' . Just as the plaintiff told me to put the handgun away ... , the journalist PERSON entered and said : ' Not PERSON , she is a good girl ' .

After that Mr. PERSON left the room and PERSON continued to write her text . The only one who had my handgun in her hands was the journalist PERSON , with whom I went to the other corner of the room where we did not disturb anyone , because she was interested in weapons , given that she herself had a weapon . She has a museum piece and we talked about that .

Apart from telling me to put away the handgun because it would be published that he had threatened to kill the journalist , I did not notice that the plaintiff and journalist PERSON spoke to each other in my presence . As I said , apart from the journalist PERSON , no one held my handgun in his or her hands . The newspaper reports that the plaintiff took the handgun from me are not true . ”

At the hearing on DATE the court heard evidence from journalist PERSON The relevant part of her testimony reads as follows :

GPE : “ On DATE ] a regular meeting of the Government was scheduled for DATE TIME . I am an accredited journalist and follow the work of the Government . While going to the room from which I follow the meetings on a monitor with my colleagues , I met the plaintiff and PERSON The plaintiff reacted brusquely , stating that he was dissatisfied with the article which I had published in ORG list in DATE , in which I had written about the budget and the ORG 's policy . The plaintiff stated ... that he had seen the article as a personal attack on him . When I asked him to give reasons , he did not do so , saying that the article had amounted to settling scores with him . I replied that this was probably his impression because his name had appeared in the headline and the article had been accompanied by his photo . At that the plaintiff told me that I was ' a killer with a baby face ' and that I should be killed . ...

After I arrived at the press room ... I sat at a table to study the documents which were given to us before the [ Government ] meeting . ... As well as me , in the room there was PERSON , who was following something on the computer ... I was concentrating on the documents I was reading , and at some point I noticed that the plaintiff and a member of the security staff , whom I had seen before , were present in the room .

I did not pay attention to their conversation until I heard , at some point , that the plaintiff was mentioning journalists , after which I looked up and saw the plaintiff holding a handgun in the palm of his hand , while the security officer was standing on the other side of the table , next to me .

At this point , the ORG journalist PERSON , entered the room and said ' Not PERSON , she is good ' ; she took the handgun in her hands , saying that she had someone in her family who had a handgun like that and that she wanted to see it . ”

The judge : “ Who was the plaintiff addressing when he said ' a killer with a baby face ' ?

GPE : “ The plaintiff was facing me and we were in the small area near the staircase leading to the entry into the big foyer . ”

The judge : “ From whom did PERSON take the handgun ? ”

GPE : “ I can not say for certain , because it all happened relatively fast and I was shocked , since I saw it as a personal threat to me because I connected the incident which had taken place before I entered the press room and the threats made by the plaintiff with the fact of seeing the handgun in his hand .

The plaintiff then left the room and the security officer and ORG , who was checking the handgun , remained . After that the Government meeting that we were to follow started . ”

The judge : “ Did anyone in the room react to protect you , given that you took [ the incident ] as a personal threat ? ”

GPE : “ I remember that the journalist PERSON said something ... I can not remember what she said ... ”

The plaintiff 's representative : “ Did you and the plaintiff talk to each other in the press room ? ”

GPE : “ Before the handgun was taken out we did not talk . After that , as far as I remember , I said that I would publish that . ”

The plaintiff 's representative : “ Did the plaintiff address you in the press room in any way ? ”

GPE : “ No . While I was reading the documents for the meeting I was not , as I stated , paying attention to what the security officer and the plaintiff were talking about . I do not know whether the plaintiff was addressing me because I was reacting to the word ' journalists ' when I looked up and saw the handgun in his hand . ”

The plaintiff 's representative : “ Did the plaintiff or anyone else point the handgun at you ? ”

GPE : “ I did not see that . ”

The plaintiff 's representative : “ Did you publish anything concerning the incident ? ”

GPE : “ I gave my comment after MPs asked a question about the incident and after the plaintiff gave his own account in the media of the events . ”

The plaintiff 's representative : “ Why did not you react and report on the incident immediately ? ”

PERSON : “ It happened on DATE and I ... did not want to react until I had calmed down . After DATE I decided to inform the editor of ORG list and the presidency of ORG of the incident . ”

The plaintiff 's representative : “ Did you inform the ORG journalists of the incident ? ”

GPE : “ I talked about the incident with my journalist colleagues in ORG , where the journalists who followed the work of the ORG were [ based ] . ”

The plaintiff : “ In which hand was I holding the handgun ? ”

PERSON : “ In your right hand . ”

The plaintiff : “ Do you remember what was I holding in my left hand ? ”

GPE : “ I am not certain whether you were holding anything in your left hand . ”

The plaintiff : “ Was I pointing the handgun at someone ? ”

GPE : “ I already said that I did not see that . ”

The plaintiff : “ At that moment in the press room did I say : ' I will kill you now ! ' ? ”

GPE : “ I do not remember that you addressed me at that moment . ”

The plaintiff : “ Could you quote exactly what I said to you in the corridor ? ”

GPE : “ You told me : ' You are a killer with a baby face and you should be killed ' . ”

The respondent 's representative : “ Did you talk to the ORG journalist about the incident ? ”

GPE : “ The ORG journalist was present when I discussed it with [ a ] colleague ... from my editorial board . ”

The respondent 's representative : “ Did you consider the handgun in the plaintiff 's hand as a personal threat ? ”

GPE : “ Yes . ”

The respondent 's representative : “ Did you have any motive to invent the whole incident in order to harm the plaintiff ? ”

GPE : “ No . I consider myself a serious and responsible person and so far I have not had any incidents of this sort . As regards my reporting on the work of the Government , I have written a lot and there have never been any denials or claims that I wrote something that was not true . ”

The respondent 's representative : “ Did you talk about the incident with ORG ? ”

GPE : “ No . I have to add that I talked to ORG only after the whole incident had been reported in ORG ] , because her name had been mentioned , and after [ she ] had talked to ORG president of the [ journalists ] association . After that ... PERSON and I met and on that occasion she practically confirmed my statement and said that she remembered seeing the handgun being pointed at me . ”

The respondent 's representative : “ Did NORP state on that occasion that the handgun had been in the plaintiff 's hand ? ”

GPE : “ Yes . ”

At the hearing on DATE the court heard evidence from the journalist PERSON The relevant part of her testimony reads as follows :

ORG : “ I was present during the incident ... in the press room . ... [ W]hen I entered the press room I saw that the plaintiff and PERSON were talking . I understood from the conversation that that the topic was the article PERSON had written ... From what I heard ... I did not consider that they were talking with raised voices . To the contrary , on that occasion I said to the plaintiff jokingly something like ' As long as you politicians and us journalists exist , there will always be situations where you will not be satisfied with what we write ' after which I said something like ' PERSON is a good girl ' . I had said that before the security officer took out the handgun . Then , as the Government meeting was approaching , the security officer came to look for the plaintiff , to which he jokingly replied : ' Did you come to apprehend me ? You have the power . ' When he was leaving the room he [ inadvertently ] touched the security officer and asked where his weapon was . The security officer took out the handgun and placed it on his palm , after which I told him that I had been taught that a weapon should always be pointed away from people . At that he said that I should not be afraid , because he had taken out the bullets . As far as I remember , the plaintiff [ then ] left the room , whereas I stayed with the security officer and asked about the handgun ... I am certain that when I entered the press room the plaintiff and PERSON were talking . I even asked them what was going on because from the first [ few ] sentences I could not understand what the conversation was about . Neither of them replied to my question but I understood what the conversation was about , namely the article that PERSON had written .

While in the room , I did not hear the plaintiff saying anything that could sound like a threat to GPE The plaintiff did not take the handgun from the security officer at any moment .

The plaintiff 's representative : “ Did the plaintiff at any moment call PERSON ' the killer with a baby face ' ? ”

ORG : “ No . ”

ORG : “ I regularly follow Government meetings as a journalist for PERSON . On DATE , at the top of the staircase [ of the building ] where the Government meeting was held , I saw the plaintiff in the company of my colleagues .... I stopped and we started talking about computers , after which the plaintiff started talking about the article PERSON had published in ORG list . The plaintiff was angry on account of the article and ... said that GPE should be killed and that she was a killer with a baby face . After that I went to the press room .

After I entered the room ... I sat in front of the computer and GPE subsequently entered ; we greeted each other , and I continued working . I noticed when the plaintiff entered the room but I did not notice when the security officer entered .... I heard raised voices . I was to the side of the plaintiff and PERSON , who was sitting at the table . I heard some rustling , so I turned toward them and saw that the plaintiff was searching the security officer . I continued working but again raised voices drew my attention . I can not say for certain whose voices these were . As far as I can say , I think the plaintiff and PERSON were talking . When I looked toward them I saw that the plaintiff was standing in front of GPE and was holding a handgun in his right hand , and his right hand was leaning on the palm of his left hand ... He said that journalists would be able to write that he had tried to kill PERSON Then ORG entered and said : ' Not PERSON , she is good . ' I got scared because I am afraid of weapons ; I turned away and when I looked again the handgun was in the hands of PERSON

Then I noticed that ORG was talking to the security officer about the handgun , but I did not notice when the plaintiff left the room . PERSON then left the room and went to follow the Government meeting .

I remember that ORG told the security guard that her grandfather had a handgun like that .

After that we started following the meeting with other journalists .

I asked GPE whether she would publish [ the incident ] in the newspapers and she said that she would not .... ”

The plaintiff : “ Was GPE present when I said that she was a killer with a baby face ? ”

PERSON : “ PERSON was not present at the time . ”

The plaintiff : “ What were my exact words ? ”

ORG : “ You said that , as for GPE , she should be killed , that she was a killer with a baby face . ”

The plaintiff : “ Did you ever convey those words ... to GPE ? ”

PERSON : “ I told [ her ] after the Government meeting was over . ”

The plaintiff : “ Why did not you do so before the meeting ? ”

ORG : “ I did not wish to talk about it with [ her ] , and I thought that you would say something to her yourself . When I saw the handgun I realised that the situation was serious and after the meeting I retold the conversation to [ her ] ”

The plaintiff 's representative : “ Could you describe exactly how the plaintiff searched the security officer ? ”

ORG : “ He was searching him on the upper part of his body , until the belt . After that I turned away and was working on the computer . ”

The plaintiff 's representative : “ Did the plaintiff take the handgun from the security officer ? ”

ORG : “ I do not know . ”

The plaintiff 's representative : “ Did the plaintiff point the handgun at GPE ? ”

ORG : “ He did not point the handgun at GPE I saw that the plaintiff 's right hand , in which he was holding the handgun , was bent , but I did not see whether he was holding his fingers on the trigger . ”

The plaintiff : “ With how many hands was I searching the security guard ? Was I holding something in my hands ? ”

ORG : “ You were using both hands . You were not holding anything in your hands .

The plaintiff 's representative : “ Did you see where the handgun went from the plaintiff 's hands ? ”

ORG : “ I did not see . But I turned my head away and said : ' Put that away . ' ”

The plaintiff 's representative : “ Why did not you publish anything about the incident , given that you are a journalist ? ”

ORG : “ I asked GPE , who did not wish it to be published . Out of journalistic solidarity I could not publish it . ”

At the same hearing the court also heard evidence from the chief editor of ORG , PERSON The relevant part of his testimony reads as follows :

PERSON : “ I found out about the incident ... from the colleague who follows the Government meetings and reports on them . The editor of the Terminator [ column in ORG ] checked with the people from the Government . As we received similar information from them ... , we decided to go ahead with the text that was published in the Terminator column in LOC .

I did not personally verify anything , because that was the responsibility of the editors of specific columns in the newspaper . ”

The plaintiff 's representative : “ Who were the people close to the Government with whom you checked the information published in ORG ? ”

PERSON : “ It is not appropriate to discuss that , because if I reveal it now I will no longer have that source . ”

The plaintiff 's representative : “ Did someone talk to the plaintiff about this matter ? ”

PERSON : “ I do not know . I would have to ask the editor [ of the Terminator column ] . ”

The respondent 's representative : “ What was meant by the part of the text in which it was indicated that the handgun was pointed at the dumbfounded journalist ? ”

PERSON : “ It was figurative ; I do not think that the plaintiff literally pointed the handgun at GPE ”

The plaintiff : “ Why did not you consider it necessary to address me personally in order to verify the accuracy of the allegations concerning the handgun ? ”

PERSON : “ Because the editors of specific columns bear the responsibility for those columns . ”

The court then heard evidence from ORG as the plaintiff . The relevant part of his statement reads as follows :

B.Š. : “ On DATE , while walking down the corridor to my room , I met the journalists GPE and PERSON , who usually followed Government meetings . On that occasion GPE asked me when the next Government press conference would take place , to which I replied : ' What is the point in deceiving the public ? ' . PERSON asked if I had in mind PERSON 's article . I replied that I had been hurt by GPE 's article , which implied that I was deceiving the public ... After that PERSON came , and we discussed her article in her presence . I said : “ I can understand that you do not like me but I can not understand that you are writing such things . ” I considered her a very responsible journalist , because she had previously published an interview with me , which was , in my opinion , very fair .

At that point I saw minister PERSON who was coming to the Government meeting ... I said ' Here is the killer with a baby face ' , referring to minister M.

After that I went to my office to pick up the documents for the Government meeting .

ORG then described the incident in the press room :

“ ... Shortly afterwards , security officer PERSON , whom I knew , entered the room . ... [ He ] said that he had an order to take me to the Prime Minister , to which I replied asking if he had come to take me or apprehend me , whereupon he said that he did not mind , so long as he complied with his order . At that moment I patted him on his jacket on the right side and , since it was visible that he had a handgun in the inside pocket , I said : ' You have the power . ' PERSON ... took out the handgun , saying ' Here are the arguments . ' At that point I heard a female voice – I am not certain whether it was PERSON 's voice – saying : “ Do not play with weapons ! ” , at which I said : ' You should put that away , otherwise the newspapers will write about it . '

I said that because we were among journalists . I never held the handgun in my hands . I had the documents for the meeting and in my right hand I had a cigarette . I had never put those documents away . It is not true that I was searching the security officer with both hands .

After I said that to the security officer , GPE showed up and said : ' Just so that you know , I will publish that . ' I did not reply ... because I was not certain whether she was serious or was joking , and left the room .

I was present when PERSON came and commented on the security officer 's handgun , saying something like : ' My grandfather has a better handgun . '

It was not until DATE that I was informed that ORG had published a text mentioning that I had threatened the journalist PERSON I simply failed to react ... out of naivety , because I expected that one of the journalists [ who had been ] present would write ... what had actually happened and state that the incident had not been the way it was described in ORG .

None of the authors of the texts that are the subject of these proceedings called me concerning the incident , in order to talk to me or get a statement from me . ”

The judge : “ Did you address PERSON in the press room ? ”

B.Š. : “ I did not address her . As I said , she addressed me first when she said that she would publish that . It is not true that I said that PERSON was a killer with a baby face and that she should be killed . “

The respondent 's representative : “ Why did you enter the press room ? ”

B.Š. : “ I can not say for certain . I assume that I entered to tap [ the ashes ] off my cigarette or because I was talking to someone . “

The respondent 's representative : “ Did you see it as normal for the security officer to take out his handgun ? ”

B.Š. : “ I felt uneasy . Especially with the journalists in the room . ”

The respondent 's representative : “ Do you remember what ORG said when she entered the room ? ”

B.Š. : “ I do remember . ... The first words she said were : ' Not E.V. , she is good . '

The respondent 's representative : “ Did you understand that these words were addressed to you ? ”

B.Š. : “ At that moment I was not looking at ORG Given the phrase ' PERSON is good ' , those words could have been addressed to anyone in the press room . ”

At the hearing on DATE the court heard evidence from the author of the article , the ORG journalist PERSON The relevant part of his testimony reads as follows :

PERSON : “ I had obtained the information I wrote about in ORG from GPE on DATE after the incident – actually , I am not certain that it was DATE in the café at the ORG . PERSON was sitting with a colleague and I found them talking . She was excited . I asked her what was going on , after which she told me about the incident that had occurred in the ORG , when the plaintiff had addressed her on the staircase about the article she had written and had threatened to kill her . This is what she said . He had been verbally attacking her . He had continued to follow her to the press room and had continued with verbal attacks , even though , as GPE told me , he had been trying to do so jokingly . Among journalists the plaintiff is known for his specific sense of humour .

When I speak of the plaintiff 's specific sense of humour , I mean that he is not willing to accept journalists ' criticism , and reacts vehemently to texts concerning him . For the most part , he reacted [ to PERSON 's text ] jokingly . PERSON then told me that during these verbal attacks the plaintiff had asked for a handgun from the security officer , saying ' Give me the handgun ! ' and pointed it at FAC while saying : ' What should I do now ? Should I kill her ? '

I tried to check this information by contacting the plaintiff 's office . It was DATE , DATE on which the edition closes , and the deadlines were running out . I tried to reach the plaintiff a few times but did not succeed because , as his secretary told me , he was unavailable . ”

The judge : “ To whom did you pass the information ? ”

PERSON : “ I can not remember with certainty but I think to PERSON , the editor of the Terminator column . ”

The judge : “ Did you really believe , on the basis of ORG statement , that the plaintiff had threatened her or tried to kill her ? ”

PERSON : “ Of course I did not , nor did PERSON say that . She described it as an inappropriate joke , and I understood it that way . Since she is a colleague whom I have known for DATE I accepted her statement as being true . The text was published in Terminator column precisely because it was a joke , otherwise it would have been published on the front page . ”

The judge : “ Did you believe that the information was true because you got it from GPE ? ”

PERSON : “ It is difficult for me to reply to that question . She is a person that I know well , who is almost my friend , and that is why I accepted the information . ”

At the same hearing the court also heard evidence from the ORG list journalist PERSON , who was the President of ORG at the time . The relevant part of her testimony reads as follows :

J.V. : “ I got the information ... from GPE , and from [ my ] conversation with PERSON and GPE

As regards PERSON , she told me that on DATE she had met the plaintiff on the staircase of the ORG ... The plaintiff had reacted vehemently to the article she had written on the budget , and had said ... angrily that she was a killer with a baby face and should be killed . After that he had followed her to the press room ... , had taken a handgun from the security officer , and had pointed it at [ her ] . From the conversation with ORG I found out that [ she ] had entered the press room when the plaintiff was holding the handgun in his hand . According to ORG , it was a tense and uneasy situation so she took the handgun from the plaintiff 's hands in order to calm the situation and said that she had already seen such a handgun . ... When taking the handgun ORG said : ' Not E.V. , she is good . ' ”

The plaintiff 's representative : “ When did you talk to GPE and find out [ about the incident ] ? ”

J.V. : “ DATE after the incident , DATE before [ the information ] was published in ORG . ”

In her written statement the journalist GPE stated that she had heard that the security officer involved in the incident had been dismissed for allowing a third person to take his official handgun . Since she was unable to obtain either confirmation or denial of that information from the ORG or the Government , she decided to call ORG , who had witnessed the incident . The relevant part of GPE 's statement reads as follows :

“ I called my colleague PERSON and told her what I wanted to know . She was unable to confirm the veracity of my information . On the contrary , she claimed that it was not correct and , in a TIME telephone conversation , told me the following :

' Unbelievable ! Everybody is writing about the incident between GPE and GPE as if they were personally present . I wanted to tell you that you are the first journalist who has called me for information ... I was really the right person , since I saw what happened . I was standing next to GPE and GPE when they were discussing her recently published article on the Deputy Prime Minister [ i.e. PERSON ] . I did not have the impression that they were arguing . At CARDINAL point the Deputy Prime Minister PERSON took the handgun from the security officer in his hands and said rather jokingly : ' What should I do to her ? Should I kill her ? ' And that was all . None of us present understood it as a threat , nor did I think that something could happen to ... PERSON I was surprised that she published it at all in ORG list . ' ”

On DATE ORG gave judgment , partially granting the plaintiff 's claim . It ordered the applicant company to pay MONEY ( HRK ) as compensation for non - pecuniary damage , together with the statutory default interest running from the adoption of the judgment until payment , and HRK CARDINAL in costs .

In its reasoning , the court held that the published information had been untrue and that the applicant had not properly verified its accuracy . In particular , it found that ORG had not held the handgun in his hands during the described incident , since this had been confirmed by the testimonies of CARDINAL eyewitnesses , PERSON and ORG , and by PERSON himself . Although the CARDINAL remaining eyewitnesses , GPE and PERSON , testified that the handgun had indeed been in PERSON 's hands , the court did not find their testimonies convincing , on the ground that they differed . The relevant part of the judgment reads as follows :

“ As to ... whether the plaintiff ... took the official handgun from the security officer in the press room and threatened GPE with it , the court ... heard evidence from the plaintiff ... and witnesses GPE , GPE , GPE and GPE

The plaintiff and witnesses PERSON and ORG stated in their testimonies that the plaintiff had not had PERSON 's official handgun in his hands . Witness PERSON testified that , while reading the documents for the forthcoming session , she had at some point looked up and seen the plaintiff ... holding the handgun in the palm of his hand , after which the journalist PERSON had come in and had taken the handgun , saying ' Not PERSON , she is good ' . In reply to the question from whom [ ORG ] had taken the handgun , the plaintiff or PERSON , witness PERSON could not reply with certainty , explaining that it had all happened relatively quickly and that she had been shocked to see the handgun in the plaintiff 's hands , since she had seen this as a personal threat .

Witness PERSON in her testimony also stated that ... she had seen the plaintiff searching the security officer PERSON , after which the plaintiff had held the handgun in the palm of his right hand , which he had been holding ... on the palm of his left hand . According to [ her ] testimony , the plaintiff was at that moment talking to GPE with a raised voice .

The court does not accept the testimonies of GPE and PERSON , because they are not convincing . PERSON expressly stated that in the press room she had neither talked to the plaintiff nor had [ he ] addressed her , whereas witness PERSON stated that the plaintiff and PERSON had talked with raised voices .

Witness PERSON said that the plaintiff had had the handgun on the palm of his right hand , whereas PERSON testified that he had been holding [ it ] with both hands , that is , that CARDINAL palm had been resting on the other . PERSON was unable to say from whom PERSON had taken the handgun , whereas ORG stated that she had taken it from the plaintiff 's hands .

On the other hand , the testimonies of ORG and the plaintiff ... are in concordance ... From the testimony of the plaintiff and PERSON it follows that while in the press room the plaintiff was holding the documents for the forthcoming session under his left arm , so it was not possible that he was holding the handgun in his hand [ at the same time ] , as ... PERSON testified .

This court does not accept the written statement ... by GPE or the testimony of PERSON , because they were not present during the incident and have no direct knowledge of it . It is to be noted that GPE 's written statement and the testimony of PERSON concerning PERSON 's testimony ... are completely contradictory and different , for which reason the court does not accept them as convincing .

Given that the plaintiff was acquitted by a final judgment in criminal proceedings on a charge of ... having told GPE on DATE ' you should be killed ' , and of having taken the handgun afterwards from the security officer PERSON and held it in his hand , and having regard to the testimonies of witnesses PERSON , PERSON and the plaintiff himself ... , and even GPE herself , this court finds that on the critical [ date ] the plaintiff did not threaten PERSON , nor did he say on the same occasion that ... she should be killed . For that reason the conditions set forth in section CARDINAL(CARDINAL)CARDINAL of the [ Public Information ] Act for exonerating the [ respondent ] from liability to pay damages are not met , in that the information causing the damage is not based on true facts . The court also establishes that the conditions for exculpation of the publisher DATE according to which the publisher is to be exonerated from liability if the information causing damage is based on facts which the author had reasonable grounds to believe were true and with regard to which it took all necessary measures to verify their accuracy – were not met either .

In this respect the court ... heard evidence from witnesses ... PERSON and PERSON ...

PERSON stated that he had not checked the accuracy of the published information , whereas PERSON , as the author of the article , ... stated that he had obtained the information from PERSON [ N.T. ] testified that he had contacted the plaintiff 's office in order to verify the information , but had been unable to reach the plaintiff , who was very busy , and that , given the source of the information , he had considered [ it ] accurate .

The court therefore finds that the [ respondent ] did not , as provided by section CARDINAL(CARDINAL)CARDINAL of the [ LAW , take all necessary measures to verify the accuracy of the information ... , for which reason the conditions for [ its ] exculpation [ were not met ] in the present case .

The court finds that by [ publishing ] the disputed text the [ respondent ] harmed the dignity , honour and reputation of the plaintiff , and that therefore there is a legal basis for [ awarding the ] compensation for non - pecuniary damage sought by the plaintiff .

According to the information in the case file , it is established that the circulation of ORG is CARDINAL copies ...

In deciding on the amount claimed by the plaintiff and the damages to be awarded ... for his mental pain , the court took into account the circulation of [ ORG ] , ... the way in which the article was worded , and ... the fact that the plaintiff is a public figure who must as such accept the fact that not all members of the public are favourable towards him , [ for which reason ] his reactions to negative reviews must be different from that of an ordinary person . ... [ G]iven that ORG first wrote on the incident ... of CARDINAL DATE in a manner which , in the view of this court , harmed the plaintiff 's dignity , reputation and honour , the court awards [ him ] CARDINAL [ NORP ] kunas together with the statutory default interest from the adoption of the judgment until payment , as just satisfaction for the damage sustained ... The remainder of the plaintiff 's claim , in the amount of CARDINAL [ NORP ] kunas , is dismissed as unfounded . ”

NORP On appeal , on DATE ORG ( Županijski sud u GPE ) upheld the first - instance judgment but reduced the amount of damages payable to ORG to HRK CARDINAL,CARDINAL and the costs to HRK CARDINAL,CARDINAL .

The applicant company then lodged an appeal on points of law ( revizija ) against the second - instance judgment . On DATE ORG ( PERSON ) dismissed the applicant company 's appeal on points of law , endorsing the reasons given by the lower courts in their judgments .

Finally , on DATE ORG ( Ustavni sud PERSON ) dismissed the applicant company 's subsequent constitutional complaint , finding no violation of its constitutional right to freedom of expression . The relevant part of the decision reads as follows :

ORG found that the complainants ' constitutional rights guaranteed by LAW had not been breached by the impugned judgments .

Constitutionally guaranteed freedom of expression of thoughts , which includes the freedom of the press , is not absolute but is subject to restrictions prescribed by LAW or statute .

Those restrictions stem , in respect of the media , from the ... LAW ...

Having regard to the findings of the [ lower ] courts that the complainant harmed the plaintiff 's dignity , reputation and honour by publishing incorrect information and that he is ordered by the impugned judgments to compensate the plaintiff for the damage caused thereby , the complainant 's reliance on Article CARDINAL ) and ( CARDINAL ) is unfounded .

As regards the provisions of LAW , according to which the exercise of freedom of expression carries with it duties and responsibilities and may be subject to restrictions , ORG notes the following :

Freedom of expression represents one of the important foundations of every democratic society . Its protection is of special significance where the press is concerned because the latter 's task is , inter alia , to publish information of public importance . However , the freedom to publish information in the press is circumscribed by the protection of the dignity and reputation of other persons . It is therefore important to determine the conditions under which the ORG authorities may take measures which could impinge on the activity of the press in cases of legitimate public interest .

Freedom of expression of thoughts concerns not only the publication and expression of information with positive connotations , but also the publication of information which may resonate negatively in the public . However , freedom of the press is not absolute , but is subject to certain restrictions , even in respect of press articles which concern information of public interest . These duties and responsibilities come into play also when , as in the present case , the reputation of a ORG official is harmed . It is precisely because of these duties and responsibilities of those who exercise their right to freedom of expression that the press , when imparting information of public interest , is bound to act in good faith in order to provide trustworthy information in accordance with the ethics of journalism .

In assessing whether freedom of expression has been breached it is necessary to view each individual case in the light of all the circumstances , including the content of the impugned statements , as well as the context in which they were made . In particular , it is necessary to establish whether the measures taken in order to restrict freedom of expression are proportionate to the legitimate aim pursued by that restriction . The protection of a ORG official from harassment must however respect the right and the interest of the press to free reporting and allow it to impart freely information of public interest .

The article for which the [ complainant ] was ordered to pay damages to the victim is , by its content , of such a nature that it constituted an attack on the victim as a public figure , in particular on his reputation , and it certainly influenced public confidence in him , given his function as Deputy Prime Minister of the Government of GPE at the time . ORG , in this particular case , and on the basis of the findings of the [ lower ] courts , finds that the impugned article contained allegations on the behaviour of another individual ( public figure ) , which harmed [ his ] reputation ...

It has to be noted that the impugned allegations were based on the statement of CARDINAL individual and were not completely arbitrary in nature . Namely , even if a public figure was involved , the complainant was required to verify the accuracy of the information before its publication . This is especially so because the impugned allegations related to a specific incident . The [ lower ] courts found that the [ complainant ] , in publishing information which could have harmed the dignity , honour and reputation of another person , had not taken all necessary measures in order to verify its accuracy .

Given that the [ complainant ] in this case did not satisfy its duty to verify the information before publication , as ... it was required to do , and given that the information harmed the reputation and honour of another person , ORG considers that the measures restricting the [ complainant 's ] freedom of expression were necessary and justified .

As regards the compensation for non - pecuniary damage awarded for harming the reputation of another person , the Constitutional Court emphasizes that the courts have discretion in assessing the amount of compensation for mental pain sustained by the victim , having regard to the circumstances of each case . However , a judicial decision on the amount of such compensation may also breach the principle of proportionality between the intensity of the interference by the courts with freedom of expression and the importance of the interest pursued by the restriction of that freedom .

The Constitutional Court finds that the measure taken to protect the reputation of another person , that is , the award of damages in the above - mentioned amount , is proportional to the intensity of the breach of that person 's reputation , and to the intensity of the interference by the courts with the freedom of expression caused by that measure . Given that the complainant as a publishing house did not comply in its activities with the provisions of the [ LAW ] , ORG considers that the article tarnished the reputation of another person and undermined the public confidence in that person as a ORG official .

Therefore , it is established that the measure taken in this case to restrict the freedom of the press is , taken as a whole , proportional to achieving the legitimate aim – the protection of the reputation of another person , and that the impugned judicial decisions did not lead to a restriction of the complainant 's rights or freedoms , contrary to LAW .

ORG decision was served on the applicant company 's representative on DATE .

The relevant part of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) ) provides as follows :

“ ( CARDINAL ) Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others , the legal order , public morals or health .

( CARDINAL ) Every restriction of the rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case .

“ ( CARDINAL ) Freedom of thought and expression shall be guaranteed .

( CARDINAL ) Freedom of expression shall include in particular the freedom of the press and other media , freedom of speech and public expression , and free establishment of all media institutions .

( CARDINAL ) Censorship shall be forbidden . Journalists shall have the right to freedom of reporting and access to information .

( CARDINAL ) The right to correction shall be guaranteed to anyone whose rights guaranteed by the LAW or a statute were breached by public information . ”

Sections CARDINAL and CARDINAL of LAW ( Zakon o obveznim odnosima , ORG of ORG nos . CARDINAL , DATE and DATE , and ORG no . CARDINAL/CARDINAL with subsequent amendments DATE “ the DATE LAW ” ) provided , inter alia , that anyone who has suffered mental anguish as a consequence of an injury to his or her honour or reputation may , depending on its duration and intensity , sue for damages before the civil courts and , in addition , request other forms of redress “ which may be capable ” of affording adequate non - pecuniary satisfaction .

The relevant part of LAW ( Zakon o javnom priopćavanju , ORG nos . CARDINAL , DATE ( corrigendum ) , CARDINAL ( amendments ) and CARDINAL ( consolidated text ) ) , as in force at the material time , provided :

“ ( CARDINAL ) A publisher who causes damage to another person by publishing certain information in the media shall be obliged to compensate it .

( CARDINAL ) Non - pecuniary damage shall be compensated by correcting false information , by publishing a correction of the information and an apology , and by payment of just satisfaction for sustained pain and anguish , if their duration and intensity so justify , in accordance with the general provisions of civil law .

( CARDINAL ) Non - pecuniary damage shall be compensated by a publisher who , through information about personal or family life , or by any other information published in the media , violated another person 's privacy , dignity , reputation , honour or any other constitutionally or statutorily protected right . ”

“ The publisher shall not be liable in damages :

if the information causing the damage is based on :

ORG - true facts , or

- facts which the author had reasonable grounds to believe were true and undertook all necessary measures to verify their veracity , provided there existed a legitimate public interest in publishing such information and the author acted in good faith ,

The relevant part of LAW ( NORP časti hrvatskih novinara , of DATE , applicable at the material time , reads as follows :

“ A journalist is bound to publish true , balanced and verified information . He or she shall indicate persons or institutions from which he or she obtained data , information or statement . He or she has a right not to disclose the source of information , but for published information bears moral , material and criminal responsibility . ”


Violation of Art. 8;Non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE , GPE .

On DATE the applicant and his wife attended a dinner organised by their neighbours . An argument broke out between the applicant and his neighbour . They left the room and began struggling in the kitchen . Subsequently , they stopped the tussle and the applicant returned home . Apparently , TIME , when the neighbour was on his way to a church , the applicant assaulted him and beat him unconscious .

On DATE the applicant was arrested on charges of aggravated assault and placed in the FAC ( Rejonowy Areszt Śledczy ) .

On DATE the applicant ’s wife gave a statement to the police . She stated that she had attended the dinner , but she had not known anything about the struggle in which her husband had taken part , as she had stayed in the room with the other women . She had found out about it only after her husband had been arrested by the police .

On DATE the applicant ’s wife confirmed her previous statement .

The applicant ’s wife applied for permission to visit the applicant in prison . On an unknown date ORG ( Prokurator Rejonowy ) refused her request .

On DATE the applicant applied for permission to be visited by his wife . On DATE ORG refused this request . The prosecutor held that on account of the fact that the applicant ’s wife had been called as a witness by the prosecution no such permission could be granted .

Meanwhile , on DATE the applicant ’s wife again gave a statement to the police . Having been duly informed of her rights , she refused to testify against her husband in the case .

On DATE the prosecutor allowed the applicant ’s wife to visit the applicant in prison .

On DATE the applicant ’s wife visited him in prison . However , they could communicate during the visit only by internal phone and she was not allowed to bring their DATE son .

On DATE the applicant requested the ORG to allow his wife to visit him . On DATE he lodged a complaint with ORG against the decision to refuse his wife permission to visit him .

On DATE the ORG ( PERSON ) informed the applicant that he should not be allowed to have any personal contact with his wife as she was a witness in the proceedings against him . However , the court stressed that the applicant could be visited by adults who were not witnesses in his case and by his DATE son . The court further noted that the next hearing was set for DATE . If the applicant ’s wife testified on that date she would be allowed to visit him in prison .

On DATE the applicant asked ORG to indicate a person who could accompany his son to the detention centre . The court in reply informed the applicant that he should indicate such a person . As the applicant failed to do so , his son did not visit him in prison .

On DATE the President of ORG informed the applicant that his wife was not allowed to visit him in the detention centre since she had testified twice in the investigative stage of the proceedings and those testimonies were relevant to the offences with which the applicant had been charged . The date of the hearing in the applicant ’s case had been set for DATE and his wife ought to have testified on that date . However , a request by the applicant ’s lawyer for an expert psychiatrist ’s report caused an adjournment of the trial until DATE . The president further noted that until the applicant ’s wife testified in the trial the court had the right to refuse her requests to visit the applicant , in order to secure the proper conduct of the proceedings .

The applicant ’s wife failed to appear at the hearing held on DATE before ORG and in consequence she was fined .

The applicant ’s wife subsequently applied again for permission to visit him in prison .

During the hearing held on DATE the applicant ’s wife refused to testify in the proceedings against her husband .

The applicant submitted that his wife was allowed to visit him in prison DATE .

On DATE the applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment . The court extended the applicant ’s detention until the judgment became final .

On DATE the applicant and his wife were deprived of their parental rights in respect of their son PERSON The child was placed in a care institution . The court held that the applicant was in prison and the mother was a regular abuser of alcohol . The court further pointed out that on DATE the mother had left her son unattended in the street , which had considerably endangered her child ’s security .

On DATE ORG upheld the applicant ’s conviction .

Pursuant to LAW a detainee is allowed to receive visitors , provided that he obtained permission from the investigating prosecutor ( at the investigative stage ) or from the trial court ( once the trial has begun ) .

The relevant extracts from the Recommendation read as follows :

“ Part II Conditions of imprisonment

Contact with the outside world

CARDINAL Prisoners shall be allowed to communicate as often as possible by letter , telephone or other forms of communication with their families , other persons and representatives of outside organisations and to receive visits from these persons .

CARDINAL Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations , maintenance of good order , safety and security , prevention of criminal offences and protection of victims of crime , but such restrictions , including specific restrictions ordered by a judicial authority , shall nevertheless allow an acceptable minimum level of contact .

CARDINAL National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted .

CARDINAL The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible .

CARDINAL.CARDINAL Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so . ”


No violation of Art. 5-1;Violations of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in DATE . At the date the application was lodged , he was living in GPE .

On DATE the applicant was arrested .

On DATE ORG , after hearing representations from the applicant , ordered his detention on remand . The applicant was assisted from this point on by counsel . ORG found that there was a strong suspicion that the applicant had evaded taxes on CARDINAL occasions DATE and DATE . He had been working as a self - employed commercial agent for several firms in GPE since DATE and been running a telephone service since DATE . In DATE the company ORG GPE had paid him commission amounting to CARDINAL,CARDINAL.CARDINAL Deutschmarks ( DEM ) . The court found that , according to the documents before it at that date , the applicant was suspected of having evaded turnover taxes of MONEY ( ORG ) , income taxes of EUR CARDINAL,CARDINAL and trade taxes of ORG CARDINAL .

ORG noted that the applicant , who had availed himself of the right to remain silent , was strongly suspected of tax evasion on the basis of the business records that had been seized when his home was searched . He had to be placed in pre - trial detention because of a danger of collusion ( GPE ) ( see section CARDINAL § CARDINAL no . CARDINAL of LAW paragraph CARDINAL below ) . The documents seized were incomplete . There was therefore a risk that the applicant , if released , might destroy the missing documents or conceal further business transactions and accounts .

On DATE the applicant , represented by counsel , lodged a motion for review of his detention order ( GPE ) with ORG . His counsel also requested access to the case files . He argued that he had a right to inspect the files in order to examine all the facts and evidence on which the arrest warrant and , in particular , the strong suspicion that an offence had been committed were based and that domestic law prohibited the court from considering facts and evidence to which defence counsel had been refused access pursuant to section CARDINAL § CARDINAL of LAW ( see paragraph CARDINAL below ) .

On DATE ORG informed the applicant ’s counsel that he was being refused access to the case files pursuant to section CARDINAL § CARDINAL of LAW as access would jeopardise the purpose of the investigation . It added , however , that the public prosecutor in charge of the case was prepared to inform counsel orally about the facts and evidence . The applicant ’s counsel did not take up that offer .

On DATE the ORG heard representations from the applicant and his defence counsel . The applicant argued that there was no risk of collusion or of his absconding . Should the court nevertheless consider that he might abscond if released he was ready to comply with any conditions imposed by the court , such as handing over his identity papers . The applicant ’s counsel complained that he had still not had access to the case files .

By an order of DATE , ORG , which had before it the case files of the proceedings , upheld the arrest warrant . It found that there was still a risk that , if released , the applicant would tamper with factual evidence or interfere with witnesses . The applicant had so far tried to conceal his true place of residence and other personal details from the authorities and had acted with the intent to mislead which ,

Following the applicant ’s appeal , which was lodged on CARDINAL DATE and was followed up by detailed reasons on CARDINAL DATE , ORG informed the applicant in a letter dated DATE that it considered that the risk of his absconding could serve as a ground for his continued detention . As to his counsel ’s request for access to the case files , it stated that he should be informed orally about the content of the files in the first instance .

In a letter dated DATE , the applicant contested that view . He claimed , in particular , that in his case mere oral information about the content of the case files would not be sufficient .

On DATE , after hearing representations from ORG and considering the case files , ORG dismissed the applicant ’s appeal against ORG decision dated DATE . It found that there was a strong suspicion that the applicant had evaded income , turnover and trade taxes . Furthermore , there was a danger of his absconding within the meaning of section CARDINAL § CARDINAL no . CARDINAL of LAW ( see paragraph CARDINAL below ) , as the applicant had connections in foreign countries and faced a heavy sentence .

In view of defence counsel ’s refusal to accept the offer made by ORG to explain the content of the case files orally , ORG found that it was impossible to assess whether the information given in this manner would be sufficient . At the present stage of the proceedings , counsel for the defence could not , however , claim to be entitled to unlimited access to the complete case files .

ORG decision was served on the applicant ’s counsel on DATE .

On DATE the applicant , represented by counsel , lodged a further appeal against the detention order . He again claimed that he had a constitutional right to be given access to the facts and evidence on which the detention order was based .

On DATE ORG decided , without giving further reasons , not to amend its decision of CARDINAL DATE . On DATE ORG , which had the case files , drafted a report which was sent to ORG with the files DATE .

On DATE ORG , in its submissions to ORG , stated that it was not prepared to give the applicant access to the case files . It argued that it was sufficient for the applicant to be notified of the overview of ORG on the amount of his income and amount of the taxes evaded in DATE in question . The submissions and the case files reached ORG on DATE .

On DATE the applicant sent further observations to ORG .

On DATE the applicant , who had been sent the submissions of ORG on DATE , contested its arguments . He stated that the overview was merely a conclusion of ORG the merits of which he could not examine without having access to the documents and records on which it was based .

On DATE ORG , on the applicant ’s further appeal , quashed ORG decision dated CARDINAL DATE and ORG decision dated DATE upholding the applicant ’s detention , and remitted the case to ORG .

ORG , which had the investigation files before it , found that the detention order issued by ORG on DATE did not comply with the legal requirements . Therefore , the decisions taken in the judicial review proceedings by ORG on DATE and by ORG on DATE ( but not the detention order of DATE itself ) had to be quashed . Pursuant to section CARDINAL § CARDINAL of LAW ( see paragraph CARDINAL below ) , the facts leading to a strong suspicion that the accused had committed a particular offence and the reasons for detention had to be set out in the detention order . In order to comply with the constitutional rights to be heard and to a fair trial , the facts and evidence on which the suspicion and the reasons for the defendant ’s detention on remand were based had to be described in sufficient detail to enable the accused to comment on them and defend himself effectively .

ORG noted that , in its decisions on the applicant ’s detention , ORG had , however , merely stated that the applicant was strongly suspected of tax evasion “ on the basis of the business records seized when his home was searched ” . It should , at minimum , have summarised the results of the evaluation of those records in order to enable the accused to oppose the decision on detention by making his own submissions or presenting evidence . This defect had not been remedied in the course of the subsequent decisions on the applicant ’s continued detention . As counsel for the defence had also been refused access to the case files under section CARDINAL § CARDINAL of LAW , these defects amounted to a denial of the right of the accused to be heard .

ORG declined to take its own decision on the applicant ’s detention itself pursuant to section CARDINAL § CARDINAL of LAW ( see paragraph CARDINAL below ) or to quash the detention order of DATE , which it considered to be defective in law ( rechtsfehlerhaft ) , but not void ( unwirksam ) . It stated that it would only quash the detention order if it was obvious that there was no strong suspicion that the accused had committed an offence and that there were no reasons for the arrest . It was for ORG to inform the accused of the reasons on which the suspicion of his having committed an offence were based and to hear representations from him on that issue . Should ORG persist , in the interest of its investigations , in not informing the accused of the reasons , the detention order would have to be quashed .

As a consequence , the applicant remained in custody .

On DATE ORG requested ORG to issue a fresh amended detention order against the applicant .

On DATE the ORG again heard representations from the applicant , his defence counsel , ORG and an official in charge of investigations at ORG on the applicant ’s motion for judicial review of the detention order . The applicant ’s counsel was given copies of CARDINAL pages of the voluminous case files containing an overview by ORG of the amounts of income and taxes evaded by the applicant DATE . Relying on the applicant ’s rights to be heard and to a fair trial , the applicant ’s counsel complained that he had not been granted access to the case files before the hearing .

NORP ORG then issued a fresh detention order against the applicant . It stated that there was a strong suspicion that the applicant had evaded taxes on CARDINAL occasions DATE and DATE . Listing in detail the applicant ’s income from his various activities as a self - employed commercial agent and the amounts of tax payable , ORG found that there was a strong suspicion that he had evaded turnover taxes of ORG , income taxes of DEM CARDINAL,CARDINAL , solidarity taxes of ORG and trade taxes of DEM CARDINAL,CARDINAL . It based its suspicion on documents whose content was explained by a tax official present at the hearing , witness statements of the owners of the firms the applicant was working for , the applicant ’s contracts of employment and the wage slips and commission statements that had been issued by the firms .

ORG further found that there was a risk of the applicant ’s absconding , which was a ground for detention under LAW CARDINAL § CARDINAL no . CARDINAL of LAW . He faced a lengthy prison sentence which could no longer be suspended on probation , had not notified the authorities of his place of residence for DATE and had claimed that he was living in the GPE .

By an order of DATE , ORG decided to suspend the execution of the arrest warrant on condition that the applicant , who in the meantime had complied with his duty to inform the authorities of his address , informed the court of every change of address , complied with all summonses issued by the court , ORG and the police , and reported to the police CARDINAL times a week . It suspended the execution of the order to release the applicant at the request of ORG , which had immediately lodged an appeal .

On DATE , after hearing representations from the applicant and ORG , ORG dismissed the applicant ’s appeal against the detention order . It likewise dismissed the appeal lodged by ORG against the decision to suspend the execution of the detention order on the additional conditions that the applicant hand over his identity papers to ORG and deposit DEM CARDINAL as security .

Having deposited the security , the applicant was released from prison on DATE .

On DATE the applicant lodged a further appeal against ORG decision , complaining that his counsel had still not been granted access to the case files .

By a letter dated DATE , ORG granted the applicant ’s counsel access to the case files . It stated that it had intended to send the files to him at an earlier date . However , this had not been possible as the files had been at ORG and had only recently been returned to ORG . The applicant ’s counsel received the files for inspection on CARDINAL DATE . The applicant withdrew his further appeal on CARDINAL DATE .

On DATE the applicant lodged a complaint with ORG against the decision of ORG dated DATE and the detention order issued by ORG on DATE . In his submission , his rights to liberty , to be heard in court and to be informed promptly by a judge of the reasons for his detention on remand as well as his rights to be heard within a reasonable time and to a fair trial as guaranteed by LAW had been violated . He argued in particular that his right to liberty , the deprivation of which was only constitutional if it was in accordance with the law , had been breached by his illegal detention on the basis of a void detention order . The complete refusal to allow his defence counsel access to the case files pursuant to section CARDINAL § CARDINAL of LAW had violated his right to be heard in court as guaranteed by LAW ( see paragraph CARDINAL below ) and his right to liberty under LAW of LAW ( see paragraph CARDINAL below ) . The impugned decisions disregarded both the case - law of ORG and the ORG ’s case - law as laid down in its judgments of CARDINAL DATE in the cases of PERSON , PERSON and GPE . ORG refusal to quash the detention order and to take a decision itself and its decision to remit the case to ORG instead had also breached his right to a fair hearing within a reasonable time .

On DATE and DATE the applicant extended his constitutional complaint to include the decisions of ORG dated DATE and the decision of ORG dated DATE .

On DATE ORG , without giving further reasons , declined to consider the applicant ’s constitutional complaint against the detention orders issued by ORG on DATE and DATE , the decision of ORG dated DATE and the decision of ORG dated DATE .

NORP On DATE the ORG convicted the applicant on CARDINAL counts of tax evasion and sentenced him to a total of DATE and CARDINAL months’ imprisonment suspended on probation . The court found that the applicant , who had confessed to the offences , had evaded turnover taxes of DEM CARDINAL , income taxes of ORG and trade taxes of CARDINAL .

Sections CARDINAL et seq . of LAW ( Strafprozessordnung ) concern detention on remand . Pursuant to section CARDINAL § CARDINAL of the Code , a defendant may be detained on remand if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him . Grounds for arrest will exist where certain facts warrant the conclusion that there is a risk of his absconding ( section CARDINAL § CARDINAL no . CARDINAL ) or of collusion ( section CARDINAL § CARDINAL no . CARDINAL ) .

According to section CARDINAL § § CARDINAL and CARDINAL of LAW , detention on remand is ordered by a judge in a written arrest warrant . The arrest warrant names the accused , the offence of which he is strongly suspected , including the time and place of its commission , and the grounds for the arrest . Moreover , the facts establishing the grounds for the strong suspicion that an offence has been committed and for the arrest must be set out in the arrest warrant unless national security would thereby be endangered .

Under section CARDINAL § CARDINAL of LAW , remand prisoners may ask at any time for judicial review ( GPE ) of the decision to issue an arrest warrant or for the warrant to be suspended . They may lodge an appeal under section CARDINAL of LAW ( Haftbeschwerde ) against a decision ordering their ( continued ) detention and a further appeal ( PERSON ) against ORG decision on the appeal ( section CARDINAL § CARDINAL of LAW ) . If the appeal court considers the appeal against the ( continued ) detention to be well - founded , it will take a decision on the merits at the same time ( section CARDINAL § CARDINAL of LAW ) . However , according to the domestic courts’ case - law , a detention order which does not comply with the duty to set out the grounds for suspecting the accused of an offence is not void , but merely defective in law . If , in such a case , the prosecution also refused access to the case file , the defective reasoning amounts to a refusal to hear representations from the defendant . In these circumstances , the court of appeal – by way of an exception to section CARDINAL § CARDINAL of the Code of Criminal Procedure – may remit the case to the district court ( see ORG , no . CARDINAL GPE CARDINAL/CARDINAL , decision of DATE , PERSON ) DATE , pp . CARDINAL ; compare also ORG , no . CARDINAL Ws CARDINAL/CARDINAL , decision of CARDINAL DATE , StV DATE , pp . CARDINAL - CARDINAL , to which ORG referred in the present case ) .

Section CARDINAL § CARDINAL of the Code of Criminal Procedure provides that defence counsel is entitled to consult the files which have been or will be presented to the trial court , and to inspect the exhibits . Paragraph CARDINAL of this provision allows access to part or all of the files or to the exhibits to be refused until the preliminary investigation has ended if it might otherwise be at risk . At no stage of the proceedings may defence counsel be refused access to records concerning the examination of the accused , acts in the judicial investigation at which defence counsel was or should have been allowed to be present or expert reports ( section CARDINAL § CARDINAL of the said Code ) . Pending the termination of the preliminary investigation , it is for ORG to decide whether to grant access to the files or not ; thereafter it is for the president of the trial court ( section CARDINAL § CARDINAL ) . An accused who is in detention is entitled to seek judicial review of a decision of ORG to refuse access to the files ( ibid . ) .

According to LAW every person involved in proceedings before a court is entitled to be heard by that court ( PERSON auf rechtliches PERSON ) .

Article CARDINAL § CARDINAL of LAW provides that every person provisionally detained on suspicion of having committed a criminal offence must be brought before a judge DATE following his arrest ; the judge must inform him of the reasons for the arrest , hear representations from him and give him an opportunity to raise objections . The judge must then , without delay , either issue a written arrest warrant setting out the grounds therefor or order the detainee ’s release .


Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants , PERSON ( “ the first applicant ” ) and her CARDINAL children , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively and live in GPE .

CARDINAL .

The first applicant entered GPE on DATE on a valid visit visa , accompanied by her CARDINAL eldest children . The first applicant remained in GPE following the expiry of her visa and did not come to the attention of the authorities until she claimed asylum in DATE .

NORP The basis of her claim was that she had married in DATE and , when her eldest daughter was born in DATE , her husband ’s family had raised the idea of having both her and the first applicant herself circumcised . Both the applicant and her husband had been averse to the idea . However , the applicant and her husband had separated when she was pregnant with her son , who was born in DATE , and their marriage ended definitively in DATE . Her third child , a girl born in GPE in DATE , was the result of a brief reconciliation with her husband . The applicant claimed to fear that , without the support of her husband , she would not be able to withstand his family ’s pressure to have her CARDINAL daughters , and herself , circumcised .

Her asylum claim was refused on DATE . The Secretary of ORG noted that the applicant was no longer in contact with her husband or his family . The applicant had remained in GPE following her first daughter ’s birth , and even after separating from her husband , indicating that she did not genuinely fear her in - laws . Her last noted address had been in GPE , which was not where her in - laws lived . It was therefore believed that she could return to that city or relocate elsewhere in GPE and thus avoid her ex - husband ’s family , who would not be aware of her return , given their lack of contact . Furthermore , the background evidence indicated that the NORP authorities were taking steps to combat female genital mutilation ( “ ORG ” ) and had successfully outlawed the practice in several states . There were a number of women ’s non - governmental organisations that could offer support to the first applicant . It was therefore considered that there was a sufficiency of protection available to her . She also had family , including CARDINAL brothers , living in GPE and would therefore have a support network . Her claim was certified as clearly unfounded , meaning that she could not appeal against the refusal of asylum from within GPE .

The first applicant was advised by her legal representatives that any application for judicial review of the decision to certify her claim had a very poor chance of succeeding , as her claim was weak . Since her case was publicly funded , her representatives could not bring such an application on her behalf given that there was no reasonable prospect of success . As a result of the withdrawal of publicly funded legal assistance , the first applicant did not seek judicial review of the certification of her asylum claim as clearly unfounded .

Directions were set for the applicants’ removal on CARDINAL DATE . On DATE , the applicants sought an interim measure from this ORG in order to prevent their removal . On DATE , the Acting President of the Fourth Section , to which the case had been allocated , indicated to the Government of GPE that the applicants should not be removed until further notice . Upon further consideration of the case , the LAW DATE lifted the interim measure previously indicated . The applicants notified the ORG on DATE that , notwithstanding the lifting of the interim measure under Rule CARDINAL , they wished to continue with their complaints under the Convention .

Section CARDINAL(CARDINAL ) of the Nationality , Immigration and Asylum Act DATE , as amended by ORG , etc ) Act DATE , provides that , where a person has made an asylum or human rights claim and the Secretary of ORG has certified that that claim is clearly unfounded , the person may not bring an appeal whilst still in GPE . A claim will be certified as clearly unfounded only where , taking the claim at its highest , on any legitimate view it could not succeed .

The only means by which a person can challenge the certification of their claim under section CARDINAL(CARDINAL ) is by judicial review . The test that will be applied by the courts is whether , based on the material before the Secretary of ORG , there is a realistic prospect that an Immigration Judge , applying the rule of anxious scrutiny , would uphold an appeal ( see R ( on the application of ORG ) v. Secretary of ORG for ORG [ DATE ] EWCA Civ CARDINAL , paragraphs CARDINAL ) .


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

In DATE the applicant was injured in a work - related accident . In DATE she sued ORG for disability benefits alleging that her current disability had resulted from that incident .

On DATE ORG rejected the applicant 's claims . ORG examined , among other evidence , a decision by ORG of LOC , which indicated that the applicant 's disability had been caused by the injury she sustained in DATE .

The applicant lodged an appeal with ORG . The appeal hearing was scheduled for DATE . According to the Government , the ORG dispatched summonses to the parties , including the applicant and her representative , informing them of the date and time of the appeal hearing . According to the applicant , she did not receive the summons .

On DATE ORG examined the appeal and rejected it . The applicant and the representative of ORG were absent but the prosecutor intervened in the proceedings on behalf of ORG and addressed the court . ORG did not examine the question whether the applicant or her representative had been duly summonsed and , if they had not , whether the examination of the appeal should have been adjourned .

The Code of Civil Procedure ( in force as of DATE ) provides that parties to the proceedings are to be summonsed to a court by registered mail with a confirmation of receipt , by a phone call or a telegram , by fax or by any other means which will secure delivery of the summons to the addressee . Summonses must be served on the parties in such a way that they have enough time to prepare their case and appear at the hearing ( Article CARDINAL ) .

Summonses are to be sent by mail or by a court courier . The time when a summons is served on the addressee is to be recorded on a document which must be returned to the court by courier or by any other method used by the postal service . A judge may request a party to the proceedings to transmit a summons to another party . In that case , that person should bring to the court an acknowledgment of receipt ( Article CARDINAL ) .

A summons is to be served on a person against his or her signature , on its copy , which is to be returned to the court ( Article CARDINAL ) .

A civil case is to be heard in a court session with mandatory notification of all parties of the place and time of the court session ( LAW ) .

If a party to the case fails to appear at the hearing and there is no evidence that the party has been duly summonsed , the hearing is to be adjourned ( Article CARDINAL ) .